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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
SAMUEL JAMES,                             :         No. 3789 EDA 2017
                                          :
                         Appellant        :


             Appeal from the Judgment of Sentence, May 31, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0012389-2015


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 30, 2018

        Samuel James appeals from the May 31, 2016 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

conviction in a waiver trial of robbery and simple assault.1          Appellant

received an aggregate sentence of 24 to 48 months of incarceration.         We

affirm.

        At the outset, we note that the record reflects that at some point after

imposition of sentence but before appellant filed a PCRA2 petition that

resulted in his direct appeal rights being restored nunc pro tunc, the trial

judge in this matter, the Honorable Paul Panepinto, was reassigned.         The




1   18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 2701(a), respectively.

2   Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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record further reflects that appellant’s PCRA petition was assigned to the

Honorable Giovanni Campbell who reinstated appellant’s direct appeal rights

nunc pro tunc.        Judge Campbell authored the opinion pursuant to

Pa.R.A.P. 1925(a) in this direct appeal.     In this memorandum, we refer to

Judge Campbell as the “trial court.”

      The trial court set forth the following factual history:

            On November 17, 2015, at about 6:00 PM,
            Jamie Ford was leaving work, heading to the train
            station. She was at 17th and JFK Boulevard, about to
            head down the stairs to the train when she was
            approached by a woman who asked if she had a
            lighter.  20-30 seconds later, the same woman,
            along with [a]ppellant, approached Ms. Ford, getting
            close to her.    Ms. Ford felt uncomfortable and
            proceeded to turn away.[Footnote 2]

                  [Footnote 2] Appellant is physically male
                  but presents as a female. Hence the
                  interchangeable use of male and female
                  pronouns throughout the course of the
                  trial and sentencing transcripts.

            As Ms. Ford turned to walk away, [a]ppellant
            grabbed Ms. Ford’s handbag, which she was holding
            with the strap wrapped around her arm. Appellant
            attempted to pull the bag away from Ms. Ford, and a
            20-30 second struggle for the bag ensued.        As
            Ms. Ford broke free, [a]ppellant grabbed her hair
            and pulled out some of it.

            Ms. Ford ran into a nearby building and notified the
            security guards, who called 911 for her. Philadelphia
            Police Officer Mike Blatchford responded to the
            location. When the officer encountered Ms. Ford,
            she was crying, shaking and holding her head.
            Ms. Ford identified [a]ppellant to the police officer.




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            Photographs of Ms. Ford’s bag showed visible
            damage to the bag, caused by the struggle as
            [a]ppellant attempted to take the bag.

Trial court opinion, 2/14/18 at 2-3 (citations to record omitted).

      Following appellant’s conviction and imposition of sentence,

            [o]n June 20, 2016, counsel for [a]ppellant filed an
            untimely post sentence motion for reconsideration of
            sentence and a motion for leave to file said motion,
            nunc pro tunc. The motion for leave to file nunc
            pro tunc was denied on July 6, 2016, and the
            motion for reconsideration was denied on the merits.

            On August 10, 2016, [a]ppellant filed a pro se
            petition under the [PCRA] seeking reinstatement of
            his appellate rights and leave to file for
            reconsideration of sentence.

            On March 9, 2017, the PCRA petition was assigned to
            this Court, because Judge Panepinto was no longer
            assigned to the First Judicial District’s Trial Division.

            An amended PCRA petition was filed by appointed
            counsel on July 24, 2017.

            On October 11, 2017, an evidentiary hearing was
            held on the PCRA Petition.

            On October 12, 2017, the Court granted the PCRA
            petition only to the extent that [a]ppellant was given
            leave to file an appeal nunc pro tunc, his request to
            file a motion for reconsideration was denied.

            A timely notice of appeal was filed on November 3,
            2017.

            Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court
            entered an order on November 27, 2017, directing
            the filing of a Statement of Errors Complained of on
            Appeal, not later than twenty-one (21) days after
            entry of the order.



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               On December 7, 2017, [a]ppellant filed a Statement
               of Errors Complained of on Appeal.

Id. at 1-2 (footnote 1 omitted).

      Appellant raises the following issues for our review:

               I.       Whether the verdict was insufficient as a
                        matter of law, due to the inconsistency and
                        insufficiency of testimony, and whether the
                        elements of the crimes were sufficiently proven
                        in the Commonwealth’s case-in-chief[?]

               II.      Whether the verdict was against the weight of
                        the evidence adduced at trial[?]

               III.     Whether the PCRA court erred    in not granting
                        relief on the PCRA petition      alleging [trial
                        counsel] was ineffective for     failing to file
                        motions challenging the harsh   and reasonable
                        sentence[?]

Appellant’s brief at 9.

      Appellant first challenges the sufficiency of the evidence to sustain his

convictions.        It is well settled that when challenging the sufficiency of the

evidence on appeal, that in order to preserve that issue for appeal, an

appellant’s Rule 1925(b) statement must specify the element or elements

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)

(citation and internal quotation marks omitted).

      In his Rule 1925(b) statement, appellant frames his sufficiency

challenge as follows: “The verdict was contrary to law for the reasons stated

by trial counsel at the trial.” (Appellant’s “statement of matters complained



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of on appeal,” 12/7/17 at 1, ¶ 1.) Because appellant failed to specify the

element or elements of the conviction or convictions upon which he now

claims the evidence was insufficient, appellant waives this issue on appeal.

See Gibbs, 981 A.2d at 281.

      Nevertheless, we note that a reading of appellant’s argument on this

issue reveals that appellant challenges the credibility of the Commonwealth’s

witnesses while attempting to bolster his own testimony. (Appellant’s brief

at 18-19.) In so doing, appellant challenges the weight of the evidence, not

its sufficiency.   See, e.g., 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).

      In his second issue on appeal, appellant raises a weight of the

evidence claim.    In order to raise a weight claim on appeal, however,

Pennsylvania Rule of Criminal Procedure 607 requires an appellant to raise

the claim 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).

“The purpose of this rule is to make it clear that a challenge to the weight of



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the evidence must be raised with the trial judge or it will be waived.”

Pa.R.Crim.P. 607, comment.

      Our review of the certified record before us reveals that appellant

failed to raise his weight claim with the trial judge in a motion for a new trial

orally, on the record, prior to sentencing; by written motion prior to

sentencing; or in a post-sentence motion. Accordingly, appellant waives his

weight claim on appeal.

      Appellant finally claims that trial counsel was ineffective for failing to

file motions challenging appellant’s sentence as harsh and unreasonable.

Appellant’s claim of ineffectiveness of trial 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. Only in specific limited circumstances may a

defendant raise ineffectiveness claims in post-sentence motions and on

direct appeal.    See, e.g., Commonwealth v. Holmes, 79 A.3d 562,

563-564 (Pa. 2013) (trial judge has discretion to entertain ineffectiveness

claims on post-verdict motions and direct appeal where:            (1) claim of

ineffectiveness is apparent from record and meritorious to the extent that

immediate consideration best serves interests of justice; or (2) where good

cause is shown and defendant knowingly and expressly waives his




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entitlement to seek subsequent PCRA review from his conviction and

sentence). These exceptions do not apply here.

      We finally note that appellant filed his notice of appeal of the judgment

of sentence entered on May 31, 2016, in accordance with the PCRA court’s

October 12, 2017 order that reinstated his direct appeal rights nunc pro

tunc, but that denied his request for reinstatement of his right to file

post-sentence motions nunc pro tunc. What is procedurally difficult in this

case is that in the same order that granted appellant the right to appeal his

judgment of sentence nunc pro tunc, Judge Campbell, in a footnote to the

order, resolved the ineffective assistance of counsel claim as it related to

trial counsel’s untimely filing of a post-trial motion.   This the court should

not have done.

            In Commonwealth v. Pate, 421 Pa. Super. 122,
            617 A.2d 754 (Pa.Super. 1992) we determined that
            “once a PCRA court determines that a petitioner’s
            right to direct appeal has been violated, the PCRA
            court is precluded from reaching the merits of other
            issues raised in the petition.” Pate, 617 A.2d at
            757, citing Commonwealth v. Hoyman, 385 Pa.
            Super. 439, 561 A.2d 756 (Pa.Super. 1989).
            “Rather, once the PCRA court finds that the
            petitioner’s appellate rights have been abridged, it
            should grant leave to file a direct appeal and end its
            inquiry there.” Id.(citation omitted).

Commonwealth v. Harris, 114 A.3d 1, 3-4 (Pa.Super. 2015)

      When appellant’s direct appeal is concluded, the clock starts anew for

petitioning for PCRA relief. If appellant wished to pursue the PCRA court’s

improper denial of his ineffectiveness claim in the context of PCRA


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proceedings, he should have filed a second appeal from Judge Campbell’s

denial of relief. The failure to do so precludes us from reviewing appellant’s

ineffectiveness claim on direct appeal.

      Judgment of sentence affirmed.



      Lazarus, J. joins this memorandum.

      McLaughlin, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/30/18




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