Commonwealth v. Damerjian

1

COMMONWEALTH OF PENNSYLVANIA v. ROBERT DAMERJIAN Appellant

No. 2055 EDA 2022

No. J-A12002-23

Superior Court of Pennsylvania

June 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered July 13, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-SA-0000675-2022

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM

OLSON J.

Appellant Robert Damerjian, appeals from the judgment of sentence entered July 13, 2022. We affirm.

The facts and procedural history of this case is as follows. On May 21, 2020, uniformed Officer Joseph Mason of the Philadelphia Police Department was on bicycle patrol at the intersection of Rising Sun Avenue and East Cheltenham Avenue in Philadelphia, Pennsylvania. N.T. Trial, 7/13/22, at 6. At approximately 3:20 p.m., Officer Mason observed the traffic "light for Rising Sun and [East] Cheltenham southbound [] turn[] red." Id. Officer Mason then observed a white Ford F-150 travel through the red light and eventually stop "about [20] feet beyond the intersection" due to traffic. Id. Officer Mason approached the Ford F-150 and asked the driver to pull over. Id. The driver responded: "I [am] sorry, no. I can [not]. … Yeah, I [am] not stopping. You can [not] catch me. You [are] on a fucking bicycle." Id. "At that point [the driver maneuvered the Ford F-150] to the right of the traffic lane [into] a bicycle and parking lane" and continued southbound where he "disregarded [another] traffic light . . . nearly striking two cars." Id. at 6-7. Before the Ford F-150 drove away, Officer Mason observed its "tag," i.e., the Ford F-150's license plate number. Id. at 6. Later that day, Officer Mason went back to the police station and "ran [the] tag through the [police] system." Id. at 7. The search revealed that Appellant owned the Ford F-150. Id. Upon obtaining Appellant's name, Officer Mason conducted a subsequent search for Appellant's driver's license, which revealed a photograph of Appellant and allowed Officer Mason to identify Appellant as the driver of the white Ford F-150. Id. Accordingly, Officer Mason issued Appellant a citation for violating 75 Pa.C.S.A. § 3736(a), reckless driving, and 75 Pa.C.S.A. § 3102(1), obedience to authorized person directing traffic.

On June 3, 2022, Appellant was tried in the Traffic Division of the Philadelphia Municipal Court and found guilty of violating Sections 3736(a) and 3102(1) of the Motor Vehicle Code ("MVC"). That day, Appellant appealed his summary conviction to the Philadelphia County Court of Common Pleas. A summary appeal hearing was held on July 13, 2022, after which the trial court also found Appellant guilty of violating Sections 3736(a) and 3102(1) of the MVC and ordered Appellant to pay a fine of $449.00. This timely appeal followed.

Appellant raises the following issues on appeal:

1. [Whether the Commonwealth failed to present sufficient evidence to sustain Appellant's summary convictions for violating Sections 3736(a) and 3102(1) of the MVC?]

2. [Whether Appellant's summary convictions were against the weight of the evidence?]

See generally Appellant's Brief at 5.

In this instance, Appellant challenges both the sufficiency and weight of the evidence. Before we address the merits of Appellant's claims, we must determine whether he properly preserved these issues for our review. First, we address whether Appellant waived his claim regarding the sufficiency of the evidence. We previously explained:

[i]n 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. ... Therefore, when an appellant's 1925(b) statement fails to specify the element or elements upon which the evidence was insufficient[,] . . . the sufficiency issue is waived on appeal.

Commonwealth v. Rivera, 238 A.3d 482, 496 (Pa. Super. 2020), quoting Commonwealth v. Ellison, 213 A.3d 312, 320-321 (Pa. Super. 2019). "Such specificity is of particular importance in cases where[] the appellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Commonwealth v. Brown, 186 A.3d 985, 990 (Pa. Super. 2018) (citation and quotation marks omitted).

Appellant was convicted of violating Sections 3736(a) and 3102(1) of the MVC. In his 1925(b) statement, Appellant set forth the following claims of error:

a. The evidence was insufficient to support the verdict on the charges when the overwhelming evidence showed that [Appellant] was not the one driving the vehicle at the time of the traffic stop, including but not limited to, an independent witness, detailed timing and map evidence, and time-stamped [photographs]. The [trial court] disregarded all of this alibi evidence and ruled solely based upon the bicycle police officer's problematic identification in [c]ourt.

b. The evidence at trial did not support a guilty verdict for 75 Pa.C.S.A. § 3736, reckless driving.

c. The evidence at trial did not support a guilty verdict for 75 Pa.C.S.A. § 3102, obedience to authorized persons directing traffic.

Appellant's 1925(b) Statement, 9/21/22, at *1-*2 (unpaginated). A fair reading of Appellant's 1925(b) statement reveals that, because Appellant did not specifically challenge a statutory element of his summary convictions, the crux of his sufficiency claim is his belief that the Commonwealth failed to present sufficient evidence to support a finding that he was the operator of the Ford F-150. We therefore conclude that Appellant "sufficiently identif[ied] the error that [he] intend[s] to challenge on appeal." Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015). Accordingly, we decline to find waiver based on a failure of issue preservation and will address the merits of Appellant's sufficiency claim.

Next, we address whether Appellant waived his argument regarding the weight of the evidence. This Court has stated:

[a] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607. Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion.

Riviera, 238 A.3d at 497 (citations omitted). In a summary appeal following a trial de novo, however, post-sentence motions are prohibited. See Pa.R.Crim.P. 720(D) (stating that "[t]here shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas"). In cases where we have considered waiver of a challenge to the weight of the evidence following conviction at a trial de novo, we have adopted the following approach to issue preservation:

Ordinarily, a challenge to the weight of the evidence is waived unless it is presented in the first instance to the trial court. Preservation of this type of claim normally takes the form of a post-sentence motion. However, a defendant convicted of a summary offense is precluded from filing any post-sentence motions. Thus, [A]ppellant had no opportunity to preserve his weight of the evidence argument prior to filing his statement of errors complained of on appeal. It would be unjust to deprive appellant of the right to raise this issue on the grounds that he failed to file a motion he was not entitled to file. We note, moreover, that the trial judge explicitly addressed credibility and weight of the evidence at the close of appellant's trial, and in his [] opinion. Because [A]ppellant's challenge to the weight of the evidence has been considered in the first instance by the trial court, we decline to find waiver.

Commonwealth v. Dougherty, 679 A.2d 779, 784-785 (Pa. Super. 1994) (case and record citations omitted).

As we shall make clear below, the trial court addressed Appellant's weight claim, including the credibility of the testifying witnesses, on the record at the conclusion of Appellant's trial de novo. We are satisfied that the court's analysis permits appellate review of Appellant's weight claim consistent with Pennsylvania law^[1] and, therefore, that the claim withstands waiver.

We turn now to the merits of Appellant's appeal. In his first issue, Appellant argues that the Commonwealth presented insufficient evidence to sustain his summary convictions for violating Sections 3736(a) and 3102(1) of the MVC. The crux of Appellant's claim is that Officer Mason's testimony, alone, failed to sufficiently establish that he was, in fact, the driver of the Ford F-150. Appellant's claim lacks merit.

Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact[-]finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth may not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually

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