J-S63024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYMEIR MICHAEL M. HENDERSON                :
                                               :
                       Appellant               :   No. 2936 EDA 2018

       Appeal from the Judgment of Sentence Entered September 7, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005178-2017


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 19, 2019

        Tymeir Michael M. Henderson (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of robbery, conspiracy, burglary,

criminal trespass, and possession of an instrument of crime.1, 2 We affirm.

        The trial court summarized the facts of this case as follows:

        On the evening of April 15, 2017, [the victim] returned home from
        a trip to the grocery store. As [the victim] walked up his front
        steps, [Appellant] approached him. [The victim] knew [Appellant]
        from the neighborhood and the two had interacted on previous
        occasions. [Appellant] walked to [the victim’s] front door and
        engaged him in conversation. He asked [the victim] if he had
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), 3502(a)(1)(i), 3503(a)(1)(ii), and
907(a).

2 While the trial court’s opinion states that Appellant was also convicted of
conspiracy to commit burglary, see Trial Court Opinion, 5/1/19, at 1, 3,
neither the verdict sheet nor sentencing order corroborates that statement.
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      marijuana or money he could borrow. When [the victim] said no,
      two unidentified men ran up the front steps toward him. One
      carried a machete and the other had a gun. As the two men ran
      up [the victim’s] front steps, [Appellant] simultaneously pulled a
      gun from his jacket area and told him to “[g]et the fuck in the
      house.” The men pushed [the victim] inside and demanded
      money. When [the victim] stated he did not have any money, one
      of the men hit him in the head with a gun. [The victim] still
      protested that he did not have any money, and [Appellant] took
      [the victim’s] watch from his wrist. One of the unidentified men
      held [the victim] at gunpoint and forced him upstairs to look for
      money. While upstairs, the man took [the victim’s] wallet and
      phone. [The victim] said, “[w]hy don’t you just leave? You got
      the money.” He told the man that his nephew was in the
      basement.      The man yelled downstairs to [Appellant] that
      someone else was in the house, and [Appellant] told the two men
      that they needed to leave. The three men ran out of the house
      and [the victim] followed them. He asked them to drop his wallet,
      but they continued running. The men ran down the block, got into
      an older model black car, and drove away. [The victim] ran back
      into the house and dialed 9-1-1 and the police arrived shortly
      thereafter. [The victim] gave a statement in which he identified
      [Appellant] as one of the three men who robbed him.[FN] 3

            [FN] 3
                 [The victim] gave two separate statements where
            he identified [Appellant] as one of the three men who
            robbed him. In his statement he identified [Appellant]
            by his nicknames, “Dreads” and “Ty” because he did
            not know [Appellant’s] full name. He also identified
            [Appellant] via photograph.

Trial Court Opinion, 5/1/19, at 1-2 (citations and some footnotes omitted).

      At Appellant’s jury trial on June 26, 2018, the Commonwealth presented

the testimony of the victim, as well as seven Philadelphia police officers and

detectives. Appellant did not testify in his defense or present any evidence.

The jury found Appellant guilty of the aforementioned offenses.

      At a sentencing hearing on September 7, 2018, the trial court imposed

an aggregate sentence of 3 to 6 years of imprisonment. Following the oral

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advisement of Appellant’s post-sentence and appeal rights, Appellant’s

counsel orally requested to withdraw from representation. N.T., 9/7/18, at

31-32. However, the trial court did not rule on this request, and trial counsel

remained counsel of record.

       Appellant did not file a post-sentence motion, but filed a timely pro se

notice of appeal on October 5, 2018. On October 15, 2018, the trial court

issued a Pa.R.A.P. 1925(b) order directing Appellant to file a concise

statement within 21 days. On November 26, 2018, the trial court issued an

order granting trial counsel’s oral motion to withdraw and appointing Matthew

Sullivan, Esquire (Counsel) to represent Appellant.          On January 15, 2019,

Counsel filed a motion for additional time to file a Rule 1925(b) concise

statement, which the court granted.            Counsel filed a concise statement on

February 27, 2019, challenging the sufficiency and weight of the evidence.3

       On appeal, Appellant raises two issues:

       I. Whether the evidence was sufficient to sustain the verdict?


____________________________________________


3 We recognize that Appellant filed his pro se notice of appeal while still
represented by counsel. It is well-settled that an appellant does not have a
right to proceed both pro se and with the benefit of counsel.              Such
representation is considered “hybrid” representation and is prohibited within
the Commonwealth. See Commonwealth v. Staton, 184 A.3d 949, 958
(Pa. 2018) (no defendant has a constitutional right to self-representation
together with counseled representation “either at trial or on appeal”); see
also Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) (citing
Pennsylvania’s long-standing policy that precludes hybrid representation).
However, the prohibition against hybrid representation does not nullify pro se
notices of appeal, because “a notice of appeal protects a constitutional right.”
Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).

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      II. Whether the verdict was against the weight of the evidence?

Appellant’s Brief at 8.

      For his first issue, Appellant raises a claim that the evidence was

insufficient to support his convictions. Appellant’s Brief at 14-16. Specifically,

Appellant asserts that the victim’s account of the incident lacked credibility.

Appellant alleges that the victim “offered inconsistent details, most of which

were not corroborated, about the alleged robbery[,]” and “the police

paperwork associated with the case against [Appellant] directly contradicted

the [victim’s] testimony.” Id. at 15-16. Appellant maintains that the victim’s

testimony “is so inherently unreliable that a verdict based upon it could

amount to no more than surmise and conjecture[,]” id. at 16, and thus the

evidence was insufficient to sustain the verdict.

       Appellant’s contentions challenge the weight of the evidence, not its

sufficiency.   See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.

2014) (“An argument regarding credibility of a witness’[ ] testimony goes to

the weight of the evidence, not the sufficiency of the evidence.”);

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(“variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence”) (citations omitted). The differences between a

challenge to the weight and a challenge to the sufficiency of the evidence, as

our Supreme Court explained them in Commonwealth v. Widmer, 744 A.2d

745, 751-52 (Pa. 2000), are as follows:


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     The distinction between these two challenges is critical. A claim
     challenging the sufficiency of the evidence, if granted, would
     preclude retrial under the double jeopardy provisions of the Fifth
     Amendment to the United States Constitution, and Article I,
     Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
     457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604
     (Pa. 1983), whereas a claim challenging the weight of the
     evidence if granted would permit a second trial. Id.

     A claim challenging the sufficiency of the evidence is a question of
     law. Evidence will be deemed sufficient to support the verdict
     when it establishes each material element of the crime charged
     and the commission thereof by the accused, beyond a reasonable
     doubt. Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993).
     Where the evidence offered to support the verdict is in
     contradiction to the physical facts, in contravention to human
     experience and the laws of nature, then the evidence is insufficient
     as a matter of law. Commonwealth v. Santana, 333 A.2d 876
     (Pa. 1975). When reviewing a sufficiency claim the court is
     required to view the evidence in the light most favorable to the
     verdict winner giving the prosecution the benefit of all reasonable
     inferences to be drawn from the evidence. Commonwealth v.
     Chambers, 599 A.2d 630 (Pa. 1991).

     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. Whiteman,
     485 A.2d 459 (Pa. Super. 1984). Thus, the trial court is under no
     obligation to view the evidence in the light most favorable to the
     verdict winner. Tibbs, 457 U.S. at 38 n. 11.

Widmer, 744 A.2d at 751-52 (citations modified).       “A true weight of the

evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions which evidence is to be believed.” Commonwealth v.

Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quoting Commonwealth v.

Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005)).

     Our Supreme Court has held that an “appellant’s challenge to the

sufficiency of the evidence must fail[,]” where an appellant phrases an issue

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as a challenge to the sufficiency of the evidence, but the argument that

appellant provides goes to the weight of the evidence. Commonwealth v.

Small, 741 A.2d 666, 672 (Pa. 1999); see also Commonwealth v. Gibbs,

981 A.2d 274, 281-82 (Pa. Super. 2009) (finding that a sufficiency claim

raising weight of the evidence arguments would be dismissed). Given this

clear authority, Appellant is not entitled to relief on his challenge to the

sufficiency of the evidence.4

       For his second issue, Appellant properly challenges the weight of the

evidence. When reviewing a weight claim, we consider the following:

       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. Widmer, 744 A.2d at 751–52; [Commonwealth v.
       Brown, 648 A.2d 1177, 1189 (Pa.1994)]. 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. Widmer, 744 A.2d at 752. 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.’”
       Id. at 320, 744 A.2d at 752 (citation omitted). It has often been
       stated that “a new trial should be awarded when the jury’s verdict
       is so contrary to the evidence as to shock one’s sense of justice
       and the award of a new trial is imperative so that right may be
       given another opportunity to prevail.” Brown, 648 A.2d at 1189.
       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:
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4 The Commonwealth argues that Appellant’s sufficiency challenge is waived
for lack of specificity in the court-ordered Rule 1925(b) statement. See
Commonwealth Brief at 7 n.2. However, the trial court addressed the merits
of Appellant’s claim, and our review of Appellant’s 1925(b) statement reveals
the specific elements Appellant alleges the evidence was insufficient to
support.

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             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. Brown, 648 A.2d at 1189. Because the
             trial judge has had the opportunity to hear and see
             the evidence presented, an appellate court will give
             the gravest consideration to the findings and reasons
             advanced by the trial judge when reviewing a trial
             court’s determination that the verdict is against the
             weight of the evidence.             Commonwealth v.
             Farquharson, 354 A.2d 545 (Pa. 1976). One of the
             least assailable reasons for granting or denying a new
             trial is the lower court’s conviction that the verdict was
             or was not against the weight of the evidence and that
             a new trial should be granted in the interest of justice.

      Widmer, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

modified).

      Instantly, Appellant’s challenge to the weight of the evidence fails

because he failed to preserve it before the trial court either orally at sentencing

or in a post-sentence motion as mandated by Pa.R.Crim.P. 607(A).

Accordingly, his claim is waived. Commonwealth v. Thompson, 93 A.3d

478, 490 (Pa. Super. 2014) (failure to properly preserve a weight claim will

result in waiver, even if the trial court addresses the issue in its opinion).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/19




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