J-S16027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JUAN JOSE PEREZ                            :
                                               :   No. 1667 MDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence October 5, 2017
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                        No(s): CP-54-CR-0000886-2017

BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                FILED MARCH 29, 2018

       Juan Jose Perez (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of kidnapping (to inflict bodily injury on or

to terrorize the victim or another), unlawful restraint, false imprisonment,

simple assault, persons not to possess firearms, and firearms not be carried

without a license.1 We affirm.

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

On December 19, 2016, at around 7:30 a.m., William Murphy (Victim) was

driving along Gilbert Street in            Shenandoah,   Pennsylvania,   when he

encountered Appellant, Ramon Delvalle (Delvalle) and Alnaldo Perez-

____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2901(a)(3), 2902(a)(1), 2903(a), 2701(a), 6105(a), and
6106(a).
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Rodriguez (Perez-Rodriguez), who were on foot. Victim had previously met

Appellant on one or two occasions because Appellant worked in the barbershop

owned by Victim’s uncle. During these prior interactions, Victim and Appellant

engaged in casual conversation and Appellant had offered to cut Victim’s hair

if he ever needed a haircut. Victim was unfamiliar with Delvalle and Perez-

Rodriguez.

      Upon encountering Appellant, Delvalle, and Perez-Rodriguez, Appellant

asked Victim if he needed a haircut, to which Victim responded, “I’ll let you

know.” N.T., 8/24/17, at 30. Appellant then told Victim that the three men

needed a ride. Although Victim never agreed to give them a ride, the three

men entered Victim’s vehicle and Appellant forced him at gunpoint to drive

them to Victim’s home. Appellant, along with Delvalle and Perez-Rodriguez,

forced Victim into his home at gunpoint and held him there for approximately

nine hours. Victim’s fiancé and children were not home when Victim and the

three men arrived.

      Appellant, Delvalle, and Perez-Rodriguez proceeded to hold Victim

captive in a closet. Although the record is not entirely clear, it was Victim’s

understanding that Appellant, Delvalle, and Perez-Rodriguez were using

Victim to hide out in his house while the local police conducted drug raids

throughout Shenandoah.      Throughout the day, Victim observed Appellant

looking out the window to check for the presence of police. At one point while




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they were at Victim’s house, Appellant made Victim strip naked because he

believed Appellant was wearing a wire and working undercover for the police.

      When Victim’s fiancé arrived home from work, Appellant, Delvalle, and

Perez-Rodriguez made Victim drive them to Reading, Pennsylvania. Victim’s

fiancé was unware that the three men were forcing Victim to do so at gunpoint.

While driving to Reading, Appellant, Delvalle, and Perez-Rodriguez taunted

Victim about shooting and killing him with the gun.       When they arrived in

Reading, Victim and Appellant noticed that a woman in a purple car was

following Victim’s vehicle.    At this time, Appellant, Delvalle, and Perez-

Rodriguez fled Victim’s car. Victim immediately sped away, returned to his

home in Shenandoah, and contacted the police.              Victim testified that

throughout the entire ordeal, he felt certain that he was going to die.

      On March 11, 2017, Appellant was arrested and charged with kidnapping

to facilitate the commission of a felony or flight thereafter, criminal conspiracy

to commit kidnapping, corruption of minors, kidnapping to inflict bodily injury

on or to terrorize the victim or another, unlawful restrain, false imprisonment,

simple assault, persons not to possess firearms, and firearms not be carried

without a license.      On August 24, 2017, following a jury trial, the

Commonwealth withdrew the charge for kidnapping to facilitate commission

of a felony or flight thereafter. The jury found Appellant not guilty of criminal

conspiracy to commit kidnapping and corruption of minors, but guilty of all

remaining charges.


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      On October 5, 2017, the trial court sentenced Appellant to an aggregate

term of 12½ to 25 years of incarceration. On October 24, 2017, Appellant

timely appealed to this Court. Both Appellant and the trial court have complied

with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Appellant presents the following issues for review:

      1.    Whether the [t]rial [c]ourt committed reversible error when
      it permitted the case to go to the jury, when the Commonwealth
      failed to produce[] sufficient evidence on the charges of
      kidnapping, persons not to possess firearms and firearms not to
      be carried without a license.

      2.     Whether the [t]rial [c]ourt committed reversible error when
      during the trial testimony of [O]fficer David Stamets, the [t]rial
      [c]ourt failed to provide a corrective instruction to the jury when
      [O]fficer Stamets stated that [] Appellant was known to everybody
      as “Montana,” his nickname, which was unduly prejudicial to []
      Appellant.

Appellant’s Brief at 5.

      First, Appellant argues that the evidence was insufficient to sustain his

convictions. Specifically, Appellant asserts that Victim’s testimony was too

inconsistent and unreliable to justify a conviction on any of the charges. For

example, Appellant points out that when Victim testified at his preliminary

hearing, he stated that his kids and fiancé were home throughout the ordeal,

whereas at Appellant’s trial, Victim testified that they were not home.

Appellant also contends that Victim’s testimony at trial was peculiar in that his

fiancé observed Victim leaving their home with three strange men when she

returned home from work, but did not call the police.




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      These arguments challenge the weight of the evidence, not its

sufficiency.   See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.

2014) (“An argument regarding the credibility of a witness’[] testimony goes

to the weight of the evidence, not the sufficiency of the evidence.”);

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(“variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence”) (citations omitted). The differences between a

challenge to the weight and a challenge to the sufficiency of the evidence, as

our Supreme Court explained them in Commonwealth v. Widmer, 744 A.2d

745, 751-52 (Pa. 2000), are as follows:

      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, Tibbs v. Florida,
      457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604
      (Pa. 1983), whereas a claim challenging the weight of the
      evidence if granted would permit a second trial. Id.

      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. Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993).
      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. Commonwealth v. Santana, 333 A.2d 876
      (Pa. 1975). 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. Commonwealth v.
      Chambers, 599 A.2d 630 (Pa. 1991).


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      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. Commonwealth v. Whiteman,
      485 A.2d 459 (Pa. Super. 1984). Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. Tibbs, 457 U.S. at 38 n.11.

Widmer, 744 A.2d at 751-52 (citations modified).          “A true weight of the

evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions which evidence is to be believed.” Commonwealth v.

Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quoting Commonwealth v.

Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005)).

      Our Supreme Court has held that an “appellant’s challenge to the

sufficiency of the evidence must fail[,]” where an appellant phrases an issue

as a challenge to the sufficiency of the evidence, but the argument that

appellant provides goes to the weight of the evidence. Commonwealth v.

Small, 741 A.2d 666, 672 (Pa. 1999); see also Commonwealth v. Gibbs,

981 A.2d 274, 281-82 (Pa. Super. 2009) (finding that a sufficiency claim

raising weight of the evidence arguments would be dismissed). Therefore,

Appellant is not entitled to any relief on his challenge to the sufficiency of the

evidence of his convictions.

      Moreover, an appellant must preserve a challenge to the weight of the

evidence before the trial court either at sentencing or in a post-sentence

motion. Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478,

490 (Pa. Super. 2014). Here, Appellant failed to properly preserve a challenge

to the weight of the evidence through an oral or written post-sentence motion.

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Thus, even had Appellant properly raised and argued a challenge to the weight

of the evidence, he still would not be entitled to relief.

      Second, Appellant argues that he was “unduly prejudiced” by the

testimony of Officer David Stamets of the Shenandoah Police Department

(“Officer Stamets”), who interviewed Victim after he reported his kidnapping

to the police. Specifically, Appellant takes issue with Officer Stamets referring

to him as “Montana,” his nickname. Appellant maintains that the trial court

should have offered a curative instruction after it sustained his objection to

the officer’s use of his nickname.

      We conclude that Appellant has failed to preserve this issue for appellate

review. At trial, the trial court sustained defense counsel’s objection to Officer

Stamets referring to Appellant as “Montana.”         N.T., 8/24/17, at 105-06.

Defense counsel, however, failed to request a mistrial or curative instruction.

Id.   Because Appellant did not specifically request a mistrial or a curative

instruction, his argument is waived on appeal.               Commonwealth v.

Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013) (noting that “[e]ven where a

defendant objects to specific conduct, the failure to request a remedy such as

a mistrial or curative instruction is sufficient to constitute waiver”); see also

Commonwealth v. Brown, 134 A.3d 1097, 1107 (Pa. Super. 2016), appeal

denied, 145 A.3d 161 (Pa. 2016) (same).

      Moreover, even had Appellant properly preserved this issue, it is entirely

unclear, either from the certified record or his appellate brief, in what manner


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he contends that he was prejudiced by Officer Staments referring to him as

“Montana.” Appellant’s brief provides no explanation relating to his assertion

of prejudice.    Accordingly, Appellant is not entitled to relief on his second

issue.

         Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/29/2018




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