Com. v. Lawson, C.

J-S37004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER LAWSON

Appellant No. 1863 EDA 2014

Appeal from the Judgment of Sentence May 28, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004465-2012

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 30, 2015

Appellant, Christopher Lawson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for receiving stolen property and unauthorized use of

automobiles and other vehicles (“unauthorized use”).1 We affirm.

In its opinion, the trial court set forth the relevant facts of this case as

follows:

Samantha Stewart testified that on October 6, 2011, in the

area of 1600 Winton Street, Philadelphia, PA, at

approximately [1:00] a.m., she looked out of the window

of her home at an incident down the street that involved

police officers. Ms. Stewart stated she saw a light skinned

man come out of an alley, stand against the wall, and

approach the car owned by her child’s father, Mr. Don

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1

18 Pa.C.S.A. §§ 3925 and 3928, respectively.

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Allen. … [Ms. Stewart] described the man as slim,

wearing “big clothes,” specifically, a gray hoodie and white

t-shirt. She said she saw the man look around, stick a key

into the car, and drive off.

Ms. Stewart testified that she ran to tell Mr. Allen what had

happened and proceeded outside. She stated that Mr.

Allen called the police. …

On cross-examination, Ms. Stewart stated that she gave a

statement to police describing two light skinned males,

appearing to be drunk and staggering, coming out of the

alley. She also testified that the males “looked like either

white or Spanish.”

Mr. Don Allen testified that he resides on the 600 block of

Winton Street. He stated that he was informed by [Ms.

Stewart] on October 6, 2011, that his vehicle was stolen,

looked outside for himself, and saw that the vehicle was

not there. Mr. Allen testified that he last saw his vehicle at

about [11:00] p.m. or 11:15 p.m. when he returned from

fishing and parked it in front of 610 Winton Street. He

stated that he locked the doors and that he did not give

permission to anyone to use his vehicle. He also stated

that he had one set of car keys to the vehicle that

belonged to him.

After [Mr. Allen] found his vehicle was missing, he notified

police officers on the 700 block of Winton Street and asked

them to put a bulletin out on his vehicle, a two-door,

black, Honda V-tech, with license plate number HST-9944.

Approximately two-and-a-half (2½) hours later, police

officers notified Mr. Allen that they located his vehicle at or

about Franklin and Cumberland or Huntingdon and

Cumberland. After Mr. Allen retrieved his vehicle from that

area, he stated that there was no damage, but that his

radio and lottery tickets were missing.

Police Officer Ann Brown testified that in the early morning

of October 6, 2011, she and her partner, Officer Coleman,

responded to a theft of a vehicle on 618 Winton Street.

[Officer Brown] received information that the vehicle was

last seen going eastbound on Winton Street. Officer Brown

stated that in her fourteen years of experience with the

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Third District she has learned that:

Hondas are the kind of cars that are stolen in the

Third District. And usually 80 percent of them come

from North Philly into South Philly riding 95 up and

down. So my partner and I, we decided to go down

Delaware Avenue and sit on 95. If you go on

Delaware Avenue, you got 76 entrance, and then

you go down a little bit more, it’s 95. But if you pick

up 76, it kind of merges where 95 comes this way

and 76. So it’s like a triangle where you could

actually sit there.

Four (4) to five (5) minutes after the radio call, Officer

Brown testified that she, the passenger, and her partner,

the driver, were sitting at that “little merge,” about six

blocks from the location of the theft, when she observed a

black Honda, with a matching license plate number on I-95

North. She described the driver as a white male with a

goatee, red hat, and orange colored jacket and stated that

she had a four (4) to five (5) second side view look. Police

Officer Brown and her partner activated their lights and

sirens and attempted to pull the vehicle over. The vehicle

was going approximately forty-five (45) miles per hour

with its headlights off. The vehicle did not stop, instead, it

got off at Allegheny Avenue. The officers reported that

they were in pursuit of the vehicle and relayed this

information over police radio[, at] which time…the officers

stopped pursuing the vehicle per the order of their

sergeant due to police jurisdictional issues.

Another five (5) to ten (10) minutes later, Officer Brown

was informed via police radio that a male was stopped on

the 2600 block of Frankford Avenue. She and her partner

went to the location, where she identified [Appellant] to be

the driver of the stolen vehicle. Officer Brown stated she

did not prepare [a] biographical information document for

[Appellant] nor did her partner because the vehicle was

found in the 26th District and police officers from that

district handled the paperwork. However, Officer Brown

did write up three citations for [Appellant]: unlicensed

driver, driving without headlights, and reckless driving.

On cross-examination, Officer Brown stated that after she

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positively identified [Appellant], she cited him for reckless

driving because he was weaving in and out of lanes. …

[Appellant] was found a block-and-a-half from where

officers recovered the vehicle at Emerald and Huntingdon.

Police Officer Anthony Sampson testified that on October

6, 2011, at around [1:00] a.m., he was investigating a

possible stolen vehicle with his canine partner, Arko.

[Officer Sampson] stated that he acted on a flash for a

white male, goatee, mustache, and a red hat and

proceeded with a grid search for the male in the area of

Emerald and Huntingdon. Officer Sampson stated that as

he was coming up Cumberland Street eastbound, he went

northbound on Frankford Avenue, and observed a male to

his left. Officer Sampson testified that [Appellant] was

coming off of East Sergeant Street. [Appellant] saw the

officer and began walking northbound on Frankford Avenue

where he was stopped at Frankford Avenue and

Huntingdon Street.

Officer Sampson held [Appellant] for investigation and

requested that Officer Brown come to the location for

identification. Officer Sampson stated that Police Officer

Coleman and Police Officer Brown positively identified

[Appellant]. [Officer Sampson] said [Appellant] was a

white male, with a goatee and mustache, wearing a red

hat and orange black jacket that resembled a Philadelphia

Flyers jacket.

[] Officer Sampson testified that no keys, tools, radio, or

lottery tickets were found on [Appellant]. When

questioned whether [Appellant] appeared intoxicated or

staggering, [Officer Sampson] could not confirm. Officer

Sampson stated that he did not prepare the police form

75-229, which is typically prepared after an arrest is

effectuated and indicates the clothing [Appellant] was

wearing as well as biographical information.

(Trial Court Opinion, filed October 31, 2014, at 2-6) (footnote and internal

citations to the record omitted). Procedurally, following a bench trial, the

court convicted Appellant on May 28, 2014, of receiving stolen property and

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unauthorized use. On that same date, the court sentenced Appellant to

thirty-six (36) months’ probation for the receiving stolen property conviction.

The court imposed no further penalty for unauthorized use. Appellant filed a

timely notice of appeal on June 24, 2014. The court ordered Appellant to file

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b); Appellant timely complied.

Appellant raises the following issues for our review:

WHETHER THE SUFFICIENCY OF THE EVIDENCE WAS

SUBSTANTIAL ENOUGH TO SUPPORT CONVICTIONS FOR

THE CHARGES OF RECEIVING STOLEN PROPERTY AND

UNAUTHORIZED USE OF AUTOMOBILE WHERE

IDENTIFICATION OF…APPELLANT AS TESTIFIED TO BY THE

IDENTIFYING POLICE OFFICER WAS SCIENTIFICALLY

IMPOSSIBLE.

DID THE TRIAL COURT ERR IN SUSTAINING THE

OBJECTION TO A QUESTION TO OFFICER SAMPSON

REGARDING INFORMATION ON THE POLICE FORM 229

WHERE THE DRIVER OF THE VEHICLE WAS DESCRIBED AS

HAVING A BACK PACK AND WEARING CERTAIN CLOTHING

(IDENTITY BEING THE SOLE ISSUE)[?]

WHETHER THE TRIAL COURT ERRED IN FAILING TO

MERGE THE CHARGES OF RSP AND UNAUTHORIZED USE

OF AUTO AND FAILING TO FASHION A SENTENCE THAT

ACCOUNTED FOR THE TIME CREDIT PROPERLY DUE

TO…APPELLANT.

(Appellant’s Brief at 10).

In his first issue, Appellant argues the Commonwealth failed to prove

Appellant was the driver of Mr. Allen’s car. Appellant contends Ms. Stewart’s

testimony was contradictory and unreliable because she testified that she

saw a man use a key to steal Mr. Allen’s car even though Mr. Allen stated he

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possessed the only key to the car and did not give it to anyone; Ms. Stewart

admitted she did not have a clear view of the person who stole the car; Ms.

Stewart initially told police two males were involved in the theft but later

testified she saw only one male; and she indicated the individuals were

highly inebriated even though the officer who arrested Appellant testified

that Appellant was not intoxicated. Appellant likewise asserts Officer

Brown’s show-up identification of Appellant was unreliable because she had

mere milliseconds to observe Appellant as he drove past her at 45 MPH in

the middle of the night. Appellant insists “[n]o human eye can make out the

detail the officer claims she saw in that short a period of time.” (Appellant’s

Brief at 23). Appellant contends his challenge to Officer Brown’s testimony

goes to the sufficiency of the evidence because it concerns “scientific

impossibility” not witness credibility. (Id. at 27). Appellant further argues

any number of people in the area of Appellant’s arrest could have fit Officer

Brown’s scant description of Appellant’s facial hair and clothing. Appellant

states Officer Sampson, who arrested Appellant, did not see Appellant near

the car and found no key, car radio, or lottery tickets on Appellant’s person.

Appellant claims he did not flee when the officers approached him, which

reflects a lack of consciousness of guilt. Appellant asserts that to the extent

his arguments go to the weight of the evidence, he had no opportunity to file

a timely post-sentence motion preserving this issue because his counsel

withdrew immediately after sentencing. Appellant concludes he is entitled to

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an acquittal. We cannot agree.

Preliminarily, “credibility determinations are made by the fact finder

and…challenges thereto go to the weight, and not the sufficiency, of the

evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997). See also Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (stating defendant’s

claim he was wrongly identified as perpetrator of crimes based on

“unbelievable identification testimony” went to witness’ credibility and

challenged weight, not sufficiency, of evidence). A challenge to the weight

of the evidence must be preserved in a motion for a new trial. Pa.R.Crim.P.

607. The Rule provides:

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of the

evidence shall be raised with the trial judge in a motion for

a new trial:

(1) orally, on the record, at any time before

sentencing;

(2) by written motion at any time before

sentencing; or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

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denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight

of the evidence generally cannot be raised for the first time in a Rule

1925(b) statement. Commonwealth v. Burkett, 830 A.2d 1034

(Pa.Super. 2003). An appellant’s failure to avail himself of any of the

prescribed methods for presenting a weight of the evidence issue to the trial

court constitutes waiver of that claim, even if the trial court responds to the

claim in its Rule 1925(a) opinion. Id.

Instantly, Appellant’s purported challenge to the “sufficiency” of the

evidence consists primarily of assertions that the Commonwealth witnesses’

testimony was unreliable. These arguments go to the weight of the

evidence, not its sufficiency. See Griffin, supra; Gaskins, supra.

Appellant’s other contentions—that he did not flee from Officer Sampson and

the officer found no incriminating evidence on Appellant’s person—likewise

implicate the weight of the evidence. Appellant failed to raise a weight claim

before the trial court at any time in a motion for a new trial. Rather,

Appellant raised his weight challenge for the first time in his Rule 1925(b)

statement. Appellant cites no authority for the proposition that counsel’s

withdrawal following trial/sentencing excused Appellant’s complete failure to

file a motion for a new trial at any post-trial stage of the proceedings. Even

after Appellant was appointed new counsel less than thirty days following the

trial/sentencing, Appellant made no attempt to file a post-sentence motion

nunc pro tunc. See Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.

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2003) (stating trial court may exercise discretion to grant post-sentence

motion nunc pro tunc within thirty days after imposition of sentence if no

appeal has been filed). Thus, Appellant’s first issue on appeal is waived.2

See Pa.R.Crim.P. 607; Gillard, supra; Burkett, supra.

In his second issue, Appellant argues Officer Sampson’s testimony

regarding Appellant’s clothing contradicted information in the form 75-229

biographical information report completed after Appellant’s arrest. Appellant

asserts the report, which lacked a signature, indicated Appellant was in blue

jeans and a white t-shirt when he was arrested, whereas Officer Sampson

testified that Appellant was wearing an orange jacket and a red hat.

Appellant contends the court should have allowed him to use the document,

which was duly authenticated, to impeach Officer Sampson’s testimony.

Appellant concludes the court erred when it sustained the Commonwealth’s

objection to the use of the biographical information report for purposes of

impeachment. We disagree.

“Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

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2

Moreover, Appellant improperly presents new evidence in the form of a

“mathematical analysis” to support his contention that Officer Brown’s

identification of Appellant was “scientifically impossible.” Appellant failed to

introduce this evidence before the trial court. Therefore, we cannot consider

it. See Commonwealth v. Martz, 926 A.2d 514 (Pa.Super. 2007) (stating

appellate court cannot consider anything which is not part of certified record

in case); Commonwealth v. Evans, 473 A.2d 606 (Pa.Super. 1984)

(stating information in brief does not constitute evidence of record).

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its discretion.” Commonwealth v. Drumheller, 570 Pa. 117, 135, 808

A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156

L.Ed.2d 137 (2003). “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005), appeal

denied, 593 Pa. 726, 928 A.2d 1289 (2007).

“The credibility of a witness may be impeached by any evidence

relevant to that issue, except as otherwise provided by statute or these

rules.” Pa.R.E. 607(b). “[W]hen attempting to discredit a witness’

testimony by means of a prior inconsistent statement, the statement must

have been made or adopted by the witness whose credibility is being

impeached.” Commonwealth v. Simmons, 541 Pa. 211, 245, 662 A.2d

621, 638 (1995), cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d

870 (1996).

Instantly, the trial court reasoned as follows:

[T]here was no signature on the form 75-229 or name to

indicate its authenticity or origin. Furthermore, Officer

Sampson stated that he did not fill out the form 75-229.

Officer Sampson noted that the incident originated in

South Philadelphia and ended in a totally different police

division. Due to jurisdictional issues, [Appellant] was

taken to police districts in both South and East police

divisions after his arrest. This court found that it was

improper for the defense counsel to use a document

[which] the officer testified that he did not prepare or

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complete[,] for purposes of impeachment. However, this

court did permit defense counsel to question Officer

Sampson on whether [Appellant] was wearing a white t-

shirt and blue jeans at the time of the stop. Moreover, this

court, without objection by the Commonwealth, allowed

[d]efense counsel to mark and move the form 75-229 into

evidence for review. As the fact-finder this court

ultimately reviewed the form 75-229 and decided what

weight to give the document.

(Trial Court Opinion at 12-13). The record supports the court’s decision.

The court properly prohibited defense counsel from trying to impeach Officer

Sampson’s credibility with statements the officer did not make or adopt.

See Simmons, supra. Therefore, the court acted within its discretion when

it sustained the Commonwealth’s objection to the report for purposes of

impeachment. See Drumheller, supra. Nevertheless, defense counsel

was permitted to question Officer Sampson regarding his observations of

Appellant’s clothing, and the court admitted the 75-229 biographical

information report as substantive evidence and considered it before reaching

a verdict. Thus, Appellant’s second claim merits no relief.

In his third issue, Appellant argues the offense of unauthorized use is

subsumed within the crime of receiving stolen property. Appellant contends

the court should have merged for sentencing his convictions for those

offenses. Appellant also claims he spent multiple days in jail awaiting trial.

Appellant asserts the court improperly imposed a sentence of three years’

probation without giving Appellant credit for time served. Appellant

concludes he is entitled to resentencing. We disagree.

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“A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,

70 A.3d 910 (2013). See also Commonwealth v. Edrington, 780 A.2d

721 (Pa.Super. 2001) (stating legality of sentence claims cannot be waived,

where reviewing court has proper jurisdiction). Merger of sentences is

governed by Section 9765 of the Sentencing Code, which provides:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the

crimes arise from a single criminal act and all of the

statutory elements of one offense are included in the

statutory elements of the other offense. Where crimes

merge for sentencing purposes, the court may sentence

the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. The offenses of receiving stolen property and

unauthorized use do not merge for purposes of sentencing.

Commonwealth v. Campbell, 505 A.2d 262 (Pa.Super. 1986) (en banc),

appeal denied, 517 Pa. 602, 536 A.2d 1327 (1987).

For receiving stolen property, the act is receiving; for

unauthorized use, the act is operating an automobile. The

mental element for receiving is that the defendant knew

the property was stolen. The mental element for

unauthorized use requires that the defendant knew that he

did not have the owner’s consent to operate the vehicle.

Id. at 268.

Credit for time served is governed by the Sentencing Code in relevant

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part as follows:

§ 9760. Credit for time served

After reviewing the information submitted under section

9737 (relating to report of outstanding charges and

sentences) the court shall give credit as follows:

(1) Credit against the maximum term and any minimum

term shall be given to the defendant for all time spent in

custody as a result of the criminal charge for which a

prison sentence is imposed or as a result of the conduct

on which such a charge is based. Credit shall include

credit for time spent in custody prior to trial, during trial,

pending sentence, and pending the resolution of an appeal.

42 Pa.C.S.A. § 9760(1) (emphasis added).

Instantly, Appellant was convicted of receiving stolen property and

unauthorized use. These offenses do not merge for sentencing. See

Campbell, supra. Moreover, the court sentenced Appellant solely on the

receiving stolen property conviction and imposed no further penalty for the

unauthorized use conviction.

With respect to Appellant’s contention that he was entitled to credit for

time served, the court sentenced Appellant to a term of probation only.

Appellant received no prison sentence. Therefore, the court had no

obligation to give Appellant any credit for time served. See 42 Pa.C.S.A. §

9760(1). Based on the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/30/2015

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