Com. v. Jones, D. ( 2016 )

J. S45018/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
DAVON JONES, :
Appellant :
: No. 1467 WDA 2015
Appeal from the Judgment of Sentence September 2, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000530-2015
BEFORE: OLSON, DUBOW AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 30, 2016
Appellant, Davon Jones, appeals from the Judgment of Sentence
entered in the Erie County Court of Common Pleas on September 2, 2015,
following his convictions for Aggravated Assault and Recklessly Endangering
Another Person. Appellant challenges the sufficiency of the evidence for
each of these offenses. After careful review, we conclude that Appellant
waived this argument by failing to properly develop it in his Brief to this
Court.
A detailed factual and procedural history is unnecessary to our
disposition. For purposes of this Memorandum, we summarize the facts and
*
Retired Senior Judge Assigned to the Superior Court.
J.S45018/16
procedural history as follows. During the early morning hours of Christmas
Day, 2015, security footage from Juliet’s—a strip club—captured Appellant
and the victim, D’Angelo Troop (“Troop”), engage in a verbal dispute over a
woman. The argument continued in the parking lot out front, where
additional security cameras captured Troop leaving the scene in his vehicle,
followed closely behind by Appellant. Troop drove a few blocks before his
car was overtaken by Appellant’s vehicle. Troop was shot five times in the
chest, face, and neck.
While still in the hospital recovering from his injuries, Troop gave
multiple statements identifying Appellant as the shooter, including a
recorded statement to investigators in which Troop stated that he saw
Appellant reach his hand out of the other vehicle and fire the shots that hit
him. Troop also identified Appellant as the shooter in a photo array.
As trial approached, Troop became increasingly uncooperative with the
prosecution. At trial, Troop denied seeing Appellant shoot him and claimed
not to know who the shooter was. The Commonwealth introduced Troop’s
prior statements identifying Appellant as the shooter as substantive evidence
in its case-in-chief.
On July 24, 2015, a jury found Appellant guilty of Aggravated Assault
and Recklessly Endangering Another Person.1 On September 2, 2015, the
1
Appellant was charged with various additional offenses including, inter alia,
Attempted Murder, Conspiracy, and firearms charges. The jury acquitted
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trial court sentenced Appellant to a term of ten to twenty years of
incarceration.
Appellant timely appealed. Both Appellant and the trial court satisfied
the requirements of Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
The evidence in this case was insufficient to prove that
[Appellant] had the mens rea to commit the crimes or that he
actually committed the crimes.
Appellant’s Brief at 2.
Before we reach the merits of the issue raised on appeal, we
determine whether the issue was properly preserved and developed for
review.
Our Pennsylvania Rules of Appellate Procedure and our case law lay
out the well-established requirements for preserving a claim for appellate
review. This Court will address only those issues properly presented and
developed in an appellant’s brief as required by our rules of appellate
procedure, Pa.R.A.P. 2101-2119. “Appellate arguments which fail to adhere
to these rules may be considered waived, and arguments which are not
appropriately developed are waived.” Karn v. Quick & Reilly Inc, 912
A.2d 329, 336 (Pa. Super. 2006). Thus, issues raised in a Brief’s Statement
of Questions Involved but not developed in the Brief’s argument section will
Appellant on some of these charges and was unable to reach a verdict on
the remaining charges.
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be deemed waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703
(Pa. Super. 1992).
To properly develop an issue for our review, Appellant bears the
burden of ensuring that his argument section includes citations to pertinent
authorities as well as discussion and analysis of the authorities. See
Pa.R.A.P. 2119(a); Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.
Super. 2007) (“[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.” (citation omitted)). Where an Appellant’s argument rests on
evidence in the record, he must make appropriate citations to the record in
his argument. Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super.
2003).
As this Court has made clear, we “will not act as counsel and will not
develop arguments on behalf of an appellant.” Hardy, 918 A.2d at 771.
Where defects in a brief “impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived.” Id.In the instant case, Appellant seemingly attempts to challenge both his
identity as the shooter and, assuming he was the shooter, his mental state
at the time of the offense. Questions of identity and mental state are
distinct issues that Appellant should have properly divided into separate
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argument sections. See Pa.R.A.P. 2119(a) (“The argument shall be divided
into as many parts as there are questions to be argued”). Instead, the
argument section of Appellant’s Brief to this Court is a wholly confusing
amalgamation of de minimis boilerplate case law regarding mens rea and
cursory discussion and analysis of the identity evidence presented at trial.
Appellant failed to develop his assertion that he lacked the necessary
mens rea to commit the offense. At best, Appellant’s brief makes a bald
assertion that he lacked the mens rea to commit Aggravated Assault and
Recklessly Endangering Another Person. While Appellant’s Brief does lay out
the elements of each offense, and cites case law regarding the necessary
mens rea, Appellant does not in any way discuss the case law, apply the
facts of his case to the case law cited, or discuss how those facts fail to
make out the required mental states.
Instead, Appellant summarily avers that he lacked the required mens
rea because he was not in any way involved in these crimes. This is an
issue of identity, not mental state, and as such, Appellant was required to
provide this Court with relevant authority and analysis regarding identity.
And while Appellant does discuss the facts of his case in challenging his
identity as the shooter, he does so without a single citation to relevant
authority.
Appellant’s failure to adhere to the rules of appellate procedure and to
develop either claim prevents this Court from conducting a meaningful
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appellate review. Therefore, we conclude Appellant has waived his issues.
Accordingly, we affirm.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judges Olson and Platt both Concur in Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2016
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