J-S89012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HANIYYAH WALKER,

                            Appellant                 No. 696 EDA 2016


           Appeal from the Judgment of Sentence February 29, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003325-2015


BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED January 12, 2017

       Appellant, Haniyyah Walker, appeals from the February 29, 2016

judgment of sentence entered in the Court of Common Pleas of Montgomery

County following a bench trial. We affirm.

       The trial court summarized the facts of the crime as follows:

             In the early morning of February 19, 2015, Appellant was
       present at Redner’s Warehouse (“Redner’s”) in Lower Pottsgrove
       Pennsylvania, located in Montgomery County.         Between the
       hours of 2:30 a.m. and 3:15 a.m., Appellant completed nine
       transactions which totaled over $900.00.           During each
       transaction, the Redner’s video surveillance system captured
       Appellant manually entering access device information into the
       terminal. The numbers Appellant used to pay for the items in
       each transaction corresponded to an access device card owned
       by Kenija Gilbert. Once Ms. Gilbert learned that her account had
       been emptied, she notified the police. Lower Pottsgrove [Police]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Officer Scott Burnick responded to the report and spoke with Ms.
       Gilbert at Redner’s. Ms. Gilbert told Officer Burnick that she
       believed Appellant was responsible for the transactions, and that
       Appellant was not authorized to use the access card, or benefits
       contained therein. Subsequently, Officer Burnick obtained a
       transaction report and surveillance video from Redner’s which
       confirmed Ms. Gilbert’s belief that Appellant was the perpetrator.

Trial Court Opinion, 5/3/16, at 1.

       Appellant was charged with access device fraud, identity theft, and

receiving stolen property, all first-degree misdemeanors.1 At a bench trial

on February 29, 2016, the victim, Kenija Gilbert, and the arresting officer,

Lower Pottsgrove Township Police Officer Scott Burnick, testified for the

Commonwealth; Appellant presented three witnesses on her behalf.               The

parties stipulated to the authenticity and admissibility of a transaction report

from Redner’s and the surveillance video from the store. N.T., 2/29/16, at

3.   Following trial, the trial court found Appellant guilty of access device

fraud and identity theft and not guilty of receiving stolen property. The trial

court sentenced Appellant to two years of probation and the payment of

restitution in the amount of $500.

       Appellant did not file post-sentence motions; she filed a timely pro se

notice of appeal on March 3, 2016.             On March 17, 2016, Appellant filed a



____________________________________________


1
   Access device fraud was originally charged as a third-degree felony, but
the Commonwealth amended it at trial to a first-degree misdemeanor. N.T.,
2/29/16, at 4.



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counseled Pa.R.A.P. 1925(b) statement. The trial court also complied with

Rule 1925.

      On appeal, Appellant raises the following issue, which was the identical

issue raised in her Pa.R.A.P. 1925(b) statement:

      1. Did the court err in finding that there was sufficient evidence
         as a matter of law in terms of quality or quantity to find
         Appellant guilty beyond a reasonable doubt of the charges[?]

Appellant’s Brief at 7 (full capitalization omitted).

      Appellant’s only issue relates to the sufficiency of the evidence.       In

reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt.   Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013).                  “[T]he

facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence.” Commonwealth v. Colon-Plaza,

136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v.

Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within

the province of the fact-finder to determine the weight to be accorded to

each witness’s testimony and to believe all, part, or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015).

The Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.        Commonwealth v.


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Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).             Moreover, as an appellate

court, we may not re-weigh the evidence and substitute our judgment for

that of the fact-finder.     Commonwealth v. Rogal, 120 A.3d 994 (Pa.

Super. 2015).

      In her Pa.R.A.P. 1925(b) statement, Appellant merely averred that the

“evidence was insufficient . . . in terms of quality or quantity . . . to find

[A]ppellant guilty . . . .” Pa.R.A.P. 1925(b) Statement, 3/17/16. Rule 1925

requires that an appellant “concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all

pertinent issues[.]” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). “When a

court has to guess what issues an appellant is appealing, that is not enough

for meaningful review.”      Commonwealth v. Allshouse, 969 A.2d 1236,

1239 (Pa. Super. 2009). “When an appellant fails adequately to identify in a

concise manner the issues sought to be pursued on appeal, the trial court is

impeded in its preparation of a legal analysis which is pertinent to those

issues.” Id.

      Specifically, we have stated that “[i]n order to preserve a challenge to

the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b)

statement must state with specificity the element or elements upon

which the appellant alleges that the evidence was insufficient.”

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013)

(emphasis      added).     Failure   to   identify   what   specific   elements   the


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Commonwealth failed to prove at trial in a Rule 1925(b) statement renders

an appellant’s sufficiency-of-the-evidence claim waived for appellate review.

Id. Thus, as did the trial court, we conclude that Appellant’s claim assailing

the sufficiency of the evidence is waived.

      Even if the issue had been properly preserved, we would find it lacks

merit based upon the trial court’s alternative reasoning, as follows:

             This court found Appellant guilty of one count of access
      device fraud and one count of identity theft, both graded as a
      first degree misdemeanor. A person commits access device
      fraud when he or she “uses an access device to obtain or in an
      attempt to obtain property or services with knowledge that: ...
      the access device was issued to another person who has not
      authorized its use; ... or for any other reason his use of the
      access device is unauthorized by the issuer or the device
      holder.” 18 Pa.C.S.A. § 4106(a).

             At trial, the Commonwealth presented the testimony of
      Kenija Gilbert. Ms. Gilbert testified that leading up to this
      incident, Ms. Gilbert gave Appellant possession of, and
      permission to use, her access device card while Ms. Gilbert was
      in the hospital. However, on the evening before the incident Ms.
      Gilbert requested the card back from Appellant and revoked
      Appellant’s authorization to use said card. Appellant complied
      with Ms. Gilbert’s request and gave the card back to Ms. Gilbert.
      The Commonwealth also submitted a transaction report from
      Redner’s which listed nine transactions made using Ms. Gilbert’s
      account on the morning of February 19, 2015. Additionally, the
      Commonwealth submitted a DVD containing security camera
      footage from Redner’s recorded on the morning of February 19,
      2015. The video showed Appellant manually entering numbers
      into the checkout system in order to pay for goods, and the
      timestamps on the video matched up with the times indicated on
      the transaction report. Therefore, when viewing the evidence in
      the light most favorable to the Commonwealth, Appellant used
      an access device to obtain goods with knowledge that she was
      not authorized to do so and was found guilty of access device
      fraud.


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               “A person commits the offense of identity theft of another
         person if he possesses or uses, through any means, identifying
         information of another person without the consent of that other
         person to further any unlawful purpose.”           18 Pa.C.S.A. §
         4120(a). Identifying information is defined, in part, as “any fact
         used to establish identity, including, but not limited to, a name,
         birthdate, Social Security number, driver’s license number,
         nondriver governmental identification number, telephone
         number, checking account number, savings account number,
         student identification number, employee or payroll number or
         electronic signature.”    18 Pa.C.S.A. §4120(f).       At trial the
         evidence established beyond a reasonable doubt that Appellant
         used an account and PIN number belonging to Ms. Gilbert,
         without her consent and in order to obtain goods for herself.
         Accordingly, this court found Appellant guilty of identity theft.

Trial Court Opinion, 5/3/16, at 4–5.

         Appellant’s challenge to the sufficiency of the evidence fails on a

separate basis as well. While Appellant presented her question in terms of

the sufficiency of the evidence, the argument portion of the brief is an attack

on victim Gilbert’s credibility.     It is well settled that a challenge to the

credibility of a witness is a challenge to the weight of the evidence and not

the sufficiency of the evidence. Commonwealth v. Lopez, 57 A.3d 74, 80

(Pa.     Super.   2012).       Accordingly,   Appellant’s   claim   fails.     See

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (stating that,

although the appellant phrased his claim as a challenge to the sufficiency of

the evidence, the challenge actually goes to the weight of the evidence, and

as such, the appellant’s challenge to the sufficiency of the evidence must

fail).




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     Here, any weight-of-the-evidence claim is waived for failure to raise

the issue in the trial court. See Pa.R.Crim.P. 607(A). As we have stated:

     A weight of the evidence claim must be preserved either in a
     post-sentence motion, by a written motion before sentencing, or
     orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
     v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
     properly preserve the claim will result in waiver, even if the trial
     court addresses the issue in its opinion. Commonwealth v.
     Sherwood, 982 A.2d 483, 494 (Pa. 2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)

(quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012)). Appellant did not file a post-sentence motion and did not make any

other oral or written motion challenging the verdict as against the weight of

the evidence. We agree with the trial court that Appellant has waived this

matter on this basis as well, and we decline to address its merits.         Trial

Court Opinion, 5/3/16, at 3.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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