Com. v. Osorio, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIRIAM ANJIA OSORIO
Appellant No. 723 WDA 2016
Appeal from the Judgment of Sentence dated May 17, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0000722-2016
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED APRIL 7, 2017
Pro se Appellant, Miriam Anjia Osorio, appeals from the judgment of
sentence following a bench trial and her summary convictions for failure to
yield the right of way to a pedestrian and failure to obey an authorized
person who was directing traffic.1 On appeal, it appears she challenges,
among other things, the weight of the evidence.2 We affirm.
We adopt the facts and procedural history as set forth by the trial
court:
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. § 3542(a) and 3102, respectively.
2
We note that generally there is no right to counsel in summary conviction
cases. Commonwealth v. Smith, 868 A.2d 1253, 1256 (Pa. Super.),
appeal denied, 877 A.2d 462 (Pa. 2005).
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Defendant, Miriam Osorio, filed a Summary Appeal from a
citation alleging the violation of 75 Pa.C.S.A. §3102 and 75
Pa.C.S.A. §3542. This Court adjudicated Defendant guilty
following a de novo hearing on May 17, 2016, and imposed a
fine in the amount of $75.00, plus costs. Defendant filed an
appeal to the Superior Court of Pennsylvania on May 18, 2016.
This Court Ordered Defendant to file a 1925(b) Statement of
Errors Complained of on Appeal, which was filed on June 15,
2016.
This matter arose when a citation was issued to the
Defendant for traffic violations that occurred on March 4, 2015.
Denise Laboon, a Pleasant Hills crossing guard, testified during
the de novo hearing. She stated that she stepped into the middle
of an intersection to stop traffic so she could cross a student at
the crosswalk. Ms. Laboon stepped out in the street, put her
hand up for the Defendant to stop, and the Defendant “...started
to stop, and the boy started to cross, and as he got into the
crosswalk she [Defendant] started to go. As the boy started to
cross, he got into the crosswalk, she started to go. I told him to
get back on the sidewalk.” Ms. Laboon told the Defendant that
she could not drive through the intersection, but the Defendant
did so anyways. Ms. Laboon took down the Defendant's license
plate number as she drove past.
Trial Ct. Op. at 1-2 (citations to record omitted). Following her convictions,
the court imposed a sentence of $75 in fines, as well as court costs. As
discussed below, Appellant did not challenge the weight of the evidence
supporting her convictions prior to sentencing.
Appellant filed a timely appeal. On May 23, 2016, the trial court
ordered Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one
days — that is, by June 13, 2016. The docket and timestamp reflect that
Appellant filed her Rule 1925(b) statement on June 15, 2016, two days late.3
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3
The Commonwealth’s brief erroneously states Appellant timely filed her
Rule 1925(b) statement on June 2, 2016.
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The court filed a responsive Rule 1925(a) opinion, which did not
acknowledge Appellant’s untimely 1925(b) statement.
In Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011), our
Supreme Court observed that “Rule 1925(b) sets out a simple bright-line
rule, which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered” and “courts lack the authority to countenance
deviations from the Rule’s terms.” Issues not raised in a timely Rule 1925
statement are waived. See Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1998). By filing late, Appellant failed to comply with the trial court’s
May 23, 2016 order. Accordingly, constrained by Supreme Court precedent,
we hold that Appellant has waived all issues on appeal. See Hill, 16 A.3d at
494.
Appellant also waived her main issue by not raising it earlier in the
trial court. Appellant contends that the court erred by finding an eyewitness
to her traffic violations credible, but “[a]n argument that the finder of fact
should have credited one witness’ testimony over that of another witness
goes to the weight of the evidence . . . .” Commonwealth v. Gibbs, 981
A.2d 274, 281–82 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa.
2010). It therefore is subject to the preservation rules in Pennsylvania Rule
of Criminal Procedure 607(A), which provides:
(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;
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(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A). Although Appellant was not permitted to file a post-
sentence motion, see Pa.R.Crim.P. 720(D),4 she could have, but did not,
make an oral or written motion challenging the weight of the evidence prior
to sentencing. By failing to do so, Appellant waived her challenge based on
the weight of the evidence.
Even if Appellant’s claims were not waived, she would not be entitled
to relief for the reasons stated in the trial court’s opinion, which we have
reviewed and conclude is correct. See Trial Ct. Op., 6/21/16, at 1-3
(concluding the Commonwealth’s witness was credible and Appellant failed
to timely present her own witness). We discern no abuse of discretion by the
trial court. See Gibbs, 981 A.2d at 282. The parties are instructed to attach
the trial court’s June 21, 2016 opinion to any pleading referencing this
Court’s decision.
Judgment of sentence affirmed.
____________________________________________
4
Rule 720(D) provides, “There shall be no post-sentence motion in summary
case appeals following a trial de novo in the court of common pleas. The
imposition of sentence immediately following a determination of guilt at the
conclusion of the trial de novo shall constitute a final order for purposes of
appeal.”
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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