Com. v. Jordan, J. ( 2017 )

J-S67019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA JORDAN, :
:
Appellant : No. 3272 EDA 2016
Appeal from the Judgment of Sentence July 15, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012114-2013
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017
Joshua Jordan (“Jordan”) appeals from the judgment of sentence
imposed following his conviction of first-degree murder, possession of a
firearm without a license, possession of a firearm on the streets of
Philadelphia, and possession of an instrument of crime.1 We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural background, which we adopt for the purpose of this appeal. See
Trial Court Opinion, 11/3/16, at 1-4.
Jordan filed this timely appeal, and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
____________________________________________
1 See 18 Pa.C.S.A. §§ 2502, 6106, 6108, 907.
* Former Justice specially assigned to the Superior Court.
J-S67019-17
On appeal, Jordan raises the following claims for our review:
1. Was the evidence presented was [sic] insufficient to sustain a
conviction because the witness statements were inconsistent,
unreliable, and failed to prove [Jordan’s] participation in the
alleged crime?
2. Was the weight of the evidence presented not sufficient to
support [Jordan’s] conviction?
3. Did the trial court err in overruling defense counsel’s
objection concerning [Jordan’s] mailing of discovery he
received to his parents[,] since it gave rise to an
impermissible inference that the discovery mailed was being
used to intimidate potential Commonwealth witnesses?
Brief for Appellant at 7 (capitalization omitted).
We will address Jordan’s first two claims together. In his first claim,
Jordan contends that the evidence was insufficient to support his
convictions. Brief for Appellant at 11-14. In his second claim, Jordan
asserts that his convictions are against the weight of the evidence. Id. at
14-15.
In its Opinion, the trial court addressed Jordan’s sufficiency and weight
claims, and determined that they were waived, as Jordan failed to specify in
his Concise Statement which of his convictions were not supported by
sufficient evidence or were against the weight of the evidence. See Trial
Court Opinion, 11/3/16, at 4-5.
This Court may find waiver where a concise statement is too vague.
See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).
“When a court has to guess what issues an appellant is appealing, that is not
-2-
J-S67019-17
enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d
683, 686 (Pa. Super. 2001) (citation omitted). “A Concise Statement which
is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all.” Id. at 686-87.
Additionally, as this Court has consistently held,
[i]f Appellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify the
element or elements upon which the evidence was insufficient.
This Court can then analyze the element or elements on appeal.
[Where a] 1925(b) statement [] does not specify the allegedly
unproven elements[,] . . . the sufficiency issue is waived [on
appeal].
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)
(quoting Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super.
2007)). The same is true for a challenge to the weight of the evidence. See
Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super. 2015).
Here, Jordan collectively stated his sufficiency and weight claims in his
Concise Statement as follows: “The evidence and the weight of the evidence
were insufficient to sustain the verdict.” Concise Statement, 11/2/16, at 1.
The Statement thus failed to specify the element or elements upon which
the evidence was purportedly insufficient or against the weight of the
evidence. See Williams, 959 A.2d at 1257; Freeman, 128 A.3d at 1248-
49. Given that Jordan was convicted of multiple crimes, we agree with the
trial court’s determination that Jordan’s sufficiency and weight claims are
waived based on the vagueness of his Concise Statement. See Trial Court
-3-
J-S67019-17
Opinion, 11/3/16, at 4-5. Accordingly, we affirm on this basis as to Jordan’s
first two claims. See id.2
In his third claim, Jordan contends that “the [t]rial [c]ourt erred in
overruling defense counsel’s objection concerning [Jordan’s] mailing [of]
discovery he received to his parents[,] since it gave rise to an impermissible
inference that the discovery was being used to intimidate potential
Commonwealth witnesses, which was irrelevant in that its prejudicial effect
outweighed its probative value.” Brief for Appellant at 16. Jordan asserts
that “the Commonwealth’s theory was that [Jordan’s] parents would be able
to contact potential Commonwealth witnesses in an effort to change their
testimony.” Id. Jordan claims that “the [t]rial [c]ourt’s overruling defense
counsel’s objection cannot be deemed harmless error to the extent that
Kenneth White gave a different description of the shooter from [Jordan;]
____________________________________________
2 Had we not found waiver based on the vagueness of Jordan’s Concise
Statement, we would have concluded that Jordan’s brief suffers from the
same deficiencies. In his brief, Jordan failed to specify which crimes, let
alone which element or elements of those crimes, were unsupported by, or
against the weight of, the evidence. See Brief for Appellant at 11-14, 14-
15. The Rules of Appellate Procedure state unequivocally that each question
an appellant raises is to be supported by discussion and analysis of pertinent
authority. See Pa.R.A.P. 2119(a). Appellate arguments which fail to adhere
to these rules may be considered waived, and arguments which are not
appropriately developed are waived. See Commonwealth v. Murchinson,
899 A.2d 1159, 1160 (Pa. Super. 2006) (deeming appellant’s claims waived
under Pa.R.A.P. 2119(a) because he did not develop meaningful argument
with specific references to relevant caselaw and to the record to support his
claims); see also Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa.
Super. 2004) (declining to review appellant’s claim where there was limited
explanation and development of the argument).
-4-
J-S67019-17
there was no physical evidence to connect [Jordan] to the crime[;] and that
[Jordan] testified that he did not shoot the [d]ecedent.” Id.In its Opinion, the trial court addressed Jordan’s third claim, set forth
the relevant law, and determined that the claim lacks merit. See Trial Court
Opinion, 11/3/16, at 5-7. We agree with the reasoning of the trial court,
and affirm on this basis as to Jordan’s third claim. See id.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
-5-
0042_Opinion
Circulated 12/05/2017 11:02 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF CP-51-CR-0012114-2013
CP-51-CR-0012114-2013 Comm v Jordan, Joshua
PENNSYLVANIA
FILED
Opinion
v.
JOSHUA JORDAN
111111111111111 Ill II II
7522285151
Ill NOV X 3 2016
Criminal Appeals Unit
OPINION First Judicia\ District of PA
BRONSON,J. November 3, 2016
On July 15, 2016, following a jury trial before this Court, defendant Joshua Jordan was
convicted of one count each of first degree murder (18 Pa.C.S. § 2502), possession of a firearm
without a license (18 Pa. C.S. § 6106), possession of a firearm on the streets of Philadelphia (18
Pa. C.S. 6108), and possession of an instrument of crime (18 Pa. C.S. 907). The Court
immediately imposed the mandatory sentence of life in prison for the murder charge (18 Pa.C.S.
§ 1102(a)(l)) and sentenced defendant to a consecutive aggregate term of 6 Yi to 13 years
incarceration on the remaining charges. The Court added an additional 3 to 6 months consecutive
incarceration for contempt of court after defendant yelled, "Fuck you all family" to the family of
the decedent after the sentencing. N. T. 7/15/ 16 at 19. Defendant filed a post-sentence motion on
July 20, 2016, and a Notice of Appeal on August 9, 2016. The Court denied defendant's post-
sentence motion on October 13, 2016.1
I Because the Court had not yet ruled on defendant's post-sentence motion, defendant's appeal was premature and
the Court retained jurisdiction to rule on the motion. See Commonwealth v. Borrero, 692 A.2d 158, 161 n.4 (Pa.
Super. 1997). While the Court's denial of defendant's post-sentence motion perfected the appeal, see
Commonwealth v. Cooper, 27 A.3d 994, I 007 (Pa. 2011 ), defendant elected to discontinue the appeal on October
20, 2016, and then refile it on October 21, 2016.
Defendant now appeals from the judgment of sentence entered by the Court on the
grounds that: 1) "[t)he evidence and the weight of the evidence were insufficient to sustain the
verdict;" 2) the Court erred in overruling a defense objection concerning defendant mailing trial
discovery to his parents; and 3) the Court erred in overruling a defense objection pertaining to
witness Shawn Adams' motive to identify defendant. Statement of Matters Complained of on
Appeal ("Statement of Errors") at ,i,i 3-5. For the reasons set forth below, defendant's claims are
without merit and the judgment of sentence should be affirmed.
I. FACTUAL BACKGROUND
At trial, the Commonwealth presented the testimony of Philadelphia Police Detectives
Ohmarr Jenkins and John Komorowski, Philadelphia Police Officers Michael Kilroy, Christian
Cruz, Craig Perry, Jesus Cruz, Robert Bakos, and Brian Waltman, Philadelphia Deputy Medical
Examiner Dr. Albert Chu, Unique Riggins, Kenneth White, Shawn Adams, and Isaac Guy.
Defendant testified on his own behalf and presented the testimony of Andrea Jordan and Elbert
Jordan. Viewed in the light most favorable to the Commonwealth as the verdict winner, the
evidence established the following.
On July 14, 2014, at approximately 9:58 p.m., Craig Jackson, the decedent, was playing a
game of basketball at the courts at Band Olney Streets in Philadelphia. N.T. 7/11/16 at 236-237;
7/12/16 at 78-81. Jackson's team was playing against defendant's team. N.T. 7/11/16 at 237;
7/13/16 at 42-43. As the game progressed, Jackson and defendant fouled each other, inciting an
argument that escalated, with a physical fight seemingly imminent. N.T. 7/11/16 at 239-242;
7/12/16 at 81, 84, 115-116; 7/13/16 at 35, 42-43, 54. Defendant left the court, went to his book
bag, and withdrew a semi-automatic firearm, pointing it at Jackson. N.T. 7/11/16 at 241-243;
7/13/16 at 35, 38, 43. Jackson told defendant "If you're going to shoot, go ahead and shoot."
2
N.T. 7/13/16 at 43-44. Defendant responded by shooting at Jackson multiple times, striking
Jackson once in the left chest, and once in the left buttock. N.T. 7/11/16 at 248; 7/12/16 at 118-
119, 127-128; 7/13/16 at 35, 37, 44, 54, 83-84, 114, 133.
Defendant then fled the scene, placing the gun back into the book bag. N.T. 7/13/16 at
36, 44, 136-137, 150-151, 176. Jackson was transported to Einstein Hospital by emergency
medical personnel, where he was pronounced dead on July 14, 2013. N.T. 7/12/16 at 194-195;
7/13/16 at 113.
Witnesses Unique Riggins and Isaac Guy saw defendant later that night. N.T. 7/13/16 at
44, 147. Defendant had changed his clothes and told Riggins and Guy, 'Tm not playing with
this nigger. If he lives, I'm going to shoot him again." N.T. 7/13/16 at 44, 147-148.
In police interviews shortly after the shooting, witnesses Riggins and Shawn Adams both
identified defendant as the shooter from a photo array. N.T. 7/11/16 at 260, 269; 7/13/16 at 46,
55-56. Police attempted to arrest defendant at home on July 20, 2013, but he was not present at
the time. N.T. 7/12/16 at 224. Police encountered defendant on the street on July 21, 2013, and
asked him to identify himself. N.T. 7/12/16 at 204. Defendant gave a false name, and multiple
birthdates. N.T. 7/12/16 at 203-206. After being shown a photograph the police had retrieved of
the person whose name defendant was using, defendant gave his real name and birthdate. N.T.
7/12/16 at 207-208. Upon his arrest, defendant stated that "he wasn't on the basketball courts
that night." N.T. 7/12/16 at 208-209.
While in prison awaiting trial, defendant made a series of phone calls. Commonwealth
Exhibit C-12, C-43; N.T. 7/12/16 at 227-233. In one conversation, defendant told his mother
that he "really should've ran." In several other conversations, he repeatedly asked whether there
were video cameras covering the playground, making sure that his brother Isaiah had "checked
3
every aspect of that park." In another conversation, defendant and Isaiah urgently discussed the
problem that someone named "Pete" had the gun and wanted to "swap it out" instead of
destroying it. Isaiah assured defendant that he would "break that jawn down ... and throw it,
throw it, throw it," to which defendant replied, "You got it?" In another conversation, after
hearing that the defense investigator confirmed that there were no cameras covering the crime
scene, defendant told Isaiah, "I was at the crib through wink wink. Know what I'm saying I was
at the crib." Isaiah and defendant also discussed the problem of "the motherfuckers that saying
[defendant] did it." Isaiah assured defendant that they would find out who those people were
before court. Id
II. DISCUSSION
A. Sufficiency and Weight of the Evidence
Defendant's challenge to the sufficiency and weight of the evidence reads, in its entirety,
as follows: "The evidence and the weight of the evidence were insufficient to sustain the
verdict." Statement of Errors at 13. Defendant also raised a weight claim in his post-sentence
Motion for New Trial, which read, in its entirety: "The verdicts were against the weight of the
evidence." Motion for New Trial 14.
As to the sufficiency claim, our Superior Court has said the following:
In 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.
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super.2009), appeal denied, 607
Pa. 690, 3 A.3d 670 (2010). "Such specificity is of particular importance in cases
where, as here, the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must prove beyond a
reasonable doubt." Id. at 281 (citation omitted).
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). Here, defendant's boilerplate
sufficiency claim fails to specify any elements of any of the offenses that defendant believes to
4
be unsupported by sufficient evidence. Accordingly, the Court was given no clue as to what
claims defendant intends to raise on appeal regarding the sufficiency of the evidence. Therefore,
this claim is waived. Id.Defendant's weight claim is equally infirm. A mere averment that the verdict was against
the weight of the evidence without identifying which verdict or verdicts to which defendant is
referring, and without giving specific reasons as to why the verdicts were contrary to the weight
of the evidence will result in waiver of the weight claims. Commonwealth v. Freeman, 128 A.3d
1231, 1248-1249 (Pa. Super. 2015).
B. Mailing ofDiscovery to Defendant's Parents
Defendant next claims that the Court "erred in overruling defense counsel's objection
concerning the [ d]efendant mailing discovery he received to his parents, since it gave rise to an
impermissible inference that the discovery was being used to intimidate potential
Commonwealth witnesses." Statement of Errors at ,i 4. This claim is without merit.
The law concerning the admission of evidence in Pennsylvania is well settled:
The admission of evidence is a matter vested within the sound discretion
of the trial court, and such a decision shall be reversed only upon a
showing that the trial court abused its discretion. In determining whether
evidence should be admitted, the trial court must weigh the relevance and
probative value of the evidence against the prejudicial impact of that
evidence. Evidence is relevant if it logically tends to establish a material
fact in the case or tends to support a reasonable inference regarding a
material fact. Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is inadmissible on
account of its prejudicial impact.
Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (internal citations omitted); see Pa.R.E.
401-403.
Here, the challenged ruling permitted the Commonwealth to elicit from defendant, on
cross-examination, that he had mailed copies of the witness statements in his case, which he had
5
received from his attorney, to his mother and brother. N.T. 7/14/16 at 32-35. According to
defendant, this evidence gave rise to "an impermissible inference" that defendant was using the
statements to intimidate witnesses.2 However, when combined with other evidence in the case,
the mailing of the statements was, in fact, compelling evidence that defendant was attempting to
interfere with the witnesses.
In particular, the Commonwealth proved, through recordings of defendant's prison
telephone calls, that he and his brother Isaiah concluded that since there were no surveillance
cameras at the playground, and since the police did not have the gun, the only problem with the
case was the witnesses. As Isaiah told defendant, "Only thing is the motherfuckers that saying
you did it. But you gonna find out, we gonna find out who saying." Commonwealth Exh. C-12
(conversation of 7 /27 /13).
Accordingly, defendant's mailing of the witness statements to his home, where Isaiah
lived, was highly probative of defendant's attempt to interfere with witnesses. Contrary to
defendant's assertion in the Statement of Errors, the inference of witness intimidation was not
"impermissible." Statement of Errors ,i 4. Our Supreme Court "has long recognized that any
attempt by a defendant to interfere with a witness's testimony is admissible to show the
defendant's consciousness of guilt." Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003).
Moreover, the evidence regarding the mailing of the statements was also admissible to
corroborate other evidence of witness intimidation in the case, and thereby to help explain the
conduct of important Commonwealth witnesses. Witness Shawn Adams, who had identified
defendant as the shooter in his statement to the police, denied that he saw the shooting when he
testified at trial. N .T. 7 /12/16 at 119; 131. In addition, Adams testified at the preliminary hearing
2At trial, counsel did not base his objection on any impermissible inferences from the evidence. The only ground
given for the objection was relevance. N.T. 7/14/16 at 34.
6
that he had heard that there was a price on his head and that several individuals had threatened
him about coming to court. N.T. 7/12/16 at 150-153.3 Adams also testified at trial that he was
physically assaulted a few days after he testified at the preliminary hearing as a result of having
testified. N.T. 7/12/16 at 162, 182-183.
Witness Isaac Guy heard the shots being fired and then saw the defendant and his brother
run out of the playground. N.T. 7/13/16 at 133-136. He testified that he delayed in reporting what
he saw to the police because he was worried that it "was going to come back at [him]." And that
"snitches get stitches, so you don't want to rat on that person." N.T. 7/13/16 at 144-145.
Accordingly, the evidence of the mailed statements was highly probative of defendant's
consciousness of guilt and provided corroboration of other evidence of pervasive witness
intimidation in the trial. Therefore, the evidence was properly admitted.
C. Question to Defendant Assuming Facts Not in Evidence
Finally, defendant asserts that the Court "erred in overruling defense counsel's objection
as to the motive of Shawn Adams identifying the [ d]efendant because it assumed facts which
were not in evidence." Statement of Errors at 15. This claim is without merit.
During the cross-examination of the defendant, the prosecutor asked whether defendant
knew of any motive for witness Shawn Adams to have identified defendant as the shooter. N.T.
7/14/16 at 37. Defendant claims that this question was improper because there was no evidence
that Adams had, in fact, identified defendant as the shooter. Absent such evidence, the question
would have been predicated upon "facts not in evidence" and would have been objectionable.
It is true that Adams testified at trial that he did not see the shooting. N. T. 7 /12/16 at 119.
However, in his statement to police prior to the trial, Adams stated that he saw defendant shoot
the decedent, and Adams identified defendant as the shooter from a photo array. The statement,
3
At trial, Adams claimed to have no memory of that testimony. N.T. 7/12/16 at 150-153.
7
including the identification from the photo array, was read to the jury in its entirety during the
trial. N.T. 7/12/16 at 121-140. The statement was admissible for its truth under the hearsay
exception for prior inconsistent statements signed and adopted by the declarant. See Pa.R.E.
803.l(l)(b). Moreover, when confronted at trial with the statement, Adams ultimately admitted
that he had identified defendant as the shooter, and that his prior identification was truthful. N.T.
7/12/16 at 131-134.
Accordingly, defendant's contention that there was no evidence that Adams had
identified defendant as the shooter is refuted by the record. Therefore, the challenged question
did not assume any facts that were not in evidence. No relief is due.
III. CONCLUSION
For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.
BY THE COURT:
�
8