Com. v. Palmero, G.
2350 EDA 2015
| Pa. Super. Ct. | Jan 31, 2017Background
- Appellant George Palmero was convicted after a non-jury trial of unlawful contact with a minor, endangering the welfare of a child, corruption of a minor, indecent assault of a person under 13, and indecent exposure based on allegations by a then-young child of repeated sexual contact while living at her grandmother’s home.
- The child disclosed the abuse in April 2013; a forensic interview and medical exam followed; trial occurred December 2014 with convictions entered and sentencing on May 4, 2015 (1–2 years imprisonment, then 14 years probation under Sex Offender Unit supervision).
- Appellant did not file a direct appeal; he later filed a counseled PCRA petition alleging trial counsel was ineffective for failing to file a direct appeal. The PCRA court (with Commonwealth non-opposition) reinstated his direct-appeal rights nunc pro tunc; appellant filed a nunc pro tunc appeal.
- In his Rule 1925(b) statement appellant generally claimed (1) insufficiency of the evidence as to all convictions and (2) that the verdicts were against the weight of the evidence, but he did not identify which specific statutory elements he alleged were unproven or specify which convictions were against the weight of the evidence.
- The Superior Court affirmed. It held the sufficiency challenge waived for failure to specify unproven elements in the 1925(b) statement, and the weight claim waived for failure to preserve under Pa.R.Crim.P. 607 and for lack of specificity in the 1925(b) statement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to support convictions | Palmero argued the Commonwealth failed to prove the offenses beyond a reasonable doubt (he "did not touch the child in any offensive or illegal manner"). | Commonwealth argued evidence (victim testimony, forensic interview) was sufficient; trial court found testimony credible. | Waived — appellant’s Pa.R.A.P. 1925(b) statement failed to specify the elements alleged to be unproven; court declined to address merits. |
| Weight of the evidence / request for new trial | Palmero sought a new trial asserting verdicts were against the weight of the evidence. | Commonwealth maintained evidence supported convictions; trial court found verdicts not contrary to the evidence. | Waived — appellant did not preserve the claim under Pa.R.Crim.P. 607 (no timely post-sentence motion) and did not seek nunc pro tunc restoration of post-sentence motion rights; also insufficiently specific in 1925(b). |
| Whether reinstatement of post-sentence motion rights nunc pro tunc was required when direct-appeal rights were reinstated | Implicitly, Palmero sought review of weight issue but did not request reinstatement of post-sentence motion rights in PCRA. | Commonwealth and PCRA court limited relief to reinstatement of direct-appeal rights only. | Held that reinstatement of direct-appeal rights nunc pro tunc does not automatically restore post-sentence motion rights; appellant did not obtain or request such relief, so weight claim not preserved. |
Key Cases Cited
- Commonwealth v. Doughty, 126 A.3d 951 (Pa. 2015) (standard for reviewing sufficiency of the evidence; circumstantial evidence may suffice)
- Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008) (sufficiency claim waived where 1925(b) failed to specify unproven elements)
- Commonwealth v. Gibbs, 981 A.2d 274 (Pa. Super. 2009) (same rule on 1925(b) specificity and sufficiency waiver)
- Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009) (reinstatement of direct appeal rights nunc pro tunc does not automatically reinstate post-sentence motion rights)
- Commonwealth v. Fransen, 986 A.2d 154 (Pa. Super. 2009) (PCRA reinstatement of appeal rights does not imply reinstatement of post-sentence motion rights absent request/evidentiary showing)
- Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015) (weight-of-the-evidence claim waived where 1925(b) statement was too vague)
- Commonwealth v. Walker, 878 A.2d 887 (Pa. Super. 2005) (appellant’s duty to ensure the record contains necessary documents for appellate review)