J-A09001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT WOODIE,                             :
                                               :
                       Appellant.              :   No. 862 EDA 2018


          Appeal from the Judgment of Sentence, February 20, 2018,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0006337-2016.


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 03, 2019

        Robert Woodie appeals from the judgment of sentence following his jury

convictions for aggravated assault, terroristic threats, and possession of an

instrument of a crime.1 For the reasons that follow, we affirm.

        The trial court summarized Woodie’s criminal acts as follows:

                On October 11, 2015 Complainant Lakeisha Cherry
          and [Woodie] attended his grandmother’s 80th birthday
          party in Philadelphia. After the party, [Woodie] and [Ms.
          Cherry] went to his sister’s home for an after-party. There,
          [Woodie] drank too much and vomited.

                 [Ms. Cherry] drove [Woodie] home and assisted him
          in taking his clothes off for bed. She then undressed herself
          and got in the bed. About ten minutes later, [Woodie’s]
          phone rang, and [he] did not answer. The second time the
          phone rang, [Ms. Cherry] answered believing it could be a
          family emergency. When she answered the phone, the caller
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1   18 Pa.C.S.A. §§ 2701, 2706, 907.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       said hello and then hung up, once he realized it was not
       [Woodie]. [Ms. Cherry] then woke [Woodie] and asked if
       he was homosexual, to which he answered, “Yes.”

               After a short exchange, [Ms. Cherry] became visibly
       upset and began to put her clothes on. [Woodie] then
       attacked her by grabbing her by her hair. They tussled back
       and forth on the bed, and then fell onto the floor. During
       the struggle, [Woodie] stated that he wanted to kill her,
       began looking in his dresser drawer, and stated, “I’m going
       to kill you. I’m going to kill myself.”

              Next, [Woodie] dragged [Ms. Cherry] down a full flight
       of stairs by the braids in her hair through the dining room,
       living room, and into the kitchen where he grabbed a
       butcher knife. During the struggle in the kitchen, [Ms.
       Cherry] was stabbed in her side. [Woodie] also tried to stab
       her in the face, but [Ms. Cherry] blocked the knife, which
       caused several cuts to her hands. While tussling back and
       forth with the knife, [Woodie] again told [Ms. Cherry] he
       was going to kill her and asked her if she wanted to die.
       Next, [Woodie] grabbed [Ms. Cherry] and pushed her out
       the door. [Woodie] chased her down the steps and into the
       street, as a car was passing by the home. The witness
       stated that she was calling the police, which caused
       [Woodie] to run back into the house.

             Philadelphia Police Officer Biles and his partner
       responded to the 911 call. The officers were drawn to
       [Woodie’s] house where, from the outside, they heard a
       disturbance and a male voice call for help. [Woodie] came
       to the door but was unable to open it, so the officers kicked
       the door in. Once inside the house, the officers encountered
       [Woodie], who was alone, described as “hysterical
       screaming, yelling, sweaty, and just kept repeating that
       somebody was trying to kill him.” [Woodie] was detained.
       Officer Biles did not recall if he saw evidence of a struggle,
       blood, a knife, or box cutter in the home, or on [Woodie].
       Biles did have a faint recollection of seeing weave hair
       somewhere in the house.

            When Officer Biles returned to the street, [he] saw
       [Ms. Cherry with] cuts on her hand. [Ms. Cherry] was
       uncooperative and refused medical treatment.       [She]



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         testified that she did not talk to the responding officers
         because she “was in shock” and “just wanted to go home.”

                After leaving the scene, [Ms. Cherry] went home,
         undressed, and realized that her cuts were far worse than
         what she originally believed.        [She] received fifty-one
         staples at the hospital. The staples were placed on her right
         calf, left and right thigh, and neck, which were caused by a
         box cutter. [Ms. Cherry] also received stitches on her left
         hip where she was stabbed with the butcher’s knife. There
         were bite marks across her chest and breast where
         [Woodie] bit her several times during the struggle. [Ms.
         Cherry] still has a four-inch scar on her neck, and [she]
         displayed it in court for the jury. [Woodie] also choked [Ms.
         Cherry] in his bedroom, which resulted in several scratches
         on her neck. After [Ms. Cherry] left the hospital, she went
         to the police station and filed a report.

Trial Court Opinion, 7/20/18, at 2-4.

      Prior to trial, the Commonwealth filed a motion in limine to admit the

911 recording into evidence, because the person who placed it did not remain

at the scene to discuss the incident with police. Over Woodie’s objection, the

trial court admitted the recording, as a present-sense-impression exception to

the hearsay rule. Woodie and the trial court complied with Pennsylvania Rule

of Appellate Procedure 1925.

      The jury convicted Woodie, and the trial court sentenced him to six to

twelve years in the state penitentiary, followed by probation. Woodie filed no

post-sentence motions. Instead, he immediately and timely appealed.

      Woodie raises the following three issues for our consideration:

         1.    Did the trial court err by admitting the anonymous 911
               call?

         2.    Was the conviction for aggravated assault against the
               weight of the evidence?

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         3.      Was the evidence insufficient to convict Woodie of
                 possession of an instrument of crime?

See Woodie’s Brief at 5-6. We address each appellate issue in turn.



1.    Admissibility of the 911 Recording

      Woodie’s first issue deals with the trial court’s admission of the 911 call

into evidence.

      The decision to admit or to exclude evidence is committed to the trial

court’s sound discretion, and this Court may only reverse evidentiary rulings

if the trial court abused that discretion. Commonwealth v. Laird, 605 Pa.

137, 988 A.2d 618, 636 (Pa. 2010). There is no abuse of discretion “merely

because an appellate court might have reached a different conclusion”;

instead, it is the “result of manifest unreasonableness, or partiality, prejudice,

bias, or ill will, or such lack of support so as to be clearly erroneous.” Id.

      Woodie acknowledges our deferential standard of review for evidentiary

issues. See Woodie’s Brief at 3-4. However, when arguing that the trial court

should have excluded the 911 recording, he discusses this standard only

briefly. See id. at 23. Woodie asserts the trial court abused its discretion,

because it did not address the question of the 911 recording’s prejudicial effect

in its 1925(a) Opinion. He also notes that the trial court initially discussed the

possibility of unfair prejudice, when it first considered the Commonwealth’s

motion in limine. The trial court limited that discussion to the caller’s mention

of a nude man carrying a knife, in a residential neighborhood.



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      The 1925(a) Opinion and the trial court’s discussion with the two

attorneys on the motion in limine are insufficient to show an abuse of

discretion.   First, the 1925(a) Opinion is not the end-all-and-be-all of our

appellate review. Simply because the opinion did not address Woodie’s claim

of error does not mean he automatically succeeds on this issue. Under the

right-for-any-reason doctrine, we may “affirm the trial court’s decision on any

basis that is supported by the record.” In re A.J.R.-H., 188 A.3d 1157, 1176

(Pa. 2018).    Therefore, the mere fact that the trial court did not address

Woodie’s appellate issue in the 1925(a) Opinion does not automatically mean

a reversible abuse of discretion occurred, as Woodie’s brief implies.

      Second, Woodie’s reference to the trial court’s discussion of undue

prejudice in a part of the recording cannot be grounds for reversal, because

his attorney rejected the trial court’s offer to redact that portion of the call

about a nude man with a knife. See N.T., 10/19/17, at 5. The exchange was

as follows:

         DEFENSE COUNSEL:           My request is that, if the [911]
                                    tape is played, I want the entire
                                    tape played.

         THE COURT:                 You want the entire tape played?

         DEFENSE COUNSEL:           Yes.

         THE COURT:                 Very well. Motion is granted.

Id.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302. Because Woodie asked the trial

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court to play the entire 911 recording, he did not raise the undue-prejudice

issue that the trial court spotted, sua sponte, the day prior. We therefore hold

that Woodie may not base his appeal on the caller’s description of him naked

with a knife outside his home. He has waived this portion of his argument.

       The remainder of Woodie’s argument on the 911 recording proceeds as

if our standard of review is de novo, because he reargues why the recording

should not be in evidence. He asserts the 911 recording is unfairly prejudicial

under Pennsylvania Rule of Evidence 403.2

       Woodie has two bases for this claim. “First, the anonymous call depicted

the scene in a ways completely contradictory to what the officers saw on the

scene.” Woodie’s Brief at 21. Second, he contends that the anonymity of the

caller and inconsistencies between what she said on the recording and the

police officer’s version of events weighs against the 911 recording’s probative

value.3 See id. at 22-23.

       These arguments are unavailing, because they do not explain – much

less convince us – that the trial court misapplied or overrode the law, made a

clearly unreasoned decision, or that it based that decision on bias, prejudice,


____________________________________________


2 Pennsylvania Rule of Evidence 403 provides that a trial “court may exclude
relevant evidence if its probative value is outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”

3We listened to the 911 recording to ascertain whether its admission was an
abuse of the trial court’s discretion.

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or ill will. In fact, the thesis of Woodie’s argument is the “trial court should

not have admitted the anonymous 911 call.” Woodie’s Brief at 20 (emphasis

added). What the trial court should have done is a very different question

from what it may do within the bounds of its discretion.

      We may not substitute our judgment for that of the trial court on an

evidentiary issue. This Court cannot possibly tell trial judges after a case is

over how they should have ruled on every piece of evidence that came before

them. We may decide only whether their evidentiary decisions are rational

and their interpretations of the Pennsylvania Rules of Evidence are correct.

See Laird, supra. If so, we must leave the trial court’s decision undisturbed.

      Woodie makes no claim that the trial court’s exercise of judgment here

was either irrational or the result of an erroneous interpretation of Rule 403.

Thus, he has failed to persuade us that any abuse of discretion occurred. The

first appellate issue affords Woodie no relief.



2.    The Weight of the Evidence & Waiver

      Next, Woodie challenges the weight of the evidence for his aggravated

assault conviction. To preserve a weight-of-the-evidence claim, an appellant

must raise it before sentencing or in a post-sentence motion.

         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


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            (3) in a post-sentence motion.

Pennsylvania Rule of Criminal Procedure 607(A)(1)-(3). “As noted in the

comment to Rule 607 . . . a challenge to the weight of the evidence must be

raised with the trial judge, or it will be waived.” Commonwealth v. Gillard,

850 A.2d 1273, 1277 (Pa. Super. 2004), appeal denied, 863 A.2d 1143 (Pa.

2004).

      Appellants may not raise a claim challenging the weight of the evidence

for the first time in a Rule 1925(b) statement. See, e.g., Commonwealth

v. Burkett, 830 A.2d 1034 (Pa. Super. 2003). Failure to avail oneself of any

of the methods for presenting a weight of the evidence issue to the trial court

constitutes waiver of that claim, even if the trial court responds to the claim

in its Rule 1925(a) opinion. Id.

      Here, Woodie did not challenge the weight of the evidence before his

sentencing, and he did filed no post-sentence motions. Instead, he appealed

immediately from the judgment of sentence and raised the weight-of-the-

evidence claim for the first time in his 1925(b) statement. As such, he has

waived this issue.



3.    The Sufficiency of the Evidence

      Finally, Woodie’s third issue challenges the sufficiency of the evidence

for his conviction of possession of an instrument of crime. In his view, neither

the trial court nor the Commonwealth articulated what type of instrument of

crime he used upon Ms. Cherry.


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     Our standard of review for a challenge to the sufficiency of the evidence

requires us to determine whether the evidence admitted at trial, with all

reasonable    inferences   viewed   in   the   light   most    favorable   to   the

Commonwealth as verdict winner, is sufficient to establish every element of

the convicted offense beyond a reasonable doubt.              Commonwealth v.

Collins, 703 A.2d 418, 420 (Pa. 1997).         We must consider circumstantial

evidence equally with direct evidence, and the Commonwealth may sustain its

burden by relying on circumstantial evidence alone.           Commonwealth v.

Davalos, 779 A.2d 1190, 1193 (Pa. Super. 2001).           The Commonwealth’s

established facts and circumstances need not preclude the possibility of

innocence.    Commonwealth v. Dargan, 897 A.2d 496, 503 (Pa. Super.

2006). If the evidence allows a fact-finder to determine that all necessary

elements are established, then the evidence sufficiently supports the verdict.

Davalos, 779 A.2d at 1193.

     Woodies asserts that the Commonwealth produced legally insufficient

evidence to prove he possessed an instrument of a crime.             The General

Assembly has defined that offense as follows:

        (a) Criminal instruments generally. -- A person commits a
        misdemeanor of the first degree if he possesses any
        instrument of crime with intent to employ it criminally . . .

        (d)Definitions -- As used in this section, the following words
        and phrases shall have the meanings given to them in this
        subsection:

             “Instrument of crime.” - Any of the following:




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                     (1) Anything specially made or specially adapted
                     for criminal use.

                     (2) Anything used for criminal purposes and
                     possessed by the actor under circumstances not
                     manifestly appropriate for lawful uses it may have.

              “Weapon” - Anything readily capable of lethal use and
              possessed     under    circumstances    not   manifestly
              appropriate for lawful uses which it may have. The term
              includes a firearm which is not loaded or lacks a clip or
              other component to render it immediately operable, and
              components which can readily be assembled into a
              weapon.

18 Pa.C.S.A. § 907.

       As the trial court opined:

                The trial evidence, including the victims testimony
          that she had been cut . . . with a box cutter and stabbed
          with a knife, corroborated by the medical treatment which
          included numerous stitches to cuts about her body, clearly
          establishes that [Woodie] carried out the assault with a knife
          and box cutter. No error [occurred].

Trial Court Opinion, 7/20/18, at 8-9.

       The trial court’s analysis is brief, to the point, and correct.     The

Commonwealth need no more proof than Ms. Cherry’s own testimony to

establish all the elements of this offense. She explained that Woodie held and

used a knife and box cutter to attack her.4 Therefore, he (a) possessed the

____________________________________________


4 As such, Woodie’s discussion of constructive possession is without merit.
See Woodie’s Brief at 32-33. The Commonwealth did not need to prove
constructive possession of the knife and box cutter, because Ms. Cherry’s
testimony establishes Woodie’s actual possession of those objects. The fact
that the weapons disappeared between the attack and the police officers’
search of Woodie’s home is irrelevant, in light of Ms. Cherry’s testimony,
which, obviously, the jury credited when it convicted Woodie.

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knife and box cutter, and (b) he intended to commit aggravated assault while

he possessed them.

          We therefore conclude that Woodie’s third issue warrants no appellate

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/19




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