J-A08025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

ROBERT SIZEMORE IN THE SUPERIOR COURT

OF PENNSYLVANIA
Appellant

Vv. I

EDWARD DEARMITT
I

I

Appellee No. 1103 WDA 2018

Appeal from the Judgment Entered August 3, 2018
In the Court of Common Pleas of Allegheny County
Civil Division at No: AR15-004454

BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 24, 2019

Appellant, Robert Sizemore, appeals pro se from the August 3, 2018
judgment entered in favor of Appellee/Defendant, Edward Dearmitt. We
affirm.

The record reflects that an altercation occurred between Appellant and
Appellee on September 16, 2013 at the Gateway Center Port Authority Transit
(“PAT”) northbound platform. Appellant claims he recognized Appellee from
a local college, but did not know him prior to the altercation. Appellant claimed
that he introduced himself, but Appellee called him a racial slur and eventually
spat on him during the ensuing argument. Appellant claimed he sustained
injuries when Appellee head butted him.

The trial court, sitting as fact finder, summarized its findings in its

Pa.R.A.P. 1925(a) opinion:
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[Appellee] had previously worked at a few of the Subway
stores in the Downtown area of Pittsburgh. [Appellee] knew
[Appellant] from a particular incident which occurred at the
Subway on Wood Street in January of 2013. On that occasion,
[Appellant] bought three (3) cookies, and attempted to steal a
drink. [Appellee] caught him, and ordered him out of the store.
[Appellant] then left, acquired a drink from a different store,
returned to the Wood Street Subway, threw the drink in
[Appellant’s] face, and then broke the storefront window. The
damage to the window is depicted in [Appellee’s] Exhibit 1.

[Appellant’s] image was captured on the security cameras
of the store and was posted at the other Subway stores in
downtown Pittsburgh with instructions that he not be served.
Later in July of 2013, [Appellee] was in the Market Square Subway
when [Appellant] entered. An employee began to serve
[Appellant], but [Appellee], who recognized him, instructed
[Appellant] to leave the store.

On September 16 of 2013, [Appellee] and his girlfriend were
at the PAT platform in Gateway Center to go to the North Side.
[Appellant] approached them, and he threatened [Appellee],
stating, “I remember you.” [Appellee] called 911 and informed
the police he was being harassed by [Appellee] [sic] with whom
he had a history. When [Appellee] got off the phone, [Appellant]
threatened to ‘beat up’ [Appellee] to which [Appellee] replied for
[Appellant] to get away from him. [Appellant] continued
accosting [Appellee], poking his forehead. [Appellee] testified
that he attempted to move away but [Appellant] stepped in front
of him anytime he moved. Consequently, the only exit that was
not blocked by [Appellant] was the escalator. The escalator was,
however, behind [Appellee] and [Appellee] did not think it safe to
turn his back to [Appellant]. [Appellee] testified that he was
frightened and attempted to move forward, but hit [Appellant] in
the face with his forehead. [Appellant] then lunged at him, and
[Appellee] ran away.

[Appellee’s] Exhibit 3 is a surveillance video of the platform
that shows the incident, albeit without audio, matching closely
with [Appellee’s] testimony. Importantly, the video does not
depict [Appellee] ever spitting in [Appellant’s] face. [Appellant]
additionally testified that [Appellant] made a complaint to
Subway, which is [Appellant’s] Exhibit 2, following the subject
incident. [Appellant] acknowledged that he broke the storefront

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window, that [Appellee] kicked [Appellant] out of the store in July,
and that that on the PAT platform the parties had argued about
everything that happened.

Trial Court Opinion, 9/19/18, at 2-3.

Appellant filed a complaint against Appellee seeking $3,000.00 in
compensation for injuries he sustained. The case proceeded to a December
14, 2017 compulsory arbitration, after which the panel entered an award of
$3,000.00 in favor of Appellee. Appellee appealed the award to the Allegheny
County Court of Common Pleas. The trial court, sitting as fact finder in the de
novo trial, entered a defense verdict on July 12, 2018. Appellant filed post-
trial motions on January 20, 2018, and the trial court denied those motions
and entered judgment in Appellee’s favor on August 3, 2018. This timely pro
se appeal followed.

The record reflects that the trial court entered an order pursuant to
Pa.R.A.P. 1925 on August 7, 2018. Appellant never filed a concise statement
of matters complained of on appeal, and therefore he has waived all of his
issue On appeal. Pa.R.A.P. 1925(b)(4)(vii). Even were we to address the
merits of Appellant’s appeal, he would not obtain relief.

Appellant has filed three briefs with this Court, an opening brief, a

supplemental brief, and a reply brief. His arguments are legally and factually

 

1 The trial court’s opinion does not contain record citations, as Appellant did
not have a transcript prepared.

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undeveloped, but in essence, he argues that the evidence of record does not
support the trial court’s verdict.

Our appellate role in cases arising from nonjury trial verdicts
is to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of fact
of the trial judge must be given the same weight and effect on
appeal as the verdict of a jury. We consider the evidence in a light
most favorable to the verdict winner. We will reverse the trial
court only if its findings of fact are not supported by competent
evidence in the record or if its findings are premised on an error
of law. However, [where] the issue ... concerns a question of law,
our scope of review is plenary.

The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court because
it is the appellate court’s duty to determine if the trial court
correctly applied the law to the facts of the case.

Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 60-
61 (Pa. Super. 2012), appeal denied, 69 A.3d 599 (2013).

We are unable to assess the extent to which the record supports the
trial court’s findings, inasmuch as Appellant failed to request a transcript of
the de novo trial, as was his obligation under Pa.R.A.P. 1911(a). Appellant
has waived his appellate arguments for this additional reason. Pa.R.A.P.
1911(d).

In any event, the outcome depended in large part on the trial court’s
credibility determinations. The trial court found as follows:

[Appellant’s] overarching contention seems to be that the
non-jury verdict was not supported by the weight of the evidence.

In reaching the verdict in favor of [Appellee], this Court found

[Appellant] to be incredible based on his testimony and the facts.
This Court additionally found [Appellee] to be credible. The

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incident occurred on the side of the platform that required
passengers to travel north, but [Appellant] claimed that he was
going to the South Hills when he happened to see [Appellee].
[Appellant] additionally claimed that he did not break any windows
at Subway, but then acknowledged the incident in his complaint
to Subway and that he and [Appellee] had an ongoing issue. This
is in stark contrast with [Appellee’s] original testimony that he had
never met [Appellee], but merely recognized him.

Trial Court Opinion, at 4. Additionally, we observe that the surveillance

footage did not confirm Appellant’s claim that Appellee spit in his face. The

trial court therefore had reason to believe that Appellant’s testimony included

several falsehoods. In light of all of the foregoing, we affirm the judgment.
Judgment affirmed.

Judgment Entered.

  

Joseph D. Seletyn, Esdé
Prothonotary

Date: 6/24/2019
