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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MICHAEL A. RIVERA, : No. 2497 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, August 7, 2015,

in the Court of Common Pleas of Chester County

Criminal Division at No. CP-15-CR-0000031-2015

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016

Michael Rivera appeals from the judgment of sentence entered by the 

Court of Common Pleas of Chester County on August 7, 2015, after he was 

found guilty, in a waiver trial, of resisting arrest.1 We affirm.

The trial court set forth the following factual history:

On December 23, 2014, approximately 10 to 

15 members of the Chester County Regional 

Emergency Response Team were assigned the task 

of serving a search warrant for appellant’s person, 

residence and vehicle. All team members were 

wearing a level 3 tactical vest, which had a large 

patch on the chest and back that said “POLICE.” 

There were also patches on the sleeves that said 

“POLICE.”

The team arrived at appellant’s residence, 

which was an end-unit townhouse, at around 

2:00 p.m. Officer Matthew Jones and 

 

1 18 Pa.C.S.A. § 5104.
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Officer Anderson, who were assigned to rear 

containment, went to the back of the house. As they 

approached, they saw appellant standing in the 

doorway. Officer Jones announced “Police – let me 

see your hands.” When appellant saw them, he 

turned back into the house and slammed the door 

shut. Officer Anderson forced the door open and 

they went inside. Once inside, they saw appellant in 

the living room. It looked like he was trying to head 

for the front door. Officer Anderson grabbed 

appellant’s left wrist and Officer Jones grabbed his 

right wrist. They brought appellant to the ground 

and a struggle ensued. He was rolling from side to 

side and flailing his legs. They tried to handcuff him 

with plastic zip ties[,] but he kept pulling his arms 

into his chest, making it hard to get his hands behind 

his back. Officer Rongaus replaced Officer Anderson 

and took control of appellant’s left wrist.

Officers were yelling “search warrant,” “put 

your hands behind your back,” “stop resisting.” He 

was not obeying their commands and was actively 

resisting their efforts to restrain him the entire time. 

Officer Jones was kicked and kneed several times. 

He did not know, however, whether appellant was 

intentionally trying to kick him or if he was just 

kicked as a result of appellant’s flailing. As a result 

of being struck by appellant, he was sore and had 

several scrapes and bruises. He did not need 

medical assistance for his injuries.

Officer Jones and Officer Rongaus were not 

able to get control of appellant and they needed the 

assistance of other officers. While Officer Jones and 

Officer Rongaus were trying to restrain appellant’s 

wrists, other officers were trying to contain his legs. 

They were still unable to zip tie him.

Chief Matthew Williams attempted to 

drive-stun appellant with his taser three times in 

order to get appellant under control. The first time, 

appellant stopped moving for a second but then 

started flailing again. The second time, appellant’s 

clothes stopped the taser from being effective. After
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the third time, the officers were able to get him 

under control and he was secured with zip ties.

During this ordeal, appellant was praying. He 

said things like “Lord, please,” and “I didn’t do it.”

Appellant’s uncle, Juan Rivera, testified on 

appellant’s behalf. He stated that he arrived at 

appellant’s residence around 12:15 p.m. to visit with 

his nephews. At around 1:30 p.m., appellant wanted 

to smoke a cigarette so they went outside. 

Mr. Rivera was standing by appellant’s vehicle and 

appellant was standing in the doorway. Less than 

three minutes later, a person in camouflage 

approached, saying, “get down, get down, get down 

now.” Mr. Rivera put his hands on the car and he 

was restrained. As the officers approached, they 

told him they had a warrant. He could not see what 

was happening in the house, but he could hear a 

commotion. He also heard appellant saying, “help 

me, help me,” and something of a religious nature.

Appellant, who testified during the trial, tried 

to claim that he did not know it was the police who 

were approaching his house. He stated that he and 

his uncle went outside so that he could smoke a 

cigarette and that he then went back inside because 

he was done. He also testified that he complied with 

the officers’ commands and that he did not resist, 

although he admitted that he was “flopping around a 

little bit.” He did not explain why he went inside the 

house and locked the door, leaving his uncle outside 

alone.

Trial court opinion, 10/8/15 at 2-4.
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Following his conviction, the trial court sentenced appellant to time 

served to 23 months of incarceration, but released him on immediate parole. 

This timely appeal followed.2

Appellant raises the following issues for our review:

I. THE EVIDENCE WAS INSUFFICIENT TO 

SUPPORT A CONVICTION OF RESISTING 

ARREST (18 PA. C.S.A. [§] 5104)[.]

II. THE GUILTY VERDICT AS TO RESISTING 

ARREST (18 PA. C.S.A. [§] 5104) WAS 

AGAINST THE GREAT WEIGHT OF EVIDENCE.

Appellant’s brief, 6/22/16 at 3.3

 

2 We note that on August 11, 2015, appellant timely filed his notice of 

appeal. On August 14, 2015, the trial court appointed counsel and also 

ordered appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Through appointed counsel, appellant 

complied on August 25, 2015. On September 4, 2015, appellant requested 

that appointed counsel be withdrawn. The record reflects that the trial court 

never ruled on appellant’s September 4, 2015 request that counsel be 

withdrawn. The record next reflects that on September 22, 2015, appointed 

counsel filed a motion for enlargement of time to file an amended Pa.R.A.P. 

1925(b) statement. Also on September 22, 2015, the trial court entered an 

order granting appellant’s motion for enlargement of time, but also ordered 

that the amended Rule 1925(b) statement be filed on the same day that it 

entered the order. Obviously, this was an error. Thereafter, on October 7, 

2015, appellant, through appointed counsel, filed an amended Rule 1925(b) 

statement. Neither the Commonwealth nor the trial court raised a timeliness 

issue with respect to appellant’s filing of the amended Rule 1925(b) 

statement.

3 We note that on May 24, 2016, this court ordered appellant’s counsel to file 

either a formal petition to withdraw and a proper Anders brief (see Anders 

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009)) or an advocate’s brief within 30 days, as his initial 

brief combined both. Counsel complied by filing an advocate’s brief on 

June 22, 2016.
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At the outset, the Commonwealth contends that appellant waived his 

sufficiency claim because his Pa.R.A.P. 1925(b) statement failed to specify 

which elements of resisting arrest the Commonwealth failed to sufficiently 

prove. It is well settled that when challenging the sufficiency of the 

evidence on appeal, that in order to preserve that issue for appeal, an 

appellant’s Rule 1925(b) statement must specify the element or elements 

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981 

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) 

(citation and internal quotation marks omitted).

Here, in his Rule 1925(b) statement, appellant frames his sufficiency 

challenge as follows: “[a]ppellant is entitled to a new trial because 

reviewing the evidence is [sic] the light most favorable to the 

Commonwealth there is insufficient evidence to prove that the 

Commonwealth established every element of each criminal offense beyond a 

reasonable doubt.” (Concise statement of matters complained of on appeal, 

8/25/15 at 2, ¶ 2; amended concise statement of matters complained of on 

appeal, 10/7/15 at 2, ¶ 2.)

Although the Commonwealth is correct that appellant’s sufficiency 

claim as set forth in his Rule 1925(b) statement fails to identify which 

element or elements of resisting arrest the Commonwealth allegedly failed to 

prove and waiver of the sufficiency claim necessarily results, in this section 

of his brief, appellant sets forth certain testimony of Officer Matthew Jones 
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and requests that we reassess it and arrive at a different conclusion than the

trial court. Appellant’s argument on his first issue, therefore, challenges the 

weight of the evidence, not its sufficiency. See Gibbs, 981 A.2d at 281-282 

(holding that an argument that the fact-finder should have credited one 

witness’ testimony over that of another witness goes to the weight of the 

evidence, not the sufficiency of the evidence); Commonwealth v. Wilson, 

825 A.2d 710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the 

evidence does not include a credibility assessment; such a claim goes to the 

weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 

(Pa.Super. 1997) (the fact-finder makes credibility determinations, and 

challenges to those determinations go to the weight of the evidence, not the 

sufficiency of the evidence). Therefore, even if appellant did not waive his 

sufficiency claim for the reason the Commonwealth raised, it would 

nevertheless be dismissed.

In his second issue, however, appellant does contend that the verdict 

was against the weight of the evidence.4

. . . The essence of appellate review for a weight 

claim appears to lie in ensuring that the trial court’s 

decision has record support. Where the record 

adequately supports the trial court, the trial court 

has acted within the limits of its discretion.

. . . .

 

4 The record reflects that although appellant did not file a post-sentence 

motion, appellant preserved this claim for appellate review by challenging 

the weight of the evidence immediately following the verdict. (Notes of 

testimony, 8/7/15 at 291.)
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A motion for a new trial based on a claim that 

the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court. A new 

trial should not be granted because of a mere conflict 

in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. 

Rather, the role of the trial judge is to determine 

that notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or to 

give them equal weight with all the facts is to deny 

justice.

. . . .

An appellate court’s standard of review when 

presented with a weight of the evidence claim is 

distinct from the standard of review applied by the 

trial court. Appellate review of a weight claim is a 

review of the exercise of discretion, not of the 

underlying question of whether the verdict is against 

the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations 

and quotation marks omitted). “In order for a defendant to prevail on a 

challenge to the weight of the evidence, ‘the evidence must be so tenuous, 

vague and uncertain that the verdict shocks the conscience of the court.’” 

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2015).

Here, appellant complains that:

Simply put, the trial judge disregarded the 

testimony of the appellant who claimed that he was 

thrown to the ground by the officers and tased which 

was corroborated by the testimony provided by 

[C]ommonwealth witnesses. This testimony, if 

believed, suggest [sic] that the officers were 

aggressively securing the residence for a search 

warrant. Moreover, this testimony would establish 

that appellant did not create the situation requiring 
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the use of force by officers and/or that appellant was 

only engaged in a scuffle with the other officers.

. . . .

[D]espite clear corroboration from Juan Rivera[, 

appellant’s uncle], the only other civilian eyewitness, 

the trial judge failed to properly weigh appellant’s 

testimony that he was unaware that the individuals 

who entered the house were police officers.

Appellant’s brief, 6/22/16 at 21-22.

We decline appellant’s invitation to reassess the credibility of the 

witnesses and to reweigh the evidence. The trial court, as fact-finder, had 

the duty to determine the credibility of the testimony and evidence 

presented at trial. Talbert, 129 A.3d at 546 (citation omitted). Appellate 

courts cannot and do not substitute their judgment for that of the 

fact-finder. See id. Here, the trial court found the Commonwealth’s 

witnesses credible, and it did not believe appellant’s version of events. (Trial 

court opinion, 10/8/15 at 5.) After carefully reviewing the record, we 

conclude that the trial court’s verdict was not so contrary to the evidence 

that it shocks the conscience of this court. Rather, our review of the record 

supports our conclusion that the trial court properly exercised its discretion 

in denying appellant’s weight of the evidence claim.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2016