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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
JOSE ARGUELLES,                         :          No. 1930 EDA 2015
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, May 22, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0001107-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 05, 2016

     Jose Arguelles appeals from the May 22, 2015 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

conviction of conspiracy to commit criminal trespass, criminal trespass, and

attempted theft.1 We affirm.

     The trial court provided the following factual history:

                  On January 13, 2014, at around noon,
           Eric Hanratty was at his residence [] in Philadelphia.
           He heard a knock on the front door while he was on
           the second floor of his home. Mr. Hanratty looked
           out a front window and saw two men he did not
           recognize at his door. One of these two men was
           later identified as [a]ppellant.

                When nobody answered the door, [a]ppellant
           walked across the street while the second man

1
  18 Pa.C.S.A. §§ 903(c), 3503(a)(1), 901(a), respectively. Appellant was
charged with, and acquitted of, attempted burglary, 18 Pa.C.S.A. § 901(a).
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            (identified at trial as “Rivera”) jumped over a fence
            and walked around the side of the house. When he
            saw Rivera moving towards the back of the house,
            Mr. Hanratty called 9-1-1.

                  From upstairs, Mr. Hanratty could hear noise
            and saw Rivera attempting to pry open a first-floor
            window with a shovel. While Rivera was attempting
            to open the window, [a]ppellant was observed
            walking   around    the   block   and     “spotting.”
            Mr. Hanratty observed [a]ppellant circling the block
            and looking around.

                  Mr. Hanratty went downstairs and called out
            that he had called the police.     Upon hearing
            Mr. Hanratty, Rivera abandoned the shovel and
            hopped back over the fence.    When Rivera left,
            [a]ppellant went with him and they walked away
            from the house together.

                   When police arrived about a minute later,
            Mr. Hanratty met Officer Macy, got into the marked
            police vehicle, and described the two men.
            Officer Macy then broadcast the description through
            his radio, and another officer responded that he saw
            two      individuals matching       the   description.
            Officer Macy and Mr. Hanratty met with the other
            officer, and Mr. Hanratty identified the two males in
            custody as the individuals who had been at his
            house.

                   There was a stipulation at trial that
            Officer Macy, if called to testify, would state that he
            responded to the 9-1-1 call at [Mr. Hanratty’s
            residence]. He would also testify that he recovered
            a shovel from the yard. Mr. Hanratty testified that
            the window frame and weather sealing were
            damaged from where Rivera had attempted to pry
            the window open. He also testified that neither
            individual had permission to be on his property or to
            enter his home.

Trial court opinion, 10/15/15 at 2-3 (citations omitted).



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      Following a bench trial, the trial court convicted appellant of conspiracy

to commit criminal trespass, criminal trespass, and attempted theft on

May 22, 2015.      That same day, the trial court sentenced appellant to

11½ months to 23 months’ imprisonment to be followed by two years’

probation.    Appellant received credit for time served and was paroled

immediately. On June 22, 2015, appellant filed a timely notice of appeal.2

The trial court ordered appellant to file a concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on June 25, 2015,

and appellant complied on August 5, 2015.3 On October 15, 2015, the trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue on appeal:

             Whether the Weight of the Evidence consisting of
             [a]ppellant’s conduct supports the Court’s Verdict
             convicting [appellant] of Conspiracy and Attempted
             Burglary[?]

Appellant’s brief at 7.4



2
  June 21, 2015, was a Sunday. Therefore, appellant’s filing deadline was
extended to the next business day, which was June 22, 2015.           See
1 Pa.C.S.A. § 1908.
3
  Appellant’s Rule 1925 statement was not timely, however, we are
permitted to decide this case on its merits because the trial court was able
to prepare an opinion addressing the issues appellant raised on appeal.
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc).
4
 We note, curiously, that appellant has asked this court to review the
weight of the evidence of the attempted burglary charge--of which appellant
was acquitted.


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      Before we may review appellant’s claim on its merits, we are first

compelled to determine whether appellant has met his procedural obligations

in bringing a weight of the evidence claim.

            Pennsylvania Rule of Criminal Procedure 607 states,
            in relevant part, that “[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” in a
            written or oral motion before the court prior to
            sentencing,     or  in   a    post-sentence    motion.
            Pa.R.Crim.P. 607(a)(1)-(3). Moreover, the comment
            to the rule clearly establishes that “[t]he purpose of
            this rule is to make it clear that a challenge to the
            weight of the evidence must be raised with the trial
            judge or it will be waived.”        Pa.R.Crim.P. 607,
            comment. Failure to challenge the weight of the
            evidence presented at trial in an oral or written
            motion prior to sentencing or in a post-sentence
            motion will result in waiver of the claim.
            Commonwealth v. Bond, 604 Pa. 1, 985 A.2d 810,
            820 (2009).

Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa.Super. 2012).

      A careful review of the record indicates that appellant failed to raise a

motion for a new trial with the trial court on the grounds that the verdict was

against   the   weight   of   the   evidence.     Accordingly,   pursuant    to

Pa.R.Crim.P. 607, we find that appellant’s sole issue on appeal has been

waived.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




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