J-S43033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ELWOOD C. BRASWELL

                            Appellant                   No. 86 WDA 2017


          Appeal from the Judgment of Sentence September 13, 2013
                In the Court of Common Pleas of Forest County
             Criminal Division at No(s): CP-27-CR-0000037-2013

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 08, 2017

        Appellant, Elwood C. Braswell, appeals nunc pro tunc from the

judgment of sentence entered in the Forest County Court of Common Pleas

following his jury trial convictions of criminal homicide,1 aggravated assault,2

and abuse of a corpse.3        Appellant claims the jury’s verdict of guilty but

mentally ill was against the weight of the evidence that he was insane. We

are constrained to find this claim waived and affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant’s charges stem from the murder of his cellmate while Appellant

was incarcerated at SCI Forest.         At trial, Appellant raised an insanity

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2501(a).
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 5510.
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defense; however, on August 27, 2013, the jury found Appellant guilty but

mentally ill of the aforementioned offenses.       The trial court sentenced

Appellant on September 13, 2013, to life without parole for homicide, a

consecutive ten to twenty years’ imprisonment for aggravated assault, and a

consecutive one to two years’ imprisonment for abuse of a corpse. Appellant

did not file post-sentence motions or a direct appeal.

       On April 30, 2014, Appellant filed a pro se Post Conviction Relief Act4

(“PCRA”) petition in which he alleged ineffective assistance of trial counsel.

Appellant then filed a pro se supplemental PCRA petition in which he alleged

trial counsel was ineffective for failing to file a direct appeal, and that the

jury’s rejection of Appellant’s insanity defense went against the weight of the

evidence.    In his petition, Appellant also requested reinstatement of his

direct appeal rights nunc pro tunc. The PCRA court appointed counsel who

filed an amended petition on November 13, 2014, which requested that

Appellant be permitted to file post-sentence motions and a direct appeal

nunc pro tunc.5    In response, the Commonwealth filed an answer and a

motion to dismiss.    Counsel subsequently filed a “no merit” letter and a

request to withdraw, which the PCRA court denied. Following a hearing, the




4
    42 Pa.C.S §§ 9541-9546.
5
 In the amended petition, counsel abandoned any claims regarding the
weight of the evidence and Appellant’s insanity defense.



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PCRA court reinstated Appellant’s direct appeal rights on December 16,

2016, but did not reinstate the right to file post-sentence motions.

        Thereafter, on December 22, 2016, Appellant timely filed a notice of

appeal.    The PCRA court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied.6 On February 28, 2017, the PCRA court issued a Pa.R.A.P.

1925(a) opinion.

        Appellant raises the following issue for our review:

           Whether [the] trial court abused its discretion in finding
           that the jury’s rejection of the insanity defense was against
           the weight of the evidence.

Appellant’s Brief at 8.

        Appellant argues the jury’s verdict of guilty but mentally ill was

unreasonable because it indicated a disregard of the evidence regarding

Appellant’s insanity and went against the weight of the evidence. Appellant


6
    Appellant’s Rule 1925(b) statement reads:

           Trial counsel rendered ineffective assistance of counsel in
           not bringing a challenge before the trial court of the jury’s
           rejection of a verdict of not guilty by reason of insanity
           based on a claim that the verdict reached was against the
           weight of the evidence offered to prove the defense of
           insanity by [Appellant].     [Appellant] offered sufficient
           evidence to prove by a preponderance of the evidence that
           he was insane at the time he acted in violation of the
           criminal statutes charged. The verdict reached is against
           the weight of the evidence.

Appellant’s Statement of Errors Complained of on Appeal, 1/9/17, at 1-2.



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maintains he was proven insane by a preponderance of the evidence

because witness testimony showed Appellant was not conscious of his

wrongdoing at the time he committed the offenses. Appellant concludes this

Court should set aside his verdict and grant him a new trial. No relief is due.

      As a threshold matter, Rule 607 of the Pennsylvania Rules of Criminal

Procedure states:

         Rule 607. Challenges to the Weight of the Evidence

         (A) 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:

         (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.

Pa.R.Crim.P. 607(A).    A weight of the evidence claim is not preserved if

Appellant raises the claim for the first time in his Rule 1925(b) statement,

and we may not address the merits of the claim even if the trial court

addresses the issue in its Rule 1925(a) opinion.         Commonwealth v.

Sherwood, 982 A.2d 483, 494 (Pa. 2009); Commonwealth v. Thompson,

93 A.3d 478, 490 (Pa. Super. 2014).

      Our Supreme Court has held that where the trial court reinstates direct

appeal rights nunc pro tunc for counsel’s failure to file a requested appeal,

the petitioner is not automatically entitled to reinstatement of post-sentence




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motion rights nunc pro tunc. Commonwealth v. Liston, 977 A.2d 1089,

1093-94 (Pa. 2009). The Liston Court noted:

         If a defendant successfully pleads and proves that he was
         deprived of the right to file and litigate said motions as a
         result of the ineffective assistance of counsel, a PCRA court
         is free to grant such relief.       Presumably, since post-
         sentence motions are optional, see Pa.R.Crim.P. 720(B),
         rarely will counsel be deemed to have been ineffective for
         failing to file them except, for example, when the claim
         involves the discretionary aspects of sentence or a
         challenge to a verdict on weight of the evidence grounds,
         claims which must be raised in the trial court to be
         preserved for purposes of appellate review.

Id. at 1094 n.9 (some citations omitted). In Commonwealth v. Fransen,

986 A.2d 154 (Pa. Super. 2009), this Court followed Liston and held that a

petitioner, who was granted reinstatement of his direct appeal rights, failed

to show he was entitled to an order reinstating his right to file post-sentence

motions nunc pro tunc.      Id. at 158.    In that case, we noted that the

petitioner did not request such relief from the PCRA court, and the PCRA

court did not hold an evidentiary hearing on that issue. Id.

      Instantly, there is no indication that Appellant raised a weight of the

evidence claim before or after sentencing.        See Pa.R.Crim.P. 607(A).

Moreover, although Appellant’s pro se supplemental PCRA petition initially

claimed that the jury’s verdict went against the weight of the evidence,

counsel’s amended petition abandoned any such claim.           Thereafter, the

PCRA court reinstated only Appellant’s direct appeal rights and not his right

to file post-sentence motions nunc pro tunc. Appellant did not challenge this



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decision.   See Fransen, 986 A.2d at 158.      Thus, Appellant did not file a

post-sentence motion nunc pro tunc preserving a weight of the evidence

issue. Instead, Appellant first suggested his weight of the evidence issue in

his Rule 1925(b) statement alleging ineffective assistance of trial counsel.7

Even though the PCRA court elected to consider Appellant’s issue in the

context of trial counsel’s alleged ineffectiveness, we are precluded from

addressing the weight of the evidence for the first time on appeal.      See

Sherwood, 982 A.2d at 494.       Therefore, Appellant’s sole issue raised on

appeal nunc pro tunc is waived, and we are constrained to affirm the

judgment of sentence.8 See id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/8/2017



7
  It is well settled that this Court will not address a claim of ineffective
assistance of counsel on direct appeal. See Liston, 977 A.2d at 1094.
8
  We note that Appellant may file a “first” PCRA petition within one year of
the date his conviction becomes final.             See Commonwealth v.
Karanicolas, 836 A.2d 940, 944 (Pa. Super. 2003) (“When a petitioner is
granted a direct appeal nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition is considered a first PCRA petition for timeliness purposes.”
(citation omitted)).




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