Com. v. Cobb, C. ( 2016 )

J-S55041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CALVIN S. COBB,
Appellant No. 2285 EDA 2015
Appeal from the Judgment of Sentence March 26, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001029-2013
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 11, 2016
Appellant Calvin S. Cobb appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County on March 26,
2015, following a non-jury trial before the Honorable Chris R. Wogan and his
convictions of Aggravated Assault, Robbery, Theft by Unlawful Taking,
Receiving Stolen Property, Possession of an Instrument of a Crime (PIC),
Simple Assault and Recklessly Endangering Another Person. We affirm.
The trial court set forth the relevant facts herein as follows:
At trial, Antonio Smith testified that on November 22,
2012, around 11:30 a.m./12:00 p.m., he was walking down
Palm Street, a drug corner in Philadelphia when he encountered
[Appellant].2 [Appellant] called the victim a rat and the victim
went face -to-face with [Appellant] arguing about who was a rat.
[Appellant] swung at the victim with a closed fist and hit him on
the left side of the face; another man referred to [Appellant]
saying. "This is my [f –ing] brother," and joined in. Then, both
[Appellant] and the other male tried to pin the victim down. The
other male tried to put the victim's hoodie over the top of his
*Former Justice specially assigned to the Superior Court.
J-S55041-16
head and was punching him in the right side of his face. Then,
[Appellant] hit the victim on the left side of his face in the eye
area with a 2x4 piece of wood three or four times, splitting the
left side of the victim's face up to his ear. The other male kept
trying to pull the victim down to the ground, but the victim was
fighting with him, broke loose, ran away, and encountered a lady
at, what the victim described at trial as, "a Puerto Rican store"
who called the police. [Appellant] and the other male ran up
Palm Street. [Appellant] took $100.00, United States Currency
and the victim's cell phone from his pocket during the assault.
[Appellant] was taken to Misericordia Hospital and received
stitches to the left side of his face. The victim testified that, after
the incident, he was a level "10" for pain and his face eventually
felt numb. Two hours after the assault, Detective Dougherty took
a statement from the victim naming [Appellant] as one of the
perpetrators and detailing the assault. The victim testified to
[Appellant’s] identity and the details of the assault at a
preliminary hearing on January 24, 2013 (N.T. 12/29/14, p. 14 -
56).3
Officer Christopher Maitland testified that he responded to
the radio call for a robbery in progress that day, and he was
approached by the victim who told him he was assaulted by two
black males who took $100.00, in cash from him and a cell
phone. The victim was shaken and had bruises and cuts to the
left side of his face. The officer drove the victim around to look
for defendants, but they could not locate them. The officer then
took the victim to Southwest Detectives to be interviewed by
Detective Dougherty. Around two hours after the assault. The
victim identified [Appellant] to the Detective by photo. The
medical records were moved into evidence at trial which set out
the victim's diagnosis: head injury with concussion and facial
contusion (N.T. 12/29/14, p. 78-84).
At trial, defense counsel called Aleah Wilson who testified
that [Appellant] did not leave her house until late afternoon that
day, explaining that he never woke up and left her house before
that time period. There was testimony presented at trial that
Officer Jerry Torres from the Felony Waiver Unit at the District
Attorney's Office contacted Ms. Wilson [ ] to schedule an
interview regarding a possible alibi for defendant, but she and
her brother failed to come in on July 23, 2014. The Detective
also went to her house twice and left numerous voicemails with
no return call. Finally, there was testimony presented that on
October 19, 2013, Ms. Wilson threatened police during her own
DUI arrest that she was going to lie and tell people the officers
-2-
J-S55041-16
beat her so they would lose their badges (N.T. 12/29/14, p. 86-
107). Defense counsel also noted that the victim pled guilty to
assaulting Ms. Wilson that year and is on parole for that assault,
he has a conviction for crimen falsi, and he is a drug user. (id. at
109-110).
_______
2
[Appellant] was the current boyfriend of the victim’s son’s
mother, Aleah Wilson; [Appellant] also has a child with Ms.
Wilson.
3
The victim testified that he was hit in the face with a brick by
[Appellant] when [Appellant] and the victim’s son’s mom, Aleah
Wilson, first started dating in 2008, or 2009 (N.T. 12/29/14, p.
18-19). Ms. Wilson has been threatening to have the victim
locked up for various fabricated crimes if he continued to testify
against [Appellant] in this case. Ms. Wilson had the victim sign a
paper, even though she knows the victim can’t read well, telling
him it was to continue to get disability for her son; the paper
was actually a notarized document stating that the victim made
a false statement to police about [Appellant] and never saw
[Appellant] on the day of the incident. [Appellant] testified that
he signed only one of the two notarized papers presented in
court, the one dated August 7, 2014 (N.T. 12/29/14, p. 35-56).
Trial Court Opinion, filed 9/29/15 at 3-5.
The trial court sentenced Appellant in the mitigated range on his
Robbery and Aggravated Assault convictions. Specifically, Appellant
received forty-two (42) months to one hundred twenty (120) months in
prison to be followed by thirty-six (36) months of reporting probation for the
Robbery conviction, and one hundred-twenty (120) months of reporting
probation to run concurrently thereto on the Aggravated Assault conviction.
Appellant received a standard range sentence of thirty-six (36) months’
reporting probation on the PIC conviction. Appellant’s convictions of Theft
by Unlawful Taking, Receiving Stolen Property, Simple Assault, and
Recklessly Endangering Another Person merged for sentencing purposes.
-3-
J-S55041-16
Appellant filed a post sentence motion on March 26, 2015, wherein he
challenged the sufficiency and the weight of the evidence “for all charges.”
See Post Sentence Motion, filed 3/26/15, at ¶ 4-5. Appellant’s post
sentence motion was denied by operation of law on July 24, 2015, and
Appellant filed a timely notice of appeal. On July 29, 2015, the trial court
filed his Order directing Appellant to file a statement of matters complained
of on appeal, and on August 17, 2015, Appellant filed what he termed his
“Preliminary Concise Statement of Matters Complained of on Appeal”
wherein he raised the following issues:
1. There was insufficient evidence to support Appellant’s
convictions for Aggravated Assault, Robbery, Theft by Unlawful
Taking, Receiving Stolen Property, Possession of an Instrument
of a Crime, Simple Assault, and Recklessly Endangering Another
Person.
2. The Weight of the Evidence was against Appellant’s
convictions for Aggravated Assault, Robbery, Theft by Unlawful
Taking, Receiving Stolen Property, Possession of an Instrument
of a Crime, Simple Assault, and Recklessly Endangering Another
Person.
3. The trial court abused its discretion when it sentenced
Appellant to an aggregate sentence of 3 ½ to 10 years[’]
incarceration followed by 10 years of probation, which did not
follow the dictates of 42 Pa.C.S. § 9721(b) that requires the
court to at least consider the particular circumstances of the
offense and the character of the defendant.
Also on August 17, 2015, Appellant filed a “Preliminary Statement of
Matters Complained of on Appeal” wherein he reiterated the third issue
-4-
J-S55041-16
above.1 He attached thereto a one-page “Argument on the Merits” wherein
he posited his term of incarceration was manifestly excessive and asserted
the trial court had failed to take into account “other important factors”
including his “background, minimal record, youth, and whether [he] could be
rehabilitated” prior to sentencing. He further admitted therein that “[w]hile
[his] crime cannot be trivialized nor ignored, the sentence imposed i[s]
unreasonable and excessively, [sic] and should be vacated.”
In his brief, Appellant presents the following Statement of Questions
Involved:
I. Whether the weight of the evidence is against Appellant’s
convictions for Aggravated Assault, 18 Pa.C.S. § 2702 and
Robbery, 18 Pa.C.S. § 3701?
II. Whether the evidence was insufficient to convict Appellant
of Aggravated Assault, 18 Pa.C.S. § 2702 and Robbery, 18
Pa.C.S. § 3701?
III. Whether the trial court abused its discretion when it
sentenced Appellant to 3½-10 years[’] incarceration followed by
10 years[’] reporting probation?
Brief for Appellant at 4. For the reasons that follow, we find Appellant has
waived these issues.
The Pennsylvania Supreme Court has explained that Rule
1925 is a crucial component of the appellate process, which “is
intended to aid trial judges in identifying and focusing upon
those issues which the parties plan to raise on appeal.”
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308
____________________________________________
1
Appellant’s only edit was the substitution of “sentencing court” for “trial
court.”
-5-
J-S55041-16
(1998). “When an appellant fails adequately to identify in a
concise manner the issues sought to be pursued on appeal, the
trial court is impeded in its preparation of a legal analysis which
is pertinent to those issues.” In re Estate of Daubert, 757 A.2d
962, 963 (Pa.Super. 2000). “In other words, a Concise
Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no Concise
Statement at all.” Commonwealth v. Dowling, 778 A.2d 683,
686 (Pa.Super. 2001).
“In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient.”
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.
2013) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa.Super.2009)). “Such specificity is of particular importance in
cases where, as here, the appellant was convicted of multiple
crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.” Gibbs,
981 A.2d at 281.
In his Rule 1925(b) statement, Freeman argued only that
“[t]he evidence at trial was insufficient to sustain a conviction of
the crimes charged.” Freeman's Concise Statement, 1/28/2015,
at 1 (unnumbered). Freeman's 1925(b) statement does not
specify which element or elements of the relevant crimes, or
even which crimes, the Commonwealth failed to prove beyond a
reasonable doubt. This assertion is far too vague to warrant
meaningful appellate review. See Garland, supra. Thus,
Freeman has waived his challenge to the sufficiency of the
evidence.
Freeman also has waived his eleventh issue, wherein he
challenges the weight of the evidence. Here too, Freeman failed
to specify in his Rule 1925(b) statement which verdict or verdicts
were contrary to the weight of the evidence, and he neglected to
offer specific reasons as to why those verdicts were contrary to
the weight of the evidence. Instead, Freeman asserted only that
“[t]he verdict of the jury was against the weight of the
evidence.” Freeman's Concise Statement, 1/28/2015, at 1
(unnumbered). As explained supra, “a Concise Statement which
is too vague to allow the court to identify the issues raised on
appeal is the functional equivalent of no Concise Statement at
all.” Dowling, 778 A.2d at 686; see Commonwealth v.
Seibert, 799 A.2d 54, 62 (Pa.Super. 2002) (holding that
appellant waived his challenge to the weight of the evidence
-6-
J-S55041-16
where his 1925(b) statement merely asserted that “[t]he verdict
of the jury was against the weight of the credible evidence as to
all of the charges”).
Commonwealth v. Freeman, 128 A.3d 1231, 1247-49 (Pa. Super. 2015)
(footnote omitted).
Similarly, herein, Appellant’s Preliminary Concise Statement of Matters
Complained of on Appeal simply provides a generic assertion that the
evidence was insufficient to sustain each of the listed crimes of which he had
been convicted and that the weight of the evidence was against those
convictions. See Appellant’s “Preliminary Concise Statement of Matters
Complained of on Appeal,” filed 8/17/15, at ¶ 1-2. Appellant failed to
specify which elements of the crime(s) he was challenging in his Rule
1926(b) statement which impeded the trial court’s preparation of a cogent
legal analysis.
The trial court’s inability to conduct a meaningful review as a result of
Appellant’s failure to adequately and concisely identify the issues he sought
to pursue on appeal is evident in the fact that in his Pa.R.A.P. 1925(a)
Opinion, the trial court specifically cited only the elements of Aggravated
Assault, Robbery and PIC, yet the trial court generally concluded that under
relevant caselaw, the evidence was sufficient to prove all of Appellant’s
convictions. Trial Court Opinion, filed 9/29/15, at 6-7. Thereafter, the trial
court generally cited to caselaw wherein the evidence was found sufficient to
establish Aggravated Assault, Robbery and PIC. Id. at 7-8.
-7-
J-S55041-16
The trial court also was hampered by the vagueness of Appellant’s
Rule 1925(b) statement when considering his weight of the evidence claim.
In his Opinion, the trial court considered an argument Appellant had set
forth at trial, namely that following the event, the victim provided police with
only a description of the individuals who had attacked him but did not
indicate Appellant’s name at that time. Id. at 9. The trial court could not
tailor his weight of the evidence analysis to any of the crimes of which
Appellant had been convicted because Appellant failed to specify in his Rule
1925(b) statement the manner in which his convictions were against the
weight of evidence presented at trial. Thus, we find Appellant’s weight and
sufficiency claims waived on this basis. See Gibbs, supra.2
In his third issue, Appellant challenges the discretionary aspects of his
sentence. However, challenges to the discretionary aspects of sentencing do
not entitle an appellant to an appeal as of right. Commonwealth v. Sierra,
752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a
discretionary sentencing issue:
____________________________________________
2
Appellant’s appellate brief similarly lacks a meaningful discussion of the
offenses of which he was convicted or the elements thereof. Although he
had been convicted of seven crimes and purported to challenge the
sufficiency and weight of the evidence for these crimes in his Rule 1925(b)
statement, his argument challenging the weight of the evidence spans two
and one half pages, while he devotes only two pages to his sufficiency of the
evidence claim.
-8-
J-S55041-16
we conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, See Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Objections
to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or
in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (emphasis
added).
Herein, Appellant filed a timely notice of appeal, but he did not raise a
specific objection challenging the discretionary aspects of his sentence at the
time of sentencing. See N.T. Sentencing, 3/26/15, at 11. Moreover, as was
mentioned previously, while he filed a post sentence motion, Appellant
challenged therein only the sufficiency and weight of the evidence for his
convictions and raised this sentencing claim for the first time on appeal in
his “Preliminary Concise Statement of Matters Complained of on Appeal.”
Because an appellant cannot raise an issue for the first time on appeal,
Appellant’s third claim presented herein is waived. Pa.R.A.P. 302(a);
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super. 2004).
Judgment of sentence affirmed.
-9-
J-S55041-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
- 10 -