J-S19022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

LORENZO COMPTON

                            Appellant                       No. 1444 EDA 2015


       Appeal from the Judgment of Sentence Entered January 6, 2011
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0004886-2009


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                   FILED JUNE 07, 2016

       Appellant, Lorenzo Compton, appeals from the judgment of sentence

entered January 6, 2011 in the Court of Common Pleas of Philadelphia

County following his convictions of aggravated assault, robbery, conspiracy,

burglary, and possession of an instrument of crime.1               Upon review, we

affirm.

       The trial court summarized the background information as follows.

             This is a direct nunc pro tunc appeal by [Appellant],
       Lorenzo Compton, from a judgment of sentence entered against
       him on January 6, 2011. . . . At a consolidated nonjury trial
       conducted on May 13, 2010, he and a codefendant, John Booker,
       were convicted of Aggravated Assault, Robbery, Conspiracy,
       Burglary, and Possession of an Instrument of Crime.      The
____________________________________________


1
  Respectively, 18          Pa.C.S.A.   §§     2702(a),   3701(a)(1)(ii),   903(1)(1),
3502(a)(1), 907(a).
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     charges arose from their participation in an armed home
     invasion robbery. . . .

       . . . All of the evidence about what occurred at the home came
     from the testimony of [Jessica Rivera], the lessee of the
     premises, and her testimony about what occurred afterwards
     was fully corroborated and supplemented by that of some of the
     responding and arresting police officers.

            It proved that on January 5, 2009, at approximately 12:30
     a.m., as Rivera was exiting her parked Lexus across the street
     from her house, she was ambushed by Booker and [Appellant],
     both armed, the latter of whom held his gun to the back of her
     head and told her to open the trunk of her car. They then forced
     her to take them into her house where her boyfriend, [Darell]
     Griffin, and her cousin, [Fransisco] Arana, were staying and were
     present at the time. They first demanded “the gun”, money and
     drugs, and then “rushed” the victims up the stairs, forced them
     into a bedroom and made them lie on the floor. While that was
     occurring, five more men entered the home. While going up the
     stairs, [Appellant] pointed his gun at the back of Griffin’s head
     and pulled the trigger but no shot was fired. The victims were
     held in the bedroom at gunpoint by Booker while [Appellant] and
     the others went through the house picking up things and putting
     them in trash bags, and while Booker was wearing a mask,
     [Appellant] was not.        After they took the victims back
     downstairs, [Appellant] took Rivera down to the basement,
     searched around, verbally threatened her and then told her to
     stay there and went back upstairs. The other two victims were
     then pushed down into the basement and the intruders
     apparently locked the basement door and left. Rivera and Griffin
     looked out a window and saw the perpetrators drive away,
     Booker getting into an Impala which pulled away first, followed
     by a white Honda or Acura and then Rivera’s Lexus. Other than
     Booker, she could not tell which individuals got into which cars
     or were driving. They went back upstairs and, while Griffin or
     Arana called 911, Rivera flagged down a passing police car.
     While she was telling the policemen what happened, she noticed
     her car being driven nearby. The officers and the victims got in
     the police car and gave chase during which she described the
     defendants, one of the officers called in a report, radio calls were
     sent out and other police officers began responding. After a
     while some of the responding officers caught [Appellant] and
     Booker and had the victims identify them. They also found the

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      Impala and the Lexus and some of Rivera’s property, but no
      weapons were found.   The defendants did not submit any
      evidence.

Trial Court Opinion (T.C.O.), 7/7/15, at 1-3 (citation to record omitted).

      Upon convictions of the aforesaid crimes, the trial court imposed

concurrent sentences of incarceration of a minimum of ten to a maximum of

twenty years each on the assault, robbery, conspiracy, and burglary

convictions, and a minimum of two and one-half to a maximum of five years

of incarceration on the possession conviction.    No post-trial motions were

filed. Appellant was granted leave to file a late appeal on April 28, 2015,

pursuant to his unopposed petition for relief under the Post Conviction Relief

Act, 42 Pa.C.S. § 9541 et seq, in which he claimed ineffective assistance of

trial counsel in failing to file a timely appeal in spite of having been

requested to do so.

      On appeal, Appellant raises one issue for our review.

      1.     Whether the evidence was insufficient to convict
      [A]ppellant of Aggravated Assault, Robbery, Criminal Conspiracy
      and Possession of an Instrument of Crime as because the
      [A]ppellant did not fit the description of the assailant that
      complainant, Jessica Rivera, gave to the police and no gun was
      identified or recovered.

Appellant’s Brief at 2. While Appellant alleges that he is challenging only the

sufficiency of the evidence, Appellant makes both sufficiency and weight of

the evidence claims.

      In reviewing a sufficiency of the evidence claim, we determine

“whether the evidence at trial, and all reasonable inferences derived



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therefrom, when viewed in the light most favorable to the Commonwealth as

verdict winner, are sufficient to establish all elements of the offense beyond

a reasonable doubt.” Commonwealth v. Stevenson, 894 A.2d 759, 773

(Pa. Super. 2006).    Additionally, we do not reweigh evidence, substituting

our judgement for that of the fact-finder.      Id.   “The fact-finder, when

evaluating the credibility and weight of the evidence, is free to believe all,

part, or none of the evidence.” Id. “The evidence at trial need not preclude

every possibility of innocence, and the fact-finder is free to resolve any

doubts regarding a defendant’s guilt unless the evidence is so weak and

inconclusive that as a matter of law no facts supporting a finding of guilt

may be drawn.” Id.

      Appellant challenges sufficiency based upon his assertion he did not fit

the description of the assailant and that no gun was identified or recovered.

Appellant’s sufficiency claim is troubling because Appellant fails to indicate

which elements of which crimes the evidence was insufficient to prove.

Appellant’s failure to specify adequately the elements of each crime that this

purported lack of evidence does not support and without citation to any

authority may constitute sufficient grounds to find waiver on these issues.

See Pa.R.A.P. 2119.     Nonetheless, to the extent Appellant’s identification

and possession of a gun are necessary elements of the various crimes of

which he was convicted, we will decline to find waiver and address the

claims, as both facts challenged are readily discernable from the record.




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      With respect to Appellant’s identification, the evidence was more than

sufficient to support a finding that Appellant committed the crimes charged.

As the trial court noted,

      [a]ll of the victim’s direct testimony made absolutely clear that
      she had more than sufficient opportunity to see [Appellant]’s
      face and be able to accurately recognize him, and the court does
      not see, anything in the record whatsoever to suggest that her
      identification of him at the time of the arrest was in any way
      questionable or based upon an insufficient foundation.


T.C.O., 7/7/15, at 6.

       To the extent that possession of a firearm was an element being

challenged, the fact that a firearm was not recovered does not preclude a

conviction.   See, e.g., Commonwealth v. Nickol, 381 A.2d 873, 876-77

(Pa. 1977) (testimony that the appellant was in possession of a firearm was

sufficient to prove he possessed and concealed that firearm).     The record

indicates that Appellant held a firearm to Ms. Rivera’s head, that while going

up the stairs he pointed his gun at Griffin’s head and pulled the trigger, and

also that he led Ms. Rivera down to her basement at gunpoint. N.T. Waiver

Trial, 5/13/10, at 39, 62-63.       Further, Ms. Rivera saw Appellant in

possession of a firearm in a clearly lit room. Id. at 60-63. In other words,

the record contains ample evidence from which the fact-finder could infer

that Appellant possessed a firearm during the commission of the crimes,

even though a firearm was not recovered.

      To the extent Appellant’s issues raised could be considered a challenge

to the weight of the evidence, we discern Appellant’s argument to be that


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the verdicts were against the weight of the evidence because his convictions

were based solely on the testimony of the victim, Ms. Rivera.         To support

this assertion, Appellant argues that Ms. Rivera’s testimony, that the man

who pressed the gun to her head was wearing a tan Sean John baseball

jacket, conflicts with Officer Andre Hudgens’s testimony, that Appellant was

wearing a green jacket with a black hoodie underneath. Id. at 12-13.

       Initially, we note that to the extent a weight claim is being asserted, it

is waived because Appellant failed to properly preserve this issue for our

review. A challenge to the weight of the evidence must be raised prior to

appeal in accordance with Pennsylvania Rule of Criminal Procedure 607(a) or

it will be waived, regardless of whether the appellant raises the issue on

appeal or the trial court addresses the issue in its Rule 1925(a) opinion.

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

Appellant failed to raise a weight of the evidence claim prior to or after

sentencing.     In fact, to the extent a weight claim was raised, Appellant

raised it for the first time in his Rule 1925(b) statement. Even if preserved,

Appellant still would not be entitled to relief for the following reasons.




____________________________________________


2
  Rule 607 requires that a “claim that the verdict is 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.



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     We review a challenge to the weight of the evidence according to the

following standard.

            The weight given to trial evidence is a choice for the
     factfinder. If the factfinder returns a guilty verdict, and if a
     criminal defendant then files a motion for a new trial on the
     basis that the verdict was against the weight of the evidence, a
     trial court is not to grant relief unless the verdict is so contrary
     to the evidence as to shock one’s sense of justice.

           When a trial court denies a weight-of-the-evidence motion,
     and when an appellant then appeals that ruling to this Court, our
     review is limited. It is important to understand we do not reach
     the underlying question of whether the verdict was, in fact,
     against the weight of the evidence. We do not decide how we
     would have ruled on the motion and then simply replace our own
     judgment for that of the trial court.        Instead, this Court
     determines whether the trial court abused its discretion in
     reaching whatever decision it made on the motion, whether or
     not that decision is the one we might have made in the first
     instance.

           Moreover, when evaluating a trial court’s ruling, we keep
     in mind that an abuse of discretion is not merely an error in
     judgment. Rather, it involves bias, partiality, prejudice, ill-will,
     manifest unreasonableness or a misapplication of the law. By
     contrast, a proper exercise of discretion conforms to the law and
     is based on the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (citation

omitted).

     The trial court found Ms. Rivera’s testimony credible.        In its Rule

1925(a) opinion, the trial court noted that Appellant would have had plenty

of time to put on a different jacket between the time Ms. Rivera saw

Appellant and when the police apprehended him.        T.C.O., 7/7/15, at 7-8.

Moreover, as already stated, the trial court found that the victim’s direct


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testimony made it abundantly clear she had more than sufficient opportunity

to see Appellant’s face and to accurately recognize him. Our review of the

record confirms the trial court did not abuse its discretion in determining the

verdicts were not against the weight of the evidence based upon Appellant’s

challenge to his identification.

      As Appellant is not entitled to relief on his sufficiency claim or a weight

claim, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016




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