J-S35008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

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BRIAN HAGERTY,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3023 EDA 2017

Appeal from the Judgment of Sentence March 21, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004879-2010

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

FILED NOVEMBER 13, 2019

I join the Majority Memorandum in its analysis of Appellant’s first issue 

(prior bad acts) and third issue (sexually violent predator classification). I 

write separately to note that I would find Appellant’s second issue (sufficiency 

of the evidence) waived. 

In his Pa.R.A.P. 1925(b) statement, Appellant claims “[t]he verdict was 

insufficient as a matter of law to all the charges in that the Commonwealth 

witnesses’ testimony were [sic] contradictory and conflicting in all aspects for 

the reasons stated by trial counsel at the trial.” Rule 1925(b) Statement, 

12/7/2017, at 1 (unpaginated). Appellant was convicted of eight crimes. 

 

* Retired Senior Judge assigned to the Superior Court.
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Majority at 2. Appellant failed to identify with any particularity which of his 

eight convictions he believes lacked sufficient evidence. Likewise, Appellant 

failed to specify which element or elements of his crimes for which he deems 

the evidence insufficient to sustain a conviction.

This Court has repeatedly required an appellant to specify in the Rule 

1925(b) statement the particular element or elements of the offense(s) upon 

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

153 A.3d 1063, 1072 (Pa. Super. 2017). “Such specificity is of particular 

importance in cases where, as here, the appellant was convicted of multiple 

crimes each of which contains numerous elements that the Commonwealth 

must prove beyond a reasonable doubt.” Commonwealth v. Stiles, 143 

A.3d 968, 982 (Pa. Super. 2016) (citation omitted). Based upon this Court’s 

desire to apply Rule 1925 in a “predictable, uniform fashion,” I would find that 

waiver applies even where, as here, the Commonwealth fails to object and the 

trial court addresses the issue in its Rule 1925(a) opinion. Roche, 153 A.3d 

at 1072.

Even assuming arguendo that Appellant did not waive his sufficiency 

claim based upon his deficient Rule 1925(b) statement, I would find it waived 

for Appellant’s failure to develop the claim in his brief. See id. at 1072-73

(“The failure to properly develop a claim renders an issue waived.”) (citation 

omitted). The phrasing of the issue in Appellant’s brief is even more general 

than his Rule 1925(b) statement. In his brief, Appellant presents the following 
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question for our review: “[w]hether the verdict was insufficient as a matter of 

law.” Appellant’s Brief at 8. As with the Rule 1925(b) statement, his brief 

does not identify which conviction or convictions he believes lacked sufficient 

evidence, or which element or elements of his crimes he deems the evidence 

was insufficient to sustain a conviction. See Appellant’s Brief at 17-19. 

Rather, in the argument section of his brief, Appellant attacks the credibility 

of two witnesses, the victim and her sister, to argue that he was falsely 

accused of the crimes. Id. at 19. Such argument is a challenge to the weight 

of the evidence, not its sufficiency. Commonwealth v. Trinidad, 96 A.3d

1031, 1038 (Pa. Super. 2014) (stating variances in testimony go to credibility

of witnesses and not sufficiency of evidence, and mere conflict in testimony 

does not render evidence insufficient because it is within province of fact finder 

to determine weight to be given to testimony and to believe all, part, or none 

of evidence) (citations omitted). Because Appellant failed to raise a challenge 

to the weight of the evidence before the trial court, and further failed to include 

it in his Rule 1925(b) statement, I would find Appellant’s claim waived. 

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013) (finding 

waiver of sufficiency-of-the-evidence claim where Griffin argued he “was 

wrongly identified as the perpetrator of the crimes based on ‘unbelievable 

identification testimony’ of the victim” because such “argument goes to the 

credibility of the witness’s testimony, and is, therefore, not an attack on the 
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sufficiency of the evidence, but an allegation regarding the weight it should 

have been afforded”) (citation omitted).

Judge Stabile joins this concurring memorandum.