J-S34041-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

BRAKEER NEWSOME,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 159 WDA 2018

Appeal from the Judgment of Sentence January 11, 2018

in the Court of Common Pleas of Fayette County Criminal Division

at No(s): CP-26-CR-0000801-2017

BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 24, 2018

Brakeer Newsome (Appellant) appeals from his judgment of sentence 

imposed following his conviction for aggravated harassment by prisoner. We 

affirm.

The trial court summarized the factual and procedural history as follows.

Appellant, a “maximum security inmate” at the State 

Correctional Institution of Fayette County [(SCI Fayette)], was 

cited for misconduct resulting from hi[s] repeatedly obstructing 

the view of his holding cell in violation of SCI Fayette’s inmate 

safety protocols and procedures. Appellant was housed in SCI 

Fayette’s (L5) restricted housing unit. 

On December 19, 2016, at approximately 19[:]40 hours, 

Lieutenant Chad Parker and his fellow correction[s] officers 

responded and promptly removed Appellant and his personal 

effects from his holding cell. Lieutenant Parker testified that 

Appellant was strip searched per Department of Corrections’ policy 

and was subsequently removed from his cell without problem or 

showing signs of aggression. However, once Appellant entered 

the prison’s common area, he chose not to move. [Lieutenant 
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Parker] also testified that he directed his officers to activate a 

handheld camera to record Appellant’s behavior.

Lieutenant Parker further testified, 

For some reason the camera wouldn’t work. I took a 

step out to show the officer or to try to fix the problem 

with the camera and as I did that I left myself 

vulnerable and the inmate turned and spit in my face. 

My eyes, my mouth. And then the officers, they took 

him down to the floor to gain control a couple times 

and we got him into a restraint chair to move him and 

he was placed in our intake area to be held for another 

officer to come and take charge of the situation. 

[Lieutenant Parker] later testified that Appellant, after being 

restrained, said “like that you little bitch.” Lieutenant Parker then 

reported the incident and subsequently was treated for blood 

borne diseases with antiviral medication.

[Following a jury trial,] Appellant was found guilty of 

aggravated harassment by prisoner on January 4, 2018. He was 

later sentenced on January 11, 2018, to undergo a term of 

imprisonment no less than [27] months [to] no more than [6] 

years. 

Trial Court Opinion, 2/20/2018, at 2-3 (record citations and unnecessary 

articles omitted).

Appellant did not file a post-sentence motion. He timely filed a notice 

of appeal, and Appellant and the trial court complied with Pa.R.A.P. 1925. On 

appeal, Appellant presents one issue: “[w]as the evidence insufficient to find 

[] Appellant guilty beyond a reasonable doubt of the criminal charges?”1 

Appellant’s Brief at 7 (unnecessary capitalization omitted). 

 

1 Appellant used identical phrasing in his concise statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Our standard of review in challenges to sufficiency of the evidence is to 

determine

whether, viewing all the evidence admitted at trial in the light 

most favorable to the [Commonwealth as the] verdict winner, 

there is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying [the 

above] test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) (citation 

omitted).

Appellant was convicted of the following crime:

§ 2703.1 Aggravated harassment by prisoner

A person who is confined in or committed to any local or county 

detention facility, jail or prison or any State penal or correctional 

institution or other State penal or correctional facility located in 

this Commonwealth commits a felony of the third degree if he, 

while so confined or committed ..., intentionally or knowingly 

causes or attempts to cause another to come into contact with 

blood, seminal fluid, saliva, urine or feces by throwing, tossing, 

spitting or expelling such fluid or material.

18 Pa.C.S. § 2703.1.

Appellant contends that the Commonwealth failed to prove the elements 

of the crime beyond a reasonable doubt, although he never specifies which 

specific elements the Commonwealth failed to prove. Appellant’s Brief at 10-
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15. Appellant concedes that witnesses for the Commonwealth testified that 

Appellant spit on a corrections officer at SCI Fayette, but nevertheless states 

in a conclusory fashion that the Commonwealth failed to present sufficient 

evidence to convict Appellant of aggravated harassment by prisoner. Id. at 

15. Appellant further argues that the “verdicts were against the evidence 

since the testimony concerning the crimes charged was inconsistent and was 

contradicted by testimonial evidence.” Id. at 13. 

After review of the record and Appellant’s brief, we conclude that 

Appellant is not entitled to relief. First, Appellant failed to preserve his

sufficiency challenge by filing a vague Pa.R.A.P. 1925(b) concise statement. 

Appellant’s concise statement raised only a generic challenge and did not 

specify precisely which elements of the crime he contends the Commonwealth 

failed to prove. This Court has repeatedly required an appellant to specify in 

the Rule 1925(b) statement the particular element or elements upon which 

the evidence was insufficient. See, e.g., Commonwealth v. Roche, 153 

A.3d 1063, 1072 (Pa. Super. 2017). But c.f. Commonwealth v. Laboy, 936 

A.2d 1058, 1060 (Pa. 2007) (finding no waiver in a “relatively straightforward” 

case if the trial court is able to identify the issues).

Even if Appellant did not waive his sufficiency challenge based upon the 

deficient Rule 1925(b) statement, he certainly has waived his challenge by his 

deficient appellate brief. Appellant fails to comply with multiple rules of 

appellate procedure. Appellant’s statement of the case fails to set forth any 
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facts or record citations. Compare Appellant’s Brief at 8 with Pa.R.A.P. 

2117(a)(4). Moreover, Appellant’s argument is woefully undeveloped. 

Compare Appellant’s Brief at 10-15 with Pa.R.A.P. 2119(a). Appellant 

repetitively sets forth the general standard for sufficiency challenges, but like 

his Rule 1925(b) concise statement, never specifies what he contends the 

Commonwealth failed to prove.

2

 Nor does he analyze how the standard

applies to his case. Instead, he just repeats general case law and makes 

conclusory statements. Thus, he has failed to develop the issue in any 

meaningful fashion capable of review, and his challenge to the sufficiency of 

the evidence is waived. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. 

Super. 2009) (finding that Gibbs waived his sufficiency claim by failing to 

specify which elements he was challenging in his concise statement and brief 

and by failing to cite to legal authority other than the general standard of 

review); Commonwealth v. Patterson, 180 A.3d 1217, 1229 (Pa. Super. 

2018) (finding waiver because appellant’s brief failed to develop an issue in 

any meaningful fashion capable of appellate review).

Even if Appellant did not waive the sufficiency claim for the reasons 

discussed above, he would still not be entitled to relief. Three corrections

 

2 In fact, in addition to failing to analyze the statute, Appellant never cites to 

the statute under which he was convicted. Instead, Appellant cites to two 

other criminal statutes that have nothing to do with his case. Appellant’s Brief 

at 9 (citing to 18 Pa.C.S. § 3126(a)(4), which criminalizes indecent assault); 

id. at 10 (citing to 18 Pa.C.S. § 5123(a.2), which criminalizes possession of 

controlled substance contraband by an inmate).
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officers, including Lieutenant Parker, testified that they saw Appellant, while 

he was confined at SCI Fayette, expel his saliva towards Lieutenant Parker. 

N.T., 1/4/2018, at 12, 16, 28, 33. Specifically, Lieutenant Parker testified 

that Appellant spit in his eye and mouth while Appellant was protesting his 

removal from his cell for a disciplinary infraction. Id. at 12, 16. Corrections

Officer Robert Boscarino corroborated Lieutenant Parker’s testimony. Id. at 

33. Corrections Officer Todd Tharpe also saw Appellant spit on Lieutenant 

Parker after Appellant stopped cooperating with the corrections officers during 

his removal from his cell, although he did not see specifically where the spit 

landed. Id. at 28. Thus, it is clear that the Commonwealth proved all 

elements of aggravated harassment by prisoner beyond a reasonable doubt. 

See 18 Pa.C.S. § 2703.1.

Finally, we note that Appellant makes vague overtures towards 

attacking the weight of the evidence in his brief. See Appellant’s Brief at 13, 

15. However, Appellant has waived any challenge to the weight of the 

evidence. First, he failed to preserve such a challenge before the trial court. 

See Pa.R.Crim.P. 607; Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa.

Super. 2012) (en banc). Second, neither his Rule 1925(b) concise statement 

nor the statement of the issue he presents on appeal encompasses such a 

challenge. Since challenges to weight and sufficiency are distinct legal claims, 

he has waived the weight challenge by failing to include it. See 

Commonwealth v. Kinney, 157 A.3d 968, 971–72 (Pa. Super. 2017). Third, 
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similar to his sufficiency challenge, Appellant fails to develop meaningfully his 

challenge to the weight of the evidence in his brief. Patterson, 180 A.3d at

1229. 

Furthermore, even if Appellant had preserved a challenge to the weight 

of the evidence, such a challenge would fail. “The weight of the evidence is 

exclusively for the finder of fact, which is free to believe all, part, or none of 

the evidence, and to assess the credibility of the witnesses.... An appellate 

court cannot substitute its judgment for that of the jury on issues of 

credibility.” Kinney, 157 A.3d at 80-81, n.3. Appellant vaguely argues that 

there is some unspecified conflict in the testimony of the witnesses. Not only 

are we unable to discern any conflict in the testimony of the three corrections

officers, the jury obviously credited their testimony. Because we may not 

disturb the jury’s credibility determinations in this manner, this claim, if 

preserved, would have failed. Id. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary
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Date: 7/24/2018