Com. v. Enyeart, R.

J-A01015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

RONALD CARL ENYEART :

:

Appellant : No. 731 MDA 2021

Appeal from the Judgment of Sentence Entered March 18, 2021

In the Court of Common Pleas of Huntingdon County

Criminal Division at No(s): CP-31-CR-0000144-2020

BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JUNE 02, 2022

Appellant, Ronald Carl Enyeart, appeals nunc pro tunc from the

judgment of sentence entered in the Huntingdon County Court of Common

Pleas, following his bench trial convictions for driving under the influence of

alcohol (“DUI”) and driving with a suspended license.1 We affirm.

The relevant facts and procedural history of this case are as follows. In

the early morning hours of November 12, 2019, around 1:00 a.m., police

received a call from Michelle Ayres2 that her boyfriend, Appellant, was at her

home intoxicated and refusing to leave. Police responded to the call within 10

to 15 minutes and Ms. Ayres indicated that Appellant had already left. Ms.

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1 75 Pa.C.S.A. §§ 3802(a)(1); 1543(b)(1)(i), respectively.

2 The record sometimes spells her name as Michelle Ayers.

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Ayres did not observe whether Appellant left on foot or by car. Police knew

from prior interactions that Appellant lived on top of Johnny’s Bar. Police

headed in the direction of the bar, which was less than one mile away. Police

observed Appellant’s vehicle, a white Chevy pick-up truck, in the parking lot

of the firehall adjacent to Johnny’s Bar. The car was parked crooked, with half

of the car on the grass and half of the car on stones. Police observed track

marks from the truck which had disturbed the stones. The hood of Appellant’s

car was not warm, but it also was not cold. The weather on the date in

question was cold and misty.

Corporal David Funk did not see Appellant outside the bar, so he

approached the door to the upstairs residences. Corporal Funk noticed that

the door to the main entrance was practically unhinged and falling off.

Corporal Funk entered the main door and began climbing the stairs, initially

believing that he was in a common area that would lead to multiple private

residences. As he ascended the stairs and was about one-third of the way up,

Corporal Funk realized he might not be in a common area because he viewed

personal belongings along the stairwell. Thus, Corporal Funk stopped on the

stairs, and called out Appellant’s name. Appellant responded, and Corporal

Funk asked if Appellant would come outside to speak with the officers.

Appellant complied and met Corporal Funk outside, where Patrolman Cory

Stuller and Officer Andrew Young were also present.

Corporal Funk observed that Appellant was unsteady on his feet, smelled

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of alcohol, and was obviously intoxicated. The officers knew Appellant had a

suspended driver’s license and told Appellant that he should not be out driving.

Appellant stated that he was not driving his vehicle and had loaned it to

someone else. The officers asked Appellant for that person’s name so that

they could verify that Appellant had not driven the vehicle, but Appellant could

not supply the officers with a name or phone number. Ultimately, Appellant

admitted that he had been driving. Corporal Funk attempted to perform field

sobriety tests, which Appellant failed. Based on Appellant’s bloodshot eyes,

slurred speech, flushed face, lack of balance, trouble following directions, and

admission to driving, Corporal Funk arrested Appellant.

Police transported Appellant to the hospital, where he refused a blood

draw. Police then transported Appellant to the police station, where he was

ultimately released to his friend, James Moore.

The Commonwealth filed a criminal complaint 31 days later, on

December 13, 2019, charging Appellant with DUI and related offenses. On

July 13, 2020, Appellant filed a pre-trial motion seeking to: (1) dismiss the

charges under Pa.R.Crim.P. 519(B), where the Commonwealth filed charges

against Appellant more than five days after his release from arrest; and (2)

seeking suppression of all evidence in the case based on the illegal entry into

Appellant’s home without a warrant. The court held a pre-trial hearing on

August 6, 2020, during which the court heard testimony from Appellant and

Corporal Funk and argument from counsel. On August 21, 2020, the court

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denied Appellant’s motion.

Appellant proceeded to a bench trial on January 29, 2021. The

Commonwealth presented testimony/evidence from Ms. Ayres, Corporal Funk,

Patrolman Stuller, and Officer Young, describing the events that led up to

Appellant’s arrest as described above.

In his defense, Appellant presented testimony from Keston Noreiga, who

stated that he had borrowed Appellant’s pick-up truck on the date in question

and was the one driving it in the early morning hours on November 12, 2019.

Specifically, Mr. Noreiga stated that he had borrowed Appellant’s truck in the

past. Mr. Noreiga asked to borrow the truck on the date in question so that

he could dispose of large trash bags that were too big for his own vehicle.

During the day on November 11, 2019, Appellant had given Mr. Noreiga the

keys to the pick-up truck. After attending a Veterans’ Day celebration that

day, around 1:00 a.m., Mr. Noreiga decided to dispose of his trash using

Appellant’s vehicle. Mr. Noreiga explained that he has insomnia and is often

awake at night, so it was not unusual for him to perform this task in the middle

of the night. Mr. Noreiga said he parked Appellant’s truck a bit haphazardly

because he had to go to the bathroom.

Appellant also testified in his defense. Appellant admitted drinking on

the date in question but denied having driven. Appellant conceded that his

license was suspended at that time and maintained that he did not drive while

his license was under suspension. Appellant stated that many friends borrow

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his pick-up truck from time to time. Appellant said that when he went to Ms.

Ayres’ house on the date in question, she asked him to leave because she did

not want Appellant to wake up her children. Appellant agreed and walked

back home, which Appellant indicated was a short distance away. Appellant

further stated that he had taken sleep medication shortly before his encounter

with police, so he was confused concerning some of Corporal Funk’s questions.

At the conclusion of trial, the court convicted Appellant of DUI and

driving with a suspended license. The court sentenced Appellant on March 18,

2021, to 5 days to 6 months’ imprisonment for DUI, and a consecutive 60

days’ imprisonment for driving with a suspended license. On April 22, 2021,

Appellant filed a petition for leave to file an appeal nunc pro tunc, which the

court granted the next day. On May 25, 2021, Appellant filed a second petition

for leave to file an appeal nunc pro tunc, which the court denied on May 28,

2021. On June 1, 2021, Appellant filed a motion for reconsideration, wherein

counsel described the reasons for his failure to file the appeal nunc pro tunc.

On June 2, 2021, the court granted the motion for reconsideration and

permitted Appellant to file a notice of appeal nunc pro tunc, which Appellant

timely filed that day. On June 10, 2021, the court ordered Appellant to file a

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

1925(b), and Appellant timely complied.

Appellant raises the following issues for our review:

Did the trial court err by denying [Appellant]’s motion to

dismiss the charges, when the Commonwealth prejudiced

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[Appellant] by filing the charges against him more than five

days after his arrest, as required by the Rules of Criminal

Procedure, thus preventing him from obtaining exculpatory

evidence?

Did the trial court err by denying [Appellant’s] motion to

dismiss the charges for the Commonwealth’s entry into his

home and interrogation of him without a warrant?

Did the trial court err in finding [Appellant] guilty of the

charges against him, when the evidence was insufficient to

sustain a conviction?

(Appellant’s Brief at 4).

In his first issue, Appellant argues that the Commonwealth was required

to file charges against him within five days of his release from arrest, in

accordance with Rule 519(B). Appellant asserts that it is undisputed that the

Commonwealth failed to comply with this rule. Appellant maintains the 31-

day delay caused him prejudice in light of the lack of direct evidence showing

that Appellant had driven on the date in question. Appellant claims that had

the Commonwealth timely filed charges against him, he could have obtained

video footage from the bar which might have shown that Appellant was

walking that night, but the bar only keeps the video footage for seven days.

Appellant complains that the trial court relied on Appellant’s prior interactions

with police to find that Appellant “should have been aware” that criminal

charges were forthcoming. Appellant claims his encounter with police could

have reasonably led Appellant to believe the Commonwealth might charge him

with a variety of offenses such as public drunkenness or disorderly conduct,

but he could not begin to prepare a defense without knowing the actual

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charges against him. Appellant insists he should not bear the burden of

gathering evidence in his defense before charges are even filed. Appellant

stresses that the five-day limit of Rule 519(B) exists to prevent the kind of

due process violation that occurs from a significant delay in filing charges.

Appellant concludes the court erred in deciding he did not suffer prejudice,

and this Court must reverse his convictions and vacate the judgment of

sentence. We disagree.

Pennsylvania Rule of Criminal Procedure 519 provides:

Rule 519. Procedure in Court Cases Initiated by

Arrest Without Warrant

* * *

(B) Release

(1) The arresting officer shall promptly release from

custody a defendant who has been arrested without a

warrant, rather than taking the defendant before the issuing

authority, when the following conditions have been met:

(a) the most serious offense charged is a misdemeanor

of the second degree or a misdemeanor of the first

degree in cases arising under 75 Pa.C.S.A. § 3802;

(b) the defendant poses no threat of immediate physical

harm to any other person or to himself or herself; and

(c) the arresting officer has reasonable grounds to

believe that the defendant will appear as required.

(2) When a defendant is released pursuant to paragraph

(B)(1), a complaint shall be filed against the defendant

within 5 days of the defendant’s release. Thereafter, the

issuing authority shall issue a summons, not a warrant of

arrest, and shall proceed as provided in Rule 510.

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Pa.R.Crim.P. 519(B). Additionally, Pennsylvania Rule of Criminal Procedure

109 provides:

Rule 109. Defects in Form, Content, or Procedure

A defendant shall not be discharged nor shall a case be

dismissed because of a defect in the form or content of a

complaint, citation, summons, or warrant, or a defect in the

procedures of these rules, unless the defendant raises the

defect before the conclusion of the trial in a summary case

or before the conclusion of the preliminary hearing in a court

case, and the defect is prejudicial to the rights of the

defendant.

Pa.R.Crim.P. 109.

A complaint filed outside of the prescribed five-day period in Rule 519

warrants dismissal only after a showing that the delay prejudiced the

defendant. Commonwealth v. Schimelfenig, 522 A.2d 605 (Pa.Super.

1987), appeal denied, 518 Pa. 624, 541 A.2d 1136 (1988) (holding that

Commonwealth’s failure to file criminal complaint for DUI in timely manner

did not warrant dismissal of cases where defendants failed to show prejudice).

Absent a showing of prejudice, dismissal is an inappropriate remedy for a Rule

519 violation. Commonwealth v. Wolgemuth, 737 A.2d 757 (Pa.Super.

1999). See also Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987)

(holding failure to comply with five-day period in which to serve complaint

constitutes procedural defect; such defect, however, does not mandate self-

executing remedy of dismissal; rather, defect triggers separate and distinct

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analysis under Rule 150 to determine proper remedy).3

Instantly, in denying Appellant’s pre-trial motion to dismiss for violation

of Rule 519(B), the trial court reasoned:

[Appellant] was arrested and released on November 12,

2019, and the Criminal Complaint against him was filed

thirty-one days later, on December 13, 2019. Such

noncompliance constitutes a “defect in procedure” for

purposes of Rule 109.

* * *

[Appellant’s] counsel falls short, however, in demonstrating

that [Appellant] has been prejudiced by the delay in filing

the Complaint. …

* * *

At oral argument, [Appellant] made much of the fact that

the camera system at the bar he was allegedly drinking at

automatically deletes the recorded footage every seven

days if it is not intentionally preserved. He also alleged that

at the time he was released he was “confused” as to why he

had been arrested and what had occurred the prior evening

(due in large part to heavy intoxication), and that nothing

about the situation had been explained to him.

Only under the most impractically expansive, naïve

definition of “prejudice” has [Appellant] been harmed by the

thirty-one day delay in filing the Criminal Complaint, and,

given [Appellant’s] prior relationship with the criminal

justice system, his alleged confusion is not credible.

(Order and Opinion denying Appellant’s Pre-Trial Motions, filed 8/21/20, at 1-

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3 In Revtai, Wolgemuth and Schimelfenig, this Court analyzed the five-day

violation under Pa.R.Crim.P. 102(c) and Pa.R.Crim.P. 130(d), which are

predecessors to Rule 519. The language in Rule 102(c) and Rule 130(d) is

substantively similar to Rule 519(B)(2). Pa.R.Crim.P. 150 is the predecessor

to Rule 109. Those rules are also substantively similar.

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3) (footnote omitted).

Among other things, the court noted that Appellant has a history of DUI

offenses. The court stated that at the time of Appellant’s arrest, he knew his

defense would have been that nobody saw him drive, and he did not need the

criminal complaint to begin finding witnesses to support his defense. If

Appellant believed a video from the bar would have aided his defense, he had

ample time after his arrest to secure it, particularly where Appellant is an

employee at Johnny’s Bar. (Id. at 3). In sum, the court found that

“[Appellant] fail[ed] to identify any alleged exculpatory evidence that existed

in the five-day period after his release that he both could not have known he

would need prior to the filing of the Criminal Complaint and that would have

been lost in the thirty-one day period prior thereto.” (Id. at 4).

We agree with the trial court that Appellant cannot demonstrate

prejudice on this record. Although Appellant claims video surveillance from

the bar could have contained potentially exculpatory evidence, Appellant

offered no evidence of precisely where surveillance videos at/around the bar

are located or the direction they faced to indicate whether any video footage

would have even captured Appellant’s journey to/from Ms. Ayres’ house or

had a view of the adjacent firehall where Appellant’s vehicle was ultimately

parked. Absent more, Appellant’s blanket statement that the surveillance

video footage could have yielded exculpatory evidence is merely speculative.

Additionally, while the trial court mentioned Appellant’s prior DUI offenses,

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the court’s analysis read in its entirety makes clear the court did not base its

prejudice determination solely on Appellant’s prior record. Further, Appellant

admitted that he remembered very little from the night at issue. To the extent

Appellant complains he could have obtained more witnesses from the bar who

might have seen Appellant walking to/from Ms. Ayres’ house, Appellant’s lack

of memory would be to blame for the failure to secure those witnesses—not

any delay in the filing of the criminal complaint. Under these circumstances,

we agree with the trial court that Appellant has not shown prejudice to warrant

the dismissal of the charges for violation of Rule 519(B). See Wolgemuth,

supra.

In his second issue, Appellant argues that the police unlawfully entered

his apartment without an arrest warrant. Although Corporal Funk might have

believed he was entering a common entryway, Appellant asserts that there is

no “good faith” exception to the warrant requirement in Pennsylvania.

Appellant claims there were no exigent circumstances present to justify

Corporal Funk’s entry into his apartment without a warrant. Appellant submits

that all statements he made to police should be suppressed as a result of the

unlawful entry.

Appellant further maintains the police failed to issue him Miranda4

warnings. Appellant suggests that he was in police custody before he admitted

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4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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to drinking because Appellant felt compelled to comply with police directives

after Corporal Funk had entered Appellant’s residence and asked Appellant to

come outside. Appellant stresses that the officers did not tell Appellant he

was free to go at any point in time. Under the circumstances where police

entered Appellant’s home without a warrant, escorted him outside, and asked

him incriminating questions, Appellant submits a reasonable person would not

have felt free to leave. Appellant concludes the court should have suppressed

his statements to police. We disagree.

“Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is limited to determining whether the factual findings

are supported by the record and whether the legal conclusions drawn from

those facts are correct.” Commonwealth v. Williams, 941 A.2d 14, 26

(Pa.Super. 2008) (en banc) (internal citations omitted).

[W]e may consider only the evidence of the prosecution and

so much of the evidence for the defense as remains

uncontradicted when read in the context of the record as a

whole. Where the record supports the findings of the

suppression court, we are bound by those facts and may

reverse only if the court erred in reaching its legal

conclusions based upon the facts.

Id. at 27.

Initially, we observe that Appellant did not raise any issue related to the

lack of Miranda warnings in his pre-trial motion filed on July 13, 2020, or

during argument at the pre-trial motion hearing. (See Appellant’s Omnibus

Pre-Trial Motions, filed 7/13/20, at unnumbered pp. 3-4); (N.T. Pre-Trial

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Motion Hearing, 8/6/20, at 23-24). Additionally, Appellant’s Rule 1925(b)

statement does not raise any challenge to the lack of Miranda warnings. (See

Rule 1925(b) Statement, filed 7/2/21, at 1) (stating: “The [c]ourt erred by

denying [Appellant’s] motion to dismiss the charges for the Commonwealth’s

entry into Appellant’s home and interrogation of [Appellant] without a

warrant”). Thus, Appellant has not properly preserved a challenge to the lack

of Miranda warnings.5 See Commonwealth v. Malloy, 579 Pa. 425, 856

A.2d 767 (2004) (holding appellant waived issue that he failed to raise and

litigate in suppression motion and during suppression hearing). See also

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998) (stating general

rule that issues not raised in Rule 1925(b) statement are waived on appeal).

Regarding Appellant’s challenge to the lack of an arrest warrant, it is

well-settled that “[i]n a private home, searches and seizures without a warrant

are presumptively unreasonable. Absent probable cause and exigent

circumstances, the entry of a home without a warrant is prohibited under the

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5 We observe that at the beginning of trial, the parties mentioned an

outstanding motion in limine filed by Appellant that involved a challenge to

Appellant’s statements to police. The motion in limine does not appear in the

certified record or on the docket entries, and it is not entirely clear from the

discussion on the record at trial what the grounds for the motion were.

Nevertheless, even if the motion in limine raised a challenge to Appellant’s

statements to police based on a lack of Miranda warnings, that claim would

still be waived on appeal for failure to include it in Appellant’s Rule 1925(b)

statement. Indeed, the trial court opinion contains no discussion regarding

the lack of Miranda warnings in this case. (See Trial Court Opinion, filed July

19, 2021, at 11-17).

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Fourth Amendment.” Commonwealth v. Roland, 535 Pa. 595, 599, 637

A.2d 269, 270 (1994) (internal citations and quotation marks omitted).

Nevertheless, “a defendant must show that he had a privacy interest in the

place invaded or thing seized that society is prepared to recognize as

reasonable.” Commonwealth v. Enimpah, 630 Pa. 357, 364, 106 A.3d 695,

698 (2014). “[I]f the defendant has no protected privacy interest, neither the

Fourth Amendment nor Article I, § 8 is implicated.” Id. at 364, 106 A.3d at

699.

The Commonwealth may concede the privacy interest,

choosing to contest only the legality of police conduct; if it

does so, the defendant’s “reasonable expectation of privacy”

need not be established. However, if the evidence of the

Commonwealth, the party with the burden of production,

shows the defendant lacked such a privacy interest, the

burden of establishing the contrary is on the defendant.

Id. at 368, 106 A.3d at 701. See also Commonwealth v. Reed, 851 A.2d

958 (Pa.Super. 2004), appeal denied, 582 Pa. 607, 871 A.2d 190 (2005)

(holding appellant had no legitimate expectation of privacy in hallway or stairs

of his apartment building, which were common areas under law).

Instantly, the record adduced at the suppression hearing did not make

clear whether the entryway and stairs on which Corporal Funk traversed were

Appellant’s private property or a common area in a building with multiple

units. When Corporal Funk entered past the unhinged door, he believed

multiple units were at the top of the stairs. But when Corporal Funk noticed

personal belongings on the stairs, he stopped ascending, in case the stairway

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was entirely part of Appellant’s private residence. Corporal Funk testified that

“[w]hen [he] called out to [Appellant], [he] still had no idea whether there

was more than one person resid[ing] up there or if there was just him.” (N.T.

Pre-Trial Motion Hearing, 8/6/20, at 21-22). Notably, Appellant testified at

the pre-trial motion hearing but did not elicit any testimony concerning

whether the area in which Corporal Funk entered was part of Appellant’s

private residence. (See id. at 4-13). The Commonwealth also did not

concede the privacy interest during the suppression hearing. As there was

some dispute as to whether the area entered by Corporal Funk was private or

a common area, Appellant had the burden of establishing a legitimate

expectation of privacy in the area Corporal Funk entered. See Enimpah,

supra. To the extent that the hallway and stairs were common areas,

Appellant had no reasonable expectation of privacy for which he could succeed

on his suppression claim. See Reed, supra.

Moreover, we emphasize that the record in this case makes clear that

police did not enter Appellant’s building for the purpose of making an arrest,

did not recover any evidence from Appellant’s home, and did not actually

arrest Appellant until the police had conversations with Appellant outside of

the building, during which Appellant admitted to drinking and was visibly

intoxicated. Although Appellant stresses the illegality of Corporal Funk’s entry

into his home, any unlawful entry is not what led to Appellant’s statements to

police. Had Corporal Funk knocked on Appellant’s door or called his name

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from the outside and asked Appellant to come down and speak to the officers,

the same conversation would have taken place. The facts of this case are

more akin to a scenario in which police would have inevitably discovered

evidence that was initially found via an unlawful search. See, e.g.,

Commonwealth v. Williams, 2 A.3d 611 (Pa.Super. 2010) (en banc), appeal

denied, 610 Pa. 585, 19 A.3d 1051 (2011) (explaining that inevitable

discovery doctrine permits introduction of evidence that inevitably would have

been discovered through lawful means). Under these circumstances,

suppression of Appellant’s statements to police was not warranted.6 Thus,

Appellant’s second issue merits no relief.

In his third issue, Appellant argues there was no direct evidence

establishing that he drove on the date in question. Appellant asserts that Ms.

Ayres did not see Appellant drive away from her home. Appellant claims that

Mr. Noreiga admitted at trial that he was the one who drove Appellant’s

vehicle. Appellant insists the court cannot consider as part of its sufficiency

analysis, the statements Appellant made to police where those statements

were illegally obtained.7 Appellant maintains the testimony that the hood of

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6Although our rationale for affirming the denial of Appellant’s suppression

motion differs from that of the trial court, we can affirm on any basis. See

Commonwealth v. Gatlos, 76 A.3d 44, 62 n.14 (Pa.Super. 2013).

7 We reject this contention outright.

See Commonwealth v. Haynes, 116

A.3d 640 (Pa.Super. 2015), appeal denied, 633 Pa. 763, 125 A.3d 1199

(Footnote Continued Next Page)

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Appellant’s car was neither warm nor cold “was presented with such lack of

specificity that it should be inherently suspect.” (Appellant’s Brief at 18).

Likewise, Appellant complains the testimony concerning the tire tracks was

speculative and should have been rejected. (Id. at 19-20).8 Appellant

contends the court improperly credited the speculative testimony from the

police officers and ignored the testimony from Appellant’s friend, who

admitted driving the vehicle on the date in question. Appellant concludes the

evidence was insufficient to sustain his convictions, and this Court must

reverse his convictions and vacate his judgment of sentence. We disagree.

Preliminarily, the distinction between a claim challenging the sufficiency

of the evidence and a claim challenging the weight of the evidence is critical.

Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751 (2000).

A claim challenging the sufficiency of the evidence, if

granted, would preclude retrial under the double jeopardy

provisions of the Fifth Amendment to the United States

Constitution, and Article I, Section 10 of the Pennsylvania

Constitution, whereas a claim challenging the weight of the

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(2015) (explaining that in conducting sufficiency of evidence review, we view

all evidence admitted—even improperly admitted evidence).

8 To the extent Appellant argues that the court should have stricken testimony

about how hot/cold the hood of Appellant’s car should have been and

regarding the tire tracks where the court did not qualify any of the testifying

officers as expert witnesses, that claim is waived where Appellant made no

objection to the officers’ testimony at the time it was offered. (See N.T. Trial,

1/29/21, at 16-17, 36, 46). See also Pa.R.A.P. 302(a) (stating issues not

raised in trial court are waived and cannot be raised for first time on appeal);

Commonwealth v. Bedford, 50 A.3d 707, 714 (Pa.Super. 2012) (en banc),

appeal denied, 618 Pa. 680, 57 A.3d 65 (2012) (reiterating that party must

make timely and specific objection to preserve issue for appellate review).

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evidence if granted would permit a second trial.

A claim challenging the sufficiency of the evidence is a

question of law. Evidence will be deemed sufficient to

support the verdict when it establishes each material

element of the crime charged and the commission thereof

by the accused, beyond a reasonable doubt. Where the

evidence offered to support the verdict is in contradiction to

the physical facts, in contravention to human experience

and the laws of nature, then the evidence is insufficient as

a matter of law. When reviewing a sufficiency claim the

court is required to view the evidence in the light most

favorable to the verdict winner giving the prosecution the

benefit of all reasonable inferences to be drawn from the

evidence.

A motion for new trial on the grounds that the verdict is

contrary to the weight of the evidence, concedes that there

is sufficient evidence to sustain the verdict. Thus, the trial

court is under no obligation to view the evidence in the light

most favorable to the verdict winner. An allegation 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. A trial judge must do more than

reassess the credibility of the witnesses and allege that he

would not have assented to the verdict if he were a juror.

Trial judges, in reviewing a claim that the verdict is against

the weight of the evidence do not sit as the thirteenth juror.

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.

Id. at 319-20, 744 A.2d at 751-52 (internal citations and quotation marks

omitted). See also Commonwealth v. Wilson, 825 A.2d 710 (Pa.Super.

2003) (explaining sufficiency of evidence review does not include assessment

of credibility, which is more properly characterized as challenge to weight of

evidence).

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Instantly, in its Rule 1925(a) opinion, the court noted: “As opposed to

a sufficiency of the evidence claim, what [Appellant] is really raising is a

weight of the evidence claim, as the only way he could win a sufficiency claim

is if the [c]ourt credited the testimony of himself and Mr. Noreiga over the

testimony of Corporal Funk, Patrolman Stuller, and [Officer] Young.” (Trial

Court Opinion at 18). We agree with the court that Appellant’s issue as

presented on appeal is more properly characterized as a weight challenge,

where Appellant is essentially arguing that the court should have found the

defense witnesses more credible than those of the Commonwealth.

Appellant, however, failed to raise any objection to the weight of the

evidence in the trial court. Therefore, Appellant’s claim is waived. See

Pa.R.Crim.P. 607(A) (stating that defendant must raise weight claim with trial

judge in first instance). See also Commonwealth v. Cox, 231 A.3d 1011,

1018 (Pa.Super. 2020) (stating weight challenge must be preserved either in

post-sentence motion, written motion before sentencing, or orally prior to

sentencing; appellant’s failure to avail himself of any of prescribed methods

for presenting weight issue to trial court constitutes waiver of that claim).

Accordingly, we affirm.

Judgment of sentence affirmed.

Judge Lazarus joins this memorandum.

Judge Nichols concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/02/2022

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