J-A25008-14

2015 PA Super 2

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

NICHOLAS TEJADA, :

:

Appellant : No. 2279 EDA 2013

Appeal from the Judgment of Sentence March 25, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No(s): CP-51-CR-0006216-2012

and CP-51-CR-0006219-2012

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

OPINION BY DONOHUE, J.: FILED JANUARY 06, 2015

Nicholas Tejada (“Tejada”) appeals from the March 25, 2013 judgment 

of sentence entered by the Philadelphia County Court of Common Pleas 

following his convictions of two counts of criminal conspiracy to commit 

robbery.1 Upon review, we find his challenges to the sufficiency and weight 

of the evidence to be without merit as the evidence presented at trial 

supported a finding that he was the individual who committed the robberies 

in question. We find his evidentiary challenge waived in part, as one of the 

arguments raised on appeal was not raised before the trial court, and find 

the other argument is meritless. Lastly, we conclude that he waived his 

challenges to the discretionary aspects of his sentence based upon his failure 

to raise the specific arguments below that he now makes on appeal, having 

 

1

 18 Pa.C.S.A. § 903(a)(1), 3701(a)(1)(ii).
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raised them for the first time in his concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). In so 

holding, we recognize that the three-judge panel decisions in 

Commonwealth v. Egan, 679 A.2d 237 (Pa. Super. 1996), and 

Commonwealth v. Clinton, 683 A.2d 1236 (Pa. Super. 1996), finding 

discretionary aspects of sentencing claims can be preserved when raised for 

the first time in a 1925(b) statement, were overruled by implication by the 

en banc panel of this Court in Commonwealth v. Melendez-Rodriguez, 

856 A.2d 1278 (Pa. Super. 2004) (en banc). We therefore affirm Tejada’s 

judgment of sentence.

The trial court provided the following summary of the facts adduced at 

trial:

On January 2, 2012 the first victim, Emily Orton, 

arrived home from work at about 10:15 pm. (N.T. 

11/7/2012 at 25-26). She parked her car near the 

intersection of 9th and Kimball Streets in 

Philadelphia. (Id.) While walking on the sidewalk, 

she noticed [Tejada] and another male about ten 

feet away from her. (Id. at 26-28). They were 

walking directly toward her. (Id.) [Tejada]’s coconspirator smiled at her and looped around behind 

her while [Tejada], with his face partially covered, 

pressed a gun against this victim’s stomach and 

demanded “give me your purse, ma’am.” (Id. at 30-

32). [Tejada] snatched the victim’s purse from her 

body and entered the backseat of an older black, 

beat-up Honda which made an incredibly loud noise 

as it drove away. (Id. at 33, 37). Inside the victim’s 

purse was her purple wallet with ID cards, credit 

cards, and $60 United States currency. (Id. at 37-
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38). The victim contacted the police and returned to 

her apartment. (Id. at 38).

Twenty minutes later, the second and third victims, 

Irene Thurston and Stacie Evans, respectively, had 

parked their cars and greeted each other near the 

corner of 4th and Emily Streets. (Id. at 77-78). Both 

victims noticed an old beat-up Honda with a long 

white scratch and a loud muffler. (Id.) With four 

Hispanic men inside, this vehicle passed them while 

travelling on Emily Street. (Id.) As the two victims 

continued to chat, the car turned around the block. 

(Id.) Alarmed, Ms. Thurston noticed two men 

walking across an empty lot toward her and Ms. 

Evans. (Id. at 81-82). Terrified, Ms. Thurston 

observed [Tejada], armed with a gun, run toward 

Ms. Evans. (Id. at 83). Also terrified that [Tejada] 

was brandishing a gun, Ms. Evans quickly dropped 

her purse. (N.T. 11/8/12 at 13). [Tejada] grabbed 

the purse. (Id.) Inside Ms. Evan’s [sic] purse was 

her license, credit cards, two checkbooks, a 

necklace, a digital camera, and $5-10 in United 

States currency. (Id. at 20). Nothing was taken from 

Ms. Thurston. (N.T. 11/7/12 at 86). The two victims 

immediately called the police. (N.T. 11/8/12 at 20).

In response to the flash information and radio calls 

for the above incidents, Officers Padilla and Brown 

drove to the area of 2200 S. Mildred St. (Id. at 95). 

The officers witnessed [Tejada] exiting the driver 

seat of the above-mentioned Honda, while the coconspirator exited the passenger seat. (Id. at 96). 

Officer Padilla stopped [Tejada] while Officer Brown 

chased the co-conspirator on a foot; the coconspirator was eventually apprehended. (Id. at 97 

98). The officers recovered victim Evans[’] license on 

the ground next to the front passenger door of the 

Honda as well as two pocketbooks in the backseat. 

(Id. at 99-100).

The officers escorted all three victims to the area of 

2200 S. Mildred Street, at which time they all 

identified the black Honda as the car they had seen 
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at their respective robbery locations. (Id. at 23, N.T. 

11/7/2012 at 39-42, 87-91). Ms. Orton did not 

identify [Tejada], but her belongings were all 

recovered in the back of the black Honda. (N.T. 

11/7/2012 at 39-42). Ms. Evans[’] purse, along with 

most of her belongings, was [sic] recovered in the 

back seat of the car. (N.T. 11/8/2012 at 23). Ms. 

Thurston identified [Tejada] as the perpetrator 

brandishing the firearm at 4th and Emily Streets. 

(N.T. 11/7/2012 at 87-91). Officer Padilla discovered 

that the owner of the Honda resided at 2241 Darien 

Street, and that other men might have run into the 

house. (N.T. 11/8/2012 at 101). While the officer 

was standing outside the house, the co-conspirator 

opened the door and asked what was going on. He 

allowed Officer Padilla to enter the house to look for 

other suspects. (Id. at 105). Officer Padilla and her 

supervisor searched the house and discovered Ms. 

Evan’s [sic] checkbooks in an upstairs bedroom. (Id.

at 106).

Trial Court Opinion, 12/26/13, at 3-5.

On November 15, 2012, a jury convicted Tejada of two counts of 

conspiracy to commit robbery, but acquitted him of two counts each of 

robbery, carrying a firearm without a license, carrying a firearm on public 

streets in Philadelphia, and possessing an instrument of crime.2 On March 

25, 2013, the trial court sentenced Tejada to four to eight years of 

incarceration for each count of conspiracy to run consecutively for an 

aggregate prison sentence of eight to sixteen years. 

Tejada filed post-sentence motions on March 27, 2013, which the trial 

court denied on July 29, 2013. On August 7, 2013, Tejada filed a timely 

 

2

 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6106(a)(1), 6108, 907(a).
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notice of appeal followed by a court-ordered 1925(b) statement. The trial 

court thereafter filed a responsive opinion pursuant to Pa.R.A.P. 1925(a). 

On appeal, Tejada raises the following issues for our review, which we 

have reordered for ease of disposition:

I. Under the Sixth and Fourteenth Amendments of the 

U.S. Constitution as well as Article I, § 9 of the 

Pennsylvania Constitution, was the evidence 

insufficient to sustain [Tejada’s] [c]onspiracy

convictions?

II. Under the Sixth and Fourteenth Amendments of the 

U.S. Constitution as well as Article I, § 9 of the 

Pennsylvania Constitution, were [Tejada’s] 

[c]onspiracy convictions against the weight of the 

evidence?

III. Under the Sixth and Fourteenth Amendments of the 

U.S. Constitution as well as Article I, § 9 of the 

Pennsylvania Constitution, did the [t]rial [c]ourt err 

in permitting a prosecution witness to “identify” 

[Tejada’s] arrest photograph?

IV. Under the Fifth, Eighth, and Fourteenth Amendments 

of the U.S. Constitution as well as Article I, §§ 9, 13 

of the Pennsylvania Constitution, did the [t]rial 

[c]ourt abuse its discretion in sentencing [Tejada]?

Tejada’s Brief at 5.3 On October 31, 2014, we issued a memorandum 

decision affirming the judgment of sentence. We granted Tejada’s motion 

for reconsideration to clarify that the holdings in Egan and Clinton (finding 

preserved discretionary aspects of sentencing claims raised for the first time 

 

3

 Apart from passing references to the constitutional provisions asserted in 

the statement of the issues raised, Tejada makes no argument regarding the 

constitutionality of his trial, convictions, or sentencing. We therefore confine 

our analysis to the arguments raised and developed.
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in a 1925(b) statement) are no longer good law in the wake of MelendezRodriguez.

Tejada’s first issue on appeal challenges the sufficiency of the evidence 

to convict him of conspiracy to commit robbery. “Whether sufficient 

evidence exists to support the verdict is a question of law; our standard of 

review is de novo and our scope of review is plenary.” Commonwealth v. 

Murray, 83 A.3d 137, 151 (Pa. 2013). We review the evidence in the light 

most favorable to the verdict winner to determine whether there is sufficient 

evidence to allow the jury to find every element of a crime beyond a 

reasonable doubt. Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 

2014).

In applying the above test, we may not weigh the 

evidence and substitute our judgment for the factfinder. In addition, we note that the facts and 

circumstances established by the Commonwealth 

need not preclude every possibility of innocence. Any 

doubts regarding a defendant’s guilt may be resolved 

by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of 

fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its 

burden of proving every element of the crime beyond 

a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and 

all evidence actually received must be considered. 

Finally, the finder of fact while passing upon the 

credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none 

of the evidence.

Id. (citation omitted).
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Tejada does not claim that no robberies occurred or that there was not 

a conspiracy to commit them; rather, he states that the evidence was 

insufficient to prove that he was a party to the conspiracy – that he was 

anything more than merely present at the time the robberies occurred.4 

Tejada’s Brief at 38-46. The trial court found that the evidence presented, 

including Ms. Thurston’s identification of Tejada both at the scene and at 

trial as the individual who robbed Ms. Evans, was sufficient to sustain his 

convictions of conspiracy to commit robbery. Trial Court Opinion, 12/26/13, 

at 10-11.

The record reflects that Ms. Orton was the victim of an armed robbery 

at 10:15 p.m. on January 2, 2012. N.T., 11/7/12, at 25, 31-32. The 

gunman had a scarf over his face and hair and was thus unidentifiable, but 

Ms. Orton was able to describe him as relatively short (only a little taller 

than her five foot four inch-frame), Latino, with lighter skin and an average 

build. Id. at 40. The gun used to perpetrate the robbery was described as 

small – .22 caliber – and the robbers departed in an older model, “beat up” 

 

4

 A conviction of conspiracy requires proof that “1) the defendant entered 

into an agreement with another to commit or aid in the commission of a 

crime; 2) he shared the criminal intent with that other person; and 3) an 

overt act was committed in furtherance of the conspiracy.” 

Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation 

omitted), aff’d, __ A.3d __, 2014 WL 7090082 (Pa. Dec. 15, 2014); see 

also 18 Pa.C.S.A. § 903(a), (d). The underlying offense for both 

conspiracies was robbery, which requires proof, in relevant part, that in the 

course of committing a theft, the defendant threatened another with or 

intentionally put another in fear of immediate serious bodily injury. 18 

Pa.C.S.A. § 3701(a)(1)(ii).
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black Honda with a loud muffler. Id. at 31, 33, 37. When asked to identify 

the robber later that night, she observed that Tejada was of the same 

height, build, skin tone and ethnicity as the gunman. Id. at 42. She also 

identified the car that police observed Tejada exiting at the beginning of 

their investigation as the same black Honda that she observed the robbers 

flee in after the robbery. Id. at 41. The car contained several of the items 

that had been stolen from her. Id. at 42.

At around 10:35 p.m., in a location approximately ten minutes from 

the first crime scene, a scratched black Honda with a loud muffler drove past 

Ms. Evans and Ms. Thurston, who were conversing with each other outside. 

Id. at 76-77, 78-79; N.T., 11/8/12, at 66. As the car drove past, Ms. 

Thurston observed the front passenger, describing him as a light-skinned 

Latino male with braids in his hair and wearing a shirt with red trim. N.T., 

11/7/12, at 80. Ms. Thurston subsequently saw two men coming towards 

them. Id. at 82. The shorter man pulled a mask over his face and 

approached Ms. Evans. Id. He was carrying a small gun. Id. at 83. Ms. 

Thurston was able to observe him for approximately five seconds in good 

lighting conditions. Id. at 86. As a taller man with a long object came 

towards her, she ran away and did not reunite with Ms. Evans until she saw 

the loud, black Honda driving away a short time later. Id. at 82-83, 85, 86.

When taken to identify the perpetrators of the robbery, Ms. Thurston 

identified Tejada as the man with the gun who robbed Ms. Evans. Id. at 90. 
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She described him as being approximately five feet six inches tall, lightskinned, Latino, having braids in his hair, shadow on his face and red trim 

around his collar.5 Id. at 88-89. This matches the general description 

Tejada provided of himself to police. N.T., 11/8/12, at 153-54. Both Ms. 

Thurston and Ms. Evans identified the car police observed Tejada exiting to 

be the Honda they heard and saw at the time of the robbery. Id. at 22-23; 

N.T., 11/7/12, at 88. Ms. Evans also observed in the car several items that 

were stolen from her. N.T., 11/8/12, at 23, 25-26.

Although Ms. Thurston identified Tejada as the perpetrator of Ms. 

Evans’ robbery on the night it occurred, she was unable to identify him 

either at the preliminary hearing or at trial. The record reflects that at the 

time of trial, Tejada had changed his appearance and no longer had long, 

braided hair. N.T., 11/8/12, at 96. The Commonwealth provided Ms. 

Thurston the arrest photograph of Tejada taken on the night of the 

 

5

 We disagree with Tejada’s statement throughout his appellate brief that 

Ms. Thurston identified the other robbery suspect as having red trim on his 

collar. See Tejada’s Brief at 12, 42, 49, 52. Contrary to Tejada’s claims, 

she did not indicate that it was anyone other than Tejada who had the red 

trim. When asked if she identified the two perpetrators of the robbery, Ms. 

Thurston responded, “Yes, the one with the red trim around their [sic] 

collar,” and was then asked questions about her identification of the gunman 

who robbed Ms. Evans. N.T., 11/7/12, at 88-89. She testified that the 

gunman had his hair in braids, was shorter than the other perpetrator, 

Latino, and had light skin. Id. at 89-90. Furthermore, as noted above, Ms. 

Thurston stated that the man she observed riding in the black Honda with 

the red trim on his collar had braids. Id. at 80. Tejada was the only 

suspect with braids in his hair. N.T., 11/9/12, at 70.
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robberies, and she readily identified him as the gunman responsible for the 

robbery of Ms. Evans.6 N.T., 11/7/12, at 99.

We disagree with Tejada’s assertion that Commonwealth v. 

Grillasco, 415 A.2d 1241 (Pa. Super. 1979), “is controlling,” as it is readily 

distinguishable. See Tejada’s Brief at 42. In Grillasco, the witnesses 

identified the defendant from a photo array that they were shown 

approximately a month after the crimes were committed. Grillasco, 415 

A.2d at 1242. At trial, which occurred approximately two years after the 

crimes, the witnesses were unable to identify the defendant as the 

perpetrator. Although he looked similar to the perpetrator, his appearance 

had changed, and they testified that they could not say with certainty that 

he was the person responsible. Id. at 1242-43. Following his conviction, 

 

6

 Tejada refers to the fact that Ms. Thurston testified only that she 

recognized the “picture,” not that she recognized “the male in the picture.” 

See Tejada’s Brief at 42. The exchange between the Commonwealth and 

Ms. Thurston occurred as follows:

Q. Do you recognize that picture?

A. Yes, I do.

Q. Tell me.

A. This is the guy with the gun.

Q. Tell me what you recognize in that picture.

A. His braids and his jawline.

* * *

Q. Did you see that person on Mildred Street?

A. Yes.

N.T., 11/7/12, at 99. Despite the phrasing by the Commonwealth, it is clear 

that Ms. Thurston recognized Tejada, the person in the photograph, as the 

gunman that perpetrated Ms. Evans’ robbery. 
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the defendant appealed and we reversed, finding that the photographic 

identification made two years prior to trial, which was the only evidence that 

linked the defendant to the crimes, was insufficient to prove his guilt beyond 

a reasonable doubt. Id. at 1243.

In the case at bar, there was far more evidence presented that 

connected Tejada to the robberies than a single photo identification that was 

remote from both the time of the crime and the time of trial. One witness 

identified Tejada in person as the perpetrator of one of the robberies on the 

night the robbery occurred, and he fit the physical description provided by 

another victim. At trial, the Commonwealth presented a photograph of 

Tejada from the night of the robberies and a witness identified him as being 

the perpetrator. Furthermore, when police began their investigation, Tejada 

was exiting the vehicle that the victims identified as the getaway car and 

which contained some of the proceeds of the robberies. As detailed above, 

the direct and circumstantial evidence presented sufficiently proved Tejada’s 

involvement in the conspiracies to rob Ms. Orton and Ms. Evans.

In his arguments, Tejada attempts to parse the record in his own favor 

and urges us to find that the evidence was insufficient to prove that he was 

involved in these robberies on that basis. When viewed in the light most 

favorable to the Commonwealth, as our standard of review requires, we 

agree with the trial court that direct and circumstantial evidence presented 

at trial sufficiently proves that Tejada was the gunman in both of the 
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robberies. Thus, we have no basis for reversing his convictions of 

conspiracy to commit robbery.

In his second issue on appeal, Tejada contends that the trial court 

abused its discretion by finding that the verdict was not against the weight 

of the evidence. Tejada’s Brief at 46-50. Like his sufficiency claim, Tejada 

challenges the weight of the evidence to support a finding that he was a 

party to the conspiracies to commit robbery. Tejada states that neither Ms. 

Orton nor Ms. Evans identified him as a participant in the robbery and that 

Ms. Thurston “was not certain” he was the gunman. Tejada’s Brief at 49. 

Furthermore, because Ms. Thurston failed to identify him at the preliminary 

hearing or in person at trial, and when identifying him from his arrest photo, 

stated for the first time that she recognized his “jawline,” her identification 

of him was too weak to warrant his conviction.7 Id. at 48-50.

The trial court found that the jury’s verdict was supported by the 

evidence and did not shock its sense of justice. Trial Court Opinion, 

12/26/13, at 11-12. It found that Ms. Thurston’s identification of Tejada 

was unwavering and that the jury was free to make its credibility 

 

7

 Tejada also once again points to Ms. Thurston’s testimony that she 

recognized “the picture” as opposed to “the male in the picture” when she 

identified him at trial using his arrest photo and claims that Ms. Thurston 

identified the other robbery suspect as having red trim on his collar, not 

Tejada. Tejada’s Brief at 49-50. As we have already determined that these 

arguments are meritless, we need not address them again. See supra 

nn.5-6.
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determinations and disregard any alleged inconsistencies in the testimony. 

Id. at 12.

We review a weight of the evidence claim according to the following 

standard:

A claim alleging the verdict was against the weight of 

the evidence is addressed to the discretion of the 

trial court. Accordingly, an appellate court reviews 

the exercise of the trial court’s discretion; it does not 

answer for itself whether the verdict was against the 

weight of the evidence. It is well settled that the 

[jury] is free to believe all, part, or none of the 

evidence and to determine the credibility of the 

witnesses, and a new trial based on a weight of the 

evidence claim is only warranted where the [jury’s] 

verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this 

standard has been met, appellate review is limited to 

whether the trial judge’s discretion was properly 

exercised, and relief will only be granted where the 

facts and inferences of record disclose a palpable 

abuse of discretion.

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation 

omitted).

The record reflects that although Ms. Orton was unable to identify the 

gunman that robbed her, the circumstantial evidence proved that Tejada 

was the perpetrator of her robbery. He matched the height, build, skin tone 

and ethnicity she provided, which also matched the description of the same 

attributes provided by Ms. Thurston. See N.T., 11/7/12, at 40, 42, 89; N.T., 

11/8/12, at 153-54. Ms. Thurston positively identified Tejada as the person 

who robbed Ms. Evans approximately twenty minutes after the robbery of 
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Ms. Orton. N.T., 11/7/12, at 90. When police took Ms. Thurston to identify 

the participants, she pointed out the two individuals to police. Id. at 89. 

Although she testified that she was one hundred percent sure about her 

identification of the taller man with the long object that approached her, and 

she did not use such strong language in her identification of Tejada, she did 

not give any indication that she was not certain of her identification of him. 

See id. at 90. To the contrary, she testified that his braids and his height 

triggered her ability to identify him as the person who robbed Ms. Evans. 

Id.

As the police arrived to investigate the robberies, they observed 

Tejada exiting the vehicle identified by all of the victims as the getaway car 

for the robbers. Id. at 88; N.T., 11/8/12, at 22-23. Ms. Thurston and Ms. 

Evans also saw the vehicle just prior to the robbery of Ms. Evans with a 

person fitting Tejada’s description and Ms. Thurston’s description of the 

perpetrator of Ms. Evans’ robbery riding in the front seat. N.T., 11/7/12, at 

76-77, 78-79, 80. Police recovered several items stolen from both Ms. 

Orton and Ms. Evans in the vehicle. Id. at 42.

The jury was made aware that Ms. Thurston did not identify Tejada at 

the preliminary hearing and observed Ms. Thurston’s inability to identify him 

in person at trial. N.T., 11/7/12, at 91-92. The jury was also aware that 

Ms. Thurston noticed Tejada’s jawline for the first time at trial when asked to 

make an identification from his arrest photograph. Id. at 121. It was 
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therefore the role of the jury to determine Ms. Thurston’s credibility with 

respect to her identification of Tejada. See Karns, 50 A.3d at 165. The 

jury’s decision to credit her testimony does not render the verdict contrary 

to the evidence presented. See Commonwealth v. Sanchez, 36 A.3d 24, 

39 (Pa. 2011) (“Issues of witness credibility include questions of[, inter alia,] 

inconsistent testimony[.]”).

We find no abuse of discretion in the trial court’s determination that 

the verdict was not against the weight of the evidence. As such, Tejada is 

due no relief on this issue.

Tejada next asserts that the trial court erred by permitting Ms. 

Thurston to identify Tejada as the perpetrator of Ms. Evans’ robbery using 

his arrest photograph. Tejada’s Brief at 50-56. Tejada advances two 

arguments in support of this claim: (1) the photograph was the fruit of the 

unlawful show-up identification that occurred on the night of the robbery and 

(2) using the photograph to identify Tejada in court itself was improper. Id.

at 53-56.

Beginning with his first argument, we note that this was not the basis 

for Tejada’s objection to the admission of the photograph at trial. Rather, 

Tejada confined his arguments at trial to the suggestiveness of the 

photograph itself because of his belief that Ms. Thurston was “not sure” 

about her identification of Tejada on the night of the robberies and that the 

photograph was “not sanitized,” as it was clear on the face of the 
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photograph that it was an arrest photograph. See N.T., 11/7/12, at 93-98. 

He never mentioned that he believed it was the fruit of an illegal show up 

identification on the night of the robberies. It is axiomatic that “[i]ssues not 

raised in the lower court are waived and cannot be raised for the first time 

on appeal.” Pa.R.A.P. 302(a); see also Commonwealth v. Truong, 36 

A.3d 592, 598 (Pa. Super. 2012) (“New legal theories cannot be raised on 

appeal.”), appeal denied, 57 A.3d 70 (Pa. 2012). Thus, Tejada waived the 

first argument made in support of this claim on appeal.

Turning to his second argument, the trial court found that Tejada’s 

arrest photo was relevant and admissible, as Tejada changed his appearance 

prior to trial. Trial Court Opinion, 12/26/13, at 14. We agree, as it has long 

been the law “that where there has been a change in the appearance of a 

defendant, witnesses may identify him from photographs.” 

Commonwealth v. Duca, 165 A. 825, 827 (Pa. 1933).

Tejada reiterates his belief that Ms. Thurston was unsure on the night 

of the crime whether Tejada was the person who robbed Ms. Evans, 

rendering the use of the photograph to identify him in court improper. 

Tejada’s Brief at 55. As we have previously stated, however, the record 

does not support his contention that Ms. Thurston was unsure when she 

identified him as the robber. Tejada further states that the Commonwealth 

never asked Ms. Thurston if she was able to identify him in person at trial, 

and thus, the use of the photograph was impermissible. Id. at 56. The 
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record belies this contention as well. See N.T., 11/7/12, at 91-92 (in 

response to the Commonwealth’s question of whether she can “identify 

anybody in court today” from the night of the robbery, Ms. Thurston stated, 

“No, I’m sorry.”).

“The admission of evidence is committed to the sound discretion of the 

trial court, and our review is for an abuse of discretion.” Commonwealth 

v. Valcarel, 94 A.3d 397, 398 (Pa. Super. Ct. 2014) (citation omitted). 

Finding no abuse of discretion, this issue does not warrant relief.

Tejada’s final issue on appeal challenges discretionary aspects of the 

trial court’s sentence.8 This Court does not review such issues as a matter 

of right. “An appellant must satisfy a four-part test to invoke this Court’s 

jurisdiction when challenging the discretionary aspects of a sentence.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). 

The appellant must satisfy all of the following:

 

8

 In his statement of questions involved, Tejada invokes the Eighth 

Amendment to the United States Constitution and Article I, Section 13 of the 

Pennsylvania Constitution, both of which prohibit the imposition of cruel (and 

in the case of the Eighth Amendment, unusual) punishments. This would 

suggest that he was challenging the legality of his sentence. See 

Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014) 

(“claims pertaining to the Eighth Amendment's Cruel and Unusual 

Punishment Clause also pertain to the legality of the sentence and cannot be 

waived”). As noted hereinabove, Tejada does not develop his constitutional 

claim in the argument section of his brief; to the contrary, he concedes that 

he is challenging the discretionary aspects of his sentence. Tejada’s Brief at 

22 (“Appellant challenges the discretionary aspects of his sentence.”). Thus, 

we do not address the legality of Tejada’s sentence.
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(1) the appellant preserved the issue either by 

raising it at the time of sentencing or in a post[-

]sentence motion; (2) the appellant filed a timely 

notice of appeal; (3) the appellant set forth a concise 

statement of reasons relied upon for the allowance of 

his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the 

appellant raises a substantial question for our 

review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted), appeal denied, 86 A.3d 231 (Pa. 2014).

Our review of the record reveals that although Tejada raised in his 

1925(b) statement all of the arguments he now seeks for us to review in 

support of his discretionary aspects of sentencing claim, he failed to do so at 

sentencing or in his post-sentence motion. See Post-Sentence Motions, 

3/27/13, at ¶ 2 (challenging only the purported excessiveness of his 

sentence). In response to the Commonwealth’s claim that the arguments 

raised on appeal, which go beyond a mere claim of excessiveness,9are 

therefore waived, Tejada relies upon the holding of Commonwealth v. 

Egan, and states that because the trial court addressed the sentencing 

arguments in its Rule 1925(a) opinion, they are not waived. Tejada’s Reply 

Brief at 6.

 

9

 Tejada raises four discretionary aspects of sentencing claims on appeal: 

(1) the sentencing court erroneously applied the sentencing guidelines; (2) 

the sentencing court was “dismissive” of his apology given at sentencing; (3) 

the trial court did not properly weigh the mitigating evidence and Tejada’s 

rehabilitative needs in fashioning the sentence; and (4) the trial court erred 

by applying the deadly weapon enhancement to his sentence. See Tejada’s 

Brief at 26-37.
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In Egan, this Court reviewed the appellant’s discretionary sentencing 

claim that the trial court erred by failing to state its reasons on the record 

for imposing the sentence despite the fact that the appellant failed to raise 

the argument either at sentencing or in a post-sentence motion. Egan, 

679 A.2d at 237-38. The Court did so because the appellant raised the 

claim in his 1925(b) statement, the trial court addressed it in its written 

opinion, and the issue raised, although considered a “discretionary aspect of 

sentencing” issue, was not a matter within the trial court’s discretion, but 

was a statutory mandate. Id. at 239; see 42 Pa.C.S.A. § 9721(b) (“In 

every case in which the court imposes a sentence for a felony or 

misdemeanor [...] the court shall make as a part of the record, and disclose 

in open court at the time of sentencing, a statement of the reason or 

reasons for the sentence imposed.”).

Later that same year we decided Commonwealth v. Clinton. As in 

Egan, the appellant in Clinton raised discretionary sentencing claims on 

appeal that he failed to raise either at sentencing or in a post-sentence 

motion. Clinton, 683 A.2d at 391. The Court recognized the holding in 

Egan, but found that it was inapplicable, as the sentencing issues raised by 

Clinton “bear on the exercise of discretion by the trial court in choosing what 

sentence to impose and thus are unlike the challenge in Egan.” Id. at 392. 

The Clinton Court found that where the issues raised assail the trial court’s 

exercise of discretion in fashioning the defendant’s sentence, the trial court 
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must be given the opportunity to reconsider the imposition of the sentence 

either through the defendant raising the issue at sentencing or in a postsentence motion. Id. The failure to do so results in waiver of those claims. 

Id.

In 2004, an en banc panel of this Court decided Commonwealth v. 

Melendez-Rodriguez. In that case, the defendant failed to object to the 

admission of certain photographs presented at trial, but included a claim in 

his 1925(b) statement that the trial court erred by admitting the 

photographs. Melendez-Rodriguez, 856 A.2d at 1288. The trial court 

addressed this contention in its 1925(a) opinion. Id. 

In an attempt to overcome a finding of waiver, the appellant relied 

upon case law that held: “When an issue is waived for failure to comply with 

post-trial procedural rules but the trial court chooses to overlook the error 

and addresses the issue, an appellate court is bound to do likewise.” 

Commonwealth v. Miller, 765 A.2d 1151, 1155 (Pa. Super. 2001) (quoting 

Commonwealth v. Perez, 664 A.2d 582, 585 (Pa. Super. 1995)); see

Melendez-Rodriguez, 856 A.2d at 1288. The Melendez-Rodriguez Court 

found that Miller and Perez were not good law and did not save an issue 

from waiver when the issue was not raised first in the trial court. In 

reaching this conclusion, we made clear that issues must be raised prior to 

trial, during trial, or in a timely post-sentence motion to be preserved for 

appeal. Melendez-Rodriguez, 856 A.2d at 1288-89. In direct contrast to 
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the Egan and Clinton decisions, the Melendez-Rodriguez Court found 

that “a party cannot rectify the failure to preserve an issue by proffering it in 

response to a Rule 1925(b) order.” Id. at 1288 (citation omitted).

We are bound by the clear holding in the en banc panel’s decision in 

Melendez-Rodriguez. See Pa.R.A.P. 3103(b) (“An opinion of the court en 

banc is binding on any subsequent panel of the appellate court in which the 

decision was rendered.”). The portion of the holdings in Egan and Clinton, 

finding discretionary aspects of sentencing claims can be preserved when 

raised for the first time in a 1925(b) statement, which are contrary to the 

decision in Melendez-Rodriguez, were overruled by implication.

As Tejada preserved none of the arguments in support of his 

discretionary aspects of sentencing claim at sentencing or in his postsentence motion, they are not subject to our review. See Buterbaugh, 91 

A.3d at 1265; Baker, 72 A.3d at 662; see also Commonwealth v. Rush, 

959 A.2d 945, 949 (Pa. Super. 2008) (“for any claim that was required to be 

preserved, this Court cannot review a legal theory in support of that claim 

unless that particular legal theory was presented to the trial court”).

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2015