J-S75010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    BRYAN WILLIAM CONLEY

                             Appellant                No. 496 WDA 2019


       Appeal from the Judgment of Sentence entered February 13, 2019
                 In the Court of Common Pleas of Erie County
               Criminal Division at No: CP-25-CR-0002061-2018


BEFORE: STABILE, KUNSELMAN, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 28, 2020

        Appellant, Bryan William Conley, appeals from the judgment of sentence

the Court of Common Pleas of Erie County entered February 13, 2019. On

appeal, Appellant challenges the sufficiency of the evidence supporting his

convictions. Upon review, we conclude that Appellant waived his challenge.

        The trial court summarized the procedural background of the instant

appeal as follows.

        On November 28, 2018, following a non-jury trial, Appellant was
        convicted of one felony count of terroristic threats, one
        misdemeanor count of terroristic threats, and one count each of
        simple assault, disorderly conduct, and harassment.

        On February 13, 2019, Appellant was sentenced to 48 months of
        restrictive intermediate punishment program followed by a
        probationary period[.]

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On February 22, 2019, Appellant filed a post-sentence motion[,
      which the trial court denied on March 5, 2019]. On April 3, 2019,
      Appellant filed a notice of appeal and [a Pa.R.A.P. § 1925(b)]
      statement of matters complained of on appeal.

      In the [Rule] 1925(b) statement[,] Appellant challenges the
      sufficiency of the evidence at trial to support Appellant’s
      convictions.

Trial Court Opinion, 6/12/19, at 1-2 (unnecessary capitalization removed).

      On appeal, Appellant claims the evidence was insufficient to support his

convictions of terroristic threats, simple assault, and disorderly conduct.

      Our standard of review for a sufficiency challenge is as follows:

      When reviewing the sufficiency of the evidence, an appellate court
      must determine whether the evidence, and all reasonable
      inferences deducible from that, viewed in the light most favorable
      to the Commonwealth as verdict winner, are sufficient to establish
      all of the elements of the offense beyond a reasonable doubt. It
      [is] incumbent upon the Superior Court to consider all of the
      evidence introduced at the time of trial, and apparently believed
      by the fact finder, including the expert’s testimony. In applying
      this standard, [the reviewing court must] bear in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court’s ruling thereon were correct; and the trier of fact,
      while passing upon the credibility of witnesses and the weight of
      the proof, is free to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (internal

citations and quotations omitted; second alteration in original).

      Before considering the merits of the sufficiency issue, we must

determine whether the issue itself is preserved for our review. Upon review,

we conclude it is not.




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       In his Rule 1925(b) statement, Appellant claimed that the evidence was

insufficient to support his convictions, without identifying which conviction he

was challenging or which element or elements of the convictions were not

sufficiently proven.     The trial court, given the vagueness of the challenge,

correctly concluded that the claim was waived.

       For sake of completeness, despite the glaring inadequacy of Appellant’s

Rule 1925(b) statement, the trial court nonetheless addressed the challenge

to the best of its ability, finding that it had no merit.

       On   appeal,     Appellant    focuses     his   challenge    on   three   crimes.

Specifically, he now argues that evidence supporting his convictions for

terroristic threats was insufficient because the Commonwealth failed to prove

that Appellant communicated a threat of violence or harm to the victim; with

regard to     the    simple    assault   conviction,    Appellant   alleges that    the

Commonwealth failed to prove that Appellant “engaged in conduct that

attempted, by physical menace, to put [victim] in fear of imminent serious

bodily injury,” Appellant’s Brief at 9; and with respect to disorderly conduct,

Appellant argues that the Commonwealth failed to present evidence that

Appellant “ever engaged in threatening behavior with intent to cause a risk of

public inconvenience, annoyance, or alarm.” Id.1

____________________________________________


1  Throughout the brief, Appellant interchangeably argues that the
Commonwealth presented no evidence of the crimes or that the evidence was
insufficient. No evidence is not synonymous with insufficient evidence.
Indeed, the Commonwealth presented evidence, including the testimony of



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       These claims are raised for the first time on appeal. As such, they are

waived. Pa.R.A.P. 302(a). Additionally, we agree with the trial court that

these claims are waived because Appellant failed to articulate them in a

meaningful way in his Rule 1925(b) statement so as to permit the trial court

to address them.

       In order to preserve a challenge to the sufficiency of the evidence
       on appeal, an appellant’s Rule 1925(b) statement must state with
       specificity the element or elements upon which the appellant
       alleges that the evidence was insufficient. Commonwealth v.
       Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, [] 3
       A.3d 670 ([Pa.] 2010).        “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.” Id.
       at 281 (citation omitted). Here, as is evident, [a]ppellant not only
       failed to specify which elements he was challenging in his Rule
       1925(b) statement, he also failed to specify which conviction he
       was challenging. Thus, we find Appellant’s sufficiency claim
       waived on this basis. See Gibbs, supra.

____________________________________________


the victim, which Appellant characterizes as “suspect” or “uncorroborated”.
Thus, to the extent Appellant argues that the Commonwealth presented no
evidence of the crimes, the claim is devoid of any merit.

The claim also underlies another misunderstanding by Appellant. In reviewing
a sufficiency of the evidence challenge, we must view the evidence against
Appellant in the most favorable light to the Commonwealth, as the verdict
winner. We cannot, as Appellant seems to suggest, select what evidence to
consider, how to weigh it, or weigh it in more favorable light to Appellant.

Finally, although Appellant raises the claim as a challenge to the sufficiency of
the evidence, the thrust of Appellant’s challenge is not about the sufficiency
of the evidence. Rather, it is about the weight of the evidence. For example,
throughout the brief, as noted, Appellant argues that the victim’s testimony
was “suspect” or “uncorroborated.” A challenge to veracity or lack of
corroboration is a challenge to the weight of the evidence, not the sufficiency
of the evidence.

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Commonwealth v Garland, 63 A.3d 339, 344 (Pa. Super. 2013). Appellant

here committed the same error as in Garland and Gibbs.          Accordingly, the

claim is waived.

       The mere fact that the trial court addressed the claim in its Rule

1925(a) opinion does not resurrect a waived claim.

       [T]he presence of a trial court opinion [is] of no moment to our
       analysis because we apply Pa.R.A.P.1925(b) in a predictable,
       uniform fashion, not in a selective manner dependent on an
       appellee’s argument or a trial court’s choice to address an
       unpreserved claim.      Thus, we find 1925(b) waiver where
       appropriate [] despite the presence of a trial court opinion.

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

(citation omitted).

       In light of the foregoing, we conclude that Appellant waived his

challenge to the sufficiency of the evidence. 2     Accordingly, we affirm the

judgment of sentence.

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2 To the extent the sufficiency claim is not waived, we conclude that the trial
court adequately and correctly addressed the issues in its Rule 1925(a)
opinion. See Trial Court Opinion, 6/12/19, at 2-15. Briefly, regarding the
alleged lack of communication or threat by Appellant, we note that the victim
testified that “[Appellant] was this close to getting a gun and blowing her head
off, shooting the child, and shooting himself. Appellant told [victim] that he
was going to kill [victim’s] father and bury him in the backyard, and then go
after her mother.” Id. at 6. The trier of facts was free to believe victim over
Appellant’s version of the facts. It is well-established that it is not our job to
reweigh the evidence or make credibility assessments. The trial court also
noted that the Commonwealth presented three additional witnesses
corroborating the victim’s testimony. Id. at 14. The claim that the evidence
was insufficient to support his convictions of terroristic threats is therefore
without merit.



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       Judgment of sentence affirmed.

       Judge Pellegrini joins the memorandum.

       Judge Kunselman concurs in the result.



____________________________________________




       Regarding the simple assault conviction, the trial court noted that

       Appellant is twice the size of [victim]. [Victim] was confined to a
       hospital bed, having just given birth hours earlier. With [victim]
       in this condition, Appellant approached her, hovered over her, told
       her he was going to get a gun to shoot her and the newborn in
       the head, and physically grabbed the phone from her hand.
       [Victim] had been paging for help during the encounter and let
       out a “blood-curdling scream.” When [nurse] arrived in the room,
       she observed Appellant still hovering over [victim]. [Victim] was
       visibly upset and shaking. The [trial court, sitting as fact-finder
       found that the] evidence was sufficient to find Appellant
       attempted to put [victim] in fear of imminent serious bodily injury
       through physical menace, this committing the offense of simple
       assault.

Id. at 12. We agree with the trial court’s analysis and conclusions.

       Regarding the disorderly conduct conviction, the trial court noted:

       The elements of the crime were satisfied.             The evidence
       established Appellant made violent threats to [victim] and the
       threats in a public inconvenience. . . . Appellant’s actions resulted
       in the lockdown of the hospital and staff was diverted from their
       usual duties to deal with the situation Appellant had created.
       Public resources were expended to address the situation Appellant
       had created by his words and actions. The evidence was sufficient
       to convict Appellant of disorderly conduct.

Id. at 12-13 (unnecessary capitalizations omitted). We agree with the trial
court analysis and conclusions. Accordingly, we direct that a copy of the trial
court opinion of June 12, 2019 be filed along with this memorandum.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2020




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