Com. v. Dean, F. ( 2016 )


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  • J. S73002/16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                    :
    :
    FREDERICK DEMON DEAN,                   :         No. 1402 WDA 2015
    :
    Appellant        :
    Appeal from the Judgment of Sentence, August 17, 2015,
    in the Court of Common Pleas of Erie County
    Criminal Division at No. CP-25-CR-0003379-2014
    BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 17, 2016
    Frederick Demon Dean appeals from the judgment of sentence entered
    in the Court of Common Pleas of Erie County on August 17, 2015, after a
    jury found him guilty of one count each of persons not to possess firearms,
    firearms not to be carried without a license, possession of a controlled
    substance,   possession   of   drug   paraphernalia,   resisting   arrest,   and
    possessing instruments of crime.1 The trial court sentenced appellant to an
    aggregate term of imprisonment of 81 to 168 months. We affirm.
    The record reflects that shortly before 9:00 p.m. on August 26, 2014,
    SWAT officers on a vehicle patrol detail observed appellant walking
    1
    18 Pa.C.S.A. § 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), 35 P.S.
    § 780-113(a)(16), 35 P.S. § 780-113(a)(32), 18 Pa.C.S.A. § 5104, and
    18 Pa.C.S.A. § 907(a), respectively.
    J. S73002/16
    northbound on a sidewalk in the 1100 block of Wayne Street in Erie. (Notes
    of testimony, 6/16/15 at 31-34.) The sidewalk runs alongside the parking
    lot of TJ’s bar.    (Id.)   The officers observed appellant walking toward a
    house located next to that parking lot. (Id.) Immediately after the patrol
    vehicle passed appellant, officers heard a gunshot coming from the direction
    where they had just observed appellant. (Id. at 35.) No other individuals
    were in the area. (Id. at 35-36.) The officers stopped the cruiser, exited,
    and began looking for appellant. (Id. at 36.) The officers then found a gun
    in the backyard of the house that they observed appellant walking toward.
    (Id.)    A grass strip measuring approximately 10 to 15 feet separates the
    parking lot of TJ’s bar from that particular house. (Id. at 34.)
    The officers then went into TJ’s bar to look for appellant.        (Id. at
    39-40). The bartender told the officers that appellant was in the back of the
    kitchen hiding in a closet. (Id. at 41.) The officers found appellant sitting in
    a utility closet.   (Id. at 43.)    The utility closet contained a sink.     (Id.)
    Appellant was completely wet. (Id.) Officers instructed appellant to show
    them his hands.      (Id. at 43.)    Appellant refused and began kicking the
    officers. (Id.) Appellant was tased and then taken into custody. (Id. at
    43-44.)     During this incident, appellant, without provocation, stated, “I
    wasn’t shooting at you guys. If this goes away[,] I’ll give you whatever you
    want. I know several drug dealers from Detroit.” (Id. at 45.)
    -2-
    J. S73002/16
    Surveillance footage corroborated law enforcement’s version of events.
    (Notes of testimony, 6/17/15 at, 33-28; 60-74.)          It also revealed that
    appellant was wearing a hat when police officers initially observed him prior
    to the shot being fired. When he entered TJ’s bar, however, appellant was
    no longer wearing the hat.       Surveillance footage established that prior to
    entering TJ’s bar, appellant walked into the area where the gun was found
    and made a “throwing motion” over a 6-foot stockade fence.              Officers
    subsequently recovered the hat on the ground on the other side of the
    stockade fence from where officers observed appellant making the “throwing
    motion.” A baggie of heroin was tucked inside the hat. (Id.)
    Appellant raises the following issue for our review:
    [WHETHER] THE EVIDENCE IN THIS CASE WAS
    INSUFFICIENT  TO   PROVE   THE  CRIMES   OF
    POSSESSION OF AN INSTRUMENT OF CRIME AND
    FIREARMS NOT TO BE CARRIED WITHOUT A
    LICENSE AS THE EVIDENCE FAILED TO ESTABLISH
    THAT [APPELLANT] WAS IN POSSESSION OF THE
    HANDGUN THAT WAS ENTERED AS EVIDENCE IN
    THIS CASE[?]
    Appellant’s brief at 2.
    Appellant’s brief contains no legal argument on this issue.      Instead,
    appellant sets forth three and a half pages of “facts” with citations to the
    trial transcript.   Following these “facts,” appellant baldly asserts, “It could
    have been placed there by anyone. Thus, the decision of the jury on all of
    the firearms counts should be vacated.” (Id. at 9.)
    -3-
    J. S73002/16
    Appellant waives his issue on appeal for failure to develop a legal
    argument.      See Commonwealth v. Johnson, 
    985 A.2d 915
    , 924 (Pa.
    2009) (reiterating that “where an appellate brief fails to provide any
    discussion of a claim with citation to relevant authority or fails to develop the
    issue in any other meaningful fashion capable of review, that claim is
    waived”); citing to Commonwealth v. Walter, 
    966 A.2d 560
    , 566 (Pa.
    2009); Commonwealth v. Steele, 
    961 A.2d 786
    , 799 n.12 (Pa. 2008);
    Commonwealth v. Puksar, 
    951 A.2d 267
    , 293-294 (Pa. 2008). See also
    Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be
    “followed by such discussion and citation of authorities as are deemed
    pertinent”).   Finally, our supreme court has long held that it is not the
    court’s   obligation    to    formulate    an   appellant’s   arguments.     See
    Commonwealth           v.    Wright,      
    961 A.2d 119
    ,   135   (Pa.   2008);
    Commonwealth v. Thomas, 
    717 A.2d 468
    , 482-483 (Pa. 1998).
    Judgment of sentence affirmed.
    Lazarus, J. joins this Memorandum.
    Jenkins, J. files a Concurring Statement in which Lazarus, J. also joins.
    -4-
    J. S73002/16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/17/2016
    -5-
    

Document Info

Docket Number: 1402 WDA 2015

Filed Date: 11/17/2016

Precedential Status: Precedential

Modified Date: 11/18/2016