J-S11007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                              Appellee

                         v.

LUIS MIGUEL NAVEDO

                              Appellant                 No. 959 MDA 2014


               Appeal from the Judgment of Sentence May 16, 2014
                  In the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0002427-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                               FILED APRIL 01, 2015

          Appellant, Luis Miguel Navedo, appeals from the judgment of sentence

entered May 16, 2014, by the Honorable James M. Bucci, Court of Common

Pleas of Berks County. We affirm.

          Following a jury trial, Navedo was convicted of first degree murder,1

attempted first degree murder,2 four counts of aggravated assault,3 and

possessing an instrument of crime.4            The convictions stemmed from an

incident in which eyewitnesses observed Navedo shoot to death one victim

and injure another in the parking lot of a crowded nightclub in Reading. On


____________________________________________


1
    18   Pa.C.S.A.   § 2502(a).
2
    18   Pa.C.S.A.   § 901(a).
3
    18   Pa.C.S.A.   §§ 2702(a)(1); (a)(4).
4
    18   Pa.C.S.A.   § 907(a).
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May 16, 2014, the trial court sentenced Navedo to life imprisonment. This

timely appeal followed.

     Navedo argues that his convictions were against the weight and

sufficiency of the evidence.   Preliminarily, we note that “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. Thomson, 93 A.3d 478, 490 (Pa. Super. 2014) (citing

Pa.R.Crim.P. 607).   Failure to do so will result in waiver of the claim on

appeal. See id.

     Instantly, Navedo failed to raise a challenge to the weight of the

evidence to support his conviction either at sentencing or in a post-sentence

motion. Therefore, this claim is waived. See Thomson.

     We review a challenge to the sufficiency of the evidence as follows.

            The standard we apply when reviewing the sufficiency of
     the evidence is whether viewing all the evidence admitted at trial
     in the light most favorable to the verdict winner, there is
     sufficient evidence to enable the fact-finder to find every
     element of the crime beyond a reasonable doubt. In applying the
     above test, we may not weigh the evidence and substitute our
     judgment for the fact-finder. In addition, we note that the facts
     and circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant's guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     trier of fact while passing upon the credibility of witnesses and

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      the weight of the evidence produced is free to believe all, part or
      none of the evidence. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      “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. Garland, 63 A.3d 339, 344 (Pa. Super.

2013) (citation omitted).   “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. (citation omitted).

      In his Rule 1925(b) Statement of Errors Complained of on Appeal,

Navedo argued only that the “evidence presented at trial [was] insufficient

to establish each element of [his convictions] beyond a reasonable doubt

because the Commonwealth failed to prove that Luis Miguel Navedo was the

actor that killed Jose A. Rivera on September 3, 2012, that he attempted to

do so, or that he possessed an instrument of crime.”      Concise Statement,

6/24/14 at ¶1. This blanket statement fails to satisfy the requirement that

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an appellant must state with specificity the elements of the crimes for which

there is allegedly insufficient evidence.    As Navedo fails to identify which

elements of his convictions he was challenging, we are constrained to find

his sufficiency claims waived. See Garland.

      We will, however, address the specific claim alleged in Navedo’s Rule

1925(b) statement that the Commonwealth failed to identify Navedo as the

individual who killed Jose Rivera, that he attempted to do so, or that he

possessed an instrument of crime.           In support of his claim, Navedo

essentially attacks the credibility and reliability of the eyewitnesses who

testified that they observed Navedo perpetrate the shooting that resulted in

the victim’s death. See Appellant’s Brief at 25-26. This argument is not an

attack on the sufficiency of the evidence, but rather an allegation regarding

the weight the victim’s testimony should have been afforded.              See

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa. 2013).       As previously noted, Navedo failed to

preserve a weight challenge, and thus, has waived this argument on appeal.

      Due to our disposition of the foregoing issues, we find no basis on

which to disturb Navedo’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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