J-S78029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS ALBERTO ACOSTA

                            Appellant                 No. 721 MDA 2014


            Appeal from the Judgment of Sentence March 26, 2014
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001797-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 21, 2015

        Appellant Carlos Alberto Acosta appeals from the judgment of

sentence entered in the Lycoming County Court of Common Pleas following

his bench trial convictions for persons not to possess a firearm, and firearms

not to be carried without a license.1 We affirm.

        The trial court set forth the relevant facts and procedural history of

this appeal as follows:

           By Criminal Complaint filed on September 23, 2012,
           [Appellant] was charged with one count of persons not to
           possess a firearm, graded as a felony of the second
           degree. The charge arose out of an incident that allegedly
           occurred on September 23, 2012 at approximately 5:30
           p.m. near 1118 Isabella Street in Williamsport in which a
           witness saw an individual, later identified as [Appellant],
____________________________________________


1
    18 Pa.C.S. §§ 6105, 6106, respectively.
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          pass a handgun to another individual. Police responded
          and eventually detained [Appellant].          The second
          individual, who had allegedly been handed the gun, fled
          when police arrived. A search of his flight path uncovered
          a handgun.

                                       *       *   *

          Officer Nathan Moyer, of the Williamsport Bureau of
          Police…testified on behalf of the Commonwealth. He was
          dispatched to 1118 Isabella Street because of a
          ‘disturbance involving a gun.’ When he arrived on the
          scene, he detained [Appellant].            When he asked
          [Appellant] what had happened, [Appellant] indicated that
          he was just walking by, the police showed up and he was
          handcuffed.     He subsequently spoke with Mr. [Curt]+
          VanderVere and then searched the flight path of the other
          individual. He found ‘a Smith & Wesson black and silver,
          black and grey handgun semiautomatic under a parked
          vehicle, and that parked vehicle would have been in the
          direct flight path of the male in the grey hoodie.’ When he
          recovered the handgun, he found that there was a round in
          the chamber.[2]

                                       *       *   *

          The Criminal Complaint alleges that [Appellant’s] previous
          escape conviction and juvenile adjudication for aggravated
          assault precluded him from possessing any weapons.

          On June 11, 2013, the Commonwealth filed a motion to
          amend the Information to add Count 2, firearms not to be
          carried without a license, a felony of the third degree. By
          Order dated June 13, 2013, the Court granted the
          Commonwealth’s motion. By stipulation of the parties, the
          Court also amended the grading of Count 1 from a felony
          of the second degree to a misdemeanor of the first degree.

____________________________________________


2
  Expert Dr. Jill Cramer, a forensic DNA analyst, testified that it was more
probable than not that Appellant’s DNA was on the handgun. N.T., August
30, 2013, at 61.



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          A non-jury trial was held before this [c]ourt on June 13,
          2013, July 5, 2013 and August 30, 2013. Following the
          trial, on August 30, 2013, the [c]ourt found [Appellant]
          guilty of both charges. Sentencing was scheduled for
          January 21, 2014.

          At the January 21, 2014 sentencing hearing, the parties
          disputed [Appellant’s] prior record score.   [Appellant]
          indicated he was never adjudicated delinquent on a
          conspiracy to commit aggravated assault. Accordingly, the
          sentencing hearing was continued to March 21, 2014. At
          this scheduled hearing, [Appellant] questioned “the
          propriety” of his conviction claiming that Count 1 was
          improperly graded. [Appellant] also disputed his prior
          record score. The sentencing was again continued, this
          time to March 26, 2014.

          By Order dated March 26, 2014, following the sentencing
          hearing, the [c]ourt sentenced [Appellant] to a 3½ to 7
          year period of incarceration in a state correctional
          institution on Count 2 and a concurrent 1 to 2 year
          sentence on Count 1. For purposes of the sentence on
          Count 2, the [c]ourt determined the offense gravity score
          to be a 9 and [Appellant’s] prior record score to be a 5.

          [Appellant] filed a timely post-sentence motion on April 4,
          2014.

Trial Court Opinion and Order denying Appellant’s Post Sentence Motion,

filed April 22, 2014, at 1-2, 5.3

       On April 22, 2014, the court denied Appellant’s post sentence motion.

Appellant timely filed an appeal on April 28, 2014.     On May 7, 2014, the

court ordered Appellant to file a concise statement of errors complained of


____________________________________________


3
 In its Pa.R.A.P. 1925(a) opinion, the trial court incorporates its opinion and
order denying Appellant’s post sentence motion.



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on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days, and

Appellant filed a Rule 1925(b) statement on June 16, 2014.

        Appellant raises the following issue for our review:

           WHETHER THE GUILTY VERDICT WAS AGAINST THE
           WEIGHT OF THE EVIDENCE WHEN THE COMMONWEALTH’S
           EYEWITNESSES’ TESTIMONY CONTRADICTED EACH OTHER
           WHICH RESULTED IN A VERDICT BASED UPON PURE
           CONJECTURE[?]

Appellant’s Brief at 4.

        Before we address the merits of this appeal, we must determine

whether Appellant timely filed his Rule 1925(b) statement in the trial court.

If his statement was untimely, Pa.R.A.P. 1925(c)(3) obligates us to deem

appellate counsel ineffective and to remand the case for the filing of a Rule

1925(b) statement nunc pro tunc. Commonwealth v. Myers, 86 A.3d 286,

289 (Pa.Super.2014).

        The Pennsylvania Rules of Appellate Procedure provide, in relevant

part:

           Rule 1925. Opinion in Support of Order

                                    *    *    *

              (b) Direction to file statement of errors
           complained of on appeal; instructions to the
           appellant and the trial court.--If the judge entering the
           order giving rise to the notice of appeal (“judge”) desires
           clarification of the errors complained of on appeal, the
           judge may enter an order directing the appellant to file of
           record in the trial court and serve on the judge a concise
           statement of the errors complained of on appeal
           (“Statement”).



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              (1) Filing and service.--Appellant shall file of record
          the Statement and concurrently shall serve the judge.
          Filing of record and service on the judge shall be in person
          or by mail as provided in Pa.R.A.P. 121(a) and shall be
          complete on mailing if appellant obtains a United States
          Postal Service Form 3817, Certificate of Mailing, or other
          similar United States Postal Service form from which the
          date of deposit can be verified in compliance with the
          requirements set forth in Pa.R.A.P. 1112(c). Service on
          parties shall be concurrent with filing and shall be by any
          means of service specified under Pa.R.A.P. 121(c).
              (2) Time for filing and service.--The judge shall allow
          the appellant at least 21 days from the date of the order’s
          entry on the docket for the filing and service of the
          Statement. Upon application of the appellant and for good
          cause shown, the judge may enlarge the time period
          initially specified or permit an amended or supplemental
          Statement to be filed. In extraordinary circumstances, the
          judge may allow for the filing of a Statement or amended
          or supplemental Statement nunc pro tunc.

                                    *     *    *

             (c) Remand.
             (1) An appellate court may remand in either a civil or
          criminal case for a determination as to whether a
          Statement had been filed and/or served or timely filed
          and/or served.

                                    *     *    *

             (3) If an appellant in a criminal case was ordered to file
          a Statement and failed to do so, such that the appellate
          court is convinced that counsel has been per se ineffective,
          the appellate court shall remand for the filing of a
          Statement nunc pro tunc and for the preparation and filing
          of an opinion by the judge.

Pa.R.A.P. 1925.

     In    Commonwealth        v.   Lord,     our   Supreme   Court   held   that

“[a]ppellants must comply whenever the trial court orders them to file a


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Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any

issues not raised in a 1925(b) statement will be deemed waived.” 719 A.2d

306, 309 (1998). In Commonwealth v. Castillo, the Supreme Court re-

affirmed the bright line rule set forth in Lord that mandates strict

compliance with Rule 1925(b). 888 A.2d 775, 780 (Pa.2005). In Castillo,

the Court specifically voiced its disproval of “prior decisions of the

intermediate courts to the extent that they…created exceptions to Lord and

have addressed issues that should have been deemed waived.” Id.

      Here, in an order docketed on May 7, 2014, the court ordered

Appellant to file a concise statement of errors complained of on appeal

within twenty-one days. The court specifically directed Appellant to serve a

copy of his statement on the court and warned Appellant “any issue not

properly included in the Statement timely filed and served pursuant to Rule

1925(b) shall be deemed waived.”         Appellant, however, filed his Rule

1925(b) statement on June 16, 2014.         Nothing in the record indicates

Appellant requested an extension of time.         Thus, Appellant’s 1925(b)

statement is patently untimely, and his counsel was per se ineffective for

failing to file it within the court-ordered deadline. See Myers, supra.

      When the trial court has addressed the issues presented in an untimely

Rule 1925(b) statement, however, we need not remand and may address

the merits of the issues presented.     Commonwealth v. Thompson, 39




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A.3d 335, 340-41 (Pa.Super.2012). Thus, we proceed to address the merits

of Appellant’s issue on appeal.

      Appellant argues the Commonwealth presented conflicting evidence

that resulted in a verdict of guilt based upon conjecture.        Specifically,

Appellant claims the testimony of one witness contradicted the testimony of

the other witness. Appellant concludes the verdict was against the weight of

the evidence. We disagree.

      We review challenges to the weight of the evidence as follows:

           The weight of the evidence is exclusively for the finder
           of fact who is free to believe all, part, or none of the
           evidence and to determine the credibility of the
           witnesses. An appellate court cannot substitute its
           judgment for that of the finder of fact. Thus, we may
           only reverse the…verdict if it is so contrary to the
           evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 741 A.2d 666, 672–73
         (Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42
         (U.S.2000)]. Moreover, where 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.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted).

      Accordingly, “[o]ne 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.” Commonwealth v. Clay, 64 A.3d 1049,

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1055 (Pa.2013). A trial judge should not grant a new trial due to “a mere

conflict in the testimony or because the judge on the same facts would have

arrived at a different conclusion.” Id. Instead, the trial court must examine

whether “‘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.’”     Id.   Only where the jury verdict “is so contrary to the

evidence as to shock one's sense of justice” should a trial court afford a

defendant a new trial. Id.

         A verdict is contrary to the evidence such that it shocks one’s sense of

justice when:

           the figure of Justice totters on her pedestal, or when the
           jury’s verdict, at the time of its rendition, causes the trial
           judge to lose his breath, temporarily, and causes him to
           almost fall from the bench, then it is truly shocking to the
           judicial conscience.

Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa.Super.2007) (internal

citations omitted).

         Here,   the   Commonwealth     presented   the   testimony   of    several

witnesses, including Officer Mark Sechrist, Officer Nathan Moyer, Curt

VanderVere, Mary Stewart, and Dr. Jill Cramer, a forensic DNA analyst.

Mary Stewart testified she saw Appellant, without a visible gun, standing

outside of her residence when she left for fifteen to twenty minutes to get a

pizza.     When she returned, she saw Appellant in a police car.              Curt

VanderVere testified that he saw Appellant with a gun during the same


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period of time. Mr. VanderVere testified that Appellant handed the handgun

to a male in a grey hoodie. The Commonwealth presented further evidence

that corroborated Mr. VanderVere’s testimony.      Specifically, Officer Moyer

testified that he found a black and grey semiautomatic weapon under a

parked vehicle that was in the direct flight path of the male in the grey

hoodie. Dr. Cramer testified that it was more likely than not that Appellant’s

DNA was on the handgun.        The court chose to credit Mr. VanderVere’s

testimony along with the other evidence presented. The verdict was not so

truly shocking to the judicial conscience as to make the figure of Justice

totter on her pedestal. Thus, Appellant’s claim warrants no relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2015




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