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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                        :
ALEX EDDIE RIVERA,                      :         No. 838 WDA 2019
                                        :
                        Appellant       :


      Appeal from the Judgment of Sentence Entered January 8, 2019,
              in the Court of Common Pleas of Cambria County
              Criminal Division at No. CP-11-CR-0000407-2018


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 10, 2020

      Alex Eddie Rivera appeals from the January 8, 2019 judgment of

sentence entered by the Court of Common Pleas of Cambria County following

his conviction of two counts each of theft by unlawful taking — movable

property, receiving stolen property, and recklessly endangering another

person (“REAP”) and one count each of robbery and terroristic threats.1 After

careful review, we affirm.

      The record reflects the following factual history: On January 23, 2018,

appellant knocked on a screen door leading into a residence rented by

Tyler Carrier and Keith Seabolt.    Mr. Seabolt admitted appellant into the

residence.   Several minutes after he entered the residence, appellant


1 18 Pa.C.S.A. §§ 3921(a), 3925(a), 2705, 3701(a)(1), and 2706(a)(1),
respectively.
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appeared to make a gesture that could be seen through the screen door. After

appellant made the gesture, two men wearing ski masks—both of which were

carrying weapons—entered the residence.             The record further reflects that

appellant and one of his co-conspirators took cell phones, marijuana, money,

and a handgun belonging to Mr. Seabolt.

        The trial court set forth the following procedural history:

              On November 27, 2018, a two-day jury trial took place
              before [the trial court] where [appellant] represented
              himself pro se and was convicted of [the
              aforementioned      offenses]    that   occurred    on
              January 23, 2018. . . . [Appellant] was sentenced by
              [the trial court] on January 8, 2019 to a mandatory
              term of incarceration of 10-20 years in the state
              system for robbery [], pursuant to 42 Pa.C.S.A.
              [§] 9714(a). [Appellant] timely filed post-sentence
              motions on January 17, 2019.

Trial court opinion, 5/7/19 at 1-2 (extraneous capitalization omitted).

        The trial court denied appellant’s post-sentence motions on May 7,

2019.       Appellant   filed   a   timely    notice      of   appeal.     Pursuant   to

Pa.R.A.P. 1925(b), the trial court ordered appellant to file a concise statement

of errors complained of on appeal and appellant timely complied. In lieu of a

Pa.R.A.P.    1925(a)    opinion,    the   trial   court    relies   upon   the   opinion

accompanying its May 7, 2019 order denying appellant’s post-sentence

motions.

        Appellant raises the following issues for our review:

              1.    [A]ppellant submits that his conviction for the
                    following counts[:] (Count 1) robbery (F1);
                    [(]Count 2) receiving stolen property (F2);


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                  (Count 3) theft by unlawful taking – movable
                  property (F2); (Count 4) theft by unlawful
                  taking – movable property (M1); (Count 6)
                  terroristic threats (M1); (Count 7) terroristic
                  threats (M1); (Count 8) receiving stolen
                  property     (M1);   (Count   10)   recklessly
                  endangering another person (M2); and
                  (Count 11) [REAP] (M2), was [sic] against the
                  weight and sufficiency of the evidence as
                  presented by the Commonwealth at trial.

            2.    [A]ppellant respectfully submits that the trial
                  court erred in denying his pre-trial motion
                  in limine in regards to the alleged firearm
                  belonging to one of the alleged victims.

            3.    [A]ppellant respectfully submits that the trial
                  court erred in denying his post-sentence motion
                  in regards to after-discovered evidence which
                  contradicted information provided to him in
                  pre-trial discovery by the Commonwealth.

Appellant’s brief at 5 (extraneous capitalization omitted).

      In his first issue, appellant blends challenges of the sufficiency and

weight of the evidence.    Our supreme court has explained the difference

between the two distinct grounds for appealing a conviction:

            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


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            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).

            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 []. An allegation that the verdict is against
            the weight of the evidence is addressed to the
            discretion of the trial court. Commonwealth v.
            Brown, [] 648 A.2d 1177 ([Pa.] 1994). 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.
            Thompson, supra. 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.” Id.

Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (footnote

omitted).


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      In his argument on this issue, appellant challenges witness credibility.

(See appellant’s brief at 16-18.) It is well settled that challenges relating to

witness credibility are weight of the evidence challenges, rather than

sufficiency challenges. See e.g. Commonwealth v. Barker, 70 A.3d 849,

855 (Pa.Super. 2013) (en banc), appeal denied, 87 A.3d 814 (Pa. 2014);

abrogated on other grounds, Nardone v. Com., Dept. of Transp.,

Bureau of Driver Licensing, 130 A.3d 738 (Pa. 2015). Put another way,

because appellant’s sufficiency of the evidence claim solely attacks witness

credibility, his sufficiency of the evidence claim is actually a weight of the

evidence claim, and we shall proceed to review this issue as such.

      Specifically, appellant, “emphasize[s] that there were numerous

inconsistencies set forth by the Commonwealth’s witnesses which would

require the trial court to set aside appellant’s conviction as his conviction []

does indeed shock one’s conscience regarding fairness and justice.”

(Appellant’s brief at 18 (extraneous capitalization omitted, emphasis in

original).)

      Here, appellant extends an invitation for us to reassess the jury’s

credibility determinations in his favor.   This is an invitation that we must

decline.      Because we cannot substitute the jury’s judgment on witness

credibility with our own, we conclude that the trial court did not abuse its

discretion when it denied appellant’s weight of the evidence challenge.




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      In his second issue, appellant argues that the trial court erred when it

denied his motion in limine in regards to a firearm belonging to Mr. Seabolt,

that appellant is alleged to have stolen. (Appellant’s brief at 19.) Specifically,

appellant contends that,

            the testimony and evidence presented by the
            Commonwealth at the November 20, 2018 argument
            on his pre-trial motion in limine was contradicted
            during his trial on the first day as it turned out that
            the gun box the Commonwealth originally presented
            as being the gun box containing the gun belonging to
            the alleged victim, was actually the gun box registered
            for a different gun belonging to the alleged victim’s
            [grand]father.

Id. (extraneous capitalization omitted).

            When reviewing the denial of a motion in limine, we
            apply an evidentiary abuse of discretion standard of
            review. See Commonwealth v. Zugay, 745 A.2d
            639 (Pa.[Super.] 2000) (explaining that because a
            motion in limine is a procedure for obtaining a ruling
            on the admissibility of evidence prior to trial, which is
            similar to ruling on a motion to suppress evidence, our
            standard of review for a motion in limine is the same
            of that of a motion to suppress). The admission of
            evidence is committed to the sound discretion of the
            trial court and our review is for an abuse of discretion.

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018), appeal

denied, 197 A.3d 1180 (Pa. 2018), quoting Commonwealth v. Stokes, 78

A.3d 644, 654 (Pa.Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014)

(some citations omitted).     This court has further stated that in order to

constitute reversible error, “an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” Commonwealth



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v. Schley, 136 A.3d 511, 515 (Pa.Super. 2016), quoting Commonwealth v.

Lopez, 57 A.3d 74, 81 (Pa.Super. 2012) (citation omitted).

      Here, we find that appellant has not proven that the trial court’s denial

of his motion in limine was harmful and prejudicial. To the contrary, as noted

by the Commonwealth, the admission of the gun box served to highlight that

Mr. Seabolt did not initially provide accurate information to the police. (See

Commonwealth’s brief at 8.)     Indeed, Mr. Seabolt testified at trial that he

mistakenly provided a gun box to the police that did not match the serial

number of the gun allegedly stolen.        (Notes of testimony, 11/26/18 at

112-113.) Accordingly, we find that appellant was not prejudiced by the trial

court’s denial of his motion in limine, therefore, appellant’s second issue is

without merit.

      In his final issue, appellant contends that the trial court erred when it

refused to grant him a new trial “as after-discovered evidence contradicted

information provided to him in pre-trial discovery by the Commonwealth.”

(Appellant’s brief at 27.)

      Our supreme court has held the following pertaining to after-discovered

evidence:

            After-discovered evidence is the basis for a new trial
            when it: 1) has been discovered after the trial and
            could not have been obtained at or prior to the
            conclusion of trial by the exercise of reasonable
            diligence; 2) is not merely corroborative or
            cumulative; 3) will not be used solely for impeaching
            the credibility of a witness; and 4) is of such nature
            and character that a new verdict will likely result if a


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              new trial is granted. Commonwealth v. Boyle, []
              625 A.2d 616, 622 ([Pa.] 1993); Commonwealth v.
              Smith, [] 540 A.2d 246, 263 ([Pa.] 1988).

Commonwealth           v.   Chamberlain,     30   A.3d    381,   414   (Pa.   2011),

cert. denied sub nom. Chamberlain v. Pennsylvania, 566 U.S. 986

(2012).

      Here, appellant avers that following trial, he learned of two crimen falsi

convictions that Mr. Seabolt had in Virginia.2            (Appellant’s brief at 27.)

Appellant further avers that in pre-trial discovery, the Commonwealth

maintained that Mr. Seabolt did not have a criminal record based on a search

of Pennsylvania criminal history files. (Id.)

      Pursuant    to    the   Pennsylvania   Rules   of    Evidence,   evidence   of

crimen falsi convictions must be admitted for the purpose of attacking

the credibility of a witness. Pa.R.E. 609(a); see also Commonwealth v.

Foreman, 55 A.3d 532, 538 (Pa.Super. 2012) (Wecht, J., concurring) (stating

that crimen falsi evidence “can be admitted only for impeachment

purposes”).

      In his brief, appellant contends that in addition to impeaching

Mr. Seabolt with evidence of his crimen falsi convictions, appellant intended

to use this evidence “in conjunction with [his] defense as it pertained to the

existence (or not) of the alleged firearm which was stolen.” (Appellant’s brief




2 Appellant maintains that Mr. Seabolt pleaded guilty to identity theft and
“credit card” in 2010 and 2011, respectively. (Appellant’s brief at 27.)


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at 29 (brackets added; parentheses in original).) We find that appellant has

not established that he intended to use this evidence for any purpose other

than impeaching Mr. Seabolt’s credibility. Accordingly, this evidence cannot

be the basis for a new trial, and appellant’s third issue is without merit.

Chamberlain, 30 A.3d at 414.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




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