J-S68029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
GARNELL GRANT,                             :
                                           :
                    Appellant              :   No. 2621 EDA 2014

              Appeal from the Judgment of Sentence April 25, 2014,
                  Court of Common Pleas, Philadelphia County,
                Criminal Division at No. CP-51-CR-0008319-2011

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED DECEMBER 04, 2015

         Garnell Grant (“Grant”) appeals from the April 25, 2014 judgment of

sentence entered by the Philadelphia County Court of Common Pleas. Upon

review, we affirm.

         The trial court provided the following summary of the facts adduced at

trial:

                 On Friday, March 11, 2012, at around 5:00 p.m.,
              Ms. Mariethia Smith left work and went to her home,
              to meet a friend and go to a casino. N.T.
              11/26/2013, pp. 12-15. Ms. Smith’s friend picked
              her up from her house and they drove towards the
              casino. Id. at 14. A few blocks from her house, Ms.
              Smith noticed [Grant] standing on the corner or Mt.
              Airy Avenue and Stenton Avenue. Id. at 15. [Grant]
              had been in a relationship with Ms. Smith for
              approximately three months, spanning from June
              2009, to September, 2009. Id. at 15, 23. Following
              their relationship, Ms. Smith obtained a [p]rotection
              from [a]buse (“PFA”) [o]rder from the courts on
              January 3, 2011, set to expire in January, 2014. Id.
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          at 13. In 2010 and 2011, Ms. Smith received
          numerous threatening phone calls from [Grant],
          including sixteen voicemails on her home phone, and
          eighteen voicemails on her cell phone. Id. at 26-27.
          After the PFA was served on [Grant], he called Ms.
          Smith saying he wasn’t “scared of no f’ing cops,
          none of them.” Id. at 14.

              Upon seeing [Grant], Ms. Smith asked her friend
          to drive her back home. Id. at 15. Ms. Smith entered
          her house, locked the doors behind her, made sure
          not to turn any lights on, and waited in the den
          located on the second floor. Id. at 15-16. Prior to
          March 11, 2012, someone had broken into her house
          several times. Id. at 15. Ms. Smith testified that
          someone busted her stack pipe, broken her Lennox
          crystal, put white paint on her white gowns, cut up
          most of her clothes, stole her jewelry, and stole her
          money. Id. at 28. After being home approximately
          twenty minutes, Ms. Smith heard her back door open
          and her security alarm announce that the back door
          had been opened. Id. at 15-16. All of the doors in
          the house were previously locked at the time. Id.
          When Ms. Smith heard the door open, she ran to the
          staircase, turned the downstairs light on, and ran
          down the steps. Id. at 16. From midway down the
          steps, Ms. Smith observed [Grant] standing in her
          living room. Id. [Grant]’s eyes widened when he
          made eye contact with Ms. Smith. Id. at 18. [Grant]
          then ran out the back door, as Ms. Smith chased
          him, but she lost sight of him. Id. at 18-19. Ms.
          Smith testified she feared for her life when she saw
          [Grant] standing inside her home. Id. at 19.

             Ms. Smith further testified she never intended for
          [Grant] to possess keys to her home. [Id. at] 29. On
          one occasion, while in a relationship with [Grant],
          Ms. Smith let [Grant] use her keys temporarily to put
          something in her car while at Home Depot. Id. at 35.
          Once in possession of her keys, Ms. Smith searched
          for [Grant] but couldn’t find him in the store for an
          extended period of time. Id. at 35. [Grant] handed
          the keys back to Ms. Smith before they left Home



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            Depot. Id. Ms. Smith changed her locks five times
            during the period of the break-ins. Id. at 31.

               On a Monday in March, 2011, Mr. Benjamin
            Smith, went to Ms. Smith’s house to talk to her. [Id.
            at] 46. Mr. Smith was a coworker of Ms. Smith and
            knew her for over fifteen years. Id. [] When Mr.
            Smith knocked on the front door, [Grant] answered,
            and informed him that Ms. Smith was not at home.
            Id. Mr. Smith left a message for Ms. Smith including
            his phone number. Id. Mr. Smith didn’t receive a
            reply from Ms. Smith that week. On Wednesday of
            that week, Mr. Smith saw again [Grant] on the street
            and asked if he had given the message to Ms. Smith.
            Id. at 47. [Grant] replied, “I gave it to her. She’s
            going to get back to you.” Id. Ms. Smith testified
            that at no point in March of 2011, did [Grant] have
            permission to be in her home. [Id. at] 65[].

               Police Officer Tyrone Brotis and Detective Jamal
            Rodriguez both testified [that] they investigated
            claims from Ms. Smith about a person breaking into
            her house. Id. at 64-65.

               [Grant] testified his relationship with Ms. Smith
            lasted about a year, but then testified he couldn't be
            sure exactly how long their relationship lasted, [but
            that he believed he ended the relationship with Ms.
            Smith approximately two weeks before March 11,
            2011]. [Id. at] 68-70. [Grant] further testified he
            didn’t go to Ms. Smith[’]s house on March 11, 2011,
            never met Mr. Smith, and never answered the door
            for Mr. Smith. Id. at 68-69. The [trial c]ourt found
            [Grant]’s testimony to be incredible.

Trial Court Opinion, 2/9/15, at 1-3.

      At the conclusion of the bench trial held on November 26, 2013, the

trial court found Grant guilty of burglary, criminal trespass, harassment, and




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criminal contempt for violating the PFA.1 The trial court sentenced him on

April 25, 2014 to 54 to 108 months of incarceration. On May 5, 2014, Grant

filed a timely post-sentence motion challenging the weight and sufficiency of

the evidence to support his convictions.       On September 3, 2014, the trial

court issued an order denying the post-sentence motion by operation of law.

Thereafter, Grant filed a timely notice of appeal, followed by a timely concise

statement of errors on appeal pursuant to Pa.R.A.P. 1925(b).

      On appeal, Grant raises two issues for our review:

          I. Whether the lower court committed an abuse of
             discretion  in  sentencing    [Grant]   above his
             aggravated range of sentencing guidelines.

          II. Whether the evidence was sufficient to convict
              [Grant] of the charges that he was found guilty of
              where the evidence presented by the Commonwealth
              was so unreliable and contradictory as to preclude
              the trier of fact from rendering the verdict that it did.

Grant’s Brief at 4.

      The first issue Grant raises on appeal challenges the discretionary

aspects of his sentence. This issue is not subject to our review as a matter

of right. Rather, “[a]n appellant must satisfy a four-part test to invoke this

Court’s   jurisdiction   when   challenging   the   discretionary   aspects   of   a

sentence.”    Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super.




1
   18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(i), 2709(a)(1); 23 Pa.C.S.A. §
6114(a).


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2015) (citation omitted).    This requires the appellant to satisfy all of the

following:

             (1) the appellant preserved the issue either by
             raising it at the time of sentencing or in a post[-
             ]sentence motion; (2) the appellant filed a timely
             notice of appeal; (3) the appellant set forth a concise
             statement of reasons relied upon for the allowance of
             his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
             appellant raises a substantial question for our
             review.

Id. (citation omitted).

      Our review of the record reveals that although Grant filed a post-

sentence motion, he failed to raise therein a claim challenging the

discretionary aspects of his sentence.      See Post-Sentence Motion, 5/5/14.

The record further reflects that Grant did not present this argument before

the trial court at his sentencing hearing. See generally N.T., 4/25/14, at 2-

28 As such, the issue is waived. See Commonwealth v. Mann, 820 A.2d

788, 794 (Pa. Super. 2003) (“[I]ssues challenging the discretionary aspects

of sentencing must be raised in a post-sentence motion or by raising the

claim during the sentencing proceedings. Absent such efforts, an objection

to a discretionary aspect of a sentence is waived.”).

      In his second issue on appeal, Grant asserts that the evidence

presented at trial was insufficient to support his convictions “because certain

facts were elicited which ran contrary to the Commonwealth’s case-in-chief.”

Grant’s Brief at 14-17. His argument focuses solely upon the credibility of




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the testimony presented by the Commonwealth, stating that Ms. Smith’s

testimony was “unreliable, contradictory and forms an insufficient basis for a

verdict,” relying on our Supreme Court’s decision in Commonwealth v.

Farquharson, 354 A.2d 545 (Pa. 1976), in support of his argument.

Grant’s Brief at 15-17.

      It is well settled that “[a]n argument regarding the credibility of a

witness’[] testimony goes to the weight of the evidence, not the sufficiency

of the evidence.” Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.

2014). In Farquharson, however, our Supreme Court stated that in certain

circumstances,   the      evidence   presented   may   be   so   unreliable   and

contradictory as to require vacation of a conviction on sufficiency grounds:

                Traditionally under our system of jurisprudence,
            issues of credibility are left to the trier of fact for
            resolution. While there may be some legitimacy for a
            trial court, who has also observed the witnesses as
            they testified, to consider the weight of the evidence
            and to that extent review the jury’s determination of
            credibility, there is surely no justification for an
            appellate court, relying solely upon a cold record, to
            exercise such a function.

                On appellate review of a criminal conviction, we
            will not weigh the evidence and thereby substitute
            our judgment for that of the finder of fact. To do so
            would require an assessment of the credibility of the
            testimony and that is clearly not our function.

               This concept, however, must be distinguished
            from an equally fundamental principle that a verdict
            of guilt may not be based upon surmise or
            conjecture. Following this principle, courts of this
            jurisdiction have recognized that where evidence



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           offered to support a verdict of guilt is so unreliable
           and/or contradictory as to make any verdict based
           thereon pure conjecture, a jury may not be
           permitted to return such a finding. Commonwealth
           v. Bennett, [] 303 A.2d 220 ([Pa. Super.] 1973)
           (and cases cited therein). Appellant argues that the
           Bennett principle is applicable here. We do not
           agree.

              The Bennett principle is applicable only where
           the party having the burden of proof presents
           testimony to support that burden which is either so
           unreliable or contradictory as to make any verdict
           based thereon obviously the result of conjecture and
           not reason. In the facts of the Bennett case, the
           Commonwealth had predicated its case upon the
           evidence of one individual. The record clearly
           established that the testimony of that witness was so
           contradictory as to render it incapable of reasonable
           reconciliation and therefore the court properly
           refused to allow a verdict of guilt to stand.

Farquharson, 354 A.2d at 550 (most internal citations omitted).

     Our High Court applied the above holding of Farquharson in

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), to reverse the

appellant’s conviction of forcible rape.   In Karkaria, the appellant was

charged by private criminal complaint based upon his alleged rape of his

younger stepsister. Id. at 1167. At trial, the Commonwealth’s case rested

entirely upon the testimony of the fourteen-year-old alleged victim, who

testified that the rapes occurred on weekends when her mother and

stepfather were out and the appellant was babysitting her.     Id. at 1168.

She denied that her other stepbrother, the appellant’s biological brother was

in the house at the time. Id. It was uncontested, however, that pursuant



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to the custody arrangement between the appellant’s parents, the appellant

and his brother were always in the home on the same weekends.         Id.   It

was likewise uncontested that the alleged victim’s mother and stepfather

only went out on the weekends.       Id. at 1171.    Moreover, although the

alleged victim testified that the rapes occurred when the appellant babysat

her, she also acknowledged that during the timeframe of the alleged rapes,

she was old enough to watch herself and the appellant no longer acted as

her babysitter.   Id. at 1168.   The Commonwealth presented no physical

evidence or reports made regarding the alleged rapes. Id. at 1169, 1171.

     The Karkaria Court concluded:

              The total failure of the Commonwealth to present
           any evidence that a single act of intercourse
           occurred during the [timeframe alleged] casts
           serious doubt upon the jury’s ability to reasonably
           conclude that any criminal activity occurred during
           the time period charged.

                                 *    *    *

              [Therefore,] we are compelled to conclude that
           the evidence presented at trial when carefully
           reviewed in its entirety, is so unreliable and
           contradictory that it is incapable of supporting a
           verdict of guilty, and thus, is insufficient as a matter
           of law. Having reached this conclusion after careful
           and meticulous review of the record presented to
           this Court, we find that the verdict of the jury was
           not based on anything more than speculation and
           conjecture.

Id. at 1171-72 (footnote omitted).




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      This does not mean that any case involving allegedly contradictory or

inconsistent testimony warrants consideration (let alone reversal) on

sufficiency    grounds.      Rather,    as    our   Supreme    Court      stated   in

Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), “the critical inquiry”

in resolving a sufficiency claim is

              whether the record evidence could reasonably
              support a finding of guilt beyond a reasonable doubt.
              But this inquiry does not require a court to “ask itself
              whether it believes that the evidence at the trial
              established guilt beyond a reasonable doubt.”
              Instead, the relevant question is whether, after
              viewing the evidence in the light most favorable to
              the prosecution, any rational trier of fact could have
              found the essential elements of the crime beyond a
              reasonable doubt. This familiar standard gives full
              play to the responsibility of the trier of fact fairly to
              resolve conflicts in the testimony, to weigh the
              evidence, and to draw reasonable inferences from
              basic facts to ultimate facts. Once a defendant has
              been found guilty of the crime charged, the
              factfinder’s role as weigher of the evidence is
              preserved through a legal conclusion that upon
              judicial review all of the evidence is to be
              considered in the light most favorable to the
              prosecution. The criterion thus impinges upon “jury”
              discretion only to the extent necessary to guarantee
              the fundamental protection of due process of law.

                 [A] reviewing court “faced with a record of
              historical facts that supports conflicting inferences
              must presume – even if it does not affirmatively
              appear in the record – that the trier of fact resolved
              any such conflicts in favor of the prosecution, and
              must defer to that resolution.”




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Id. at 1163-64 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 326

(1979) (emphasis in the original)). The Brown Court clarified that despite

its holding in Karkaria,

            [the] Court considers questions regarding the
            reliability of the evidence received at trial to be
            within the province of the finder-of-fact to resolve,
            and our Court will not, on sufficiency review, disturb
            the finder-of-fact’s resolution except in those
            exceptional instances, as discussed previously,
            where the evidence is so patently unreliable that the
            jury was forced to engage in surmise and conjecture
            in arriving at a verdict based upon that evidence.

Id. at 1165.

      The case before us is not one that involves evidence that “is so

patently unreliable that the jury was forced to engage in surmise and

conjecture in arriving at a verdict based upon that evidence.” Id. Ms. Smith

testified that Grant entered her house without her permission, in direct

violation of the existing PFA, and that she observed him standing in her

living room.   N.T., 11/26/13, at 13-16.     Ms. Smith’s friend and former

coworker testified to seeing Grant in Ms. Smith’s home while Ms. Smith was

not present around the same time as the break-in. Id. at 46-47. Ms. Smith

further testified that there had been a series of break-ins at her home, which

she attributed to Grant, and that Grant called her numerous times, leaving

sixteen messages on her home phone and eighteen on her cellphone. Id. at

24-27. Ms. Smith believed that Grant surreptitiously obtained a copy of her

house keys while they were dating, and although she changed her locks



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several times, she later learned that because she purchased all of the locks

at the same Home Depot, the same key continued to work to unlock her

doors. Id. at 32-36. Grant presented no evidence to contradict Ms. Smith’s

claims.

      The case boiled down to a question of whether the trial court, sitting

as factfinder, found Ms. Smith to be credible.       As stated above, this is a

question of the weight to be accorded to the evidence, not its sufficiency.

Melvin, 103 A.3d at 43. “This Court cannot substitute its judgment for that

of the [factfinder] on issues of credibility.”   Commonwealth v. DeJesus,

860 A.2d 102, 107 (Pa. 2004). As this is the only argument Grant presents

in support of his sufficiency claim, no relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/4/2015




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