Com. v. Pennington, N. ( 2017 )

J-A28040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NAFIS PENNINGTON,
Appellant No. 1364 EDA 2015
Appeal from the Judgment of Sentence April 16, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0013565-2012
CP-51-CR-0013566-2012
BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 08, 2017
Appellant, Nafis Pennington, appeals from the judgment of sentence
imposed on April 16, 2015, following his jury conviction of aggravated
assault,1 conspiracy,2 and related weapons offenses.3 On appeal, Appellant
challenges certain of the trial court’s evidentiary rulings and claims that his
conviction was against the weight of the evidence. For the reasons
discussed below, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2702(a).
2
18 Pa.C.S.A. § 903(c).
3
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108, and 907(a).
J-A28040-16
We take the underlying facts and procedural history in this matter
from the trial court’s October 1, 2015 opinion and our independent review of
the certified record. The instant matter arose out of two gang-related
shootings in the fall of 2011 and the summer of 2012. The Commonwealth
charged Appellant in both shootings, but the jury acquitted him of all
charges related to the June 11, 2012 shooting. 4 (See N.T. Trial, 2/04/15, at
16-17).
In 2011, there was rivalry between two groups in the West
Philadelphia neighborhood known as “the Bottom.” (See N.T. Trial, 1/29/15,
at 69-70, 167). Appellant and co-defendant Kiyon Grant associated with a
crew that congregated on Mt. Vernon Street between 35th and 38th Streets.
(See id. at 76, 99, 172). The victims, Randy Brown and Garren Tyler,
associated with a faction that gathered around 32nd and Brandywine Streets.
(See id. at 76, 98-99, 172-73, 177-78).
On November 9, 2011, Brown and Tyler were walking to Brown’s
house. (See id. at 65-67). At the intersection of 32nd and Mt. Vernon
Streets, Appellant, co-defendant Grant, and one Jeffrey Johnson walked to
____________________________________________
4
Since the jury acquitted Appellant of all charges arising out the June 2012
shooting, we need not discuss it further, except to note that certain of the
Commonwealth witnesses testified about both shootings, while others only
testified regarding one shooting. One of the witnesses who only testified
about the June 2012 shooting was Detective Mary Kuchinsky, who stated
that she took a statement from a witness to the incident. (See N.T. Trial,
1/29/15, at 155-63).
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within three car lengths of Brown and Tyler. (See id. at 67-68, 73). The
trio pulled out guns and fired on them. (See id. at 68-69, 86-87; N.T. Trial,
1/30/15, at 66-67). One bullet hit Brown’s left thigh, causing him to fall.
(See N.T. Trial, 1/29/15, at 69, 168). Tyler attempted to flee but a bullet
hit his ankle. (See id. at 86, 90, 137).
Detective Craig Fife arrived at the scene and recovered five fired
cartridge casings. (See N.T. Trial, 1/30/15, at 146). He saw a trail of blood
leading to the doorway of Brown’s house, one-half block from the scene of
the shooting. (see id. at 147-48). He saw another blood trail leading to the
doorway of Tyler’s aunt’s house. (See id. 146-148).
Brown refused to cooperate with police. (See N.T. Trial, 1/29/15, at
168-69; N.T. Trial, 1/30/15, at 154-155). While Tyler initially refused to
cooperate with the police, he gave a statement to them in April 2012, after
being arrested on an unrelated matter. (See N.T. Trial, 1/29/15, at 76-77).
On June 13, 2012, Detective Frank Mullen took a statement from India
Tyler (see N.T. 1/30/15, at 100); in the statement she said that she saw co-
defendant Grant and Jeffrey Johnson shoot her cousin. (See N.T. 1/30/15,
at 65-66, 105-06). She also stated that Appellant and co-defendant Grant
associated with people from 35th Street. (See id. at 41). She further
discussed a history of disagreements between the 35th Street group and the
32nd Street and Brandywine Avenue group. (See id. at 45-46, 50-53, 57-
58).
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Ms. Tyler testified that Eli Boyd was not associated with either group.
(See N.T. Trial, 1/30/15, at 41). Mr. Boyd testified that, on June 29, 2012,
he gave a statement to the police. (See N.T. Trial, 2/02/15, at 62). In his
statement, he described animosity between the two neighborhood groups
over drugs and territory. (See N.T. Trial, 2/02/15, at 83-87). Boyd also
told police that Appellant, co-defendant Grant, and Johnson, shot Tyler and
Brown in November 2011. (See id. at 86-87, 89-91, 94-95).
On July 2, 2012, police officers executed a search warrant at 3421
Wallace Street, the residence of Whitley Kelly, the mother of Appellant’s
child. (See N.T. Trial, 1/30/15, at 116-17; N.T. Trial, 2/02/15, 164-65).
They recovered a black Hi-Point semiautomatic handgun, which was loaded,
several bills in Appellant’s name, and a receipt showing that Appellant had
paid rent to Kelly. (See N.T. Trial, 2/02/15, at 165-66). Subsequent testing
demonstrated that the gun was operable, and that it had fired all five shell
casings recovered from the scene of the shooting. (See id. at 189-91).
On November 28, 2012, the Commonwealth filed a criminal
information. A jury trial began on January 29, 2015.
At trial, Tyler testified in accordance with the statement he gave to
police, stating that Appellant and co-defendant Grant shot him and Brown.
(See N.T. Trial 1/29/15, at 67-69; see generally, id. at 86-97). However,
India Tyler recanted her previous statement with respect to the shooting.
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(See N.T. Trial, 1/30/15, at 34, 47-48, 50-53, 56, 58). Boyd also recanted
his statement to the police. (See N.T. Trial, 2/02/15, at 63).
Detective Matthew Carey, a detective with significant experience in the
neighborhood, testified, without objection, that Appellant and co-defendant
Grant were from the area of 35th Street to 38th Street on Mt. Vernon Street.
(See N.T. Trial, 1/29/15, at 172; N.T. Trial, 1/30/15, at 16). However,
Brown and his friends lived in the area of 32nd Street and Brandywine and
Haverford Avenues. (See N.T. Trial, 1/29/15, at 172). Tyler associated with
Brown and his friends. (See id. at 172-73). Detective Carey stated that
Boyd was friends with both groups. (See id. at 173). He noted that India
Tyler was related to Garren Tyler. (See id.). When the Commonwealth
attempted to question Detective Carey about “the relationship between the
groups that hang at 32nd and 33rd and the group that hangs at 35th and
36th[,]” Appellant objected, claiming that this called for a “speculative
opinion.” (Id. at 178).5 Ultimately, Detective Carey testified that Appellant
____________________________________________
5
At that point, the trial broke for the day. The next morning, Appellant’s
counsel admitted that he had no law to support a contention that a police
officer possessing sufficient familiarity with an area could not testify about
neighborhood rivalries. (See N.T. Trial, 1/30/15, at 5-6). Appellant did not
renew his objection that the testimony was speculative. Rather, he asked
that the trial court conduct an in camera hearing to lay a foundation about
Detective Carey’s familiarity with the neighborhood before allowing the jury
to hear the testimony, stating if “he has expertise and then, if Your Honor
says I believe he’d be qualified to talk about that, then we’ll let the jury hear
the testimony[.]” (Id. at 7-8). The trial court then ruled that Detective
Carey could not mention any criminal activities or gangs. (See id. at 9-11).
(Footnote Continued Next Page)
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and co-defendant Grant “associated with 35th Street to 38th Street on Mt.
Vernon Street and Melon Street, exclusively.” (N.T. Trial, 1/30/15, at 16).
He continued that “these guys primarily stay on those blocks, they don’t go
to 32nd Street and hang out and (sic) 33rd Street[. . . . ]” (Id.). He
reiterated that the victims were part of the 32nd and 33rd Street group and
that the two groups did not co-mingle. (See id. at 17-19).
Detective Craig Fife, the assigned detective with respect to the
November 2011 shooting testified as to his role in the investigation. (See
N.T. Trial, 1/30/15, at 142-73). On cross-examination, when asked by co-
defendant’s Grant’s counsel how he ascertained that his client lived at a
certain address, Detective Fife stated that he obtained the address through
probation or parole. (See N.T. Trial, 2/02/15, at 22).
On February 4, 2015, the jury convicted Appellant of the above-cited
offenses related to the November 2011 shooting. (See N.T. Trial, 2/04/15,
at 15-16). On April 16, 2015, the trial court sentenced Appellant to an
aggregate term of incarceration of not less than twenty-six nor more than
_______________________
(Footnote Continued)
Appellant noted that evidence regarding a relationship between Appellant
and co-defendant Grant was already in the record and that they were not
disputing that they knew each other. (See id. at 11-12). The trial court
ruled that Detective Carey could testify that he had seen Appellant and co-
defendant Grant together and with others in a group and that, he had seen
the victims with a group that congregated in a different area. (See id. at
13).
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sixty years. (See N.T. Sentencing, 4/16/15, at 41). Appellant did not file
any post-sentence motions.
On May 14, 2015, Appellant filed a timely notice of appeal. On June 3,
2015, prior to the trial court issuing an order, Appellant filed an eleven-page
Rule 1925(b) statement. (See Concise Statement of Errors, 6/03/15, at
unnumbered pages 1-11). On October 1, 2015, the trial court issued an
opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
1. Was it improper for the [t]rial [c]ourt to allow Detective Carey
to testify about rival gangs and the Appellant’s alleged affiliation
with one of these criminal organizations?
2. Did the trial court abuse its discretion when it failed to
declare a mistrial upon [t]rial [c]ounsel’s request when Detective
Fife provided evidence for how he identified [co-defendant]
Grant, India Tyler and Eli Boyd testified (sic) about a source of
information, and the Commonwealth made inflammatory
remarks during closing arguments?
3. Did the [t]rial [c]ourt improperly allow the Commonwealth to
present testimony from Detective Kuchinsky[,] which unfairly
surprised and prejudiced him during his trial?
4. Was the finding by the jury adjudicating Appellant guilty
against the weight of the evidence presented at trial?
(Appellant’s Brief, at 3).
Prior to analyzing the issues in Appellant’s brief, this Court must
determine whether any issues have been properly preserved for our review.
See Commonwealth v. Wholaver, 903 A.2d 1178, 1184 (Pa. 2006), cert.
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denied, 549 U.S. 1171 (2007) (holding that appellate courts may sua sponte
determine whether issues have been properly preserved on appeal).
Rule 1925(b)(4) provides, in pertinent part:
(ii) The Statement shall concisely identify each ruling or
error that the appellant intends to challenge with sufficient detail
to identify all pertinent issues for the judge. The judge shall not
require the citation to authorities; however, appellant may
choose to include pertinent authorities in the Statement.
* * *
(iv) The Statement should not be redundant or provide
lengthy explanations as to any error. Where non-redundant,
non-frivolous issues are set forth in an appropriately concise
manner, the number of errors raised will not alone be grounds
for finding waiver.
Pa.R.A.P. 1925(b)(4)(ii), (iv).
Here, Appellant filed a Rule 1925(b) statement that was eleven pages
in length, and which raised close to sixty issues. (See Concise Statement of
Errors Complained of on Appeal, 6/03/15, at unnumbered pages 1-11).
Given this, this Court would be well within its rights to find Appellant has
waived all issues on appeal. See Jiricko v. Geico Ins. Co., 947 A.2d 206,
210 (Pa. Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008) (finding
waiver appropriate remedy where appellant filed five-page incoherent
statement of errors); see also Kanter v. Epstein, 866 A.2d 394, 401 (Pa.
Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005), cert. denied, 546
U.S. 1092 (2006). However, the trial court admirably attempted to address
Appellant’s claims. (See Trial Ct. Op., at pages 8-44). Because of this, and
because Appellant included only four issues in his brief, despite our grave
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reservations, we decline to find waiver and will address the issues in
Appellant’s appeal.
In his first and third issues, Appellant challenges certain evidentiary
rulings made by the trial court. (See Appellant’s Brief, at 3). This Court has
held that:
With regard to evidentiary challenges, it is well established
that [t]he admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error. An abuse of
discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of
record. Furthermore, if in reaching a conclusion the trial court
overrides or misapplies the law, discretion is then abused and it
is the duty of the appellate court to correct the error.
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation
and quotation marks omitted).
In his first claim, Appellant alleges that the trial court erred in allowing
Detective Carey6 to testify about rival gangs and Appellant’s affiliation with a
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6
To the extent that Appellant appears to argue that the trial court also
improperly allowed Tyler and Boyd to testify about “a potential organized
crime war[,]” (Appellant’s Brief, at 15; see also id. at 15-18), the claims
are waived because they do not appear in Appellant’s statement of questions
involved. The Rules of Appellate Procedure provide that issues to be
resolved must be included in the statement of questions involved or “fairly
suggested” by it. Pa.R.A.P. 2116(a). These issues are not included in the
statement of questions involved, nor are they “fairly suggested” by it. Thus,
we hold that Appellant has waived these claims. See Commonwealth v.
Harris, 979 A.2d 387, 397 (Pa. Super. 2009) (holding claim waived when
(Footnote Continued Next Page)
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criminal organization. (See Appellant’s Brief, at 14). Appellant claims that
this was improper evidence of other crimes admitted in violation of
Pennsylvania Rule of Evidence 404(b). (See id.). However, Appellant
waived this claim.
Initially we note that Appellant’s contention that Detective Carey
“made prejudicial and speculative statements remarks about Appellant’s
alleged gang affiliation and a suspected turf war[,]” is not supported by the
record. (Appellant’s Brief, at 16). As described above, Detective Carey
never used the word gang, referred to any criminal activities with respect to
the two groups, or discussed a turf war. (See N.T. Trial, 1/29/15, at 172-
73; N.T. Trial 1/30/15, at 16-19). Rather, he testified that people who lived
in different parts of the neighborhood associated with others from that area;
Appellant and co-defendant Grant associated with one group of people;
Brown and Tyler associated with a different group; and the two groups did
not mix.7 (See id.). The only testimony regarding a history of animosity
_______________________
(Footnote Continued)
not included in statement of questions involved). Moreover, the record
reflects that Appellant did not object to either Tyler or Boyd’s testimony at
trial. (See N.T. Trial, 1/29/15, at 70, 76; N.T. Trial 2/02/15, at 83-87). It
is settled that failure to raise a contemporaneous objection constitutes a
waiver of the claim. See Commonwealth v. Powell, 956 A.2d 406, 419
(Pa. 2008), cert. denied, 556 U.S. 1131 (2009).
7
We note that Detective Carey’s testimony was cumulative of the more
detailed testimony of Garren Tyler, India Tyler, and Eli Boyd with respect to
the affiliations and animosities in the neighborhood; Appellant did not object
(Footnote Continued Next Page)
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between the two groups because of criminal activity came in the
unchallenged testimony of Boyd. (See N.T. Trial, 2/02/15, at 83-87).
In any event, to the extent that Appellant claims that the trial court
improperly admitted Detective Carey’s testimony in violation of Pa.R.E.
404(b) or that it was unduly prejudicial, (see Appellant’s Brief, at 14, 16),
he waived the claim. At trial, Appellant initially objected to Detective
Carey’s testimony as speculative. (See N.T. Trial, 1/29/15, at 178). He
then tacitly withdrew the objection the next day, subject to the
Commonwealth’s laying a foundation as to the basis of Detective Carey’s
knowledge, and never renewed the objection. (See N.T. Trial, 1/30/15, at
5-8). It is settled that failure to raise a contemporaneous objection
constitutes a waiver of the claim. See Powell, supra at 419. Moreover, this
Court has stated that, “[w]here a specific objection is interposed, other
possible grounds for the objection are waived.” Commonwealth v. Shank,
883 A.2d 658, 672 (Pa. Super. 2005), appeal denied, 903 A.2d 538 (Pa.
2006) (citations omitted). Because Appellant withdrew his objection to the
allegedly speculative nature of Detective Carey’s testimony and did not
otherwise object to his testimony on the grounds of unfair prejudice or as a
violation of Rule 404(b), he has waived this claim. See Powell, supra 419;
Shank, supra at 672.
_______________________
(Footnote Continued)
to any of their testimony on this topic. (See N.T. Trial, 1/29/15, at 70, 76;
N.T. Trial 1/30/16, at 41, 45-46; N.T. Trial 2/02/15, at 83-87).
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Furthermore, Appellant’s argument is undeveloped. His argument
consists of the text of Rule 404(b), and a single generic citation to case law
saying that the probative value of evidence must outweigh the potential for
prejudice. (See Appellant’s Brief, at 14). There are no other citations to
relevant legal authority and no attempt to apply law to the relevant facts.
(See id. at 14-19). Moreover, his argument includes a lengthy summary of,
and complaint about, the testimony of both Tyler and Boyd, issues that
Appellant did not preserve for our review; a factually inaccurate summary of
Detective Carey’s testimony; and a bald and self-serving claim that the
testimony was somehow prejudicial to Appellant. (See id.). This Court will
not act as counsel and will not develop arguments on behalf of an appellant.
See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012), appeal denied, 56
A.3d 398 (Pa. 2012). When deficiencies in a brief hinder our ability to
conduct meaningful appellate review, we can dismiss the appeal entirely or
find certain issues to be waived. See Pa.R.A.P. 2101; R.D., supra at 674.
Accordingly, we find Appellant waived his claim for this reason as well.
In his third claim, Appellant alleges that the trial court erred in
allowing the Commonwealth to present the testimony of Detective
Kuchinsky. (See Appellant’s Brief, at 24). Specifically, Appellant claims that
Detective Kuchinsky’s testimony constituted unfair surprise, was prejudicial
to him, and violated his rights under the Confrontation Clause of the United
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States Constitution. (See id. at 24-25). However, Appellant has waived
this claim.
Appellant argues that the trial court erred in finding that he waived
this claim because he did not object to Detective Kuchinsky’s testimony.
(See Appellant’s Brief, at 25; Trial Court Opinion, 10/01/15, at 12). We
agree, as the record reflects that Appellant did object to her testimony.
(See N.T. Trial, 1/29/15, at 154). However, while Appellant did object, he
did not raise the Confrontation Clause issue, or claim unfair surprise and
prejudice. (See id. at 154-55). Rather, the only basis for his objection was
that the Commonwealth did not list Detective Kuchinsky on the witness list.
(See id.). As discussed above, Appellant cannot raise a different basis for
his objection to Detective Kuhinsky’s testimony than that raised below. See
Shank, supra at 672. Because Appellant did not object on the grounds of a
violation of the Confrontation Clause, unfair surprise, or prejudice, 8
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8
In any event, Appellant cannot show that Detective Kuchinsky’s testimony
prejudiced him. In her brief testimony, Detective Kuchinsky described the
circumstances of taking a statement and showing a photo array to witness
Shanise Hewitt in June 2012. (See N.T. Trial, 1/29/15, at 155-60).
Detective Kuchinsky did not testify about the contents of the statement, and
the photo array only involved co-defendant Grant, not Appellant. (See id.
at 159-60). Shanise Hewitt was a witness to the June 2012 shooting, not
the November 2011 shooting. (See id. at 31-32, 48-51). Appellant was
acquitted of all charges in connection to the June 2012 shooting. (See N.T.
Trial, 2/04/15, at 16-17). Thus, Appellant cannot demonstrate prejudice.
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he waived his third claim.9 See id.
In his second claim, Appellant makes three distinct charges of error.
He claims that the trial court erred or abused its discretion in failing to
declare a mistrial when Detective Fife testified about how he obtained
information regarding co-defendant Grant’s address. (See Appellant’s Brief,
at 19-21). He next contends that the trial court should have declared a
mistrial because “India Tyler and [] Boyd (sic) testimony about a source of
information was extremely prejudicial and was impermissible hearsay.” (Id.
at 21) (unnecessary capitalization omitted). He also argues that the trial
court improperly allowed the Commonwealth to “reference non-participants
in the trial during its closing arguments.” (Id. at 23).
Appellant claims that the trial court erred in not declaring a mistrial10
after Detective Fife testified that he had obtained co-defendant Grant’s
address “through probation or parole, or something to that effect.” (N.T.
Trial, 2/02/15, at 22). We find that Appellant waived this claim.
In the instant matter, we note that neither party made a
contemporaneous objection to Detective Fife’s testimony. (See N.T. Trial,
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9
Appellant has abandoned on appeal his claim that the trial court erred in
admitting Detective Kuchinsky’s testimony because her name was not on the
witness list. (See Appellant’s Brief, at 24-25).
10
We briefly note that, “[o]ur standard of review for the denial of a motion
for a mistrial is limited to assessing whether the trial court abused its
discretion.” Commonwealth v. Scott, 146 A.3d 775, 778 (Pa. Super.
2016) (citation omitted).
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2/02/15, at 22). At the conclusion of Detective Fife’s testimony, co-
defendant Grant’s counsel moved for a mistrial. (See id. at 39-41).
Appellant’s counsel did not join in the motion. (See id.). The trial court
discussed the correct manner in which to handle Detective Fife’s testimony
on three occasions. (See id. at 39-53, 142-49; N.T. Trial, 2/03/15, at 13-
15). Appellant’s counsel never attempted to join in the objection or move
for a mistrial. (See id.).
It is settled that an appellate claim regarding the denial of a motion or
objection is waived where a defendant does not join in a co-defendant’s
objection or motion. See Commonwealth v. Irvin, 134 A.3d 67, 75 n.12
(Pa. Super. 2016) (waiving claim where appellant did not join in co-
defendant’s objection); see also Pa.R.A.P. 302(a); Commonwealth v.
Cannady, 590 A.2d 356, 362 (Pa. Super. 1991), appeal denied, 600 A.2d
950 (Pa. 1991) (concluding where defendant did not object or join in co-
defendant’s objection, issue was waived as to defendant for purposes of
appeal); Commonwealth v. Woods, 418 A.2d 1346, 1352 (Pa. Super.
1980) (issue waived where appellant failed to join objection of co-
defendant). Thus, because Appellant did not join in his co-defendant’s
request for a mistrial, he has waived this issue. See Commonwealth v.
Crocker, 389 A.2d 601, 602 n.4 (Pa. Super. 1978) (appellate claim waived
where appellant did not join in co-defendant’s motion for mistrial).
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Moreover, even if Appellant had not waived this issue, his claim is
meritless because the testimony in question only concerned his co-
defendant. Our Supreme Court has stated, “[a] party generally cannot
vicariously litigate the claims of another party.” Commonwealth v.
McCrae, 832 A.2d 1026, 1034 (Pa. 2003), cert. denied, 543 U.S. 822
(2004). Because Detective Fife’s testimony only implicated co-defendant
Grant, Appellant’s allegation fails. See id.
Appellant claims that the trial court erred in not declaring a mistrial or
disallowing certain unspecified testimony by witnesses India Tyler and Boyd.
(See Appellant’s Brief, at 21-22). However, Appellant has waived this claim.
In his brief, Appellant does not identify the location in the record on
appeal where he moved for a mistrial, or sought other relief, and does not
fully identify the objectionable testimony,11 or otherwise specify where he
preserved this claim for purposes of appeal. (See id. at 21-22). Our review
of the record for this purpose likewise did not identify any place where
Appellant moved for a mistrial and we are unable to discern which portion of
India Tyler and Boyd’s testimony was objectionable.12 This Court will not act
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11
Appellant does not cite to the record for any of India Tyler’s testimony.
(See Appellant’s Brief, at 21-22). While Appellant does provide two record
citations for Boyd’s testimony, his first is to a single sentence and his second
citation is inaccurate. (See id.).
12
Further, to the extent that it can be determined, it appears that any
alleged hearsay testimony by India Tyler resulted from the June 2012
(Footnote Continued Next Page)
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as counsel and will not develop arguments on behalf of an appellant. See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal
denied, 940 A.2d 362 (Pa. 2008); see also Bombar v. West American
Insurance Company, 932 A.2d 78, 94 (Pa. Super. 2007). When
deficiencies in a brief hinder our ability to conduct meaningful appellate
review, we can dismiss the appeal entirely or find certain issues to be
waived. See Pa.R.A.P. 2101; Hardy, supra at 771.
Moreover, it is not this court’s responsibility to comb through the
record seeking the factual underpinnings of Appellant’s claim.
See Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super.
1997) (“In a record containing thousands of pages, this court will not search
every page to substantiate a party’s incomplete argument”) (citation
omitted). Further, when an appellant’s brief fails to sufficiently specify if an
issue is preserved and the certified record does not substantiate the claim,
we may find the issues waived. See Commonwealth v. Rush, 959 A.2d
945, 949-50 (Pa. Super. 2008), appeal denied, 972 A.2d 521 (Pa. 2009).
Accordingly, we find Appellant’s claim to be waived. See Pa.R.A.P. 302(a);
Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(e); Pa.R.A.P. 2101; Hardy, supra at
771.
_______________________
(Footnote Continued)
shooting. (See N.T. Trial, 1/30/15, at 38). As noted above, Appellant was
acquitted of all charges related to that shooting.
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Appellant’s claim with respect to the Commonwealth’s closing
argument is also waived. The certified record does not include the closing
arguments. (See N.T. Trial, 2/03/15, at 67-68). Appellant’s request for
transcript only seeks the transcript for sentencing on April 16, 2015. (See
Request for Transcript, 6/08/15, at unnumbered page 1). We have stated
“[w]hen the appellant . . . fails to conform to the requirements of [Pa.R.A.P.]
1911 [relating to transcript requests], any claims that cannot be resolved in
the absence of the necessary transcript or transcripts must be deemed
waived for the purpose of appellate review.” Commonwealth v. Preston,
904 A.2d 1, 7 (Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007)
(citation omitted). Further, it is the appellant’s responsibility to make
certain that the certified record contains all items necessary to ensure that
this Court is able to review his claims. See Commonwealth v. B.D.G., 959
A.2d 362, 372 (Pa. Super. 2008). An appellant’s failure to ensure that the
original record as certified for appeal contains sufficient documentation to
enable the court to conduct a proper review constitutes a waiver of the issue
sought to be reviewed on appeal. See Growell v. Maietta, 931 A.2d 667,
676 (Pa. Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008); see also
Smith v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993), appeal denied,
652 A.2d 1325 (Pa. 1993). Accordingly, we find Appellant’s contention with
respect to closing argument waived.
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In his final claim, Appellant challenges the weight of the evidence.
(See Appellant’s Brief, at 25-29).13 However, Appellant has not preserved
this claim for our review.
We have long held that this Court cannot consider, in the first
instance, a claim that the verdict is against the weight of the evidence. See
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,
Appellant did not file a post-sentence motion. While he did make certain
oral motions at sentencing, those challenged the sufficiency of the evidence
and certain evidentiary rulings made by the trial court. (See N.T.
Sentencing, 4/16/15, at 5, 8-15). Thus, Appellant did not preserve the issue
for our review. See Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa.
Super. 2003).
Moreover, even if we were to address the merits of the weight of the
evidence claim, it would fail.
Our scope and standard of review of a weight of the evidence claim is
as follows:
____________________________________________
13
In his brief, Appellant intertwines arguments about the sufficiency and the
weight of the evidence. (See Appellant’s Brief, at 25-29). However, any
challenge to the sufficiency of the evidence is waived, because it was not
included in Appellant’s statement of questions involved (see id. at 3). See
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)
(holding sufficiency of evidence claim waived when not included in statement
of questions involved).
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The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and quotation marks omitted). “Thus, the trial court’s denial
of a motion for a new trial based on a weight of the evidence claim is the
least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873,
879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation omitted).
In its Rule 1925(a) opinion, the trial court found Appellant’s weight of
the evidence claims waived. (See Trial Ct. Op., at 42). However, it then
explained in detail why it rejected Appellant’s weight of the evidence claims.
(See id. at 42-44). We have thoroughly reviewed both the trial court’s
opinion and the record in this matter and find that the trial court did not
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commit a palpable abuse of discretion in rejecting Appellant’s weight of the
evidence claims. Therefore, Appellant’s final issue fails.
For the reasons discussed above, we find that Appellant’s claims are
either waived or meritless. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judge Shogan joins the Memorandum.
Judge Panella concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2017
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