J-S51042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW CHARLES NAYLOR,

Appellant No. 679 EDA 2015

Appeal from the Judgment of Sentence July 9, 2014

in the Court of Common Pleas of Chester County

Criminal Division at No.: CP-15-CR-0004121-2013

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 09, 2015

Appellant, Matthew Charles Naylor, appeals, nunc pro tunc, from the 

judgment of sentence entered on July 9, 2014, following his jury conviction 

of simple assault.1 On appeal, Appellant challenges the weight of the 

evidence. For the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter 

from the trial court’s opinion of April 21, 2015 and our independent review of 

the certified record.

On August 22, 2013, Ryan Palmer, a young man disabled 

as a result of a brain injury suffered in March, 2006 in an 

automobile accident, went to visit a friend at the friend’s 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2701(a)(1). 
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apartment in the Chester Building in Phoenixville, Pennsylvania. 

Also visiting at the apartment were [Appellant] and another 

individual. During conversation, [Appellant] told the others that 

he was short on cash and needed money for food. Mr. Palmer 

felt bad for [Appellant] because he did not have any money for 

food and decided to do [Appellant] a favor and loan him $20 to 

buy food. [Appellant] told Mr. Palmer that he would repay him 

later that night when he got some money. Later that night, 

[Appellant] claimed that he couldn’t find his money, and asked 

Mr. Palmer if he could repay him the next day.

The next day, Mr. Palmer returned to the apartment to 

collect his money from [Appellant]. Mr. Palmer asked 

[Appellant] for the $20 he owed him from the day before. 

[Appellant] told him he did not have the money and told Mr. 

Palmer he was calling pawn shops in order to get the money. 

[Appellant] told Mr. Palmer he would pay him the next day and 

give him an additional $10; Mr. Palmer agreed.

At that point, Mr. Palmer turned around to leave, and 

[Appellant] started to walk away toward the stairs. [Appellant] 

then turned around and approached Mr. Palmer. Mr. Palmer 

believed [Appellant] was coming back to thank him or apologize. 

As Mr. Palmer stood with his hands by his side, [Appellant] 

suddenly punched him with a closed fist, hitting him in the face 

near his left eye.

Mr. Palmer testified that he did not want to fight and left 

the building, despite [Appellant’s] taunts, standing by the 

building door and yelling at him to “come back and handle it like 

a real man.” Mr. Palmer testified that he did not go back inside 

because he is only 5 feet 8 1⁄2 inches tall and weighs 120 pounds 

and [Appellant] is much bigger.

Mr. Palmer left the apartment building and went to the 

police station about a block away. The doors were locked and 

the window was closed, so he went home and called the police. 

When Mr. Palmer called the police from his home, they told him 

to return to the police station. Mr. Palmer did not have a car, so 

[he] walked approximately 2 1⁄2 blocks back to the police station.

When Mr. Palmer arrived at the police station, Officer Brad 

Dobry was there to let him in. Officer Dobry took photos of Mr. 

Palmer’s face. The photos show Mr. Palmer’s swollen and 
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bruised left eye. Mr. Palmer testified that he did not seek 

medical treatment, the swelling lasted a couple of days and his 

face was bruised for about a week. Mr. Palmer provided Officer 

Dobry [with] a written statement of the events that transpired 

on August 23, 2013.

Officer Dobry testified that he took the photos and the 

written statement given by Mr. Palmer regarding the incident. 

Officer Dobry did not conduct any interviews with regard to this 

incident because Mr. Palmer told him there were no witnesses. 

Officer Dobry testified that he did not speak with [Appellant] on 

August 23, 2013. Officer Dobry testified that he filed charges 

against [Appellant] based upon Mr. Palmer’s written statement.

(Trial Court Opinion, 4/21/15, at 2-3) (record citations omitted).

On May 13, 2014, a jury convicted Appellant of simple assault. On 

July 9, 2014, the trial court sentenced Appellant to a term of incarceration of 

not less than one nor more than two years and a $500 fine. Appellant did 

not file any post-sentence motions and did not file a direct appeal.

On November 18, 2014, Appellant, acting pro se, filed a petition 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, seeking restoration of his direct appeal rights. On November 25, 

2014, the PCRA court appointed counsel. On January 20, 2015, counsel filed 

an amended PCRA petition. On February 13, 2015, the trial court granted 

the PCRA petition and restored Appellant’s direct appeal rights.

Appellant filed the instant appeal on March 6, 2015. On March 10, 

2015, the court ordered Appellant to file a concise statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed his Rule 
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1925(b) statement on March 18, 2015. On April 21, 2015, the court issued 

an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following question for our review: 

“[w]hether the verdict of guilty for the crimes charged against [Appellant] 

was against the weight of the evidence presented?” (Appellant’s Brief, at 3).

On appeal, Appellant challenges the weight of the evidence. (See id. 

at 5-6). Prior to reaching the merits of Appellant’s claim, we must decide if 

it is properly before us. Pennsylvania Rule of Appellate Procedure 1925 

provides that issues that are not included in the Rule 1925(b) statement or 

raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 

1998), superseded by rule on other grounds as stated in Commonwealth v. 

Burton, 973 A.2d 428, 430 (Pa. Super. 2009). Further, an appellant cannot 

raise new legal theories for the first time on appeal. See Pa.R.A.P. 302(a); 

Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (en banc), 

appeal denied, 57 A.3d 70 (Pa. 2012).

Here, in his Rule 1925(b) statement, Appellant alleged that the 

evidence was insufficient to sustain his conviction. (See Matters Complained 

of on Appeal Filed [sic] in accordance with Pa.R.A.P. § [sic] 1925[b], 

3/18/15, at 1). Thus, because Appellant did not raise his weight of the 

evidence claim in his Rule 1925(b) statement and because he is raising it for 
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the first time on appeal, he waived it. See Pa.R.A.P. 1925(b)(4)(vii); see 

also Pa.R.A.P. 302(a).

Moreover, even if Appellant had raised the issue in his Rule 1925(b) 

statement, he would still have waived it. This Court cannot consider, in the 

first instance, a claim that the verdict is against the weight of the evidence. 

See Commonwealth v. Brown, 648 A.2d 1177, 1189-91 (Pa. 1994) 

(weight of evidence claims must first be presented to the trial court); 

Commonwealth v. O’Black, 897 A.2d 1234, 1239-40 (Pa. Super. 2006) 

(same). Here, Appellant did not make an oral motion on the record prior to 

sentencing and also did not file post-sentence motions raising this issue. 

See Pa.R.Crim.P. 607. Thus, he did not preserve the issue for our review. 

See Commonwealth v. Burkett, 830 A.2d 1034 (Pa. Super. 2003).

Accordingly, because Appellant waived his weight of the evidence 

claim, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015
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