Appellant No MDA 2013

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1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. MICHAEL LEE NISSLEY, Appellant No MDA 2013 Appeal from the Judgment of Sentence entered August 20, 2013 in the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR BEFORE: PANELLA, WECHT, and STRASSBURGER, JJ. * MEMORANDUM BY STRASSBURGER, J.: FILED MAY 29, 2014 Michael Lee Nissley (Appellant) appeals from the judgment of sentence entered following his convictions of two counts of robbery - threatens another with or intentionally puts him in fear of immediate serious bodily injury, two counts of robbery - inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury, one count of theft by unlawful taking, one count of receiving stolen property, and one count of possession of instruments of a crime. 1 We affirm. * Retired Senior Judge assigned to the Superior Court Pa.C.S. 3701(a)(1)(ii), 3701(a)(1)(iv), 3921(a), 3925(a), and 907(a), respectively.

2 The trial court summarized the relevant factual and procedural histories of this case as follows. Hangmook Cho and Young Yun Kim are the husband-and-wife owners of Joyful Market, a small grocery store located at the southwest corner of Tenth and Penn streets in Reading, Pennsylvania. On the evening of September 24, 2012, around 7:30 p.m., Mr. Cho was working in the kitchen in the rear of the store while Ms. Kim worked at the cash register. Cho testified that at closing time, he re-entered the public part of the store and saw a white male standing near the cash register in an area where customers ordinarily are not permitted. The male, who had black hair worn in a ponytail, saw Cho and told him to stay back. Cho then saw that the man was holding a knife approximately 8-12 inches long. Concerned for her husband s safety, Ms. Kim also told Cho to stay back. Cho did so, and the male directed Kim to open the cash register, which she did. The male took all the money inside, totaling approximately $500, then left the area behind the counter and raised the knife above shoulder height. Keeping his hand up high, he walked out of the store. Cho tried to follow the male, but lost sight of him after he turned the corner onto South Tenth Street. At that moment, Officer Tina Fallstich of the Reading Police Department[] was on South Tenth Street conversing with a witness in an unrelated domestic matter. Officer Fallstich was standing on the west side of South Tenth, facing north, when she observed a white male with a long, black ponytail running southward on the east side of the street. She made eye contact with the male but did not stop him or speak to him, and he ran past her to the end of the block. Before the male reached the end of the block, Fallstich saw another male, Cho, running towards her on the west side of the street while calling Police, and pointing to the first male on the east side of the street. Fallstich immediately made a report on the police radio with a description of the first male, who by now had turned left onto Cherry Street. Cho reported that the male had just robbed his store. Fallstich and other officers began canvassing the area in an attempt to find the suspect. Fallstich encountered a woman walking on Cherry Street and asked if she had seen a man matching the suspect s description running down that street

3 Based on what the woman told her, Fallstich and Criminal Investigator Joseph Snell proceeded to 1034 Penn Street. By now it was dark outside, and while Snell and Fallstich were looking around the rear part of that property with flashlights, a female called to them from a second-story window and asked why the officers were there. Snell and Fallstich climbed the fire escape to speak with the female, and through the window they saw Appellant lying on a bed. Appellant sat up when he saw the officers. Fallstich recognized Appellant as the suspect and immediately radioed for backup while Snell ran around the block to the front entrance of the building. Appellant was detained for questioning, and the apartment was searched. Inside, police found a butcher knife on a kitchen counter. [Officers recovered a second knife from under the mattress of the bed where they initially observed Appellant.] Criminal Investigator Snell spoke with Mr. Cho and Ms. Kim regarding the crimes which had occurred that evening at Joyful Market. Snell presented Kim with a photographic lineup in an attempt to identify the perpetrator. Appellant s photograph was included in the array along with six others randomly selected based on their similarity in appearance to Appellant. After looking at all the photos, Kim identified Appellant as the perpetrator by pointing to and circling his picture and saying Him. Cho also provided police with video surveillance footage from inside Joyful Market during the incident. Officer Fallstich, Ms. Kim, and Mr. Cho each identified Appellant at trial. Fallstich testified that he was the person she saw running down Tenth Street and whom she later recognized at 1034 Penn Street. Kim identified Appellant as the man who robbed the store and threatened her with a knife. Cho also identified Appellant in the courtroom as the perpetrator, noting that Appellant looks like that man, but looks like he lose [sic] weight. * * * At the conclusion of a jury trial held August 19-20, 2013, [] Appellant [] was convicted of [the aforementioned offenses]. Immediately after the jury rendered its verdict, [the trial court] imposed sentence of 7-14 years[ ] incarceration and 5 years[ ] probation. On August 28, 2013, Appellant filed a pro se post[- ]sentence motion alleging the ineffective assistance of his trial - 3 -

4 counsel. On August 30, 2013, Appellant s trial counsel filed a post[-]sentence motion for a new trial, which [the trial court] denied September 5, Appellant filed a pro se notice of appeal on September 6, [The trial court] issued an order [on] September 12, 2013, directing Appellant to file a concise statement of errors pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure within 21 days. A copy of that order was served upon Appellant s trial counsel the following day. On September 17, 2013, on motion of trial counsel, and in view of Appellant s allegations of ineffective assistance, [the trial court] appointed conflict counsel to represent Appellant throughout his appeal and ordered the withdrawal of trial counsel s appearance. Trial Court Opinion, 12/17/2013, at 1-3 (citations to record and map omitted). On September 12, 2013, the trial court ordered Appellant to file a concise statement within 21 days. However, counsel did not file a concise statement until October 18, 2013, far past the court s deadline. Generally, the failure to raise an issue in a timely-filed concise statement results in that issue being waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii). In criminal matters where the statement was ordered and not timely filed, and the appellate court finds that failure to do so was per se ineffective assistance of counsel, the appellate court will remand the case for the filing of a statement nunc pro tunc and for the preparation and filing of an opinion by the trial court. Pa.R.A.P. 1925(c)(3). However, remand is not necessary where, as here, the trial court has already filed an opinion addressing the issue presented in the untimely statement. Commonwealth v. Burton, 973 A.2d - 4 -

5 428, 434 (Pa. Super. 2009). Accordingly, we will address the merits of Appellant s argument. Appellant raises a single issue for this Court s review: Whether the [trial court] abused its discretion in denying Appellant s post-sentence motion for new trial on the grounds that the verdict was against the weight of the evidence. Appellant s Brief at 5. Our scrutiny of the denial of a claim that a verdict is against the weight of the evidence is governed by the following principles. The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court s verdict if it is so contrary to the evidence as to shock one s sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (quoting Commonwealth v. Champney, 832 A.2d 403 (Pa. 2003) (citations omitted)). Appellant argues that, while Cho, Kim, and Officer Fallstich all identified him as the perpetrator before and during trial, certain material inconsistencies in the testimony render these identifications useless and - 5 -

6 entitle him to a new trial. Appellant notes the following inconsistencies in the witnesses testimony. No one describes Appellant s tattoo. The Commonwealth s evidence and the reasonable inferences that can be drawn from that evidence propose that Appellant, wearing jeans and wielding a knife, robbed a grocery store of $ cash and immediately fled to a second floor apartment on Penn Street. Once there, Appellant took off his jeans and boots and dressed in sweatpants and boots before getting into bed, where he stashed a knife under the mattress. Despite Appellant bursting into the apartment through a rear window with a knife and $ cash, Appellant s girlfriend is genuinely curious as to what police are doing in the yard behind her apartment so she attracts their attention to find out what they are doing. Despite being surprised in bed by the presence of police on the fire escape, the $ cash had simply vanished. This sequence of events does not add up to a coherent narrative. Appellant s Brief at 11. Here, the jury as fact finder did not find any of the variations in testimony affected the witnesses credibility, nor did it find credible Appellant s testimony the he had no involvement in the robbery and kept a knife under his mattress for protection. The jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). Moreover, the trial court did not find that verdict was so contrary to the evidence as to shock one s sense of justice. Trial Court Opinion, 12/17/2013, at 4-5 (citations to notes of testimony omitted). Upon careful review of the record, we do not find any abuse of discretion in the trial - 6 -

7 court s determination. Accordingly, we affirm Appellant s judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/29/