J-S51042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                              Appellee

                        v.

MATTHEW CHARLES NAYLOR,

                              Appellant                 No. 679 EDA 2015


              Appeal from the Judgment of Sentence July 9, 2014
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0004121-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED SEPTEMBER 09, 2015

        Appellant, Matthew Charles Naylor, appeals, nunc pro tunc, from the

judgment of sentence entered on July 9, 2014, following his jury conviction

of simple assault.1          On appeal, Appellant challenges the weight of the

evidence. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s opinion of April 21, 2015 and our independent review of

the certified record.

             On August 22, 2013, Ryan Palmer, a young man disabled
        as a result of a brain injury suffered in March, 2006 in an
        automobile accident, went to visit a friend at the friend’s
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2701(a)(1).
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     apartment in the Chester Building in Phoenixville, Pennsylvania.
     Also visiting at the apartment were [Appellant] and another
     individual. During conversation, [Appellant] told the others that
     he was short on cash and needed money for food. Mr. Palmer
     felt bad for [Appellant] because he did not have any money for
     food and decided to do [Appellant] a favor and loan him $20 to
     buy food. [Appellant] told Mr. Palmer that he would repay him
     later that night when he got some money. Later that night,
     [Appellant] claimed that he couldn’t find his money, and asked
     Mr. Palmer if he could repay him the next day.

            The next day, Mr. Palmer returned to the apartment to
     collect his money from [Appellant].         Mr. Palmer asked
     [Appellant] for the $20 he owed him from the day before.
     [Appellant] told him he did not have the money and told Mr.
     Palmer he was calling pawn shops in order to get the money.
     [Appellant] told Mr. Palmer he would pay him the next day and
     give him an additional $10; Mr. Palmer agreed.

           At that point, Mr. Palmer turned around to leave, and
     [Appellant] started to walk away toward the stairs. [Appellant]
     then turned around and approached Mr. Palmer. Mr. Palmer
     believed [Appellant] was coming back to thank him or apologize.
     As Mr. Palmer stood with his hands by his side, [Appellant]
     suddenly punched him with a closed fist, hitting him in the face
     near his left eye.

           Mr. Palmer testified that he did not want to fight and left
     the building, despite [Appellant’s] taunts, standing by the
     building door and yelling at him to “come back and handle it like
     a real man.” Mr. Palmer testified that he did not go back inside
     because he is only 5 feet 8 ½ inches tall and weighs 120 pounds
     and [Appellant] is much bigger.

           Mr. Palmer left the apartment building and went to the
     police station about a block away. The doors were locked and
     the window was closed, so he went home and called the police.
     When Mr. Palmer called the police from his home, they told him
     to return to the police station. Mr. Palmer did not have a car, so
     [he] walked approximately 2 ½ blocks back to the police station.

          When Mr. Palmer arrived at the police station, Officer Brad
     Dobry was there to let him in. Officer Dobry took photos of Mr.
     Palmer’s face.  The photos show Mr. Palmer’s swollen and

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      bruised left eye. Mr. Palmer testified that he did not seek
      medical treatment, the swelling lasted a couple of days and his
      face was bruised for about a week. Mr. Palmer provided Officer
      Dobry [with] a written statement of the events that transpired
      on August 23, 2013.

            Officer Dobry testified that he took the photos and the
      written statement given by Mr. Palmer regarding the incident.
      Officer Dobry did not conduct any interviews with regard to this
      incident because Mr. Palmer told him there were no witnesses.
      Officer Dobry testified that he did not speak with [Appellant] on
      August 23, 2013. Officer Dobry testified that he filed charges
      against [Appellant] based upon Mr. Palmer’s written statement.

(Trial Court Opinion, 4/21/15, at 2-3) (record citations omitted).

      On May 13, 2014, a jury convicted Appellant of simple assault.        On

July 9, 2014, the trial court sentenced Appellant to a term of incarceration of

not less than one nor more than two years and a $500 fine. Appellant did

not file any post-sentence motions and did not file a direct appeal.

      On November 18, 2014, Appellant, acting pro se, filed a petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, seeking restoration of his direct appeal rights.     On November 25,

2014, the PCRA court appointed counsel. On January 20, 2015, counsel filed

an amended PCRA petition. On February 13, 2015, the trial court granted

the PCRA petition and restored Appellant’s direct appeal rights.

      Appellant filed the instant appeal on March 6, 2015.         On March 10,

2015, the court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed his Rule




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1925(b) statement on March 18, 2015. On April 21, 2015, the court issued

an opinion. See Pa.R.A.P. 1925(a).

     On appeal, Appellant raises the following question for our review:

“[w]hether the verdict of guilty for the crimes charged against [Appellant]

was against the weight of the evidence presented?” (Appellant’s Brief, at 3).

     On appeal, Appellant challenges the weight of the evidence. (See id.

at 5-6). Prior to reaching the merits of Appellant’s claim, we must decide if

it is properly before us.   Pennsylvania Rule of Appellate Procedure 1925

provides that issues that are not included in the Rule 1925(b) statement or

raised in accordance with Rule 1925(b)(4) are waived.         See Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998), superseded by rule on other grounds as stated in Commonwealth v.

Burton, 973 A.2d 428, 430 (Pa. Super. 2009). Further, an appellant cannot

raise new legal theories for the first time on appeal. See Pa.R.A.P. 302(a);

Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (en banc),

appeal denied, 57 A.3d 70 (Pa. 2012).

     Here, in his Rule 1925(b) statement, Appellant alleged that the

evidence was insufficient to sustain his conviction. (See Matters Complained

of on Appeal Filed [sic] in accordance with Pa.R.A.P. § [sic] 1925[b],

3/18/15, at 1).   Thus, because Appellant did not raise his weight of the

evidence claim in his Rule 1925(b) statement and because he is raising it for




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the first time on appeal, he waived it. See Pa.R.A.P. 1925(b)(4)(vii); see

also Pa.R.A.P. 302(a).

      Moreover, even if Appellant had raised the issue in his Rule 1925(b)

statement, he would still have waived it. This Court cannot consider, in the

first instance, a claim that the verdict is against the weight of the evidence.

See Commonwealth v. Brown, 648 A.2d 1177, 1189-91 (Pa. 1994)

(weight of evidence claims must first be presented to the trial court);

Commonwealth v. O’Black, 897 A.2d 1234, 1239-40 (Pa. Super. 2006)

(same). Here, Appellant did not make an oral motion on the record prior to

sentencing and also did not file post-sentence motions raising this issue.

See Pa.R.Crim.P. 607. Thus, he did not preserve the issue for our review.

See Commonwealth v. Burkett, 830 A.2d 1034 (Pa. Super. 2003).

      Accordingly, because Appellant waived his weight of the evidence

claim, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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