J-S67014-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ERIC PRESTON TITTEL,

                          Appellant                  No. 336 MDA 2015


           Appeal from the Judgment of Sentence January 21, 2015
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000443-2014


BEFORE: BOWES, PANELLA, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 14, 2015

       Eric P. Tittel appeals from the judgment of sentence of five to fifteen

years incarceration entered after a jury found him guilty of two counts each

of aggravated assault and simple assault, as well as one count of recklessly

endangering another person. We affirm.

       The facts underlying this appeal were recounted by the trial court as

follows:

             On February 11, 2014, Eric P. Tittel (herein "Defendant")
       was working as a truck driver. Defendant stopped to fill his gas
       tank and purchase food at the Love's Truck Stop at 22 Old Forge
       Road, Union Township, Lebanon County, Pennsylvania.
       Defendant's truck was parked at a diesel pump while he was
       inside the store. Thomas Basham (herein "Victim") was also
       working as a truck driver and stopped at Love's Truck stop to fill
       his gas tank. The Victim's friend, John Ross (herein "Ross") was
       also driving a truck and pulled into the truck stop at the same
       time as the Victim. The Victim pulled his truck in behind

*
    Retired Senior Judge assigned to the Superior Court.
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     Defendant's truck. The Victim testified that he had waited forty-
     five (45) minutes for Defendant to come out of the store and
     called the store to have the driver return to his vehicle. When
     Defendant came out to his truck, he began pumping fuel, which
     would take another twenty to twenty-five (20-25) minutes. The
     Victim thought that the truck had already been fueled.

            When Defendant returned to his truck, the Victim yelled
     obscenities out the window of his truck at Defendant. Defendant
     came towards the Victim's truck. The Victim continued yelling at
     Defendant and exited his truck. Defendant shoved the Victim
     with both hands. The Victim stumbled backwards, then punched
     Defendant. Defendant punched the Victim. The Victim punched
     Defendant in the head three (3) to four (4) times. The Victim
     testified that he was able to block several punches from the
     Defendant. Defendant hit the Victim in the stomach at some
     point during the altercation. The Victim testified that the whole
     encounter lasted two (2) to three (3) minutes. Defendant went
     back to his truck, got in, and left the scene.

            When Defendant headed back to his truck, the Victim
     wrote the license plate of Defendant's truck on his hand. At this
     point, the Victim noticed blood and a gash below his rib on his
     right side. The Victim went inside the truck stop to get help.
     Ross saw the Victim enter the truck stop with the cut on his
     belly.    Jody Kohler (herein "Kohler"), the Administrative
     Assistant of Love's Truck Stop, saw the Victim come in from the
     fuel pumps. Another employee of Love's, identified by Kohler as
     "Chuck," called 911. Troopers Hoffstettler and Lynn responded
     to the report of a stabbing. Tpr. Hoffstettler testified that he
     provided immediate medical assistance while Tpr. Lynn
     interviewed the Victim.      The Victim was transported by
     ambulance to Hershey Medical Center. The Victim required
     surgery and has scars from the stab and the surgery.

           Meanwhile, Defendant had driven down the road and called
     his dispatcher to report what had happened. Defendant testified
     that he left the scene because he was scared. The dispatcher,
     Anna Lyons (herein "Lyons"), testified that Defendant sounded
     panicked and distraught. Defendant relayed to her what had
     happened and Lyons told Defendant to pull over and wait for the
     police. Defendant pulled over approximately eighteen (18) miles
     from the scene. Lyons contacted the [Pennsylvania State Police]

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      and provided them with Defendant's location. Lyons testified
      that Defendant did not mention a knife. Defendant was taken
      into custody by Trooper Chavez. Defendant was transported to
      the Jonestown Barracks where he was interviewed by Trps. Lynn
      and Hoffstettler. Defendant initially told the Troopers that the
      Victim had the knife and Defendant got the knife away from
      Victim and stabbed him in self-defense. Eventually, Defendant
      admitted that the knife was his and that he threw the knife out
      the window along the road because he was scared. Defendant
      stated that he was afraid and in fear of serious bodily injury from
      the Victim. Defendant testified that he told the Troopers that the
      Victim had used racial slurs. Tpr. Lynn testified that Defendant
      did not mention anything about racial slurs when he interviewed
      Defendant. The Victim testified that he did not use racial slurs
      towards Defendant prior to or during the altercation.

            At the scene, pictures were taken of the area where the
      fight occurred. The Troopers interviewed Ross and Kohler.
      Kohler allowed the Troopers to review the security camera
      footage. The area where the fight occurred could not be [seen]
      from any angle of any camera.

Trial court opinion, 3/25/15, at 1-3 (punctuation corrected).

      Appellant complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the court

filed a 1925(a) opinion shortly thereafter. This matter is now ready for our

review.   On appeal, Appellant presents one issue for our consideration:

“Whether the jury’s verdict was against the weight of the evidence presented

at trial.” Appellant’s brief at 3.

      Appellant cursorily argues that the “jury’s rejection of [Appellant’s]

self-defense claim was so contrary to the evidence as to shock the

[conscience].”    Appellant’s brief at 7.   Since Appellant contends that he




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feared for his safety during the altercation with Basham, he was justified in

using force against him.

      The Commonwealth argues first that Appellant’s sole issue is waived,

as he did not properly preserve the challenge with the trial court. As to the

merits, the Commonwealth avers the jury appropriately afforded little weight

to Appellant’s claim of self-defense in light of significant contrary evidence.

We agree with the Commonwealth that Appellant’s issue is waived and

decline to address it.

      In order to preserve a weight of the evidence claim, an appellant must

raise the issue with the trial judge in a motion for a new trial orally before

sentencing, by written motion before sentencing, or in a post-sentence

motion. Pa.R.Crim.P. 607. Review of a properly preserved claim is limited

to the “exercise of the trial court’s discretion” and not “whether the verdict is

against the weight of the evidence.”     Commonwealth v. Karns, 50 A.3d

158, 165 (Pa.Super. 2012).

      Appellant failed to file a written motion raising his weight of the

evidence claim either before or after sentencing, our review of the certified

record reveals no reference to the challenge, and Appellant identifies no

point where he preserved his challenge. He therefore did not comply with

Pa.R.Crim.P. 607, and we find this issue waived. See Commonwealth v.

Priest, 18 A.3d 1235 (Pa.Super. 2011).




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      Importantly, we recognize that “[f]ailure to properly preserve the

claim will result in waiver, even if the trial court addresses the issue in its

opinion.”   Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014)

(citing Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009)). The

trial court “never ‘ruled’ on the issue and, therefore, it could not grant nor

deny the claim at the time it was first raised by Appellant in his concise

statement.” Id. at 490-491. At the time it issued its Rule 1925(a) opinion,

the trial court had no jurisdiction to take further action in the case;

therefore, it was “never given the opportunity to provide Appellant with relief

and, consequently, there is no discretionary act that this Court could

review.” Id. Even though the trial court thoroughly addressed Appellant’s

weight of the evidence claim in its 1925(a) opinion, we find that his claim is

waived due to his noncompliance with Pa.R.Crim.P. 607.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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