J-S36034-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                Appellee                 :
                                         :
           v.                            :
                                         :
CRAIG DARREL BUCKNER,                    :
                                         :
                Appellant                : No. 1964 WDA 2014

    Appeal from the Judgment of Sentence Entered November 27, 2013
                in the Court of Common Pleas of Erie County
             Criminal Division at No.: CP-25-CR-0002282-2010

BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JULY 20, 2015

      Craig Darrel Buckner (Appellant) appeals from a judgment of sentence

of an aggregate term of 162 to 324 months’ incarceration after being

convicted by a jury of rape, unlawful restraint, terroristic threats, possessing

instruments of crime, and simple assault. We affirm.

      The trial court summarized the background underlying this matter as

follows.

      [The Victim met Appellant during the summer of 2010, when she
      was seventeen years old.]         Over time, they developed a
      relationship, which included sexual activity. On June 19, 2010,
      she learned that she was pregnant.… [S]he eventually appeared
      at [Appellant’s] residence on June 28, 2010.… At that time, he
      called her a “whore”, “a dirty bitch” and accused her of sleeping
      with other men.… At some point during this encounter, he stood
      in front of the doorway blocking her exit. He told her that she
      “f----d up his night so he was going to mess up her night”. He
      then threatened to beat and kill her.




* Retired Senior Judge assigned to the Superior Court.
J-S36034-15

     [A]ppellant closed and locked the door and told the [V]ictim to
     get into bed. Afraid, she complied. He pushed her and pulled
     her hair and told her to remove her clothes. In fear, she
     complied. He then pulled down her shorts and told her to take
     off her underwear. She did so. Terrified and naked, she
     attempted to make a cellphone call for help.          [A]ppellant
     grabbed it and threw it across the room. He then grabbed a belt
     and hit the [V]ictim multiple times on her legs and rear. He
     punched her in the face causing a bloody nose. During this
     attack, he repeatedly threatened to kill her and her family. He
     told her that he had a gun and a knife and that he would cut a
     hole in her stomach. At one point, he dragged her to the attic to
     find the knife. He then dragged her back to his bedroom and
     attempted to force her to perform oral sex upon him, pulling her
     head toward his penis. She resisted. In fear, she complied with
     his request to mount him, during which she asked him to stop.
     He then got on top of her and penetrated her with his penis. In
     spite of her protestations, he did not stop the assault.
     Eventually, [A]ppellant fell to sleep and the victim was able to
     escape.…     She was taken to St. Vincent Health Center for
     performance of a rape examination. At trial, she described her
     various injuries which were corroborated by the physical
     evidence.

                                   ***

     Forensic (DNA) evidence established that [A]ppellant’s sperm
     was found in the fluid sample taken from the [V]ictim’s vagina.

     [Appellant] admitted striking the [V]ictim with a belt when he
     learned that she was pregnant.…        The sex, he said, was
     consensual, and denied that he ever threatened her, nor
     restrained her from leaving his apartment. The jury rejected his
     account.

Trial Court Opinion, 12/29/2014, at 3-6 (citations to transcript
omitted).

  The jury found Appellant guilty of the aforementioned offenses on

July 23, 2013. Id. at 2. No direct appeal was taken. On September




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2, 2014, Appellant, pro se, filed a Post Conviction Relief Act (“PCRA”)1

petition, and counsel was appointed. On November 6, 2014, the PCRA

court reinstated Appellant’s appellate rights nunc pro tunc.      Counsel

timely filed a notice of appeal on December 2, 2014, and both

Appellant and trial court complied with Pa.R.A.P. 1925(b). On appeal,

Appellant asks us to consider the following questions:


     I. Whether the lower court committed legal error and abused its
        discretion in denying the motion for judgment of acquittal as to
        the criminal charges for rape, unlawful restraint and terroristic
        threats given that there was insufficient evidence to support
        guilty verdicts as to those respective criminal charges?

     II. Whether the lower court committed legal error and abused its
         discretion as to the treatment of the photographs of the physical
         injuries sustained by the victim admitted into evidence by the
         Commonwealth?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

        On appeal, Appellant argues that the trial court erred by denying his

motion for judgment of acquittal.2      Appellant’s Brief at 5.   However, it is

unclear whether the Appellant is ultimately presenting a challenge to the

weight of the evidence or to the sufficiency of the evidence, as he confuses




1
    42 Pa.C.S. §§ 9541-9545.
2
  After the Commonwealth rested—when the trial court asked whether there
were any motions for consideration—Appellant’s counsel responded, “Oh
well, motion for judgment of acquittal.” N.T., 7/23/2013, at 62. The court
denied the motion, noting there was “sufficient evidence to go to the jury on
the charges.” Id.



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the requirements of each.3          Notably, he argues there was “minimal

extraneous evidence” to establish any of the crimes, and in the next breath

argues   that   the   “alleged   victim’s   account    was   replete   with   factual

inaccuracies.” Appellant’s Brief at 5.

      Either way, the claim is waived.         To the extent that Appellant’s first

issue raises a claim that he is entitled to a new trial because the jury’s

verdict is contrary to the weight of the evidence, we conclude that the issue

is waived. In order to preserve a weight of the evidence claim for appellate

review, Appellant was required to present such a claim to the trial court in a

motion for a new trial orally before sentencing, by written motion before

sentencing, or in a post-sentence motion. Pa.R.Crim.P. 607(A). Appellant

did not file a post-sentence motion or a written motion before sentencing.

While he did make an oral pre-sentence motion, he did not request a new

trial in making that motion and, perhaps more importantly, made the motion

prior to the verdict. Thus, when he made that motion, any claim that the

verdict was contrary to the weight of the evidence was premature.

      To the extent that Appellant’s first issue pertains to the sufficiency of

the evidence to support his convictions, we note that an appellant making a

sufficiency claim must “specifically discuss the elements of the crime and

3
  In a sufficiency of the evidence claim, the defendant contends that the
Commonwealth failed to establish “each material element of the crime
charged and the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)
(footnote and citations omitted). Conversely, in a weight of the evidence
claim, the claimant necessarily concedes there is sufficient evidence to
sustain the verdict. Id.

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identify those [elements] which he alleges the Commonwealth failed to

prove.” See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.

2014) (citations omitted).

         Appellant specifically enumerates three of the five crimes he believes

the Commonwealth failed to prove he committed, namely, rape, unlawful

restraint, and terroristic threats. Appellant’s Brief at 5. However, because

Appellant has not indicated which elements of the crimes he believes the

Commonwealth failed to establish,4 he has waived any challenge to the

sufficiency of the evidence. For these reasons, Appellant is not entitled to

relief on his first issue.

         We now turn to Appellant’s second issue, where he asserts that the

trial court erred as to “its treatment of the photographic evidence of the

alleged victim’s injuries.” Appellant’s Brief at 5. To the extent Appellant’s

second issue pertains to the admissibility of the photographs, we note

Appellant did not object to the admission of the photographs at trial. N.T.,

7/22/2013, at 98.       In order to preserve a claim for review, the defendant

must make a timely and specific objection to the introduction of the

challenged evidence at trial. Commonwealth v. Gray, 867 A.2d 560, 574

(Pa. Super. 2005) (citations omitted).          Thus, Appellant has waived this

issue.

         To the extent that Appellant is challenging the trial court’s denial of his


4
  Appellant does not tie any of his discussion to specific elements.
Appellant’s Brief at 4-5.

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request for a cautionary instruction to accompany the admission of the

photographs, the issue is moot. Although the trial court stated it would not

give an explicit cautionary instruction with respect to the photographs, it

ultimately did.5      Accordingly, to the extent Appellant is claiming the trial

court erred by denying his request for a special jury instruction, that issue is

moot.

        Having concluded that all of Appellant’s arguments are either waived

or moot, we affirm his judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2015




5
  N.T., 7/23/2013, at 43 (noting that an inflammatory instruction might be
modified) and 161 (instructing the jury that “[t]he photographs from this
case are not relevant or are not admitted to excite your passions nor to
make you sympathetic”).

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