Opinion
J-S16035-19 No. 905 MDA 2018
04-16-2019
COMMONWEALTH OF PENNSYLVANIA v. RAYMOND N. WASHINGTON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 3, 2018 in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002712-2017 BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Raymond N. Washington ("Washington") appeals from the judgment of sentence imposed following his convictions of one count of escape, and two counts of resisting arrest. We affirm.
On May 2, 2017, Detectives Dennis Simmons ("Detective Simmons") and Donald Heffner ("Detective Heffner") (collectively, the "detectives") were patrolling near the 1200 block of Derry Street, Harrisburg, Pennsylvania. At approximately 3:00 p.m., the detectives observed Washington sitting on the stoop of a house at 1222 Derry Street, and consuming a 24-ounce can of Budweiser.
The detectives approached Washington, advised him that they were police officers, and asked him if he lived at that residence. When Washington indicated that he did not live there, the detectives advised him that he was in violation of Harrisburg's open-container ordinance, and asked him for identification. Washington did not respond to the detectives' request. Detective Simmons advised Washington that they were going to issue him a ticket for the open container. Washington stood up and placed his hands in his pockets, but otherwise failed to respond to the detectives' request for identification, and exhibited signs that he was preparing to flee.
Fearing that Washington was going to run, Detective Heffner advised him that he was going to be frisked for weapons. When the detectives attempted to frisk Washington, Washington pulled away from the detectives and attempted to flee. In response, the detectives tackled Washington to the ground and tried to handcuff him. Washington wildly swung his arms, striking Detective Heffner in the face with his elbow. Washington escaped the detectives' grasps and ran a few feet, before Detective Heffner tackled him to the ground. Washington shoved the detectives off of him and ran away. A group of onlookers cheered for Washington as the detectives yelled at him to stop and that he was under arrest. Detective Simmons attempted to pursue Washington but lost sight of him during the chase. Detective Heffner returned to the police vehicle to call for back-up. A third officer arrived at the scene, discovered Washington hiding under a nearby stairwell, and detained him until the detectives arrived and arrested him.
As a result of attempting to detain Washington, Detective Heffner suffered contusions to his right arm and backside, and a bruise to his nose, and Detective Simmons suffered contusions to his left arm.
Following a jury trial, Washington was found guilty of the above-mentioned offenses. Washington was sentenced to an aggregate term of 9 to 18 months in prison. Washington filed a timely Post-Sentence Motion, challenging the weight of the evidence, which was denied. Washington filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Washington raises the following questions for our review:
1. Whether the verdict was against the weight of the evidence that it shocked one's sense of justice where the testimony indicated that the interaction was just a "mere scuffle"?Brief for Appellant at 6.
2. Whether the verdict was against the weight of the evidence that it shocked one's sense of justice as to whether [Washington] was in police custody?
In both issues presented on appeal, Washington purports to challenge the weight of the evidence. Therefore, we will address his claims together. In his first claim, Washington alleges that his actions did not create a substantial risk of injury to the detectives, or justify substantial force to overcome. Id. at 13-16. Washington argues that he did not deliberately strike the detectives. Id. at 13-14. Washington claims that he "merely attempted to squirm, wiggle, twist and shake his way free of the [d]etectives." Id. According to Washington, his actions did not justify the detectives' actions of tackling him to the ground. Id. at 16.
Washington's legal arguments appear to challenge the sufficiency of the evidence. See Commonwealth v. Widmer , 744 A.2d 745, 751-52 (Pa. 2000) (stating that sufficiency of the evidence claims are distinct from weight of the evidence claims, as there are different standards of review as well as separate remedies). To the extent that Washington raises sufficiency of the evidence claims, they are waived, because they were not raised in his court-ordered Concise Statement. See Commonwealth v. Lemon , 804 A.2d 34, 36 (Pa. Super. 2002) (stating that "issues not included in a Pa.R.A.P. 1925(b) statement are deemed waived on appeal.").
In his second claim, Washington alleges that he was not detained prior to fleeing from the detectives. Id. at 17-18. Washington argues that the detectives never told him that he was under arrest prior to fleeing, and Washington could not hear the detectives' directive to stop over the sound of the onlookers cheering. Id. at 18.
The law pertaining to weight of the evidence claims is well-settled. The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. 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.Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015) (quotation marks and citations omitted).
On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.
Here, the trial court found that the verdict, based upon the substantial evidence found credible by the jury, did not shock one's conscience. See Trial Court Opinion, 10/3/18, at 5-11. We incorporate herein the trial court's analysis. See id. Based upon our review, we conclude that the trial court did not abuse its discretion in denying Washington's weight of the evidence claims. See Commonwealth v. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009) (stating that "[w]hen the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review.").
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 04/16/2019
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