J-S15028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEELAN MAURICE LYONS                       :
                                               :
                       Appellant               :   No. 1118 WDA 2018

          Appeal from the Judgment of Sentence Entered June 12, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0010143-2017


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                                FILED JUNE 21, 2019

       Appellant, Keelan Maurice Lyons, appeals from the judgment of

sentence entered on June 12, 2018, following his conviction at a bench trial

of one count each of theft by unlawful taking and simple assault.1 We affirm.

       The trial court summarized the facts of the crimes as follows:

             On May 13, 2017, Ms. Darnaya Johnson [also referred to as
       “the victim”] was at her home located [on] North Negley Avenue
       in the City of Pittsburgh. (T.T. 5). Appellant was visiting at her
       home when an argument between the two erupted and Ms.
       Johnson requested Appellant leave her apartment. Appellant
       refused to leave and another argument ensued over Appellant’s
       use of Ms. Johnson’s cell phone charger. (T.T. 6). During this
       argument, Appellant pushed Ms. Johnson to the ground causing
       bruising to her knee and arm. (T.T. 7-8, 10).


____________________________________________


1  18 Pa.C.S. §§ 3921(a) and 2701(a)(1), respectively. Appellant also was
found not guilty of robbery and terroristic threats.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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              Ms. Johnson repeatedly asked Appellant to leave and
       informed Appellant that she was going to call the police. (T.T. 8).
       Appellant then went to the [sic] Ms. Johnson’s bedroom and took
       her cell phone. (T.T. 9). Ms. Johnson requested that Appellant
       give her phone back, but Appellant refused and kept pushing and
       threatening to hit her.[2] (T.T. 9, 16). Appellant left the residence
       with Ms. Johnson’s phone and charger. (T.T. 9-11). Thereafter,
       police were summoned[,] and Appellant was eventually
       apprehended and charged as noted hereinabove. (T.T. 19-20).
       Ms. Johnson was treated at the hospital that same day for her
       injuries. (T.T. 12). None of the items, i.e. phone, phone case, or
       charger were recovered. Ms. Johnson replaced those items at a
       cost of $240.00. (T.T. 11).

Trial Court Opinion, 11/29/18, at 3–4 (footnote omitted).

       The trial court summarized the procedural history as follows:

             On June 6, 2018, Appellant proceeded to a non-jury trial, at
       the conclusion of which he was found guilty of theft by unlawful
       taking and simple assault. Appellant was found not guilty at the
       remaining counts.

             [On June 12, 2018], Appellant was sentenced by the Trial
       Court to the following:

            Count two: theft by unlawful taking–eighteen months
       probation; and

            Count four: simple assault–eighteen months probation to be
       served concurrently to the period of probation imposed at count
       two.

              On June 20, 2018, Appellant filed post sentence motions.

             The Trial Court denied Appellant’s post sentence motions on
       July 9, 2018.




____________________________________________


2 The victim testified that Appellant kept threatening, “I will smack the f—
out of you.” N.T., 6/6/18, at 8, 16.

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Trial Court Opinion, 11/29/18, at 2–3.     Appellant filed a timely notice of

appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises one issue on appeal:

      I. Whether the trial court abused its discretion in not granting
      [Appellant] a new trial when the verdicts of guilty for theft and
      simple assault were against the weight of the evidence based on
      the eyewitness identification?

Appellant’s Brief at 5.

      We have held that “[a] motion for new trial on the grounds that the

verdict is contrary to the weight of the evidence, concedes that there is

sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153

A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000)).       Our Supreme Court has described the

standard applied to a weight-of-the-evidence claim as follows:

      The decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Thus, “the function
      of an appellate court on appeal is to review the trial court’s
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight of
      the evidence.” An appellate court may not overturn the trial
      court’s decision unless the trial court “palpably abused its
      discretion in ruling on the weight claim.” Further, in reviewing a
      challenge to the weight of the evidence, a verdict will be
      overturned only if it is “so contrary to the evidence as to shock
      one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted). “[W]e do not reach the underlying question of whether the verdict

was, in fact, against the weight of the evidence. . . .    Instead, this Court



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determines whether the trial court abused its discretion in reaching whatever

decision it made on the motion[.]” Commonwealth v. Ferguson, 107 A.3d

206, 213 (Pa. Super. 2015) (citation omitted) (emphasis added).

      A challenge to the weight of the evidence must first be raised at the trial

level “(1) orally, on the record, at any time before sentencing; (2) by written

motion at any time before sentencing; or (3) in a post-sentence motion.”

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Appellant

preserved his challenge by raising the issue in a post-sentence motion and

including the issue in his Pa.R.A.P. 1925(b) statement.

      In denying Appellant’s request for a new trial based on the weight of the

evidence, the trial court stated as follows:

             Here, the [t]rial [c]ourt, as the finder of fact, heard
      testimony from the victim, Ms. Johnson, as well as from Officer
      [Phillip] Szalla who observed Ms. Johnson’s injuries. Appellant
      also testified and denied being at Ms. Johnson’s residence. The
      Trial Court carefully considered the testimony and evidence
      presented. Ms. Johnson and Appellant were known to each other,
      having gone to school together and being involved in a casual
      relationship of some sort at the time of the incident. While
      Appellant maintained that he was not present during the incident
      nor the perpetrator of these crimes, identification was never
      contested at trial except for Appellant's complete denial of being
      present.

            Appellant was a person intimately known to Ms. Johnson,
      and she clearly had the opportunity to observe the perpetrator
      and never wavered or equivocated in that identification.
      Commonwealth v. Derrick, 469 A.2d 1111, 1121 (Pa. Super.
      1983) (holding victim’s trial identification of Defendant as
      perpetrator was proper as the victim had ample opportunity to
      observe the perpetrator during the crime, the attack occurred near
      a street light, and the victim recognized the perpetrator as a
      person he knew from the neighborhood); see also Commonwealth

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      v. Bradford, 451 A.2d 1035, 1037 (Pa. Super. 1982). The [t]rial
      [c]ourt rejected Appellant’s denial of being present and
      responsible. As such, the identification issue as presently framed
      by Appellant merits no further consideration of this Court.

            The [t]rial [c]ourt found beyond a reasonable doubt that
      Appellant unlawfully took the cell phone and charger of the victim
      and assaulted her in the process. As such, based on the evidence
      presented at trial, the Trial Court did not err, as alleged by
      Appellant, or abuse its discretion when it denied the motion for
      new trial as the verdict was clearly not against the weight of the
      evidence.

Trial Court Opinion, 11/29/18, at 5–7. Thus, the trial court emphasized that

the verdict was not against the weight of the evidence, asserting that after

hearing testimony from both the victim and Appellant, as well as a police

witness, it rejected Appellant’s denial of responsibility.

      Appellant contests the validity of the victim’s claim that she and

Appellant were acquainted, and with it, her identification of him; however, as

illustrated by Appellant’s own trial testimony, he did not expressly deny that

he knew the victim nor whether he ever was present at her apartment:

      Q.    And how do you know [the victim].

      A.    I’m not really sure. I think [the victim] just said we went
      to school together.

                                     * * *

      Q.   And do you recall being at her residence on May 13th of
      2017?

      A.    No, I don’t.

      Q.    Had you been to her residence at any time that you recall?

      A.    I don’t recall.

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N.T., 6/6/18, at 22–23 (emphases added). The victim, conversely, testified

that she knew Appellant from school, that he was at her apartment the day of

the incident and the day prior, and she described his tattoos on his neck and

chest, as confirmed by Pittsburgh Police Officer Szalla.     Id. at 14, 17, 20.

Moreover, even if Appellant actually had denied knowing the victim previously,

it is well settled that when reviewing a weight claim, an appellate court must

keep in mind that “[a]ssessing the credibility of witnesses is within the sole

discretion of the fact-finder.” Commonwealth v. Blakeney, 946 A.2d 645,

653 (Pa. 2008).

      Here, the trial court rejected the weight-of-the-evidence claim,

concluding that the Commonwealth’s evidence was credible and supported the

conclusion that Appellant took the victim’s cellular telephone and charger, and

in the process, pushed the victim to the ground causing injury. Trial Court

Opinion, 11/29/18, at 6; see Commonwealth v. King, 959 A.2d 405 (Pa.

Super. 2008) (citing Commonwealth v. Williams, 854 A.2d 440, 445 (Pa.

2004) (“In criminal proceedings, the credibility of witnesses and weight of the

evidence are determinations that lie solely with the trier of fact.”)). The trial

court’s determination that the victim’s testimony was credible was not an

abuse of discretion, and the verdict does not shock one’s sense of justice.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2019




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