J-S34041-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                 Appellee                  :
                                           :
          v.                               :
                                           :
BRAKEER NEWSOME,                           :
                                           :
                 Appellant                 :   No. 159 WDA 2018

           Appeal from the Judgment of Sentence January 11, 2018
      in the Court of Common Pleas of Fayette County Criminal Division
                      at No(s): CP-26-CR-0000801-2017

BEFORE:     BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JULY 24, 2018

      Brakeer Newsome (Appellant) appeals from his judgment of sentence

imposed following his conviction for aggravated harassment by prisoner. We

affirm.

      The trial court summarized the factual and procedural history as follows.

            Appellant, a “maximum security inmate” at the State
      Correctional Institution of Fayette County [(SCI Fayette)], was
      cited for misconduct resulting from hi[s] repeatedly obstructing
      the view of his holding cell in violation of SCI Fayette’s inmate
      safety protocols and procedures. Appellant was housed in SCI
      Fayette’s (L5) restricted housing unit.

            On December 19, 2016, at approximately 19[:]40 hours,
      Lieutenant Chad Parker and his fellow correction[s] officers
      responded and promptly removed Appellant and his personal
      effects from his holding cell. Lieutenant Parker testified that
      Appellant was strip searched per Department of Corrections’ policy
      and was subsequently removed from his cell without problem or
      showing signs of aggression. However, once Appellant entered
      the prison’s common area, he chose not to move. [Lieutenant



*Retired Senior Judge assigned to the Superior Court.
J-S34041-18


      Parker] also testified that he directed his officers to activate a
      handheld camera to record Appellant’s behavior.

            Lieutenant Parker further testified,

            For some reason the camera wouldn’t work. I took a
            step out to show the officer or to try to fix the problem
            with the camera and as I did that I left myself
            vulnerable and the inmate turned and spit in my face.
            My eyes, my mouth. And then the officers, they took
            him down to the floor to gain control a couple times
            and we got him into a restraint chair to move him and
            he was placed in our intake area to be held for another
            officer to come and take charge of the situation.

            [Lieutenant Parker] later testified that Appellant, after being
      restrained, said “like that you little bitch.” Lieutenant Parker then
      reported the incident and subsequently was treated for blood
      borne diseases with antiviral medication.

            [Following a jury trial,] Appellant was found guilty of
      aggravated harassment by prisoner on January 4, 2018. He was
      later sentenced on January 11, 2018, to undergo a term of
      imprisonment no less than [27] months [to] no more than [6]
      years.

Trial Court Opinion, 2/20/2018, at 2-3 (record citations and unnecessary

articles omitted).

      Appellant did not file a post-sentence motion. He timely filed a notice

of appeal, and Appellant and the trial court complied with Pa.R.A.P. 1925. On

appeal, Appellant presents one issue: “[w]as the evidence insufficient to find

[] Appellant guilty beyond a reasonable doubt of the criminal charges?”1

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



1
  Appellant used identical phrasing in his concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).

                                      -2-
J-S34041-18


     Our standard of review in challenges to sufficiency of the evidence is to

determine

     whether, viewing all the evidence admitted at trial in the light
     most favorable to the [Commonwealth as the] verdict winner,
     there is sufficient evidence to enable the fact-finder to find every
     element of the crime beyond a reasonable doubt. In applying [the
     above] test, we may not weigh the evidence and substitute our
     judgment for the fact-finder. In addition, we note that the facts
     and circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt by
     means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) (citation

omitted).

     Appellant was convicted of the following crime:

     § 2703.1 Aggravated harassment by prisoner

     A person who is confined in or committed to any local or county
     detention facility, jail or prison or any State penal or correctional
     institution or other State penal or correctional facility located in
     this Commonwealth commits a felony of the third degree if he,
     while so confined or committed …, intentionally or knowingly
     causes or attempts to cause another to come into contact with
     blood, seminal fluid, saliva, urine or feces by throwing, tossing,
     spitting or expelling such fluid or material.

18 Pa.C.S. § 2703.1.

     Appellant contends that the Commonwealth failed to prove the elements

of the crime beyond a reasonable doubt, although he never specifies which

specific elements the Commonwealth failed to prove. Appellant’s Brief at 10-


                                     -3-
J-S34041-18


15. Appellant concedes that witnesses for the Commonwealth testified that

Appellant spit on a corrections officer at SCI Fayette, but nevertheless states

in a conclusory fashion that the Commonwealth failed to present sufficient

evidence to convict Appellant of aggravated harassment by prisoner. Id. at

15.   Appellant further argues that the “verdicts were against the evidence

since the testimony concerning the crimes charged was inconsistent and was

contradicted by testimonial evidence.” Id. at 13.

      After review of the record and Appellant’s brief, we conclude that

Appellant is not entitled to relief.     First, Appellant failed to preserve his

sufficiency challenge by filing a vague Pa.R.A.P. 1925(b) concise statement.

Appellant’s concise statement raised only a generic challenge and did not

specify precisely which elements of the crime he contends the Commonwealth

failed to prove. This Court has repeatedly required an appellant to specify in

the Rule 1925(b) statement the particular element or elements upon which

the evidence was insufficient. See, e.g., Commonwealth v. Roche, 153

A.3d 1063, 1072 (Pa. Super. 2017). But c.f. Commonwealth v. Laboy, 936

A.2d 1058, 1060 (Pa. 2007) (finding no waiver in a “relatively straightforward”

case if the trial court is able to identify the issues).

      Even if Appellant did not waive his sufficiency challenge based upon the

deficient Rule 1925(b) statement, he certainly has waived his challenge by his

deficient appellate brief.    Appellant fails to comply with multiple rules of

appellate procedure. Appellant’s statement of the case fails to set forth any


                                        -4-
J-S34041-18


facts or record citations.    Compare Appellant’s Brief at 8 with Pa.R.A.P.

2117(a)(4).    Moreover, Appellant’s argument is woefully undeveloped.

Compare Appellant’s Brief at 10-15 with Pa.R.A.P. 2119(a).             Appellant

repetitively sets forth the general standard for sufficiency challenges, but like

his Rule 1925(b) concise statement, never specifies what he contends the

Commonwealth failed to prove.2        Nor does he analyze how the standard

applies to his case.   Instead, he just repeats general case law and makes

conclusory statements.       Thus, he has failed to develop the issue in any

meaningful fashion capable of review, and his challenge to the sufficiency of

the evidence is waived. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

Super. 2009) (finding that Gibbs waived his sufficiency claim by failing to

specify which elements he was challenging in his concise statement and brief

and by failing to cite to legal authority other than the general standard of

review); Commonwealth v. Patterson, 180 A.3d 1217, 1229 (Pa. Super.

2018) (finding waiver because appellant’s brief failed to develop an issue in

any meaningful fashion capable of appellate review).

      Even if Appellant did not waive the sufficiency claim for the reasons

discussed above, he would still not be entitled to relief.    Three corrections



2
 In fact, in addition to failing to analyze the statute, Appellant never cites to
the statute under which he was convicted. Instead, Appellant cites to two
other criminal statutes that have nothing to do with his case. Appellant’s Brief
at 9 (citing to 18 Pa.C.S. § 3126(a)(4), which criminalizes indecent assault);
id. at 10 (citing to 18 Pa.C.S. § 5123(a.2), which criminalizes possession of
controlled substance contraband by an inmate).

                                      -5-
J-S34041-18


officers, including Lieutenant Parker, testified that they saw Appellant, while

he was confined at SCI Fayette, expel his saliva towards Lieutenant Parker.

N.T., 1/4/2018, at 12, 16, 28, 33. Specifically, Lieutenant Parker testified

that Appellant spit in his eye and mouth while Appellant was protesting his

removal from his cell for a disciplinary infraction. Id. at 12, 16. Corrections

Officer Robert Boscarino corroborated Lieutenant Parker’s testimony. Id. at

33. Corrections Officer Todd Tharpe also saw Appellant spit on Lieutenant

Parker after Appellant stopped cooperating with the corrections officers during

his removal from his cell, although he did not see specifically where the spit

landed.   Id. at 28.   Thus, it is clear that the Commonwealth proved all

elements of aggravated harassment by prisoner beyond a reasonable doubt.

See 18 Pa.C.S. § 2703.1.

      Finally, we note that Appellant makes vague overtures towards

attacking the weight of the evidence in his brief. See Appellant’s Brief at 13,

15.   However, Appellant has waived any challenge to the weight of the

evidence. First, he failed to preserve such a challenge before the trial court.

See Pa.R.Crim.P. 607; Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa.

Super. 2012) (en banc). Second, neither his Rule 1925(b) concise statement

nor the statement of the issue he presents on appeal encompasses such a

challenge. Since challenges to weight and sufficiency are distinct legal claims,

he has waived the weight challenge by failing to include it.               See

Commonwealth v. Kinney, 157 A.3d 968, 971–72 (Pa. Super. 2017). Third,


                                     -6-
J-S34041-18


similar to his sufficiency challenge, Appellant fails to develop meaningfully his

challenge to the weight of the evidence in his brief. Patterson, 180 A.3d at

1229.

        Furthermore, even if Appellant had preserved a challenge to the weight

of the evidence, such a challenge would fail.    “The weight of the evidence is

exclusively for the finder of fact, which is free to believe all, part, or none of

the evidence, and to assess the credibility of the witnesses.... An appellate

court cannot substitute its judgment for that of the jury on issues of

credibility.” Kinney, 157 A.3d at 80-81, n.3. Appellant vaguely argues that

there is some unspecified conflict in the testimony of the witnesses. Not only

are we unable to discern any conflict in the testimony of the three corrections

officers, the jury obviously credited their testimony.     Because we may not

disturb the jury’s credibility determinations in this manner, this claim, if

preserved, would have failed. Id.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


                                      -7-
J-S34041-18




Date: 7/24/2018




                  -8-
