J-S01015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA M. CULLEY                           :
                                               :
                       Appellant               :   No. 1081 MDA 2018

        Appeal from the Judgment of Sentence Entered February 6, 2018
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000311-2017


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                              FILED JUNE 21, 2019

        Joshua M. Culley appeals from the judgment of sentence entered after

a jury found him guilty of rape, sexual assault, and unlawful restraint. Culley

contends the evidence at trial was insufficient to sustain the verdicts. He

further contends the trial court erred by denying defense counsel the right to

refresh the complainant’s recollection. We affirm.

        The following factual summary is gleaned from the testimony presented

by the Commonwealth at trial. The victim met Culley when she started working

at Renewal by Anderson in November of 2016. Culley was one of the

employees assigned to train her. During a cigarette break on the Friday of her




____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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first week, the victim and Culley exchanged phone numbers and made plans

to hang out after work.

      The victim and her cousin, S.S., later went to Culley’s parent’s home.

Culley was waiting outside for them when they arrived and led them into his

room, which was located in the basement attached to the garage.

      Shortly after getting there, Culley went upstairs and brought down a

bottle of whiskey. The victim testified that she had about five shots, and both

Culley and S.S. had more. Eventually, S.S. became ill and spent the remainder

of the night in the bathroom. Thereafter, the victim periodically checked in on

her cousin in the bathroom.

      Around the third time the victim checked in on S.S., Culley pushed her

back onto his bed and climbed on top of her. He took her pants and underwear

down and began having vaginal intercourse with her. When the victim told

him to stop and yelled for help he hit her in the face. S.S. heard her cousin

yelling, but was too incapacitated to help. Culley held her down by holding

both of her arms above her head with one hand, and at one point held her

throat down with the other hand. The assault lasted around five minutes, at

which time Culley went upstairs. The victim collected her things and carried

S.S. up the stairs they had come down and drove home.

      After leaving work the next day, the victim went to Holy Spirit hospital

for a rape kit. She later went home and told her mother what had happened.




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      On Sunday morning, the victim went to the Silver Spring Township

Police Department where she spoke with Detective Andrew Bassler and gave

a written statement.

      While at the police station, the victim made a consensual (recorded)

phone call to Culley, with Detective Bassler and Detective Carrie Webber

present. Culley ultimately returned her call after she texted him that she

needed to talk. During the phone call, Culley stated, “I don’t want this to sound

completely horrible, but did you like agree at all at first or did I like rape you.”

      On November 3, 2017, after a jury trial, Culley was found guilty on one

count each of rape, sexual assault, and unlawful restraint. He was sentenced

to ninety-two months to one hundred and eighty-four months of incarceration

followed by sixty months of probation on the rape charge; a concurrent sixty

to one hundred and twenty months of incarceration on the sexual assault

charge; and a concurrent six to twelve months of incarceration followed by

forty-eight months of probation on the unlawful restraint charge.

      Culley filed a post sentence motion, which was denied on June 7, 2018.

This timely appeal followed.

      In his first issue on appeal, Culley argues the verdict was against the

sufficiency of the evidence. We are constrained to conclude that Culley’s

sufficiency claim is waived, as his Rule 1925(b) statement did not sufficiently

identify the error that he intended to challenge on appeal.




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         It is well-established that any issue not raised in a Rule 1925(b)

statement will be deemed waived for appellate review. See Commonwealth

v. Lord, 719 A.2d 306, 309 (Pa. 1998). Further, an appellant’s concise

statement must identify the errors with sufficient specificity for the trial court

to identify and address the issues the appellant wishes to raise on appeal. See

Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely

identify each ruling or error that the appellant intends to challenge with

sufficient detail to identify all pertinent issues for the judge”). A Rule 1925(b)

concise statement that is too vague can result in waiver of issues on appeal.

See Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001)

(“a concise statement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent of no concise statement at

all”).

         If Appellant wants to preserve a claim that the evidence was
         insufficient, then the 1925(b) statement needs to specify the
         element or elements upon which the evidence was insufficient.
         This Court can then analyze the element or elements on appeal.
         [Where a] 1925(b) statement [ ] does not specify the allegedly
         unproven elements[,] ... the sufficiency issue is waived [on
         appeal].

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation

omitted).

         In this case, Culley’s Rule 1925(b) statement simply declared that the

evidence was contradictory and uncorroborated. See Appellant’s Rule 1925(b)

Statement, 7/17/2018, at 1. The statement fails to “specify the element or


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elements upon which the evidence was insufficient” to support Culley’s

convictions. Thus, we must conclude that Culley’s sufficiency of the evidence

claim is waived on appeal. See Commonwealth v. Williams, 959 A.2d 1252,

1257-1258 (Pa. Super. 2008).

      Further, although Culley phrased this claim as a challenge to the

sufficiency of the evidence, in actuality, we find his claim to be a challenge to

the weight of the evidence. Culley’s argument focuses almost exclusively on

his contention that the victim and S.S. did not testify credibly. See Appellant’s

Brief, at 13-15. This is a challenge not to the sufficiency of the evidence, but

to its weight. See Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.

Super. 2003) (“A sufficiency of the evidence review, however, does not include

an   assessment    of   the   credibility   of   the   testimony   offered   by   the

Commonwealth.”) By making this argument, Culley “has blurred the concepts

of weight and sufficiency of the evidence.” Id., at 714.

      A challenge to the weight of the evidence must, in the first instance, be

presented to the trial court. See Commonwealth v. Rivera, 983 A.2d 1211,

1225 (Pa. Super. 2009). As Culley did not raise a challenge to the weight of

the evidence in the trial court, any such claim is waived for purposes of this

appeal. See Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super.

2011). Thus, Culley’s first issue on appeal would merit no relief in any event.

      In his second issue on appeal, Culley contends the trial court erred by

denying defense counsel the right to refresh the victim’s recollection. We find


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Culley’s contention is completely belied by the record. It is evident from the

trial testimony that defense counsel explicitly decided on his own not to

refresh the victim’s recollection with the recording of her interview with

Detective Bassler.

      MR. MATANGOS: Yes, Your Honor. I am going to not ask her to
      refresh her recollection at this point.

      THE COURT: Okay. Do you want me to explain that to the jury?

      MR. MATANGOS: Yes. And I reviewed it with my client. It’s much
      longer. It is 50 some minutes of talking and then there is some
      silence, but there’s about 50 minutes of talking before she starts
      writing the written statement, and that just seems too long for the
      logic of it so …

      THE COURT: All right. Are you ready for the jury then?

      MR. MATANGOS: Yes, Your Honor.

N.T., 2/21/2018, at 78. Thus, the trial court clearly did not deny defense

counsel the right to use the video.

      Culley argues that “[w]hile not explicitly stated, the trial court and the

Commonwealth’s response to defense counsel’s request suggested that the

recorded interview must be played in its entirety for the jury” and that this

alleged error led to defense’s reluctance to play the recorded interview.

Appellant’s Brief, at 17 (emphasis added). However, nowhere in the trial

transcript does the trial court indicate it would require playing the entire video

for the jury. On the contrary, the trial court specifically excluded the jury from

hearing any part of the video and only made reference to the victim being able

to watch the entire video. See N.T., 2/21/2018, at 76-77.

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      THE COURT: Okay. But that’s still 35 minutes that we don’t have
      for this jury. I am going to have to take -- do you want to take a
      break here early for lunch so she can listen to this? Because it’s
      not going to be fair to have her listen to piecemeal of it, if that is
      what you want to do? … if he wants to refresh her recollection,
      she is going to get a chance to hear it all.

Id. In so far as the Commonwealth mentioned the jury viewing the video in

full, any comments made by the Commonwealth cannot be imputed to the

court. As the trial court properly considered the admissibility of the video and

did not make the decision itself to not show the video, we find Culley’s second

issue without merit.

      We find none of Culley’s issues merit relief and therefore affirm the

judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/21/2019




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