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Commonwealth v. Tejada

Superior Court of Pennsylvania

January 6, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NICHOLAS TEJADA, Appellant

Argued September 9, 2014

Page 789

Appeal from the Judgment of Sentence March 25, 2013, of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0006216-2012 and CP-51-CR-0006219-2012. Before COHEN, J.

Ruth A. Moyer, Philadelphia, for appellant.

Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: DONOHUE, WECHT and PLATT[*], JJ.

OPINION

Page 790

DONOHUE, J.

Nicholas Tejada (" Tejada" ) appeals from the March 25, 2013 judgment of sentence entered by the Philadelphia County Court of Common Pleas following his convictions of two counts of criminal conspiracy to commit robbery.[1] Upon review, we find his challenges to the sufficiency and weight of the evidence to be without merit as the evidence presented at trial supported a finding that he was the individual who committed the robberies in question. We find his evidentiary challenge waived in part, as one of the arguments raised on appeal was not raised before the trial court, and find the other argument is meritless. Lastly, we conclude that he waived his challenges to the discretionary aspects of his sentence based upon his failure to raise the specific arguments below that he now makes on appeal, having raised them for the first time in his concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) (" 1925(b) statement" ). In so holding, we recognize that the three-judge panel decisions in Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (Pa. Super. 1996), and Commonwealth v. Clinton, 453 Pa.Super. 385, 683 A.2d 1236 (Pa. Super. 1996), finding discretionary aspects of sentencing claims can be preserved when raised for the first time in a 1925(b) statement, were overruled by implication by the en banc panel of this Court in Commonwealth v. Melendez-Rodriguez, 2004 PA Super 334, 856 A.2d 1278 (Pa. Super. 2004) (en banc). We therefore affirm Tejada's judgment of sentence.

The trial court provided the following summary of the facts adduced at trial:

On January 2, 2012 the first victim, Emily Orton, arrived home from work at about 10:15 pm. (N.T. 11/7/2012 at 25-26). She parked her car near the intersection of 9th and Kimball Streets in Philadelphia. (Id.) While walking on the sidewalk, she noticed [Tejada] and another male about ten feet away from her. (Id. at 26-28). They were walking directly toward her. (Id.) [Tejada]'s coconspirator smiled at her and looped around behind her while [Tejada], with his face partially covered, pressed a gun against this victim's stomach and demanded " give me your purse, ma'am." (Id. at 30-32). [Tejada] snatched the victim's purse from her body and entered the backseat of an older black, beat-up Honda which made an incredibly loud noise as it drove away. (Id. at 33, 37).

Page 791

Inside the victim's purse was her purple wallet with ID cards, credit cards, and $60 United States currency. (Id. at 37-38). The victim contacted the police and returned to her apartment. (Id. at 38).
Twenty minutes later, the second and third victims, Irene Thurston and Stacie Evans, respectively, had parked their cars and greeted each other near the corner of 4th and Emily Streets. (Id. at 77-78). Both victims noticed an old beat-up Honda with a long white scratch and a loud muffler. (Id.) With four Hispanic men inside, this vehicle passed them while travelling on Emily Street. (Id.) As the two victims continued to chat, the car turned around the block. (Id.) Alarmed, Ms. Thurston noticed two men walking across an empty lot toward her and Ms. Evans. (Id. at 81-82). Terrified, Ms. Thurston observed [Tejada], armed with a gun, run toward Ms. Evans. (Id. at 83). Also terrified that [Tejada] was brandishing a gun, Ms. Evans quickly dropped her purse. (N.T. 11/8/12 at 13). [Tejada] grabbed the purse. (Id.) Inside Ms. Evan's [sic] purse was her license, credit cards, two checkbooks, a necklace, a digital camera, and $5-10 in United States currency. (Id. at 20). Nothing was taken from Ms. Thurston. (N.T. 11/7/12 at 86). The two victims immediately called the police. (N.T. 11/8/12 at 20).
In response to the flash information and radio calls for the above incidents, Officers Padilla and Brown drove to the area of 2200 S. Mildred St. (Id. at 95). The officers witnessed [Tejada] exiting the driver seat of the above-mentioned Honda, while the coconspirator exited the passenger seat. (Id. at 96). Officer Padilla stopped [Tejada] while Officer Brown chased the co-conspirator on a foot; the coconspirator was eventually apprehended. (Id. at 97 98). The officers recovered victim Evans['] license on the ground next to the front passenger door of the Honda as well as two pocketbooks in the backseat. (Id. at 99-100).
The officers escorted all three victims to the area of 2200 S. Mildred Street, at which time they all identified the black Honda as the car they had seen at their respective robbery locations. (Id. at 23, N.T. 11/7/2012 at 39-42, 87-91). Ms. Orton did not identify [Tejada], but her belongings were all recovered in the back of the black Honda. (N.T. 11/7/2012 at 39-42). Ms. Evans['] purse, along with most of her belongings, was [sic] recovered in the back seat of the car. (N.T. 11/8/2012 at 23). Ms. Thurston identified [Tejada] as the perpetrator brandishing the firearm at 4th and Emily Streets. (N.T. 11/7/2012 at 87-91). Officer Padilla discovered that the owner of the Honda resided at 2241 Darien Street, and that other men might have run into the house. (N.T. 11/8/2012 at 101). While the officer was standing outside the house, the co-conspirator opened the door and asked what was going on. He allowed Officer Padilla to enter the house to look for other suspects. (Id. at 105). Officer Padilla and her supervisor searched the house and discovered Ms. Evan's [sic] checkbooks in an upstairs bedroom. (Id. at 106).

Trial Court Opinion, 12/26/13, at 3-5.

On November 15, 2012, a jury convicted Tejada of two counts of conspiracy to commit robbery, but acquitted him of two counts each of robbery, carrying a firearm without a license, carrying a firearm on public streets in Philadelphia, and possessing an instrument of crime.[2] On March 25, 2013, the trial court sentenced Tejada

Page 792

to four to eight years of incarceration for each count of conspiracy to run consecutively for an aggregate prison sentence of eight to sixteen years.

Tejada filed post-sentence motions on March 27, 2013, which the trial court denied on July 29, 2013. On August 7, 2013, Tejada filed a timely notice of appeal followed by a court-ordered 1925(b) statement. The trial court thereafter filed a responsive opinion pursuant to Pa.R.A.P. 1925(a).

On appeal, Tejada raises the following issues for our review, which we have reordered for ease of disposition:

I. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, ยง 9 of the Pennsylvania Constitution, was the evidence insufficient to ...

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