J-S01043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

AKEEM GRAHAM

                            Appellant                No. 3109 EDA 2014


              Appeal from the Judgment of Sentence June 6, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002343-2014


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED JANUARY 13, 2016

        Appellant, Akeem Graham, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial conviction for criminal trespass.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On January 28, 2014, Philadelphia Police Officers Schmidt and Latorre

responded to a report of a burglary in progress at 5648 Pentridge Street.

Upon arrival, Officer Schmidt heard voices and the sound of metal hitting

concrete coming from the basement of the vacant home.          He announced

himself as a police officer as he entered the basement, at which time he saw

Appellant and another male flee from the property. Officer Schmidt reported
____________________________________________


1
    18 Pa.C.S.A. § 3503 (a)(1)(ii).
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over the police radio that two men were running away from the building and

stated one suspect was wearing a gray hoodie.       The officer recovered a

crowbar, bolt cutters, and several cut copper pipes from the basement.

Meanwhile, Officer Latorre observed Appellant running from the building and

apprehended him after a short pursuit.    Appellant wore a blue sweatshirt

and blue jeans. After Officer Latorre apprehended Appellant, Officer Schmidt

identified Appellant as one of the men he had seen in the basement.

     The real estate manager of the property testified he conducted a

weekly inspection of the home to ensure it remained locked and secure.

When he visited the property the day before Appellant’s arrest, both doors to

the home were locked.     Following the incident, the manager visited the

property and observed that someone had forced open the back door and

that copper piping in the basement was disconnected.

     On March 10, 2014, the Commonwealth filed a criminal information

charging Appellant with multiple offenses, including criminal trespass.

Following a bench trial on May 29, 2014, the court convicted Appellant of

criminal trespass and acquitted him of all other charges.         The court

sentenced Appellant to two years’ probation, on June 6, 2014.      Appellant

timely filed a post-sentence motion on June 13, 2014. On October 14, 2014,

the motion was denied by operation of law.       Appellant filed a notice of

appeal on November 4, 2014. The court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)


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on November 6, 2014, and Appellant timely complied.

      Appellant raises the following issue for our review:

         WAS NOT THE VERDICT AGAINST THE WEIGHT OF THE
         EVIDENCE WHERE THE NUMBER AND DEGREE OF
         INCONSISTENCIES IN THE OFFICERS’ TESTIMONY CAST
         SUCH SERIOUS DOUBT UPON THE VALIDITY OF THE
         DEFENDANT’S CONVICTION THAT HIS CONVICTION
         SHOCKS THE CONSCIENCE?

(Appellant’s Brief at 3).

      Appellant argues Officer Schmidt’s communications over his police

radio failed to show he was actually in the basement at the same time as the

two suspects.     Appellant contends Officer Schmidt’s radio transmission

giving a description of one of the suspects contradicted his later testimony

that he saw Appellant fleeing the property.       Appellant maintains Officer

Schmidt’s only description over the radio was of a man wearing a gray

hoodie, and Appellant was wearing a blue sweatshirt and blue jeans when

Officer Latorre arrested him.    Appellant also claims Officer Latorre gave

inconsistent testimony about his location during the incident and could not

have seen two men fleeing the property from that position. Appellant avers

Officer Latorre lost eye contact with the suspect he was chasing and

mistakenly arrested Appellant instead. Appellant asserts his arrest occurred

as he was returning to his home, located on the same block where Officer

Latorre stopped him. Appellant concludes the officers’ testimony at trial was

so riddled with inconsistencies as to be against the weight of the evidence.

We disagree.

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      The following principles apply to our review of a weight of the evidence

claim:

              The weight of the evidence is exclusively for the
              finder of fact who is free to believe all, part, or none
              of the evidence and to determine the credibility of
              the witnesses. An appellate court cannot substitute
              its judgment for that of the finder of fact. Thus, we
              may only reverse the…verdict if it is so contrary to
              the evidence as to shock one’s sense of justice.

            Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
            666, 672-73 (1999). Moreover, where the trial court has
            ruled on the weight claim below, an appellate court’s role
            is not to consider the underlying question of whether the
            verdict is against the weight of the evidence. Rather,
            appellate review is limited to whether the trial court
            palpably abused its discretion in ruling on the weight
            claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted). “A weight of the evidence claim concedes

that the evidence is sufficient to sustain the verdict, but seeks a new trial on

the ground that the evidence was so one-sided or so weighted in favor of

acquittal     that   a   guilty   verdict   shocks   one’s   sense     of   justice.”

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013),

cert. denied, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Daniel D.

McCaffery, we conclude Appellant’s issue merits no relief.           The trial court

opinion comprehensively discusses and properly disposes of the question


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presented. (See Trial Court Opinion, filed April 15, 2015, at 6-7) (finding:

officers responded immediately to radio call of burglary in progress; officers

saw two men inside residence flee when they became aware of police

presence; pursuing officer maintained sight of Appellant from time Appellant

fled building until officer apprehended him; undisputed evidence showed

break-in occurred on premises, and Appellant did not have permission to be

inside building; minor inconsistencies between officers’ testimony at trial and

content of radio broadcasts were de minimis, where court found credible

officers’ testimony    that Appellant   was individual who     fled property;

conviction on charge of criminal trespass was not so contrary to weight of

evidence as to shock conscience of court, and record supports court’s finding

of Appellant’s guilt). Based on the foregoing, we see no abuse of discretion

in the trial court’s assessment of Appellant’s weight of the evidence claim.

See Lyons, supra; Champney, supra. Accordingly, we affirm on the basis

of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2016




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