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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
MICHAEL A. RIVERA,                          :          No. 2497 EDA 2015
                                            :
                           Appellant        :


            Appeal from the Judgment of Sentence, August 7, 2015,
               in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0000031-2015


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED AUGUST 23, 2016

        Michael Rivera appeals from the judgment of sentence entered by the

Court of Common Pleas of Chester County on August 7, 2015, after he was

found guilty, in a waiver trial, of resisting arrest.1 We affirm.

        The trial court set forth the following factual history:

                    On December 23, 2014, approximately 10 to
              15 members of the Chester County Regional
              Emergency Response Team were assigned the task
              of serving a search warrant for appellant’s person,
              residence and vehicle.    All team members were
              wearing a level 3 tactical vest, which had a large
              patch on the chest and back that said “POLICE.”
              There were also patches on the sleeves that said
              “POLICE.”

                   The team arrived at appellant’s residence,
              which was an end-unit townhouse, at around
              2:00 p.m.     Officer  Matthew     Jones   and

1
    18 Pa.C.S.A. § 5104.
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          Officer Anderson, who were assigned to rear
          containment, went to the back of the house. As they
          approached, they saw appellant standing in the
          doorway. Officer Jones announced “Police – let me
          see your hands.” When appellant saw them, he
          turned back into the house and slammed the door
          shut. Officer Anderson forced the door open and
          they went inside. Once inside, they saw appellant in
          the living room. It looked like he was trying to head
          for the front door.        Officer Anderson grabbed
          appellant’s left wrist and Officer Jones grabbed his
          right wrist. They brought appellant to the ground
          and a struggle ensued. He was rolling from side to
          side and flailing his legs. They tried to handcuff him
          with plastic zip ties[,] but he kept pulling his arms
          into his chest, making it hard to get his hands behind
          his back. Officer Rongaus replaced Officer Anderson
          and took control of appellant’s left wrist.

                 Officers were yelling “search warrant,” “put
          your hands behind your back,” “stop resisting.” He
          was not obeying their commands and was actively
          resisting their efforts to restrain him the entire time.
          Officer Jones was kicked and kneed several times.
          He did not know, however, whether appellant was
          intentionally trying to kick him or if he was just
          kicked as a result of appellant’s flailing. As a result
          of being struck by appellant, he was sore and had
          several scrapes and bruises.         He did not need
          medical assistance for his injuries.

                Officer Jones and Officer Rongaus were not
          able to get control of appellant and they needed the
          assistance of other officers. While Officer Jones and
          Officer Rongaus were trying to restrain appellant’s
          wrists, other officers were trying to contain his legs.
          They were still unable to zip tie him.

                Chief     Matthew   Williams   attempted     to
          drive-stun appellant with his taser three times in
          order to get appellant under control. The first time,
          appellant stopped moving for a second but then
          started flailing again. The second time, appellant’s
          clothes stopped the taser from being effective. After


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            the third time, the officers were able to get him
            under control and he was secured with zip ties.

                  During this ordeal, appellant was praying. He
            said things like “Lord, please,” and “I didn’t do it.”

                  Appellant’s uncle, Juan Rivera, testified on
            appellant’s behalf. He stated that he arrived at
            appellant’s residence around 12:15 p.m. to visit with
            his nephews. At around 1:30 p.m., appellant wanted
            to smoke a cigarette so they went outside.
            Mr. Rivera was standing by appellant’s vehicle and
            appellant was standing in the doorway. Less than
            three minutes later, a person in camouflage
            approached, saying, “get down, get down, get down
            now.” Mr. Rivera put his hands on the car and he
            was restrained. As the officers approached, they
            told him they had a warrant. He could not see what
            was happening in the house, but he could hear a
            commotion. He also heard appellant saying, “help
            me, help me,” and something of a religious nature.

                    Appellant, who testified during the trial, tried
            to claim that he did not know it was the police who
            were approaching his house. He stated that he and
            his uncle went outside so that he could smoke a
            cigarette and that he then went back inside because
            he was done. He also testified that he complied with
            the officers’ commands and that he did not resist,
            although he admitted that he was “flopping around a
            little bit.” He did not explain why he went inside the
            house and locked the door, leaving his uncle outside
            alone.

Trial court opinion, 10/8/15 at 2-4.




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      Following his conviction, the trial court sentenced appellant to time

served to 23 months of incarceration, but released him on immediate parole.

This timely appeal followed.2

      Appellant raises the following issues for our review:

            I.    THE EVIDENCE WAS INSUFFICIENT TO
                  SUPPORT A CONVICTION OF RESISTING
                  ARREST (18 PA. C.S.A. [§] 5104)[.]

            II.   THE GUILTY VERDICT AS TO RESISTING
                  ARREST (18 PA. C.S.A. [§] 5104) WAS
                  AGAINST THE GREAT WEIGHT OF EVIDENCE.

Appellant’s brief, 6/22/16 at 3.3



2
   We note that on August 11, 2015, appellant timely filed his notice of
appeal. On August 14, 2015, the trial court appointed counsel and also
ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Through appointed counsel, appellant
complied on August 25, 2015. On September 4, 2015, appellant requested
that appointed counsel be withdrawn. The record reflects that the trial court
never ruled on appellant’s September 4, 2015 request that counsel be
withdrawn. The record next reflects that on September 22, 2015, appointed
counsel filed a motion for enlargement of time to file an amended Pa.R.A.P.
1925(b) statement. Also on September 22, 2015, the trial court entered an
order granting appellant’s motion for enlargement of time, but also ordered
that the amended Rule 1925(b) statement be filed on the same day that it
entered the order. Obviously, this was an error. Thereafter, on October 7,
2015, appellant, through appointed counsel, filed an amended Rule 1925(b)
statement. Neither the Commonwealth nor the trial court raised a timeliness
issue with respect to appellant’s filing of the amended Rule 1925(b)
statement.
3
  We note that on May 24, 2016, this court ordered appellant’s counsel to file
either a formal petition to withdraw and a proper Anders brief (see Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009)) or an advocate’s brief within 30 days, as his initial
brief combined both. Counsel complied by filing an advocate’s brief on
June 22, 2016.


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      At the outset, the Commonwealth contends that appellant waived his

sufficiency claim because his Pa.R.A.P. 1925(b) statement failed to specify

which elements of resisting arrest the Commonwealth failed to sufficiently

prove.   It is well settled that when challenging the sufficiency of the

evidence on appeal, that in order to preserve that issue for appeal, an

appellant’s Rule 1925(b) statement must specify the element or elements

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)

(citation and internal quotation marks omitted).

      Here, in his Rule 1925(b) statement, appellant frames his sufficiency

challenge as follows:     “[a]ppellant is entitled to a new trial because

reviewing   the   evidence     is     [sic]   the   light   most    favorable   to   the

Commonwealth      there   is        insufficient    evidence   to    prove   that    the

Commonwealth established every element of each criminal offense beyond a

reasonable doubt.” (Concise statement of matters complained of on appeal,

8/25/15 at 2, ¶ 2; amended concise statement of matters complained of on

appeal, 10/7/15 at 2, ¶ 2.)

      Although the Commonwealth is correct that appellant’s sufficiency

claim as set forth in his Rule 1925(b) statement fails to identify which

element or elements of resisting arrest the Commonwealth allegedly failed to

prove and waiver of the sufficiency claim necessarily results, in this section

of his brief, appellant sets forth certain testimony of Officer Matthew Jones



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and requests that we reassess it and arrive at a different conclusion than the

trial court. Appellant’s argument on his first issue, therefore, challenges the

weight of the evidence, not its sufficiency. See Gibbs, 981 A.2d at 281-282

(holding that an argument that the fact-finder should have credited one

witness’ testimony over that of another witness goes to the weight of the

evidence, not the sufficiency of the evidence); Commonwealth v. Wilson,

825 A.2d 710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the

evidence does not include a credibility assessment; such a claim goes to the

weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227

(Pa.Super. 1997) (the fact-finder makes credibility determinations, and

challenges to those determinations go to the weight of the evidence, not the

sufficiency of the evidence). Therefore, even if appellant did not waive his

sufficiency claim for the reason the Commonwealth raised, it would

nevertheless be dismissed.

      In his second issue, however, appellant does contend that the verdict

was against the weight of the evidence.4

            . . . The essence of appellate review for a weight
            claim appears to lie in ensuring that the trial court’s
            decision has record support.         Where the record
            adequately supports the trial court, the trial court
            has acted within the limits of its discretion.

            ....

4
  The record reflects that although appellant did not file a post-sentence
motion, appellant preserved this claim for appellate review by challenging
the weight of the evidence immediately following the verdict. (Notes of
testimony, 8/7/15 at 291.)


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                  A motion for a new trial based on a claim 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.
           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.

           ....

                  An appellate court’s standard of review when
           presented with a weight of the evidence claim is
           distinct from the standard of review applied by the
           trial court. 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 evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations

and quotation marks omitted).     “In order for a defendant to prevail on a

challenge to the weight of the evidence, ‘the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2015).

     Here, appellant complains that:

                 Simply put, the trial judge disregarded the
           testimony of the appellant who claimed that he was
           thrown to the ground by the officers and tased which
           was corroborated by the testimony provided by
           [C]ommonwealth witnesses.        This testimony, if
           believed, suggest [sic] that the officers were
           aggressively securing the residence for a search
           warrant. Moreover, this testimony would establish
           that appellant did not create the situation requiring


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               the use of force by officers and/or that appellant was
               only engaged in a scuffle with the other officers.

               ....

               [D]espite clear corroboration from Juan Rivera[,
               appellant’s uncle], the only other civilian eyewitness,
               the trial judge failed to properly weigh appellant’s
               testimony that he was unaware that the individuals
               who entered the house were police officers.

Appellant’s brief, 6/22/16 at 21-22.

      We decline appellant’s invitation to reassess the credibility of the

witnesses and to reweigh the evidence. The trial court, as fact-finder, had

the duty to determine the credibility of the testimony and evidence

presented at trial. Talbert, 129 A.3d at 546 (citation omitted). Appellate

courts cannot and do not substitute their judgment for that of the

fact-finder.     See id.    Here, the trial court found the Commonwealth’s

witnesses credible, and it did not believe appellant’s version of events. (Trial

court opinion, 10/8/15 at 5.)         After carefully reviewing the record, we

conclude that the trial court’s verdict was not so contrary to the evidence

that it shocks the conscience of this court. Rather, our review of the record

supports our conclusion that the trial court properly exercised its discretion

in denying appellant’s weight of the evidence claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2016




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