J. A12044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
ANTHONY CUNNINGHAM,                        :         No. 3892 EDA 2016
                                           :
                          Appellant        :


              Appeal from the Judgment of Sentence July 13, 2016,
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002904-2015


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 06, 2018

        Anthony Cunningham appeals from the July 13, 2016 aggregate

judgment of sentence of 7½ to 15 years’ imprisonment imposed after he was

found guilty in a bench trial of aggravated assault, burglary, carrying a firearm

without a license, carrying a firearm on a public street, possessing instruments

of crime (“PIC”), and three counts each of robbery and kidnapping.1 After

careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts of this case as follows:

              On January 21, 2015, Mr. Juan Rivera was inside his
              apartment located on the second floor of a property
              situated on Roosevelt Boulevard in Philadelphia when
              a man he identified in court as [a]ppellant entered the
              residence through a window, put a gun to his head
              and asked, “Where’s the money?            Where’s the
              dope[?]”    Rivera asked [a]ppellant what he was

1
    18 Pa.C.S.A. §§ 2702, 3502, 6106, 6108, 907, 3701, and 2901, respectively.
J. A12044/18


          talking about at which time [a]ppellant asked Rivera
          where his son was.           Appellant forced Rivera
          downstairs to the front door where three additional
          men were waiting.[Footnote 3] Appellant and the
          men then forced Rivera back upstairs where they
          made him kneel on the bathroom floor. Appellant put
          a gun against Rivera’s head, and again asked him
          where the money and his son were. Rivera told them
          he did not have a son. After he did so, the men forced
          him into the residence’s living room where they bound
          him to a chair with tape and commenced to ransack
          the apartment, which yielded them some money and
          a cell phone.

                [Footnote 3] The three men all were
                wearing masks but [a]ppellant had
                nothing covering his face.

          The men continued their demands and Rivera kept
          telling them that he did not have a son. He added
          that there was a “skinny guy” who lived in the first
          floor apartment. The men then went downstairs to
          the apartment, broke in, and searched it. Appellant
          then took Rivera to the first floor apartment where he
          again was bound with tape and placed under the
          dining room table. For the next several hours the men
          demanded the name of the man who lived in the
          apartment.

          After approximately two and one-half hours, a
          woman[, Elisha Reyes,] and her two children, who
          resided in the downstairs apartment arrived home.
          From under the table Rivera was able to hear the men
          drag the woman, who was pregnant, into the
          apartment along with her children. They had her call
          her husband[, Daniel Textidor,] who arrived at the
          apartment approximately thirty minutes after the call
          was made. According to Rivera, the men pointed a
          gun at the man and repeatedly demanded money.
          Rivera heard the man say that he had none but
          offered to call his family to ask them for money. The
          man was given a cell phone and Rivera heard him call
          his father and, in Spanish, tell him to call the police
          because he was being robbed. One of the men


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          apparently understood and struck him in the head
          with the gun.

          Police arrived and the men fled the apartment. One
          of the intruders, identified as Tremaine Brooks, took
          the woman’s cell phone and, as he fled, he fell outside
          and was apprehended by police. Incident to Brooks’
          arrest police seized from him the woman’s cell phone
          and Brooks’ personal cell phone. The police brought
          him back to the apartment at which time Rivera
          identified him as being one of the men involved in the
          incident.[Footnote 4]

                [Footnote 4] Rivera indicated that at some
                point this male had removed his mask.

          Police thereafter transported Rivera to a police station
          where he was interviewed and provided a statement
          outlining what had occurred. During the interview,
          Rivera participated in a photographic identification
          session during which he selected a photograph of
          [a]ppellant identifying him as the man who entered
          the apartment through the window.[Footnote 5]
          Rivera stated that he was one-hundred percent sure
          of the reliability of both his photographic and in-court
          identifications.

                [Footnote 5] The parties stipulated that
                the detective who took the statement and
                conducted the photo identification session
                was not aware if a photograph of the
                alleged perpetrators was among those
                shown to Rivera.

          The Commonwealth also introduced, by way of
          stipulation, that [a]ppellant was not licensed to
          possess a firearm. A search of Brooks’ cell phone
          discovered that Brooks and someone identified as
          “Ant” made multiple phone calls back and forth to one
          another on the day of the incident. Post arrest,
          [a]ppellant told the police that his nickname was “Ant”
          when police obtained his biographical information.
          The parties also stipulated that DNA testing of the
          tape used to bind the victims was negative for


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                [a]ppellant and Brooks. A search of [a]ppellant’s
                residence yielded no evidence, and [a]ppellant
                voluntarily turned himself in to authorities. Finally,
                the statements given by the [] man and woman[,
                Textidor and Reyes,] who lived in the downstairs
                apartment were introduced into evidence wherein
                they indicated that they could not identify any of the
                assailants.

Trial court opinion, 6/20/17 at 2-4 (citations to notes of testimony and some

footnotes omitted).

        On March 31, 2016, appellant waived his right to a jury and proceeded

to a bench trial that same day. Following a one-day bench trial, the trial court

held the verdict under advisement. On April 8, 2016, the trial court found

appellant guilty of the aforementioned offenses.        As noted, the trial court

sentenced appellant to an aggregate term of 7½ to 15 years’ imprisonment

on July 13, 2016.         At sentencing, appellant made an oral motion for

extraordinary relief that was denied by the trial court.          (See notes of

testimony, 7/13/16 at 4-9, 22.) On July 22, 2016, appellant filed a timely

post-sentence motion challenging, inter alia, the weight of the evidence. The

trial   court     ultimately   denied   appellant’s   post-sentence      motion   on

November 22, 2016. This timely appeal followed. On December 19, 2016,

the trial court ordered appellant to file a concise statement of errors

complained of on appeal, in accordance with Pa.R.A.P. 1925(b).             Appellant

filed a motion requesting an extension of time to file his Rule 1925(b)

statement, which was granted by the trial court on January 5, 2017.               On




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February 3, 2017, appellant filed a timely Rule 1925(b) statement. The trial

court filed its Rule 1925(a) opinion on June 20, 2017.

      Appellant raises the following issues for our review:

            1.     Was the verdict against the weight of the
                   evidence where the Commonwealth’s sole
                   identification   witness’s  testimony was
                   impossible and incredulous?

            2.     Was the evidence insufficient as a matter of law
                   to support [appellant’s] convictions where the
                   Commonwealth’s sole identification witness’s
                   testimony was unreliable as a matter of law?

Appellant’s brief at 4.

      Appellant first argues that the verdict was against the weight of the

evidence because the testimony of the victim, Rivera, who identified appellant

as the perpetrator, “was so impossible, incredulous, and contrary to all other

evidence presented at trial, that it shocks one’s sense of justice . . . .” (Id.

at 10.) We disagree.

      “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Galvin,

985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S. 1051

(2010).

            [W]here the trial court has ruled on the weight claim
            below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence. Rather, appellate review
            is limited to whether the trial court palpably abused
            its discretion in ruling on the weight claim.




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Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation

omitted).

            Because the trial judge has had the opportunity to
            hear and see the evidence presented, an appellate
            court will give the gravest consideration to the
            findings and reasons advanced by the trial judge when
            reviewing a trial court’s determination that the verdict
            is against the weight of the evidence. One of the least
            assailable reasons for granting or denying a new trial
            is the lower court’s conviction that the verdict was or
            was not against the weight of the evidence and that a
            new trial should be granted in the interest of justice.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term “discretion” imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is not
            exercised for the purpose of giving effect to the will of
            the judge. Discretion must be exercised on the
            foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused where the course pursued
            represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

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

emphasis omitted).

     Upon review, we discern no abuse of discretion on the part of the trial

court in rejecting appellant’s weight claim.        The trial court, sitting as

fact-finder, found the testimony of Rivera “credible despite any alleged



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inconsistencies in his testimony[,]” and elected not to believe appellant’s

version of the events. (Trial court opinion, 6/20/17 at 5, 11.) Specifically,

the trial court reasoned as follows:

              In this [c]ourt’s opinion, Rivera’s testimony was clear.
              He was a victim of the criminal actions of [a]ppellant
              and his cohorts. Moreover, Rivera’s testimony was
              bolstered by the fact that [a]ppellant and a
              co-defendant called each other numerous times on
              the day of the incident. Rivera positively identified
              [a]ppellant during a photographic identification
              session immediately following the incident and his
              multiple in-court identifications were clear and
              unequivocal. . . .

              In addition, the incident played out for a particularly
              lengthy period of time during which Rivera had ample
              opportunity to view [a]ppellant. This is not a case in
              which the witnesses only got a glimpse or partial view
              of the perpetrator. This fact added credence to
              Rivera’s identification of [a]ppellant.

Id. at 5-6.

      Contrary to appellant’s argument, minor inconsistencies in Rivera’s

initial description of appellant’s physical characteristics to police (see

appellant’s brief at 14) are not a basis for finding that the verdicts were

contrary to the weight of the evidence.         See, e.g., Commonwealth v.

Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (holding that minor inconsistencies

in eyewitness testimony and surveillance-video evidence did not warrant a

finding that the verdict was against the weight of the evidence; “the

[fact-finder] is entitled to resolve any inconsistencies in the Commonwealth’s

evidence in the manner that it sees fit”). Likewise, appellant’s contention that



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the sole evidence against him in this matter was Rivera’s allegedly unreliable

identification testimony is equally unavailing. (See appellant’s brief at 10.)

The record reveals that the grand jury testimony of Textidor and Reyes that

was admitted into evidence at trial corroborated Rivera’s account of the

incident in question.     (Notes of testimony, 3/31/16 at 81.)          Moreover,

appellant’s claim that the verdict was against the weight of the evidence

because his DNA was not found on the duct tape used also fails.              (See

appellant’s brief at 13.) It is exclusively for the trial court, as fact-finder, to

assess the weight to be given to the absence of corroborating DNA evidence

in this case.   See Commonwealth v. Andrulewicz, 911 A.2d 162, 165

(Pa.Super. 2006) (stating, “the trier of fact while passing upon the credibility

of witnesses and the weight of the evidence produced, is free to believe all,

part or none of the evidence[]” (citation omitted)), appeal denied, 926 A.2d

972 (Pa. 2007).      We are precluded from reweighing the evidence and

substituting our judgment for that of the fact-finder. Clay, 64 A.3d at 1055.

Accordingly, for all the foregoing reasons, appellant’s weight claim must fail.

      We now turn to appellant’s contention that there was insufficient

evidence to sustain his convictions for aggravated assault, burglary, carrying

a firearm without a license, carrying a firearm on a public street, PIC, robbery,

and kidnapping. (Appellant’s brief at 17.) Appellant has waived this claim.

      Rule 1925(b) provides, inter alia, that “[i]ssues not included in the

Statement and/or not raised in accordance with the provisions of this



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paragraph (b)(4) are waived.” Pa.R.A.P.1925(b)(4)(vii). In Commonwealth

v. Garland, 63 A.3d 339 (Pa.Super. 2013), a panel of this court held the

appellant had waived his sufficiency of the evidence claim where his

Rule 1925(b) statement simply averred the evidence was legally insufficient

to support his convictions. Id. at 344. It is well settled 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.      Such specificity is of
             particular importance in cases where, as here, the
             appellant was convicted of multiple crimes each of
             which contains numerous elements that the
             Commonwealth must prove beyond a reasonable
             doubt.

Id. (citations and internal quotation marks omitted).

      Instantly, we agree with the trial court that appellant has waived his

sufficiency claim by failing to identify the specific elements of the crimes that

the Commonwealth failed to prove at trial in his Rule 1925(b) statement. (See

trial court opinion, 6/20/17 at 4-5.)      Appellant’s Rule 1925(b) statement

merely states, “the evidence adduced at trial was not sufficient to support a

conviction   for   the   crimes   on   which   [appellant]   was   found   guilty.”

(Rule 1925(b) statement, 2/3/17, at unnumbered page 1, ¶ 1.) Appellant’s

“Statement of Questions Involved” also fails to specify the elements of the

crimes he is challenging on appeal. Rather, appellant simply reiterates his

attack on Rivera’s credibility and alleges that his identification of him as the

perpetrator was inadequate:


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            Was the evidence insufficient as a matter of law to
            support   [appellant’s]   convictions     where   the
            Commonwealth’s      sole   identification    witness’s
            testimony was unreliable as a matter of law?

Appellant’s brief at 4 (numeration omitted). Appellant also failed to cite to or

specifically identify any of the elements of the crimes for which he was found

guilty in the “Argument” section of his brief. (See id. at 17-21.)

      Appellant’s claim as presented does not properly implicate the

sufficiency of the evidence.     An allegation that a witness’s testimony is

inconsistent or unreliable goes to the weight of the evidence, and appellant’s

dissatisfaction with the trial court’s credibility determinations does not provide

him with a basis for relief on sufficiency review.     See Commonwealth v.

Kinney, 157 A.3d 968, 972 (Pa.Super. 2017) (holding, inter alia, that

“[a]ppellant’s claims are directed entirely to the credibility of the victim’s

testimony regarding [a]ppellant’s identity, and, as such, challenge the weight,

not the sufficiency, of the evidence” (emphasis added)), appeal denied,

170 A.3d 971 (Pa. 2017); see also Commonwealth v. Trinidad, 96 A.3d

1031, 1038 (Pa.Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014).

Accordingly, appellant has waived any challenges to whether there was

sufficient evidence to support his convictions on appeal.2


2
   In any event, even if appellant did not waive his sufficiency claim, it would
still not merit relief. Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, our independent review of the record
reveals that there was ample evidence presented at trial to sustain appellant’s
convictions for aggravated assault, burglary, carrying a firearm without a
license, carrying a firearm on a public street, PIC, robbery, and kidnapping.


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     For all the foregoing reasons, we affirm appellant’s July 13, 2016

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2018




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