J-A16002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TOSHUA NICOLE BECKHAM                    :
                                          :
                    Appellant             :   No. 1948 MDA 2019

     Appeal from the Judgment of Sentence Entered October 23, 2019
             In the Court of Common Pleas of Lebanon County
          Criminal Division at No(s): CP-38-CR-0001309-2018


BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED AUGUST 07, 2020

      Appellant, Toshua Nicole Beckham, appeals from her judgment of

sentence entered by the Court of Common Pleas of Lebanon County for simple

assault, terroristic threats and criminal conspiracy. We affirm.

      As aptly summarized by the trial court, “[t]his is a case involving road

rage.” Trial Court Opinion, 1/6/2020, at 1. On July 26, 2018, Melanie Arocho

was driving on Route 422 in Lebanon County. Arocho’s fiancée, Thomas Beard,

was in the front passenger seat of the car and their three-year-old son was in

the back seat behind Arocho. Appellant and her boyfriend, Randall Sanders,

were in a Hummer behind Arocho’s car. Sanders was driving the Hummer and

Appellant was in the front passenger seat.

      Arocho stopped to let the driver in front of her make a turn. As she did,

Sanders entered the middle turning lane to go around Arocho’s car. Arocho
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almost slammed into the back of the Hummer and beeped her horn. Appellant

began to yell out her window for Arocho to pull over. At the next traffic light,

the Hummer pulled up beside Arocho’s car on the driver’s side, at which point

Appellant waved a black handgun at Arocho’s car and shouted “I’m going to

f***ing kill you.” N.T. Trial, 8/23/19, at 16. Sanders and Appellant pulled over

and screamed for Arocho to pull over to fight them.

      Arocho drove away and contacted the police. During the incident, Arocho

had taken a photograph of the Hummer’s license plate. Using that photograph,

the responding officer, Officer John Houser, was able to ascertain that Sanders

was the owner of the Hummer. Officer Houser interviewed Sanders as well as

Appellant, who admitted to cursing out of her window at another car during

an incident on Route 422. She denied brandishing a handgun. Officer Houser

searched the Hummer and uncovered a black handgun in the Hummer’s center

console.

      Appellant was charged with three counts each of terroristic threats,

conspiracy to commit terroristic threats, simple assault and conspiracy to

commit simple assault. Appellant was tried before a jury. At Appellant’s trial,

both Arocho and Beard positively identified Appellant as the woman who pulled

a gun on them on Route 422 on July 26, 2018. Following trial, the jury found

Appellant guilty of all counts.

      When sentencing Appellant, the trial court recognized that the incident

at hand had been serious but the court also recognized that Appellant had no


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prior criminal record. As such, the trial court sentenced Appellant to a term of

imprisonment    below    what   the   sentencing   guidelines   recommended.

Specifically, the trial court sentenced Appellant to an intermediate punishment

sentence of two years, with two months to be spent in prison, four months to

be spent on house arrest, and the remainder of the time to be spent on

probation. Appellant did not file a post-sentence motion, but she did file a

timely notice of appeal. Appellant then complied with the trial court’s

instruction to file a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) and the trial court issued its Pa.R.A.P. 1925(a) opinion in

response to that statement.

      In her appeal, Appellant first argues that the trial court abused its

discretion by admitting Arocho’s testimony that her son suffered from

nightmares and required therapy after the incident with Appellant. According

to Appellant, this testimony constituted inadmissible hearsay. We disagree.

      The Pennsylvania Rules of Evidence define “hearsay” as a statement,

other than the one made by the declarant while testifying at the trial or

hearing, offered to prove the truth of the matter asserted. See Pa.R.E. 801(c).

The Rules further define “statement,” for purposes of the hearsay rule, as “a

person’s oral assertion, written assertion, or nonverbal conduct, if the person

intended it as an assertion.” Pa.R.E. 801(a). Moreover, testimony is not

hearsay if it does not involve an extrajudicial statement but merely constitutes




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an   observation   based   on   the   witness’s   personal   knowledge.    See

Commonwealth v. Johnson, 838 A.2d 663, 673 (Pa. 2003).

      Here, prior to trial, Appellant requested that the trial court preclude

Arocho from testifying that her son had nightmares and required therapy after

the incident with Appellant. The court ruled that it would allow testimony

regarding the fact that the child needed therapy, but nothing about what the

therapist or child said during those therapy sessions. The court also ruled that

it would allow testimony about the nightmares as such testimony constituted

“observations of the parents.” N.T. Trial, 8/23/19, at 4.

      Appellant now complains that this testimony constituted hearsay and

the court therefore abused its discretion by allowing it. Appellant, however,

completely fails to offer any explanation to substantiate her bald assertion

that the testimony was hearsay. Regarding the nightmares, Arocho testified

on direct examination that her son began having nightmares after the incident

with Appellant, without any further elaboration. See id. at 20. As the

Commonwealth argues in its brief, this testimony did not constitute hearsay

given that the nightmares were nonverbal and involuntary conduct which

“cannot be considered statements because they [were] not intended as an

assertion.” Commonwealth’s Brief at 8. Rather, the testimony only recounted

Arocho’s observations that her son suffered from nightmares in the wake of

having a gun pointed at him by Appellant. It was therefore not hearsay. See

Johnson, 838 A.2d at 673.


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       As for the testimony regarding therapy, we note that it was defense

counsel who raised the issue of therapy during his cross-examination of

Arocho. Counsel asked Arocho whether she had any psychiatry bills to

substantiate a claim that her son was going to therapy, and Arocho replied

that she did not. See N.T. Trial, 8/23/19, at 29-30. Again, Appellant

completely fails to demonstrate, nor do we see, how this amounted to

hearsay. We therefore find no abuse of discretion on the part of the trial court

in allowing the testimony in question. See Commonwealth v. Weakley, 972

A.2d 1182, 1188 (Pa. Super. 2009) (stating that the admission of evidence is

within the sound discretion of the trial court and such a decision will only be

reversed upon a showing of an abuse of that discretion).1

       In any event, we also agree with the trial court that even if the court

somehow erred by allowing Appellant’s brief testimony about her son’s

nightmares and need for therapy, any error would have been harmless in light

of the overwhelming evidence of Appellant’s guilt. As the trial court outlined

____________________________________________


1 Appellant also argues, in effect, that Arocho’s hearsay testimony regarding
her son’s nightmares was unduly prejudicial. While we have already negated
Appellant’s claim that this testimony was even hearsay in the first instance,
we also disagree with Appellant that it was unduly prejudicial. She asserts that
“once the jury heard [this] testimony, the trial was over.” Appellant’s Brief at
9. However, as even Appellant concedes, Arocho’s testimony regarding the
nightmares was very brief. See Appellant’s Brief at 8 (“Arocho’s testimony
was simply that these apparent nightmares happened sometime after the
incident and before the trial”). The trial court concluded that this “brief and
isolated” testimony “could not have reasonably affected the outcome of the
trial.” Trial Court Opinion, 1/6/20, at 12. Appellant has simply failed to show
how the trial court abused its discretion in reaching this conclusion.


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in its opinion, both Arocho and Beard positively identified Appellant as the

individual who threatened them at gunpoint. Arocho also took a photograph

of the license plate of the vehicle Appellant was in when the incident occurred,

allowing the police to trace the vehicle back to Sanders and Appellant. When

the police searched that vehicle, they found a black handgun similar to the

one described by Arocho and Beard as the one brandished by Appellant. Given

this overwhelming evidence, the trial court properly determined that even if it

had erred by allowing the challenged testimony, any error would have been,

at most, harmless. See Commonwealth v. Spotz, 896 A.2d 1191, 1222 (Pa.

2006) (stating that an error is harmless if the evidence of guilt, without regard

to the tainted evidence, is so overwhelming that the conviction would have

followed beyond a reasonable doubt without regard to it). No relief is due.

      Next, Appellant asserts that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), by failing to conduct DNA or

fingerprint testing on the handgun it recovered from the Hummer. Appellant

apparently believes such testing would have produced exculpatory results.

This claim warrants no relief.

      Brady requires prosecutors to disclose all exculpatory information in its

possession that is material to the guilt or punishment of an accused. See

Commonwealth v. Roney, 79 A.3d 595, 607-608 (Pa. 2013) (emphasis

added). To establish a Brady violation, an appellant must show that: (1) the

evidence at issue was favorable to the appellant, either because it is


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exculpatory or could have been used for impeachment; (2) the evidence was

suppressed by the prosecution, either willfully or inadvertently; and (3)

prejudice ensued. See id. at 607. In discussing the parameters of what must

be disclosed under Brady, our Supreme Court stated in Roney:

      Brady does not require the disclosure of information that is not
      exculpatory but might merely form the groundwork for possible
      arguments or defenses. … Brady is not violated when the
      appellant knew or, with reasonable diligence, could have
      uncovered the evidence in question, or when the evidence was
      available to the defense from other sources.

Id. at 608 (citations omitted).

      Here, we agree with the trial court that the Commonwealth’s decision

not to forensically test the handgun did not violate Brady, as there was no

known exculpatory evidence in play for the Commonwealth to disclose. As the

trial court stated:

      It is clear that Brady does not impose an affirmative duty on the
      prosecution to conduct forensic testing that could possibly be
      exculpatory. The Commonwealth’s duty under Brady requires it
      to produce known exculpatory material; it does not require the
      Commonwealth to undertake an affirmative search for such
      material.

Trial Court Opinion, 1/6/20, at 9. See also Commonwealth v Tedford, 960

A.2d 1, 30-31 (Pa. 2008) (stating that to prevail on a Brady claim, an

appellant must affirmatively demonstrate exculpability and an appellant’s

assertion regarding the “potential exculpatory value” of certain evidence does

not accomplish that).




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      This does not mean, of course, that Appellant could not have conducted

her own forensic testing of the gun. Appellant makes no argument to the

contrary and therefore, Appellant has not shown that she was unable to

independently uncover the evidence she claims could have been exculpatory.

Her Brady claim fails for his reason as well. See Roney, 79 A.3d at 608.

      Lastly, Appellant claims that the jury’s verdict was against the weight of

the evidence. This claim has been waived.

      Rule 607(A) of the Rules of Criminal Procedure addresses how to

preserve a weight of the evidence claim, stating:

      (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).

      Here, in her “statement of where the issues have been raised and

preserved” section, Appellant references several pages in the record where

she claims to have preserved her assertion that the verdict was against the

weight of the evidence. However, those pages do not reflect Appellant making

any motion for a new trial, oral or written, on the basis that the verdict was

against the weight of the evidence. Rather, they reference certain parts of

defense counsel’s cross-examination of Arocho and Beard, where defense

counsel was attempting to undermine those witnesses’ credibility. Appellant’s

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referenced pages of the record all mark parts of the trial that occurred before

the verdict was even entered.

      It is Appellant’s responsibility to direct the Court to that place in the

record where she preserved her weight of the evidence claim. See Pa.R.A.P.

2117(c). Nonetheless, our own review of the record provided by Appellant

does not disclose any point where Appellant made a pre-sentence motion for

a new trial on the basis that the verdict was against the weight of the evidence.

Moreover, Appellant did not file a post-sentence motion, so she could not have

preserved her weight of the evidence claim there. As such, her weight of the

evidence claim is waived under Rule 607(A).

      We recognize that Appellant did raise her weight of the evidence claim

in her 1925(b) statement. Although the trial court addressed and rejected that

claim in its 1925(a) opinion, we are still constrained to find that the issue is

waived. As our Supreme Court stated when finding a weight of the evidence

claim waived in similar circumstances:

      Regarding Appellant's weight of the evidence claim we note that
      Appellant did not make a motion raising a weight of the evidence
      claim before the trial court as [Rule 607(A) of] the Pennsylvania
      Rules of Criminal Procedure require. The fact that Appellant
      included an issue challenging the verdict on weight of the evidence
      grounds in his 1925(b) statement and the trial court addressed
      Appellant's weight claim in its Pa.R.A.P. 1925(a) opinion did not
      preserve his weight of the evidence claim for appellate review in
      the absence of an earlier motion. Appellant's failure to challenge
      the weight of the evidence before the trial court deprived that
      court of an opportunity to exercise discretion on the question of
      whether to grant a new trial. Because 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

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      evidence, this Court has nothing to review on appeal. We thus
      hold that Appellant waived his weight of the evidence claim
      because it was not raised before the trial court as required by
      Pa.R.Crim.P. 607.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (internal

citations omitted) (footnotes omitted).

      We note, however, that if we were to reach the merits of whether or not

the trial court abused its discretion in finding in its 1925(a) opinion that the

verdict was not against the weight of the evidence, we would have no difficulty

in concluding that the trial court did not abuse its discretion.

      When considering a motion that a verdict was against the weight of the

evidence, a “trial court should award a new trial on this ground only when the

verdict is so contrary to the evidence as to shock one’s sense of justice.”

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011). This Court’s

standard of review of a trial court’s decision regarding a weight of the evidence

claim is limited to determining whether the trial court palpably abused its

discretion in concluding that the verdict was or was not against the weight of

the evidence. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.

2003).

      Here, the trial court determined that “the verdict was supported by more

than enough evidence,” including both Arocho’s and Beard’s identification of

Appellant as the person who pointed a handgun at them while driving in their

car, the photograph Arocho took of the Hummer’s license plate which led the

police to Sanders and Appellant, and the uncovering of a black handgun similar

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to the one described by Arocho and Beard during the search of the Hummer

by the police. Trial Court Opinion, 1/6/2020, at 7. We discern no abuse of

discretion by the trial court in reaching this determination.

      Appellant argues, however, that the verdict was against the weight of

the evidence because there were minor inconsistencies in Arocho’s and

Beard’s testimony and because both Arocho and Beard testified that they had

previously been convicted of crimen falsi offenses. This claim clearly has no

merit given that this Court, when assessing a weight of the evidence claim,

“will not substitute its judgment for that of the factfinder, which is free to

assess the credibility of the witnesses and to believe all, part, or none of the

evidence presented.” Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.

Super. 2017) (citations omitted). No relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/07/2020




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