J. S30026/16

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 appe als 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 Decemb er 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, whi ch 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.J. S30026/16

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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 ho use 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, m aking 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 n eeded 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. AfterJ. S30026/16

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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 appell ant’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 w as 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 war rant. 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 kn ow 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.J. S30026/16

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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 CONVI CTION 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 enlargem ent 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) st atement. 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 petit ion 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 advoc ate’s brief on June 22, 2016.J. S30026/16

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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, t hat 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 statem ent 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 JonesJ. S30026/16

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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 t hat 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 c laim 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 evi dence). 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 evide nce. 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 discreti on.

. . . .

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 tes timony, 8/7/15 at 291.)J. S30026/16

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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 pr evail 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, sugge st [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 requiringJ. S30026/16

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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

w ho 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 cr edibility 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

wi tnesses 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 conscienc e 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.J. S30026/16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/23/2016