J-S01032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANIEL JAY KERR

                            Appellant                  No. 982 WDA 2014


             Appeal from the Judgment of Sentence May 15, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0017081-2013


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

MEMORANDUM BY GANTMAN, P.J.:                        FILED JANUARY 09, 2015

        Appellant, Daniel Jay Kerr, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his bench

trial convictions for harassment and criminal mischief.1             We affirm

Appellant’s convictions but vacate the judgment of sentence and remand for

resentencing.

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

           Sherra Burley [(“Victim”)] testified that she was dating
           [Appellant] during the month of November, 2013. She
           testified that she was with [Appellant] on November 3,
           2013, between 2:00 a.m. and 3:00 a.m. outside a bar.
           She testified that she had two or three beers prior to
           meeting [Appellant]. She explained that [Appellant] was
           upset with her because she was out late. He grabbed her
____________________________________________


1
    18 Pa.C.S.A. §§ 2709(a)(1), 3304, respectively.
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         hand and began pulling her down the street. She stated
         that she was staggering because she was wearing high
         heels and he was pulling her down the street.            She
         testified that she then tried to make a phone call to find a
         ride home.      While she was trying to make the call,
         [Appellant] “snatched” the phone from her hand.
         [Appellant] grabbed the phone and threw it to the ground
         and broke the phone. [Victim] picked up the phone.
         [Appellant] grabbed it again and threw it to the ground
         again. The phone was completely shattered. At that
         point, [Appellant] pushed [Victim] “real hard” at her
         collarbone area. She fell back to the ground and hit her
         head. She got up and tried to walk away from [Appellant].
         [Appellant] followed her for approximately 50 feet.
         [Victim] then sat down on the curb where she and
         [Appellant] exchanged unpleasantries. [Victim] testified
         that she was “scared.” [Appellant] told her to be quiet for
         fear that someone “would call the cops.” At that point,
         [Appellant] grabbed her shoulder and “kneed” her in the
         stomach. He then struck her with an open hand in the
         face. She testified that she was in pain and she was
         bleeding. [Appellant] spit in her face. [Victim] eventually
         walked to [Appellant’s] grandmother’s house where she
         telephoned the police.

         City of Pittsburgh Police Officer Gregory McGee testified
         that he responded to the scene of the incident. Officer
         McGee testified that [Victim] was upset and afraid of
         [Appellant]. Officer McGee noticed redness and swelling
         on the left side of [Victim’s] face.      Officer McGee
         transported [Victim] to her apartment. Officer McGee
         testified that he spent approximately 30 minutes with
         [Victim] and she did not appear intoxicated nor did she
         emit any odor of alcohol.

(Trial Court Opinion, filed July 29, 2014, at 1-2).

      Following a bench trial, the court convicted Appellant of the summary

offenses of harassment and criminal mischief. On May 15, 2014, the court

sentenced Appellant to ninety (90) days’ imprisonment for the summary

harassment conviction. The court sentenced Appellant to a consecutive term

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of ninety (90) days’ probation for the summary criminal mischief conviction.

Appellant did not file post-sentence motions.

      Appellant timely filed a notice of appeal on Monday, June 16, 2014.

That same day, the court ordered Appellant to file a concise statement of

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

timely filed a Rule 1925(b) statement on July 7, 2014.

      Appellant raises one issue for our review:

         WAS THE EVIDENCE INSUFFICIENT TO CONVICT
         [APPELLANT] OF HARASSMENT, IN VIOLATION OF 18
         PA.C.S.A. § 2709(a)(1), WHERE [VICTIM’S] TESTIMONY
         WAS INHERENTLY UNTRUSTWORTHY AND [APPELLANT]
         PRESENTED A COHERENT AND CANDID ACCOUNT OF THE
         EVENTS ON THE EVENING IN QUESTION?

(Appellant’s Brief at 5).

      On appeal, Appellant contends Victim provided an inconsistent and

inherently untrustworthy account of the incident.        Appellant emphasizes

Victim’s admission that she consumed alcohol shortly before the incident.

Appellant claims Officer McGee contradicted Victim’s testimony about her

injuries, because the officer did not observe scratches, bleeding, or bruises

to Victim’s stomach or head. Appellant also argues the incident was not as

dire as Victim’s testimony suggested, because Officer McGee did not take

Victim to apply for a protection from abuse order immediately afterward.

Likewise, Appellant notes Victim’s testimony that she was screaming and

crying during the altercation; nevertheless, Victim did not knock on any

doors in search of assistance, and no one attempted to help her. In light of

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the purported inconsistencies in Victim’s testimony, Appellant asserts the

court should have relied on Appellant’s own rendition of the underlying facts.

Significantly, Appellant reiterates his trial testimony that he did not kick or

strike Victim. Appellant concludes the Commonwealth presented insufficient

evidence to support his harassment conviction. We cannot agree.

      Initially, we observe:

         A challenge to the sufficiency of the evidence is entirely
         distinct from a challenge to the weight of the evidence.

            The distinction between these two challenges is
            critical. A claim challenging the sufficiency of the
            evidence, if granted, would preclude retrial under the
            double jeopardy provisions of the Fifth Amendment
            to the United States Constitution, and Article I,
            Section 10 of the Pennsylvania Constitution, whereas
            a claim challenging the weight of the evidence if
            granted would permit a second trial.

            A claim challenging the sufficiency of the evidence is
            a question of law. Evidence will be deemed sufficient
            to support the verdict when it establishes each
            material element of the crime charged and the
            commission thereof by the accused, beyond a
            reasonable doubt. Where the evidence offered to
            support the verdict is in contradiction to the physical
            facts, in contravention to human experience and the
            laws of nature, then the evidence is insufficient as a
            matter of law. When reviewing a sufficiency claim
            the court is required to view the evidence in the light
            most favorable to the verdict winner giving the
            prosecution the benefit of all reasonable inferences
            to be drawn from the evidence.

            A motion for new trial on the grounds that the
            verdict is contrary to the weight of the evidence,
            concedes that there is sufficient evidence to sustain
            the verdict.    Thus, the trial court is under no
            obligation to view the evidence in the light most

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                favorable to the verdict winner. An allegation that
                the verdict is against the weight of the evidence is
                addressed to the discretion of the trial court. A new
                trial should not be granted because of a mere conflict
                in the testimony or because the judge on the same
                facts would have arrived at a different conclusion. A
                trial judge must do more than reassess the
                credibility of the witnesses and allege that he would
                not have assented to the verdict if he were a juror.
                Trial judges, in reviewing a claim that the verdict is
                against the weight of the evidence do not sit as the
                thirteenth juror. Rather, the role of the trial judge is
                to determine that notwithstanding all the facts,
                certain facts are so clearly of greater weight that to
                ignore them or to give them equal weight with all the
                facts is to deny justice.

Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa.Super. 2004) (quoting

Commonwealth v. Widmer, 560 Pa. 308, 318-20, 744 A.2d 745, 751-52

(2000)).    See also Commonwealth v. Wilson, 825 A.2d 710 (Pa.Super.

2003) (holding sufficiency of evidence review does not include assessment of

credibility of witness testimony; review of credibility of witness testimony

constitutes weight of evidence challenge).

      Generally, an appellant must preserve a weight of the evidence

challenge by filing a motion in the trial court:

           Rule 607. Challenges to the Weight of the Evidence

              (A) A claim that the verdict was against the weight of
           the evidence shall be raised 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

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            (3)   in a post-sentence motion.

Pa.R.Crim.P. 607(A). “As noted in the comment to Rule 607, 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.” Commonwealth v.

Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal denied, 581 Pa.

672, 863 A.2d 1143 (2004) (internal quotation marks omitted).           A claim

challenging the weight of the evidence generally cannot be raised for the

first time in a Rule 1925(b) statement. Commonwealth v. Burkett, 830

A.2d 1034 (Pa.Super. 2003). An appellant’s failure to avail himself of any of

the prescribed methods for presenting a weight of the evidence issue to the

trial court constitutes waiver of that claim, even if the trial court responds to

the claim in its Rule 1925(a) opinion. Id.

      Additionally, the Pennsylvania Crimes Code defines the offense of

harassment as follows:

         § 2709. Harassment

            (a) Offense defined.—A person commits the crime
         of harassment when, with intent to harass, annoy or alarm
         another, the person:

               (1) strikes, shoves, kicks or otherwise subjects the
            other person to physical contact, or attempts or
            threatens to do the same;

                                  *    *     *

18 Pa.C.S.A. § 2709(a)(1).




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      Instantly, Appellant attacks the credibility of Victim’s testimony.   As

such, Appellant actually challenges the weight of the evidence supporting

the harassment conviction.     See Smith, supra; Wilson, supra.         Here,

Appellant failed to challenge the weight of the evidence before sentencing or

in a post-sentence motion. Instead, Appellant raised his claim for the first

time in his Rule 1925(b) statement. Therefore, Appellant’s challenge to the

weight of the evidence is waived. See Gillard, supra; Pa.R.Crim.P. 607.

      Even if Appellant had properly preserved his weight challenge, no relief

is due. The trial court evaluated Appellant’s claim as follows:

         [The trial court] determined that the testimony of [Victim]
         and Officer McGee was credible. [The trial court] did not
         find that [Appellant’s] testimony was credible.         The
         credible testimony of [Victim] and Officer McGee
         established that [Victim] was not intoxicated at the time of
         the incident.      [Victim’s] testimony established that
         [Appellant] pushed her in the shoulder causing her to fall
         back and hit her head. Her testimony also established that
         [Appellant] “kneed” her and struck her in the face with an
         open hand. [Appellant] also spit in [Victim’s] face. Officer
         McGee’s testimony corroborated [Victim’s] testimony as
         Officer McGee testified that he observed redness and
         swelling on [Victim’s] face.       The credible evidence
         established that [Appellant] struck [Victim] in the face,
         shoved her near her collarbone and kicked (or “kneed”)
         her in the stomach with the intent to harass, annoy or
         alarm her.

(See Trial Court Opinion at 4-5.) The court credited Victim’s version of the

facts regarding the assault.   Even if properly preserved, we would see no

error in the court’s resolution of Appellant’s claim. See Commonwealth v.

Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542


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U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (explaining weight of

evidence is exclusively for finder of fact who is free to believe all, part, or

none of evidence and to determine the credibility of witnesses; appellate

court cannot substitute its judgment for that of finder of fact).

      Nevertheless, we do see in the record a problem with the legality of

Appellant’s sentence.    See Commonwealth v. Randal, 837 A.2d 1211

(Pa.Super. 2003) (en banc) (stating appellate court can raise and review

legality of sentence sua sponte); Commonwealth v. Watson, 945 A.2d

174, 178-79 (Pa.Super. 2008) (stating: “If no statutory authorization exists

for a particular sentence, that sentence is illegal and subject to correction.

An illegal sentence must be vacated”). Specifically, a flat sentence of ninety

(90) days’ imprisonment for a summary harassment conviction is illegal and

must be corrected.      See Commonwealth v. Mitchell, 986 A.2d 1241

(Pa.Super. 2009) (holding imposition of flat sentence of confinement for

summary harassment is illegal); Commonwealth v. Duda, 831 A.2d 728

(Pa.Super. 2003) (holding same).        See generally Commonwealth v.

Robinson, 7 A.3d 868 (Pa.Super. 2010) (reiterating that issue concerning

court’s power to impose given sentence implicates legality of sentence;

sentencing code requires court to impose maximum and minimum sentence

of confinement per 42 Pa.C.S.A. § 9756); Commonwealth v. Cain, 637

A.2d 656, 658-59 (Pa.Super. 1994) (stating, unless otherwise specified in

the Sentencing Code, flat sentence of confinement or one that fails to set


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minimum term violates Section 9756 of sentencing code).

      Instantly, the trial court imposed a flat sentence of ninety (90) days

incarceration for the summary harassment conviction, which is an illegal

sentence that must be corrected.          Accordingly we affirm Appellant’s

convictions but must vacate his judgment of sentence and remand for re-

sentencing.   See Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super.

1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (stating if trial

court errs in its sentence on one count in multi-count case, then all

sentences for all counts should be vacated so court can restructure its entire

sentencing scheme).

      Judgment of sentence vacated; case remanded for re-sentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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