Com. v. Edward, A. ( 2017 )

J-S59034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANDRE EDWARD
Appellant No. 1326 EDA 2016
Appeal from the Judgment of Sentence April 6, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008857-2014,
CP-51-CR-0008859-2014
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2017
Appellant, Andre Edward, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial convictions of attempted murder,1 aggravated assault,2 firearms
not to be carried without a license,3 carrying firearms in public in
Philadelphia,4 recklessly endangering another person,5 and criminal
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 901, 2502.
2 18 Pa.C.S. § 2702(a).
3 18 Pa.C.S. § 6106.
4 18 Pa.C.S. § 6108.
5 18 Pa.C.S. § 2705.
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mischief.6 Appellant challenges the sufficiency of the evidence. We affirm
Appellant’s conviction, but vacate and remand his judgment of sentence.
In its opinion, the trial court summarized the relevant facts as follows:
On May 4, 2014, Mr. Byram Rogers went to the Gulf
Gas Station to get food before work when he encountered
Appellant. At that time, Appellant was dating Mr. Rogers’
daughter. Mr. Rogers never had any issue in the past with
Appellant except on one particular occasion where Mr.
Rogers and his wife were scolding their daughter.
Appellant then intervened in their attempt to discipline
their daughter and was very disrespectful toward Mr.
Rogers. As Mr. Rogers was walking into the gas station,
he noticed Appellant talking to a guy in a Chevrolet
Suburban. Appellant then said to Mr. Rogers, “[d]idn’t I
tell you I didn’t want to see you around here no more.”
Appellant immediately came toward Mr. Rogers so he
pushed Appellant back and they got into a slight physical
altercation. Appellant then said, “I am going to get my
gun, going to my trunk . . . .” Appellant opened his trunk,
closed it, hopped into his car and pulled away. Mr. Rogers
then got into his car and began to drive home.
On the drive home, Mr. Rogers noticed the same
Suburban from the gas station following his vehicle. Mr.
Rogers got out of his car and asked the man in the
Suburban why he was following his vehicle. As Mr. Rogers
approached the Suburban, the man in the Suburban drove
off. Mr. Rogers got back into his car and backed up in the
direction where the Suburban drove off. The Suburban
began to drive very fast so Mr. Rogers turned off, drove up
Lowber Street, and parked in the back of his house on the
1700 block of Mohican Street. As Mr. Rogers tried to get
into his back door he heard an engine revving and saw
Appellant hanging out of the car window and “just letting
loose. Pow. Pow. Pow. Pow.” Mr. Rogers then ran off to
his neighbor’s house. He ran behind and then under his
neighbor’s deck. He continued running down the driveway
6 18 Pa.C.S. § 3304(a)(2).
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and saw glass bust out in the car in front of him. When
Mr. Rogers got to the end of the driveway, he saw the car
in reverse coming back down the driveway. Mr. Rogers
dropped his hoagie and ran all the way around to the front
of his house. He then saw Appellant cutting the corner
shooting again. Mr. Rogers then dove between a van and
a car and saw Appellant shoot through the van. Appellant
then said “[y]ou bitch ass old head,” he jumped in the car
and spun off down the block.
During the shooting, Mr. Albert Rutty’s car was struck
by a few bullets. The bullets struck and shattered Mr.
Rutty’s back windshield and back door windows as he sat
in the driver’s seat. Fortunately, Mr. Rutty was not
injured. After the incident, 14 [fired cartridge casings
(FCCs)] were recovered from different locations on
Mohican and the adjacent streets. Ballistics concluded that
all 14 FCCs were fired from the same weapon. The
Commonwealth provided a certificate of non-licensure
corresponding to Appellant carrying a firearm on May 4,
2014.
Trial Ct. Op., 1/11/17, at 2-3 (record citations omitted).
Following a bench trial, Appellant was convicted on September 10,
2015, of the above-mentioned offenses. Thereafter, on April 6, 2016, the
court sentenced Appellant to an aggregate sentence of eight to nineteen
years’ imprisonment and five years’ probation.7 Appellant timely filed a
notice of appeal on April 26, 2016. The court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Appellant complied.
7 Although the parties and the trial court state Appellant was sentenced to a
consecutive five years’ probation, a review of the written sentencing order
indicates Appellant’s probation was ordered to run concurrent to his
confinement. See Sentencing Order, 4/6/16, at 1-2.
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Appellant raises the following issue for our review: “Evidence
presented at trial was insufficient as a matter of law to find [Appellant] guilty
beyond a reasonable doubt.” Appellant’s Brief at 7.
Appellant argues there was insufficient evidence to convict him of all
the aforementioned offenses because there was no physical evidence
connecting him to the alleged shooting. Appellant specifically contends no
firearm was recovered in his home or vehicle that matched the shell casings
or bullet fragments found at the scene, the shooting was not captured on
video, and 911 calls were inconsistent regarding the description of the
vehicle Appellant was allegedly driving and his physical appearance.
Appellant alleges the only identification evidence presented by the
Commonwealth was the victim’s testimony, which Appellant claims was not
credible based on the victim’s multiple crimen falsi convictions and the fact
that he waited eleven hours to report the shooting because he was afraid it
was a potential violation of his probation.
Additionally, Appellant argues the Commonwealth failed to prove
beyond a reasonable doubt that he had a specific intent to kill or cause
serious bodily injury for the offenses of attempted murder and aggravated
assault, respectively. Appellant maintains that the evidence indicated the
shooter was merely attempting to scare the victim and not kill him, as
shown from the fact that none of the shots were fired at close range and
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some were fired through a vehicle window. Appellant concludes this Court
should reverse his judgment of sentence. We disagree.
Preliminarily, we note that Appellant’s Rule 1925(b) statement alleges
that the “[e]vidence presented at trial was insufficient as a matter of law to
find [Appellant] guilty beyond a reasonable doubt.” Appellant’s Pa.R.A.P.
1925(b) Statement, 12/6/16, at 1. Such a general sufficiency of the
evidence challenge to all of his convictions may constitute waiver.
[W]hen challenging the sufficiency of the evidence
on appeal, the [a]ppellant’s 1925 statement must
specify the element or elements upon which the
evidence was insufficient in order to preserve the
issue for appeal. Such specificity is of particular
importance in cases where, as here, the [a]ppellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations
omitted); see also Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.
Super. 2001) (“When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” (citation and quotation
marks omitted)).
Instantly, Appellant’s Rule 1925(b) statement does not fairly suggest
his challenge to the evidence identifying him as the shooter and fails to
identify any elements for any of the offenses of which he was convicted.8
8 Although the trial court authored a responsive opinion, it did not expressly
discuss Appellant’s present contention that the identification evidence was
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Therefore, Appellant’s sufficiency claim for all convicted offenses is waived.
See Pa.R.A.P. 1925(b)(4)(vii); Garang, 9 A.3d at 244.
In any event, even if properly preserved, Appellant’s claim that he was
not the perpetrator would merit no relief, as the victim’s eyewitness
testimony is sufficient to support Appellant’s convictions. See
Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (en banc)
(“it is settled that a positive identification by one witness is sufficient for
conviction”). Moreover, to the extent the trial court addresses and disposes
of the merits of Appellant’s sufficiency claim, including his arguments that
there was insufficient evidence of a specific intent to kill or cause serious
bodily injury, we affirm Appellant’s conviction on the basis of the trial court’s
opinion. See Trial Ct. Op. at 4-12.
Nevertheless, we must address a discrepancy in Appellant’s sentence.
See supra note 7; see also In re M.W., 725 A.2d 729, 731 (Pa. 1999)
(holding a challenge to the court’s statutory authority to impose a sentence
implicates the legality of the sentence). While the parties and the trial court
state Appellant was sentenced to a consecutive five years’ probation, the
insufficient. Moreover, we note that an appellate brief must provide a
substantive argument and citation to relevant authority in support of a
sufficiency claim. See Pa.R.A.P. 2119(b), (c); Commonwealth v. Janda,
14 A.3d 147, 164 (Pa. Super. 2011) (stating a failure to cite law or evidence
in support of an argument in a brief constitutes waiver). Here, Appellant’s
brief fails to provide any relevant statutes and authority to support his
sufficiency claim for the various convictions.
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written sentencing order states Appellant was sentenced to a concurrent
five years’ probation. See Sentencing Order at 1-2. However, this Court
has held that there is “no support in the Pennsylvania statutes that the
General Assembly intended to permit defendants to serve a term of
probation and a term of state incarceration simultaneously. To do [so]
would run contrary to the various policy considerations underlying
sentencing.” Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super.
2011) (footnotes omitted). Although we have attempted to obtain a copy of
the sentencing transcript to resolve this discrepancy, we have been unable
to do so. Therefore, we vacate Appellant’s judgment of sentence and
remand for clarification and/or correction of his probationary sentence. See
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) (holding courts may
vacate sentencing orders that “involve clear errors in the imposition of
sentences that were incompatible with the record . . . or black latter law”).
Conviction affirmed. Judgment of sentence vacated and remanded for
clarification. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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