J. S25045/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    v.                     :
                                           :
BRYANT LAMONT McCASKILL,                   :          No. 1246 EDA 2016
                                           :
                          Appellant        :


           Appeal from the Judgment of Sentence, January 20, 2016,
               in the Court of Common Pleas of Monroe County
               Criminal Division at No. CP-45-CR-0000084-2015


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 27, 2017

        Bryant Lamont McCaskill appeals pro se from the January 20, 2016

judgment of sentence entered in the Court of Common Pleas of Monroe

County after a jury convicted him of retail theft and receiving stolen

property.1 The trial court sentenced appellant to 21 months to 48 months of

imprisonment.       We    affirm   appellant’s   convictions   and   remand   with

directions.

        The trial court summarized the facts, as gleaned from the trial

transcript, as follows:

                    The theft that was the subject of these charges
              occurred on October 23, 2014. Yavonne Howell was
              the Commonwealth’s first witness. She testified that
              she was the store manager of the Rite Aid store in
              Mt. Pocono, Pennsylvania on the day the theft

1
    18 Pa.C.S.A. §§ 3929(a)(1) and 3925(a).
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          occurred. She opened the store at 7:00 a.m. and
          worked until 4:00 p.m. that day. While she was
          crouching down in the cosmetics aisle removing and
          replacing merchandise, a man came up to her and
          said[, “E]xcuse me, can I ask you where something
          is?” He was looking for reusable shopping bags “for
          trick or treat because it was in October.” The bags
          were for sale, and were “purple and orange with
          pictures of ghosts or goblins on them for Halloween.”
          The man was African-American. He wore tan boots
          “like a construction boot but newer.” He had on
          white long johns with shorts over them. He wore a
          vest with a hoodie underneath. He was walking with
          a cane. Ms. Howell told the man where the bags
          were and he walked away from her. She did not see
          him in person again in the store.

                The next shift supervisor came to work at the
          end of the day and noticed that the store’s supply of
          boxed condoms was missing. He also found a tag
          from a Halloween bag on the floor near the condom
          rack. There was also a “trail from the condom
          section out to the door . . . there were four boxes,
          maybe five that were dropped on the floor.”

                 The store had security cameras operating in
          the store and microchips in the merchandise. The
          Commonwealth introduced digital security footage of
          the store that day.       The video depicted a man
          carrying three reusable shopping bags out of the
          store. Ms. Howell identified him as the man she was
          talking to earlier in the store. According to the store
          “inventory gun” there were three reusable shopping
          bags missing that had not been paid for.           She
          recalled that the alarm did sound at the rear exit
          door that day. The inventory gun also showed that
          “a ton of boxes of condoms” were missing. The
          missing bags and condoms were valued at $814.48.
          The inventory gun is linked to the cash register, so
          Ms. Howell knew the items had not been paid for.

                The Commonwealth called Charnae Warren as
          its next witness. Ms. Warren was employed as a
          pharmacy technician in the Rite Aid on the day of the


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            theft. She was working the 11:30 to 7:00 shift. She
            testified    that  a   man    by    the   name   of
            “Lamont McCaskill” came to the pharmacy station in
            the Rite Aid seeking to fill a prescription.    She
            described him as having “really long hair, and he
            was wearing like a hoodie type vest thing.” He had
            on boots and was walking with a cane.           She
            identified the individual as [appellant], whom she
            pointed out in the courtroom. She remembered that
            he had produced a Pennsylvania driver’s license as
            identification.

                  The Assistant District Attorney then played the
            security video of the man walking through the store
            carrying the full bags and she identified the person
            depicted as [appellant].

                  [Appellant] testified that he did go to the
            Rite Aid Pharmacy that day to pick up his pain
            medication.     He said he was wearing different
            clothing than the description given of him by the
            store clerks. He testified that he did not steal the
            condoms that day.          He was unable to fill his
            prescription there, and went to another Rite Aid to
            get his prescription filled.

                  Yavonne Howell testified on rebuttal that she
            was at the store the whole day until after 5:00 p.m.
            She did not see anyone else in the store with a
            description similar to [appellant] that day. She saw
            no one else with a cane.

Trial court opinion, 4/8/16 at 2-4, incorporated into statement pursuant to

Pa.R.A.P. 1925(a), 5/17/16 (citations to notes of testimony omitted).

      The record reflects that Public Defender David W. Skutnik represented

appellant at trial.   The record further reflects that the trial court ordered

appellant to appear for sentencing on June 29, 2015.       Appellant failed to

appear, and the trial court issued a bench warrant.      Following appellant’s



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arrest approximately 7 months later, the trial court imposed sentence on

January 20, 2016.      Public Defender Skutnik filed timely post-sentence

motions, including a motion for judgment of acquittal that challenged the

sufficiency of the evidence and a motion for reconsideration of sentence.

The trial court then set a briefing and argument schedule. Appellant filed a

counseled brief, but also submitted a handwritten “Defendant Supplemental

Brief,” which was forwarded to Public Defender Skutnik pursuant to the

March 14, 2016 order of the trial court.      (Order of court, 3/14/16.)     On

April 8, 2016, the trial court denied appellant’s post-sentence motions.

      On April 22, 2016, appellant filed a timely counseled notice of appeal

to this court. The trial court ordered appellant to file a concise statement of

errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).

Appellant filed a timely counseled Rule 1925(b) statement wherein he raised

two issues: “the evidence presented at time of trial was insufficient for the

jury to convict him of retail theft and receiving stolen property” and the

“sentence imposed by the trial court was excessive.”               (Appellant’s

“Cocise [sic] Statement of Matters Complained of,” 5/16/16.)        During this

time period, appellant began writing letters to the Clerk of Courts of Monroe

County wherein he stated, among other things, that he “will not [and]

refuse[s] to be represented by David Stutnick [sic] or any attorney from

Monroe County’s Commonwealth Public Defender Office” and “inform[ing]

this court [that he will] proceed from this point forward in ‘propia persona’ or



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simply pro-per-pro se and in forma pauperism.”        (Correspondence from

appellant to “Chief Deputy Clerks of Court of Count [sic] of Common Pleas

Monroe County,” dated 4/16/16 (capitalization and underscoring omitted;

errors in original).   Then, on May 17, 2016, the trial court filed its Rule

1925(a) statement.

       On July 7, 2016, appellant filed a pro se motion to this court

requesting to proceed with his direct appeal pro se. On the same day, this

court entered an order directing the trial court to conduct a Grazier2

hearing. On August 25, 2016, the trial court conducted the hearing and, on

the same day, entered an order granting appellant’s petition for leave to

proceed pro se and withdrawing the appearance of Public Defender Skutnik.

       On September 6, 2016, appellant filed a pro se Rule 1925(b)

statement wherein he raised 9 claims of error.         (Docket #35.)      On

September 14, 2016, the trial court filed a response to appellant’s pro se

supplemental Rule 1925(b) statement finding the issues waived because

appellant did not request leave of court to file a supplemental statement and

because Pa.R.A.P. 1925 makes no provision for the filing of a supplemental

statement under such circumstances. (Docket #36.) Appellant then filed a

pro se motion to amend his Rule 1925(b) statement with this court. This

court granted appellant’s motion and afforded appellant 21 days to file his

supplemental statement and ordered the trial court to address appellant’s


2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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supplemental statement by filing a supplemental Rule 1925(a) opinion.

Appellant timely complied and raised the following 6 issues, framed as

follows:

           1.   The trial court erred in allowing insufficient
                evidence     letting    the   Commonwealth’s
                Prosecutrix perform Prosecutorial Misconduct
                by Suppressing Destroying, Crucial evidence,
                with holding Exculpatory evidence, by her
                refusal to play the entire video surveillance
                footage of the Rite aide pharmacy area.

           2.   Trial court erred allowing Commonwealth’s
                witnesses Hearsay within Hearsay testimonies.
                Where such testimonies evidence only proved
                appellant’s “mere presence at or near the
                scene of the crime”.        Not committing or
                participating in a crime, “where all Reasonable
                Inferences” were equally consistent with
                appellant’s innocence as with guilt.

           3.   Whether the trial court erred in allowance of
                Police Officer Chafee’s Unnecessarily and
                Unduly     suggestive     Police   Identification,
                immensely violated appellant’s Due process,
                which     was    woefully      incosistent     and
                inconclusive when compared to appellant’s
                Physical    composition,    Stature     and    the
                Commonwealth’s           witnesses         identity
                testimonies at trial.    Which resulted in an
                Irreparable Misidentification of appellant as the
                perpatrator. Which contributed to him being
                wrongfully convicted under the totality of the
                circumstances.

           4.   The     trial  court    erred    allowing    the
                Commonwealth       to  commit     Constitutional
                Violations in open court during the Voir Dire
                Proceeding at the out-set of appellant’s trial.
                With it’s exclusion of 90%-99% of all African
                American jurors by race-base Peremptory
                Challenge Strikes on solely African Americans.


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                   Resulting in only one African American male
                   present on appellant’s jury panel at trial.

             5.    Whether the trial court erred with the illegal
                   sentence imposed by the trial Judge was
                   Unconstitutional, by the use of prior Out-Of-
                   State felony convictions that were sealed over
                   22 years when calculating appellant’s record
                   score     as    Repeat     Felony     Offender,
                   simutanoeusly    improperly    increasing   the
                   sentence floor based absent a Jury’s Finding of
                   Facts that support the Mandatory Sentence.
                   Appellant was incarcerated 109 days on the
                   offenses before sentencing January 20 2016.
                   Trial court denied the time credit refused to
                   credit appellant. Pursuant to 42. Pa.C.S.A.
                   9760 part(1)(3)(4) appellant is entitled to
                   credit.

             6.    The trial court erred when it failed to conduct a
                   cumulative evaluation, why such adeficient
                   representation by defense counselor David
                   Stunik prior to and during trial. Which violated
                   appellant’s 6th amendment right to a full
                   defense guaranteed under the united states
                   constitutional amendments.          The defense
                   counselor’s      ineffective     assistance    so
                   underminded the truth-determining process
                   that no reliable adjudication of guilt or
                   innocence could have taken place.           That
                   significantly     caused      a      Fundemental
                   Misscarriage of Justice in this case.

Appellant’s “Concise Supplemental Statement of Matters Complained of on

Appeal Pursuant to [Pa.R.A.P.] 1925(b), 10/28/16” (countless errors in

original).   The trial court addressed appellant’s issues in its supplemental

Rule 1925(a) opinion.




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        Appellant now raises 22 issues for our review.3 In reviewing the issues

raised    in   appellant’s   supplemental    Rule   1925(b)   statement   and   the


3
    Appellant frames his issues as follows:

               1.    Whether there was sufficient evidence to find
                     appellant guilty beyond a reasonable doubt?

               2.    Whether     the Commonwealth proved all the
                     essential    elements of the retail theft and
                     receiving   stolen property offenses to a Rational
                     Trier Ot    Fact that appellant committed such
                     crimes?

               3.    Did the Commonwealth violate appellant’s Due
                     Process by suppressing material exculpatory
                     evidence?

               4.    Whether the evidence and all Reasonable
                     Inferences were equally consistent with
                     appellant’s innocence?

               5.    Whether the Prosecutrix violated the Brady
                     Rule and performed Misconduct by refusing to
                     play the entire video surveillance footage of
                     Rite aide pharmacy area?

               6.    Whether the evidence was insufficient to
                     convict appellant in that commonwealth proved
                     only appellant’s Mere Presence At or Near the
                     Scene of the Crime?

               7.    Did the Commonwealth admit Unreliable,
                     Unconstittutional and Improper evidence in
                     violation of the 5th, 6th, 8th, and 14th
                     amendments       of  the   United    States
                     Constitutional Amendments?

               8.    Whether the prosecutor and trial court violated
                     appellant’s constitutional and civil rights with
                     illegal race-base [sic] peremptory challenge
                     strikes on solely African American jurors?


                                         -8-
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          9.    Whether Officer Chaffee’s pretrial identification
                so Unduly Suggestive that it created very
                Substantial     Likelihood of   a    irreparable
                Misidentification?

          10.   Whether    Commonwealth’s    Chief  witness
                Ms. Howell entire testimony was Inadmissible
                Hearsay within Hearsay?

          11.   Did the Commonwealth violated Federal Rule
                of Evidence § viii 805?

          12.   Whether officer Chaffee ever found on or in
                appellant’s possession any condoms or boxes
                from Rite aide?

          13.   Whether any Employee of Rite aide seen
                appellant conceal any condoms or merchandise
                at anytime while in the store trying to get his
                prescription filled?

          14.   Did the Video surveillance show appellant or
                any    African  American     male   dropping
                merchandise or merchandise falling out of any
                bags period on the video footage at anytime
                during trial?

          15.   Whether the video footage simply show an
                African American male entering and leaving the
                store which is not a crime?

          16.   Whether tyrranical bias trial Judge aggravated
                and    calculated   appellant’s   sentence  at
                sentencing proceedings off Out-of-State N.Y.
                31 year old and 22 year old sealed convictions
                that was past the legal staue limitations in
                both the states of New York and Pennsylvania?

          17.   Did the trial court err when the court didnot
                seek were prior out-of-state convictions
                “Malum in Se” or “Malum Prohibitum” or


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arguments he attempts to make in his rambling and, for the most part,

incoherent brief, the gravamen of appellant’s complaints are (1) that the

evidence was insufficient to prove that appellant was the individual who stole

the condoms; and (2) that the trial court improperly considered appellant’s

prior convictions in New York when calculating his record score and failed to

give appellant credit for time served.   To the extent that appellant raises




                  inchoate or specific to the commowealth’s
                  18 Pa. 3829(a)(1),3925(b)?

            18.   Did the trial court err by not taking into
                  account the “Actus Reus” and Mens Rea” of
                  N.Y.S. covictions?

            19.   Did the trial court err imposing a sentence for
                  Repeat Felony Offender 21-48 months for pior
                  out-of-state offenses not charged in the
                  Indictment nor Elements of the crime
                  sentencing appellant to illegal Mandatory
                  Minimum Sentence?

            20.   Whether the trial court err when it refused to
                  consider appellant’s Physical Disabilities and
                  Medical records as to corroborate appellant’s
                  incapability to commit the crimes he was
                  wrongly convicted of?

            21.   Whether the trial court err denying appellant’s
                  Supplementle Pro se post sentencing Brief,
                  Post Sentencing Motions?

            22.   Whether the trial Judge incorrectly disallowed
                  appellant his time credit for time served?

Appellant’s brief at 1-2 (countless errors in original; random bolding
omitted).


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new issues within the 22 issues that he sets forth in his “question for

grounds to rewiew [sic] for errors [and] violations” section of his brief,

appellant waives those issues on appeal for failure to include them in his

Rule 1925(b) statement.      Pa.R.A.P. 1925(b)(4)(vii) (issues not included in

the Rule 1925(b) statement are waived).

     Prior to addressing appellant’s sufficiency of the evidence claim and his

sentencing challenges, we will address appellant’s four other complaints.

     Appellant complains that the trial court erred in permitting the

Commonwealth to play a portion of the Rite Aid surveillance video footage to

the jury, as opposed to the entire video, which was several hours long. Our

review of the record reveals that appellant failed to object when a portion of

the video was played for the jury and when the video was admitted into

evidence.   It is well settled that a “[f]ailure to raise a contemporaneous

objection   to   the   evidence    at    trial    waives   that    claim   on    appeal.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super. 2013)

(citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

Therefore, appellant waives this issue on appeal.

     Appellant next complains that the trial court erred when it permitted

Commonwealth       witnesses      to    testify    to   “hearsay     within     hearsay.”

(Appellant’s brief at 20.)     A reading of this section of appellant’s brief,

however, demonstrates that the crux of appellant’s complaint with respect to



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this issue is that there was inconsistent testimony presented at trial.

Appellant fails to cite to that portion of the trial transcript where he lodged a

hearsay objection that the trial court overruled, and our review of the record

reveals none.   To the extent that appellant complains that the trial court

permitted “hearsay within hearsay” testimony that appellant failed to object

to, appellant waives the issue on appeal. See Thoeun Tha, 64 A.3d at 713;

see also Pa.R.A.P. 302(a).

      Appellant next complains that the trial court erred in permitting a

police officer to identify appellant from video surveillance.          Appellant

advances no argument in his brief with respect to this issue.            Rather,

appellant complains that the police officer’s “pretrial identification on his

affidavit of probable cause was unreliable, and apart from that a woefully

suggestive police identification because it created a very substantial

likelihood of irreparable misidentification and was unnecessarily suggestive.”

(Appellant’s brief at 9.) Appellant waives this issue on appeal for failure to

develop a meaningful legal argument and failure to cite to relevant legal

authority). See Pa.R.A.P. 2119; see also Commonwealth v. Rhodes, 54

A.3d 908, 915 (Pa.Super. 2012) (an appellant’s failure to set forth a relevant

legal analysis and/or to cite to relevant legal authority results in waiver).

      Appellant next complains that the Commonwealth utilized race-based

challenges to exclude African Americans, like appellant, from the jury.

Although appellant preserved this claim by objection during voir dire, he



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advances no meaningful legal argument to demonstrate that the trial court’s

decision on the ultimate question of discriminatory intent was clearly

erroneous. Rather, appellant makes bald assertions and cites to irrelevant

authority.   For example, appellant states, “[a]s a further testament,

Commonwealth’s     Prosecutrix   invariably      interspersed   her   racist   and

mendacious declarations with pious avowals under the color [sic] the

Commonwealth of the State of Pennsylvania’s law,” followed by a citation to

a United States Supreme Court case that was decided in 1906. (Appellant’s

brief at 19.) Because appellant has failed to advance any meaningful legal

argument or citation to relevant law, appellant waives this issue on appeal.

See id.

      Nevertheless, we note that in Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court set

forth a three-step process to evaluate racial discrimination claims. First, the

defendant must make out a prima facie case that the prosecutor has

employed race-based challenges. Commonwealth v. Cook, 952 A.2d 594,

602-603 (Pa. 2008). Second, the prosecution must then offer a race-neutral

explanation for striking the juror.   The second prong does not demand an

explanation that is persuasive, or even plausible. Rather, the issue at that

stage is the facial validity of the prosecutor’s explanation.           Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason

offered will be deemed race-neutral.           Id.   Third, the trial court must



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determine whether the defendant has proven purposeful discrimination.

“[T]he trial court’s decision on the ultimate question of discriminatory intent

represents a finding of fact of the sort accorded great deference on appeal

and will not be overturned unless clearly erroneous.” Id. at 603.

      Here, our review of the record demonstrates that the following took

place:

            [DEFENSE COUNSEL]: Judge, I wish to make a
            challenge to the Commonwealth striking Juror No. 1
            in this matter who is African American. And there
            are about three African Americans on the panel, and
            I think there are two Hispanics. The rest of the
            panel is Caucasian. So I have a challenge as to why
            the Commonwealth is striking an African American
            from the panel.

            THE COURT: You are just referring to the striking of
            Juror No. 1?

            [DEFENSE COUNSEL]: Yes, Juror No. 1.

            [THE COMMONWEALTH]: It’s based on being a yes
            answer to Question No. 9.

            [DEFENSE COUNSEL]: Which is?

            [THE COMMONWEALTH]:          Are you less likely to
            believe a police officer?

            [DEFENSE COUNSEL]: That’s it?

            [THE COMMONWEALTH]: It’s my procedure. Those
            yes answers are always going.

            [DEFENSE COUNSEL]: All right.

            THE COURT: The challenge is noted and denied.




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Notes of testimony, 4/7/15 at 18.         The record supports the trial court’s

conclusion that the Commonwealth gave a credible race-neutral reason for

excluding Juror Number 1, which was the stricken juror’s admission that he

was less likely to believe a police officer.

      Appellant next complains that trial counsel was ineffective. Appellant’s

claim of ineffectiveness of counsel, however, must be deferred to collateral

review pursuant to the dictates of our supreme court in Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), wherein our high court held that a claim of

ineffective assistance of counsel cannot be entertained on direct appeal.

See Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super. 2011)

(en banc) (pursuant to Grant’s refinement in Commonwealth v. Liston,

977 A.2d 1089 (Pa. 2009), and Commonwealth v. Wright, 961 A.2d 119,

148 n.22 (Pa. 2008), the Pennsylvania Superior Court is not permitted to

review ineffective assistance of counsel claims on direct appeal, unless the

defendant has expressly, knowingly, and voluntarily waived PCRA review).

Because nothing indicates that appellant expressly waived PCRA review, we

must defer resolution of his ineffective assistance of counsel claim to

collateral review pursuant to the dictates of Grant and its progeny.

      With respect to appellant’s sufficiency claim, a review of appellant’s

brief on this issue demonstrates that appellant does nothing more than

challenge the trial evidence in an attempt to convince this court that he did

not steal the condoms. For example, he argues that the person seen on the



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video surveillance “walked normal” into the store and that appellant walks

with a limp and that just because appellant was in the store does not mean

that he committed the crime.     (Appellant’s brief at 10, 12.)    Essentially,

appellant argues that the jury should have believed appellant’s testimony

over the Commonwealth’s evidence. In so doing, appellant challenges the

weight of the evidence, not its sufficiency. See, e.g., Gibbs, 981 A.2d at

281-282 (an argument that the fact-finder should have credited one witness’

testimony over that of another witness goes to the weight of the evidence,

not the sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d

710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence

does not include a credibility assessment; such a claim goes to the weight of

the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997) (the fact-finder makes credibility determinations, and challenges to

those determinations go to the weight of the evidence, not the sufficiency of

the evidence).

     At the outset, we note that we will give appellant the benefit of the

doubt in finding that he preserved his weight claim in his post-sentence

motion for a new trial. See Pa.R.Crim.P. 607(A)(3).

           The essence of appellate review for a weight claim
           appears to lie in ensuring that the trial court’s
           decision has record support.         Where the record
           adequately supports the trial court, the trial court
           has acted within the limits of its discretion.

           ....



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               A motion for a new trial based on a claim that the
               verdict is against the weight of the evidence is
               addressed to the discretion of the trial court. A new
               trial should not be granted because of a mere conflict
               in the testimony or because the judge on the same
               facts would have arrived at a different conclusion.
               Rather, the role of the trial judge is to determine
               that 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.

               ....

               An appellate court’s standard of review when
               presented with a weight of the evidence claim is
               distinct from the standard of review applied by the
               trial court. Appellate review of a weight claim is a
               review of the exercise of discretion, not of the
               underlying question of whether the verdict is against
               the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations

and quotation marks omitted).         “In order for a defendant to prevail on a

challenge to the weight of the evidence, ‘the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).

      Here, appellant invites this court to reassess his credibility and reweigh

the Commonwealth’s evidence. We decline his invitation to do so. The jury,

as fact-finder, had the duty to determine the credibility of the testimony and

evidence presented at trial.      Talbert, 129 A.3d at 546 (citation omitted).

Appellate courts cannot and do not substitute their judgment for that of the

fact-finder.     See id.      Here, a jury of appellant’s peers found the



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Commonwealth’s evidence to be credible.         After carefully reviewing the

record, we conclude that the trial court properly exercised its discretion in

denying appellant’s motion for a new trial.

      Finally, in a rambling, convoluted argument, appellant advances two

sentencing challenges.    Appellant first claims that his sentence is illegal

because the trial court considered previous out-of-state convictions when

calculating his prior record score which, according to appellant, is a fact that

increased the penalty for the crime that must be treated as an element of

the offense pursuant to Alleyne v. United States, 133 S. Ct. 2151, 2163,

186 L. Ed. 2d 314,        (2013).   Appellant is mistaken.    A claim that the

sentencing court miscalculated a defendant’s prior record score is a

challenge to the discretionary aspects of sentence. See Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012) (the improper calculation

of a prior record score based on out-of-state offenses raises a substantial

question for purposes of discretionary review of a sentencing challenge). In

Alleyne, the United States Supreme Court held that a criminal defendant

has a constitutional right to have a jury decide the existence of any fact,

other than a prior conviction, beyond a reasonable doubt if that fact triggers

application of a mandatory minimum sentence.            Here, Alleyne is not

implicated because it does not provide a constitutional right for a jury to

decide the existence of a prior conviction and the crimes for which appellant

was convicted carry no mandatory minimum sentences because both



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offenses were graded as first-degree misdemeanors.            See 18 Pa.C.S.A.

§ 106(b)(6) (“a person convicted [of a first-degree misdemeanor] may be

sentenced to a term of imprisonment, the maximum of which is not more

than five years”). Therefore, appellant’s challenge to the computation of his

prior record score is a challenge to the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:



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                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was   properly   preserved    at
                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has
                  a fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed
                  from is not appropriate under the
                  Sentencing     Code,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

      Here, the record reflects that appellant filed a timely notice of appeal.

In his post-sentence motion, appellant raised two sentencing challenges. In

his first challenge, appellant claimed that “the sentence imposed was

excessive for the nature of the offenses for which [appellant] was found

guilty” and appellant “believes that he is entitled to a time credit from

October 28, 2015 which is when he completed serving a twenty day

sentence in Kings County, New York.”           (Motion for reconsideration of

sentence, 2/1/16 at 7 ¶ 14.) In his brief in support of post-sentence motion,

appellant advances no argument on his sentencing challenges except that

appellant “requests [that the trial court] reconsider the sentence imposed in

light of [appellant’s] age.”     (Brief in support of post-sentence motion,

3/14/16 at 5.) Appellant, therefore, failed to preserve his challenge that the

trial court miscalculated his prior record score.




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      In his final issue, appellant challenges the legality of his sentence

contending that he was not given credit for time served.

      It is axiomatic that “challenges to an illegal sentence can never be

waived and may be reviewed sua sponte by this Court.” Commonwealth v.

Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013) (citation omitted).                   It is

equally well established that Pennsylvania law does not tolerate an illegal

sentence, for “[a] challenge to the legality of a sentence . . . may be

entertained    as     long   as   the     reviewing     court     has    jurisdiction.”

Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.Super. 2011)

(citation omitted).     “If no statutory authorization exists for a particular

sentence,     that    sentence    is    illegal   and   subject     to    correction.”

Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa.Super. 2013) (citation

omitted), appeal denied, 78 A.3d 1090 (Pa. 2013).               “An illegal sentence

must be vacated.”      Id.   “Issues relating to the legality of a sentence are

questions of law[; as a result, o]ur standard of review over such questions is

de novo, and our scope of review is plenary.” Commonwealth v. Delvalle,

74 A.3d 1081, 1087 (Pa.Super. 2013) (citations omitted). In sentencing a

defendant, the trial court is bound by the statutory provision mandating

credit for time served found at 42 Pa.C.S.A. § 9760.

      Here, the issue of credit for time served was addressed at appellant’s

sentencing hearing as follows:




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          [DEFENSE COUNSEL]: [Appellant], the first question
          you have to answer to the Court is why didn’t you
          appear for sentencing?

          [APPELLANT]: I didn’t appear for sentencing -- I had
          a civil suit in New York, that I went to go get my
          money from over there. After that I had to call and
          tell him I was going to come back, but I got into
          trouble.

          [DEFENSE COUNSE]: He had litigation in New York
          and he didn’t appear. Then subsequent to that, Your
          Honor, he was arrested in New York and did 30 days.
          I was in touch with counsel from New York, and I
          explained to them that there was a bench warrant
          that had been issued by Your Honor for him.

                In talking with the sheriff’s department, my
          understanding is that he signed a waiver of
          extradition to come back to Pennsylvania to deal
          with this.

          [APPELLANT]: I was locked up 109 days. Out of
          that 109 days I did 30. My case was over on
          October 28th, 2015.      So they held me up until
          yesterday, all that time just sitting there waiting. I
          kept asking and everybody [sic]. I’m still here.

          [DEFENSE COUNSEL]:      So apparently he did his
          30 days in New York, and since that time he’s
          hopefully been accruing time with regards to the
          sentence that was imposed on him.

          THE COURT: Accruing time on what?

          [DEFENSE COUNSEL]: Accruing time on this case for
          a time credit, hopefully, when the sentence is
          imposed in this matter.   He was sentenced to
          30 days in New York.

               How many days were you sitting in the jail in
          New York?




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J. S25045/17


          [APPELLANT]:    Like 79 or 80, just sitting there
          waiting.

          [DEFENSE COUNSEL]: Does that include the 30 days
          that you did?

          [APPELLANT]: Yes.

          [DEFENSE COUNSEL]: All right. You were sitting in
          New York [sic] jail for 80 days. Out of that 80 days,
          30 days were part and parcel of the sentence that
          the New York judge imposed?

          [APPELLANT]: Out of 109 days, 30 days was for the
          sentence that they gave me for a misdemeanor.

          [DEFENSE COUNSEL]: We’ve gone from 80 days to
          109 days.

          [APPELLANT]: That’s excluded 30 days because I
          was locked up. I got locked up October 7th. The
          case was over October 28th.      November 28th,
          December 28th, and the 19th was yesterday -- that’s
          79 days.

          THE COURT: Do we know anything about time credit
          on the New York sentence?

          [THE COMMONWEALTH]: Judge, probation doesn’t
          know. What I have here is I have paperwork -- I can
          provide the Court a copy -- from New York where it
          indicates [appellant] was in their custody on
          October 8th, 2015, that he refused extradition. And
          we had to go and get a Governor’s warrant, which I
          have right here, to get him extradited here.

                It indicates that he was given -- I don’t know.
          It has 90 days.          The 90 days were up on
          January 6th, I guess, 2016. That’s when he was
          released into our custody.       I don’t know if he
          received a 90-day sentence in New York or what
          happened. I’ll show it to Defense Counsel, Judge,
          and then I’ll show it to the Court.



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J. S25045/17


                This is from New York where it says he refused
          extradition.

          (Brief pause)

          THE COURT: How many did he waive after the fact?
          I’m not quite sure about that.

          DEPUTY SHERIFF: I think Carol Doss called me and
          said after they received the Governor’s warrant he
          decided to waive before that made it there.
          New York gives us a set date and time to pick up,
          which was yesterday at 10:00 a.m.

          (Brief pause.)

          THE COURT:        So from the Commonwealth’s
          perspective, [appellant] has accrued time on this
          sentence from January 6th?

          [THE COMMONWEALTH]: Yes, Judge, that’s what I
          would say. Because I don’t know what held him in
          New York, if it’s additional charges. It looks like
          there’s something with 90 days. He might receive a
          90-day sentence.

                 I would say right now, without some kind of
          verification, it would be from January 6th from our
          perspective. That’s when it looks like he was eligible
          to be released.

          THE COURT: There’s a note here saying 90 days,
          January 6th, 2016.

          [THE COMMONWEALTH]: That would be 90 days
          from October 8th when he was apprehended.

          [DEFENSE COUNSEL]: I will have to look into that,
          Judge.

          THE COURT: What’s that?




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J. S25045/17


            [DEFENSE COUNSEL]: I’ll have to look into that with
            the authorities of New York. [Appellant] is telling me
            something else, but I will have to figure that out.

            THE COURT: I will give [appellant] 14 days[’] credit
            on his sentence today, and if there’s some other
            evidence saying that number is wrong, then you can
            file a motion --

            [DEFENSE COUNSEL]: That will be taken care of.

            THE COURT: -- for modification of sentence.

            [DEFENSE COUNSEL]: That will be fine.

Notes of testimony, 1/20/16 at 2-6.

      The record reflects that in his post-sentence motion, appellant sought

reconsideration of sentence based on his “belie[f] that he is entitled to credit

from October 28, 2015 which is when he completed serving a twenty day

sentence in Kings County, New York.”          (Appellant’s post-sentence motion,

2/1/16 at 7, ¶ 14(b).)    Appellant failed to brief the issue and offered no

evidence to show that he was entitled to credit for time served beyond the

14 days that the trial court determined was due at sentencing based on

evidence presented at that time.

      The record further reflects that following the filing of his notice of

appeal to this court on April 22, 2016, the trial court entered an order dated

October 4, 2016 in which it ordered a hearing to be held on appellant’s

“petition for time credit filed on August 29, 2016.”        The certified record

before us does not contain appellant’s August 29, 2016 petition for time

credit.   It does, however, contain the transcript of proceedings held on


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October 25, 2016. At that time, this court had remanded the case to the

trial court for the limited purpose of permitting appellant to file a

supplemental    Rule   1925(b)   statement    and   for   the   court   to   file   a

supplemental Rule 1925(a) opinion in response, but this court retained

jurisdiction. As such, the trial court found that it did not have jurisdiction to

entertain appellant’s petition for time credit. (Notes of testimony, 10/25/16

at 3-7.)

      Because the trial court never entertained appellant’s petition for time

credit for lack of jurisdiction and because the certified record before us fails

to establish that appellant has been credited for all time served, we will

affirm appellant’s convictions, but must remand and direct the trial court to

hold a hearing on appellant’s petition for time credit within 60 days.

Following the trial court’s resolution, it should resentence appellant.

      Convictions affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




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