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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
WILLIAM CURTIS IKARD, II,                   :          No. 928 WDA 2019
                                            :
                          Appellant         :


        Appeal from the Judgment of Sentence Entered March 20, 2019,
                in the Court of Common Pleas of Beaver County
               Criminal Division at No. CP-04-CR-0002117-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JANUARY 6, 2020

        William Curtis Ikard, II, appeals the March 20, 2019 judgment of

sentence entered in the Court of Common Pleas of Beaver County following

his conviction in a waiver trial of criminal trespass (defiant trespasser) and

loitering and prowling at night time.1 The trial court imposed a $100 fine on

the summary criminal trespass conviction and sentenced appellant to 30 days

to 12 months in the Beaver County Jail on the loitering and prowling at

night time misdemeanor conviction. We affirm.

        The trial court set forth the following:

              The evidence at trial indicated that [appellant] was
              observed at night on a fence-enclosed and gated pool
              deck belonging to the victim, and which was adjacent
              to the victim’s home. He fled when he was confronted
              by the victim, jumping over the fence and running

1   18 Pa.C.S.A. §§ 3503(b)(1)(iii) and 5506, respectively.
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            away down the street. [Appellant] was found a short
            time later by the police several blocks away from the
            victim’s residence. He was identified by the victim in
            part by the uniqueness of the clothing he wore. The
            evidence also showed that [appellant’s] shoes
            matched the suspect’s shoeprints which were left on
            the victim’s pool deck.

Trial court opinion, 7/15/19 at 1.

      Following his conviction and imposition of sentence, appellant filed a

timely post-sentence motion,2 which the trial court denied. Appellant then

filed a timely notice of appeal.     The trial court ordered appellant to file a

concise   statement   of   errors    complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b). Appellant timely complied. The trial court then filed its

Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Whether the appellant’s conviction should be
                   reversed because the Commonwealth failed to
                   present sufficient evidence to prove beyond a
                   reasonable doubt that the appellant was guilty
                   of the crimes of defiant trespass and loitering
                   and prowling[?]

            [2.]   Whether the appellant’s conviction, assuming
                   that sufficient evidence has been presented,
                   should be reversed because the guilty verdict


2  The record reflects that appellant filed his post-sentence motion on
March 27, 2019, and titled it a “post trial motion and request for transcripts.”
(Appellant’s post-trial motion and request for transcripts, 3/27/19 at 1.) In
that motion, appellant (1) claimed that the trial court “erred by not allowing
video evidence to be admitted”; (2) raised an ineffective assistance of counsel
claim; and (3) “argue[d] that the Commonwealth failed to establish beyond a
reasonable doubt all of the elements of the offenses for which he was
convicted.” (Id. at 1-2.)


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                   rendered contradicts the weight of the evidence
                   presented by the Commonwealth at trial?

Appellant’s brief at 8 (full capitalization omitted).

      It is well settled that when challenging the sufficiency of the evidence

on appeal, that in order to preserve that issue for appeal, an appellant’s

Rule 1925(b) statement must specify the element or elements upon which the

evidence was insufficient.    Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (citation omitted).

Here, in his Rule 1925(b) statement, appellant frames his sufficiency challenge

as follows: “The Commonwealth did not present sufficient evidence to prove

beyond a reasonable doubt that [a]ppellant is guilty of the crime alleged.”

(Appellant’s “concise statement of matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b),” 7/9/19 at 2, ¶ 7(i).) Because appellant failed to specify

the element or elements of the crime or crimes upon which he now claims the

evidence was insufficient, appellant waives his sufficiency challenge on appeal.

See Gibbs, 981 A.2d at 281.

      Nevertheless, we note that in his brief, appellant rehashes trial

testimony and points out inconsistencies in the testimony in order to convince

this court that “someone else was the intruder (not [a]ppellant).” (Appellant’s

brief at 10-12.) In so doing, appellant challenges the weight of the evidence,

not its sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710,

713-714 (Pa.Super. 2003) (reiterating that a review of the sufficiency of the

evidence does not include a credibility assessment; such a claim goes to the


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weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227

(Pa.Super.   1997)    (restating   that   the   fact-finder   makes    credibility

determinations, and challenges to those determinations go to the weight of

the evidence, not the sufficiency of the evidence).

      Although appellant includes a weight challenge in his second issue on

appeal, to be preserved for appellate review, Pennsylvania Rule of Criminal

Procedure 607 requires an appellant to raise the claim with the trial judge in

a motion for a new trial “(1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this rule is to

make it clear that a challenge to the weight of the evidence must be raised

with the trial judge or it will be waived.” Pa.R.Crim.P. 607, comment.

      Our review of the certified record before us reveals that appellant failed

to raise his weight claim with the trial judge in a motion for a new trial orally,

on the record, prior to sentencing, by written motion prior to sentencing, or

in a post-sentence motion. Accordingly, appellant waives his weight claim on

appeal.3


3 We note that even if appellant preserved his weight claim, appellant does
nothing more than invite this court to assess witness credibility and reweigh
the evidence.      For example, appellant takes issue with the victim’s
identification of appellant based on a clothing description because “many
young males wear dark clothing.” (Appellant’s brief at 14.) Appellant also
takes issue with the Commonwealth’s shoe-print evidence because “many
young men wear this type of shoe.” (Id. at 15.) Appellate courts do not
reweigh evidence or substitute their judgment for that of the fact-finder. See,
e.g., Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2016).


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




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