J-S19038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EMMA COMER                                 :
                                               :
                      Appellant                :   No. 1520 MDA 2016

             Appeal from the Judgment of Sentence August 9, 2016
                 In the Court of Common Pleas of Perry County
              Criminal Division at No(s): CP-50-CR-0000161-2016


BEFORE:      GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 23, 2017

        Appellant Emma Comer appeals from the judgment of sentence

entered in the Court of Common Pleas of Perry County on August 9, 2016,

following a jury trial at which time she was sentenced to an aggregate term

of one (1) month to twenty-three (23) months’ incarceration two be followed

by a two-year term of probation. Upon our review, we affirm.

        On December 16, 2011, Appellant’s eight-year-old son was injured

when a driver insured by Donegal Insurance Group (hereinafter “Donegal”)

struck him as he crossed a street on his bicycle in Palmyra, Pennsylvania.

Appellant initiated a claim for her son’s injuries with Donegal. On October

14, 2013, Appellant submitted another claim to Donegal on her own behalf


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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for lost wages in an amount of $160,700.00.         In doing so, Appellant

indicated she had missed work because of her son’s injuries and was

subsequently fired from her job as a truck driver with CDC Transportation,

LLC (hereinafter “CDC”) on February 10, 2012. As part of the claim process,

Appellant submitted to Donegal what purported to be a letter from her

former employer setting forth her reasons for her lost wages and the

amount thereof and signed by Cleyton Decarvalho and Steven Watts under

the typed name “CDC Transportation, LLC.”

      Ms. Ryann White, a claims adjuster for Donegal, testified that she

found the letter to be “weird,” because the date thereon, December 13,

2012, predated the date upon which Appellant handed the correspondence

to Donegal’s field representative in October of 2013. N.T., 6/27/16, at 36,

39.   Ms. White further related that the correspondence was rife with

anomalies.    For instance, the document lacked the customary letter head,

and the ZIP code thereon had only four digits. Id. at 39-40. Also, the letter

contained numerous spelling and grammatical errors, and it concluded with

two signatures purporting to be from Messrs. DeCarvalho and Watts,

although no typed name appeared beneath them. N.T., 6/27/16, at 39-40.

      Steven Watts testified he is employed in the transportation business

and owns a company, Watts Logistics. Id. at 54. While he had no business

affiliation with Cleyton Decarvalho, Mr. Watts thought Mr. Decarvalho was a

partner in a company called Bad Boy Trucking. Id. at 55. Mr. Watts further

explained that he had no business connection to CDC. Id. at 56. Mr. Watts

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admitted to having an intimate relationship with Appellant who at one time

had worked for him; however, he stressed that while Appellant had asked

him to write a letter in support of her wage loss claim to Donegal, he did not

author the correspondence, nor did he sign or authorize anyone else to sign

his name or use his cell phone number thereon. Id. at 58-59, 63-66, 68-69.

       Mr. Decarvalho testified that he had owned CDC and indicated

Appellant at one time worked for him as his only driver. N.T., 6/27/16, at

80-83. Mr. Decarvalho stated he and Appellant had no written employment

contract, and he paid her two hundred ($200.00) dollars per day on a

weekly basis.   Appellant was paid as an independent contractor, and the

amount of $160,700.00 in no way reflected payment for time Appellant had

missed from work due to her son’s injuries. Id. at 84-86, 99.             Mr.

Decarvalho did not prepare the purported letter from CDC or place his

signature thereon, nor did he direct someone else to do so. Id. at 98-100.

      Following a jury trial on June 27, 2016, Appellant was found guilty of a

single count each of Insurance fraud, 18 Pa.C.S.A. § 4117(a)(2), and

criminal attempt to commit Theft by deception, 18 Pa.C.S.A. 901; 18

Pa.C.S.A. 3922(a)(1).     Appellant did not file a post-sentence motion

following her convictions, and she was sentenced on August 9, 2016.        On

September 6, 2016, Appellant filed a timely notice of appeal with this Court,

and in its order entered on September 12, 2016, the trial court directed her

to file a concise statement of the matters complained of on appeal within




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twenty-five (25) days. Appellant complied, and her “Statement of Matters

Complained of” filed on October 4, 2016, reads as follows:


           1. Appellant was found guilty by a Jury of one count of
              Attempt to Commit Theft By Deception, a Felony of the
              Third Degree and one Count of Insurance Fraud on June
              27, 2016.

           2. Appellant was sentenced as to one count Attempt to
              Commit Theft by Deception, a Felony of the Third
              Degree, to costs and two years[’] probation; as to one
              count of Insurance Fraud, sentence was costs,
              restitution and incarceration of a minimum one month,
              maximum twenty three months in Perry County Prison.

           3. Appellant avers the Jury’s verdict was not substantiated
              by the weight of the evidence for the following reasons:

              a. Appellant avers that the weight of the evidence did
                 not support that she knowingly submitted paperwork
                 that was fraudulently drafted;
              b. Appellant avers that no evidence was submitted to
                 prove beyond a reasonable doubt that she created
                 the document that was submitted to the insurance
                 company;
              c. Appellant argues that the evidence was not
                 sufficiently weighted to support a verdict of guilty as
                 to an intent to defraud the insurance company;
              d. Appellant argues that she had a legitimate claim
                 submitted to the insurance company;
              e. Appellant avers that the weight of the evidence, or
                 lack thereof, did not surmount the beyond a
                 reasonable doubt burden and thus, the Jury was
                 incorrect in it’s [sic] decision.

           4. Appellant is requesting that the verdict be set aside
              and a new Jury Trial be granted.

See Statement of Matters Complained of, filed October 4, 2016, at ¶¶

1-4. The trial court filed its Final Memorandum on October 25, 2016.

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        In her brief, Appellant presents a single question for this Court’s

review:

               Whether or not the evidence introduced at trial was
        sufficient to prove beyond a reasonable doubt Appellant had
        attempted to commit a theft by deception and insurance fraud?

Brief   for   Appellant   at   7   (unnecessary   capitalization   omitted).   The

Commonwealth asserts that Appellant has waived this issue, as she did not

raise a challenge to the sufficiency of the evidence in her Pa.R.A.P.1925(b)

statement. Brief of Appellee at 7.

        Pursuant to Pa.R.A.P. 1925, any issues not raised in a Pa.R.A.P.

1925(b) statement are waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived”); Commonwealth v.

Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (“in order to preserve

their claims for appellate review, appellants must comply whenever the trial

court orders them to file a Statement of Matters Complained of on Appeal

pursuant to Pa.R.A.P. 1925”) (quoting Commonwealth v. Lord, 719 A.2d

306, 309 (Pa. 1998)). It is well-established that “[a] challenge to the weight

of the evidence is distinct from a challenge to the sufficiency of the evidence

in that the former concedes that the Commonwealth has produced sufficient

evidence of each element of the crime, ‘but questions which evidence is to

be believed.’” Commonwealth v. Richard, 150 A.3d 504, 516 (Pa.Super.

2016) (citation omitted). Moreover, when raising a sufficiency of the

evidence claim an appellant must specify in her concise statement of matters


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complained of on appeal the element or elements upon which the evidence

was   insufficient   in   order   to   preserve   the   issue   for   appeal.   See

Commonwealth v. Williams, 959 A.2d 1252, 1257–1258 (Pa.Super. 2008)

(finding waiver of sufficiency of evidence claim where the appellant failed to

specify in Rule 1925(b) Statement the elements of particular crime not

proven by the Commonwealth). “Such specificity is of particular importance

in cases where, as here, the appellant was convicted of multiple crimes each

of which contains numerous elements that the Commonwealth must prove

beyond a reasonable doubt.” Commonwealth v. Garland, 63 A.3d 339,

344 (Pa.Super. 2013).

      Herein, Appellant failed to assert a challenge to the sufficiency of the

evidence in her Rule 1925(b) statement, although this is the sole issue she

develops in her appellate brief. Her vague allegations in subparagraphs (b)

and (c) of her “Statement of Matters Complained of” that “no evidence was

submitted to prove beyond a reasonable doubt that she created the

document that was submitted to the insurance company” and that “the

evidence presented was not sufficiently weighted to support a verdict of

guilty as to an intent to defraud the insurance company,” when read in the

context of the paragraph as a whole, support a challenge only the weight-

not the sufficiency- of the evidence. Indeed, the trial court interpreted this

claim in its entirety as strictly as a challenge to the weight of the evidence,

and addressed the issue as a weight claim in its Rule 1925(a) opinion. See

Final Memorandum, filed 10/25/16 at 2, 4 (unnumbered).                As such, we

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agree with the Commonwealth that a finding of waiver regarding the issue of

the sufficiency of the evidence is warranted. See Commonwealth v.

Johnson, 51 A.3d 237, 246–247 (Pa.Super. 2012) (en banc) (finding waiver

of issues not specifically raised in Rule 1925(b) statement). See also

Commonwealth v. Garang, 9 A.3d 237, 246 (Pa.Super. 2010) (“[W]hen

challenging the sufficiency of the evidence on appeal, the Appellant's 1925

statement must specify the element or elements upon which the evidence

was insufficient in order to preserve the issue for appeal.”) (quotations and

citation omitted).

       Therefore, Appellant's failure to raise in her 1925(b) statement the

issue she now presents on appeal precludes our review.1

       Judgment of sentence affirmed.

____________________________________________


1
  To the extent Appellant briefly references the challenge to the weight of
the evidence she had raised in her Rule 1925(b) statement in the “Summary
of Argument” portion of her appellate brief when she “contends that the
weight of the evidence produced was insufficient to show that she was the
manufacturer of the document,” Brief for Appellant at 9, we find this claim
waived for her failure to preserve it in the trial court. A weight of the
evidence claim must be preserved either in a post-sentence motion, by a
written motion before sentencing, or orally prior to sentencing.
Commonwealth v. Ford, 141 A.3d 547, 556 (Pa.Super. 2016);
Pa.R.Crim.P. 607. The failure to preserve properly a weight of the evidence
claim will result in waiver, even if the trial court addresses the issue in its
opinion. Commonwealth v. Thompson, 93 A.3d 478, 490-491 (Pa.Super.
2014).     Herein Appellant neither made an oral or written motion before
sentencing nor did she file a post sentence motion. As such, we do not
reach Appellant’s purported challenge to the weight of the evidence to
sustain her convictions.




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     PJ Gantman joins the memorandum.

     PJE Bender concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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