Com. v. English, D. ( 2021 )

J-S46038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL ENGLISH :
:
Appellant : No. 1208 EDA 2019
Appeal from the Judgment of Sentence Entered February 22, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006223-2017
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 12, 2021
Darryl English (“English”) appeals from the judgment of sentence
imposed following his conviction of aggravated assault, persons not to possess
firearms, and possession of an instrument of crime.1 We affirm.
In its Opinion, the trial court summarized the factual and procedural
history underlying the instant appeal, which we adopt as though fully set forth
____________________________________________
1 See 18 Pa.C.S.A. §§ 2702(a)(1), 6105(a)(1), 907.
J-S46038-20
herein. See Trial Court Opinion, 10/30/19, at 1-7.2
On appeal, English raises the following issues for our review:
1. Were [English’s] convictions supported by sufficient evidence?
2. Were [English’s] convictions against the weight of the
evidence?
3. Did the trial court err i[n] denying [English’s] Motion for Mistrial
after a sequestration violation?
4. Did the trial court err in allowing the contents of an anonymous
tip into evidence?
5. Did the trial court err when it inappropriately inserted itself into
the trial and criticized [English’s] trial counsel?
6. Did the trial court abuse its discretion in sentencing when it
sentenced [English] outside the guidelines?
Brief for Appellant at 5 (issues renumbered for ease of disposition).
____________________________________________
2 We note that the tenth day following the imposition of sentence was Monday,
March 4, 2019. See Pa.R.Crim.P. 720(a)(1). The docket indicates that
English filed his Post-Sentence Motion on Tuesday, March 5, 2019. However,
our review reflects that the Post-Sentence Motion contains a time-stamped
filing date of Saturday, March 2, 2019. See generally Pa.R.Crim.P.
114(C)(2) (requiring docket entries to contain, inter alia, “the date of receipt
in the clerk’s office of the order or court notice[.]”); Pa.R.Crim.P. 576(A)(3)
(stating that when a document for which filing is required “is received by the
clerk of courts, the clerk shall time stamp it with the date of receipt and
make a docket entry reflecting the date of receipt, and promptly shall
place the document in the criminal case file.” (emphasis added)); Pa.R.Crim.P.
113(C)(8) (providing that docket entries in criminal case must include “all
other information required by Rules 114 and 576.”). Under these
circumstances, where the time stamp on English’s Post-Sentence Motion
reflects a filing date of March 2, 2019, we will consider his Post-Sentence
Motion, and the resulting appeal, to be timely filed.
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In his first claim, English argues that the evidence presented at trial was
insufficient to support his convictions. Id. at 25. In particular, English claims
that the Commonwealth failed to establish his identity as the perpetrator. Id.
In support of his claim, English asserts that
[t]he Commonwealth failed to provide sufficient evidence to
convict [English] on any of the charges. The Commonwealth did
not test the blood at the crime scene to determine if another
person with a different blood type committed the shooting. They
failed to DNA or fingerprint test any of the ammunition found at
the crime scene. The only evidence the Commonwealth supplied
… was one identification from a photo array and cell phone data.
Id. at 26.
Initially, we observe that English’s argument pertaining to this issue is
largely underdeveloped. English failed to identify his convictions or set forth
the relevant elements of the offenses. Further, beyond a reference to this
Court’s standard of review in considering a sufficiency challenge, English failed
to include citations to or discussion of relevant legal authorities. See Pa.R.A.P.
2119(a) (providing that an appellant’s argument shall include “such discussion
and citation of authorities as are deemed pertinent.”). Accordingly, we could
deem English’s first issue waived. See Commonwealth v. Samuel, 102 A.3d
1001, 1005 (Pa. Super. 2014) (concluding that appellant waived his claim by
failing to adequately develop his argument or provide citation to and
discussion of relevant authority); Commonwealth v. Gibbs, 981 A.2d 274,
281 (Pa. Super. 2009) (concluding that appellant waived challenge to the
sufficiency of the evidence where he failed to set forth the elements of the
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crimes he was convicted of, identify which elements were not met, or cite to
legal authority).
Nevertheless, the trial court set forth our standard of review and the
elements of each of English’s offenses, summarized the evidence supporting
English’s convictions, and concluded that the sufficiency challenge lacks merit.
See Trial Court Opinion, 10/30/19, at 8-9. Importantly, the victim identified
English as the shooter in a photo array, in his statement to police, and at trial.
Id. at 8; see also Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa.
Super. 2018) (stating that “[a] victim’s in-court testimony, identifying the
defendant as the perpetrator of a crime, is by itself sufficient to establish the
identity element of that crime.”). Because the trial court’s conclusions are
sound and supported by the record, we affirm on the basis of its Opinion in
denying English relief on this claim. See Trial Court Opinion, 10/30/19, at 8-
9.
In his second claim, English contends that his convictions were against
the weight of the evidence, as “[t]here is very little evidence against [English]
in this matter.” Brief for Appellant at 22. English argues that the victim was
unable to provide a description of his assailant to police at any time prior to
the photo array. Id. at 24. But see id. n.2 (wherein English concedes that
the victim was unable to speak with police, as he had been shot in the face).
According to English, the victim’s identification should not be given any
weight, because the victim most likely would have seen English in the area
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prior to the shooting, and would have been able to identify him without use of
the photo array. Id. at 24-25. English also claims that the cell phone data
evidence should not be given weight because English lives in the area of the
crime scene, so the location data does not establish his connection to the
crime. Id. at 25.
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Bright, 234 A.3d 744, 749 (Pa. Super. 2020) (citation
omitted).
Again, English failed to include citation to and discussion of authorities
pertinent to his claim, beyond a recitation of this Court’s standard for
reviewing challenges to the weight of the evidence. Thus, we could deem this
issue waived. See Pa.R.A.P. 2119(a); Samuel, supra; Gibbs, supra.The trial court nevertheless addressed English’s weight claim, and
concluded that it lacks merit. See Trial Court Opinion, 10/30/19, at 10. The
trial court observed that the victim’s testimony that he was shot outside of
English’s home was consistent with his pre-trial identification of English as the
shooter. Id. From the verdict, it is apparent that the jury found the victim’s
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testimony to be credible. English essentially asks us to reweigh the evidence
and reassess the victim’s credibility, tasks which we cannot undertake. See
Bright, supra; see also Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa.
2011) (stating that “[o]n appeal, this Court cannot substitute its judgment for
that of the jury on issues of credibility, or that of the trial judge respecting
weight.”). Thus, English is not entitled to relief on this claim.
In his third claim, English asserts that the trial court erred in denying
his Motion for Mistrial after a sequestration violation. Brief for Appellant at
17. According to English, a conversation took place between Detective Ronald
Palumbo (“Detective Palumbo”), the prosecutor, Detective Edward Keppol
(“Detective Keppol”) and the victim;3 at that time, Detective Palumbo had
already testified, but Detective Keppol and the victim had not. Id. at 18.
English argues that the trial court did not permit trial counsel to investigate
the violation, or to call any witnesses to determine the extent of the violation.
Id. Additionally, English claims that
[a]s a result of this conversation, Detective Keppol testified to a
crucial piece of evidence in this case that almost certainly swayed
the jury. The [victim] told him, during the sequestration violation,
that a .45 caliber bullet was still lodged in his neck. This was the
same caliber bullet recovered from [English’s] doorstep.
Additionally, [the victim] testified that he had dropped the .22
caliber bullets onto Patton Street the night of the incident. [The
victim] never mentioned this fact to police during their
____________________________________________
3 In the first mention, English refers to the final party to this conversation
simply as “the witness who had not yet testified.” Brief for Appellant at 18.
However, from the remainder of English’s argument, it appears that this
witness was the victim.
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investigation or during his grand jury testimony. The existence of
these previously unaccounted-for bullets was a critical part of
[English’s] case. The revelation of this testimony that occurred
after the sequestration violation demonstrates the impact of the
violation on the witnesses and the trial. [English] was
undoubtedly prejudiced by this testimony and not being allowed
time to adequately investigate the violation and any new
information stemming from it.
Id. at 18-19.
Where violation of a sequestration order occurs, the remedy
selected is within the sound discretion of the trial court. In
exercising discretion, the trial court should consider the
seriousness of the violation, its impact on the testimony of the
witness, and its probable impact on the outcome of the trial. We
will disturb the trial court’s exercise of its discretion only if there
is no reasonable ground for the action taken. Additionally, the
trial court should consider whether the party calling the witness
procured his disobedience. Further, a mistrial may be granted
only where the incident upon which the motion is based is of such
a nature that its unavoidable effect is to deprive the defendants
of a fair trial by preventing the jury from weighing and rendering
a true verdict.
Commonwealth v. Rose, 172 A.3d 1121, 1127 (Pa. Super. 2017) (citations,
quotation marks, ellipses, brackets, and paragraph breaks omitted).
In its Opinion, the trial court summarized the relevant portions of trial
testimony, addressed English’s claim, and concluded that it lacks merit. See
Trial Court Opinion, 10/30/19, at 14-17. The trial court concluded that
“Detective Palumbo should not have conversed with the sequestered witness
[the victim] after the detective had just testified, [but] the record indicates
that the conversation was innocuous and there is no evidence suggesting
otherwise.” Id. at 17. Additionally, the trial court stated that it offered, more
than once, to instruct the jury to ignore the challenged testimony as lacking
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evidentiary support, but that trial counsel declined. Id. at 15-16. From the
circumstances, the alleged violation did not clearly and unavoidably deny
English a fair trial. See Rose, supra. We discern no abuse of the trial court’s
discretion in denying a mistrial, and affirm on the basis of the trial court’s
Opinion with regard to this claim. See Trial Court Opinion, 10/30/19, at 14-
17.
In his fourth claim, English avers that the trial court erred in permitting
the contents of an anonymous tip into evidence, over his hearsay objection. 4
Brief for Appellant at 19. English claims that police had not identified him as
a suspect until he was named in an anonymous tip. Id. According to English,
“[t]he Commonwealth violated the preclusion order by knowingly soliciting
testimony that had been precluded.” Id. at 20. English also argues that
“[t]he testimony is prejudicial to [English] because it suggests to the jury that
[English] was specifically identified to police as the perpetrator by a witness
other than the [victim] who testified in court.” Id.
English again failed to adequately develop this claim for review. See
Pa.R.A.P. 2119(a). Despite mentioning a preclusion order, English does not
____________________________________________
4 English first mentions the rule against hearsay, but proceeds to state that
“the question is not whether the content of the anonymous tip were hearsay
[sic], but rather, did the trial court violate its own order by allowing the
Commonwealth to solicit the content of the anonymous tip….” Brief for
Appellant at 19.
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cite to the place in the record where such a ruling may be found. 5 See
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)
(stating that this Court will not “scour the record to find evidence to support
an argument”). English’s vague and unsupported claim is waived. See
Samuel, supra; Gibbs, supra.6
In his fifth claim, English argues that the trial court improperly inserted
itself into the trial, and criticized his trial counsel. Brief for Appellant at 21.
English claims that the trial court inserted itself “by cutting short witness
testimony and sternly advising trial counsel to shorten their line of
questioning, even though no objection had been made.” Id. According to
English, “the hostility between trial counsel and the trial court is undeniable[,]”
and he was prejudiced as a result of the trial court’s actions. Id. at 22.
____________________________________________
5 The record reveals that defense counsel presented an oral Motion in limine
during an October 29, 2018, hearing, prior to the start of trial. See N.T.,
10/29/18, at 8-19. The trial court granted the Motion, holding that the
Commonwealth could not admit the contents of the anonymous tip. Id. at
18-19. However, the court stated that testimony could reference the tip, to
the extent that it explained the testifying individual’s actions. Id.
6 The trial court similarly stated that English had failed “to cite where [the trial
court] admitted ‘the contents of an anonymous tip’ that included [English’s]
name, and fail[ed] to allege the grounds on which the purported testimony
was erroneously admitted.” Trial Court Opinion, 10/30/19, at 10.
Additionally, the trial court set forth Detective Keppol’s testimony, which
indicated that he had obtained English’s name from another detective. Id. at
10-12. The trial court also addressed English’s claim, to the extent that he
intended to raise a hearsay challenge. Id. at 12. Even if English had not
waived his claim, we would conclude that it lacks merit for the reasons set
forth by the trial court. See Trial Court Opinion, 10/30/19, at 10-12.
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Initially, we note that this issue, as stated in the Statement of Questions
Involved, was not included in English’s Pa.R.A.P. 1925(b) Concise Statement.
Rather, English preserved the following claim in his Concise Statement: “The
[c]ourt erred in stopping multiple witnesses while testifying, including
evidence regarding strike patterns, even though there was no objection to the
testimony.” Concise Statement, 6/24/19, at 2 (unnumbered). English’s
Concise Statement does not preserve an issue concerning the trial court’s
alleged criticism of trial counsel; therefore, this portion of English’s fifth issue
is waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not included
in the Concise Statement are waived); Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (stating that “[a]ny issues not raised in a 1925(b)
statement will be deemed waived.”).
Regarding the remaining portion of English’s claim, i.e., that the trial
court stopped witnesses during their testimony, the trial court stated in its
Opinion that it was unable to “identify and address whatever purported errors
[English] references….” Trial Court Opinion, 10/30/19, at 18. The trial court
explained that English had failed to cite the portion of the transcripts where
the errors occurred, or to identify how the court’s rulings were erroneous. Id.Therefore, the trial court did not address the merits of English’s claim. Id.Because English’s vague Concise Statement prevented review by the trial
court, this claim is waived. See Commonwealth v. Dowling, 778 A.2d 683,
686-87 (Pa. Super. 2001) (stating that “a [c]oncise [s]tatement which is too
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vague to allow the court to identify the issues raised on appeal is the functional
equivalent of no [c]oncise [s]tatement at all[,]” and deeming the appellant’s
claims waived because the vague concise statement hampered appellate
review).7
In his sixth and final claim, English contends that the trial court abused
its discretion by imposing a sentence outside of the Sentencing Guidelines.
Brief for Appellant at 26. English points to several potentially mitigating
factors, such as his “particularly harrowing childhood[,]” and history of
homelessness. Id. at 27. English argues that the trial court did not consider
the appropriate factors, and made an intentional departure from the
Sentencing Guidelines. Id. at 28.
English’s claim challenges to the discretionary aspects of his sentence,
from which there is no automatic right to appeal. Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
We conduct a four-part analysis to determine: (1) whether the
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
____________________________________________
7 We further observe that in his appellate brief, English again failed to point
to the place in the record where these alleged violations occurred. See
generally Pa.R.A.P. 2119(c) (providing that “the argument must set forth …
a reference to the place in the record where the matter referred to appears.”).
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, English filed a timely Notice of Appeal. However, English did not
preserve his sentencing challenge during the sentencing hearing or in his Post-
Sentence Motion. See Post-Sentence Motion, 3/2/19 (raising challenges to
the sufficiency and weight of the evidence). Accordingly, English has not
invoked this Court’s jurisdiction, and his discretionary sentencing claim is
waived. See Commonwealth v. Watson, 835 A.2d 786, 792 (Pa. Super.
2003) (stating that “[i]ssues challenging the discretionary aspects of
sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived. This failure is not cured by
submitting the challenge in the Rule 1925(b) statement.”) (citations and
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quotation marks omitted).8
Based upon the foregoing, we affirm English’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2021
____________________________________________
8 Even if this claim were not waived, we would conclude that the trial court
did not abuse its discretion, for the reasons set forth in its Opinion. See Trial
Court Opinion, 10/30/19, at 18-20. The record reflects that the trial court
was fully informed of all relevant sentencing factors (including English’s
extensive criminal history, as well as potential mitigating factors), and had the
benefit of a pre-sentence investigation report. See N.T. (Sentencing),
2/22/19, at 6-18 (wherein the Commonwealth and defense counsel presented
sentencing arguments; English exercised his right to allocution; and the trial
court explained its reasons for imposing the sentence); see also
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (stating
that “[w]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” (citation and quotation
marks omitted)).
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Circulated 12/07/2020 10:32 AM
IN THE COURT (5f"MUSACIN PLEAS OF PIIILADELPIIIA COUNTY
!(11-i-IRS'i; 4U V=ISI
L.:
RIC]: OF PENNSYLVANIA
AL TRIAL DIVISION
COMMONWEAI OF PENNS-VI:: ,ANI A CP-51-CR-0006223-2017
VS.
DARRYL ENGLISH 1208 EDA 2019
OPINION
Darryl English ("Appellant") appeals his convictions and sentence, and this Court
submits the following Opinion pursuant to Pa. R.A.P. No. 925, recommending that Appellant's
[
appeal be denied.
PROCEDURAL HISTORY
On November 2, 2018, a jury convicted Appellant of aggravated assault (18 Pa, C,S.A. §
2702(a)(1)), possessing an instrument of a crime (18 Pa. C.S.A. § 907), and unlawfully
possessing a firearm as a convicted felon. (18 Pa. C.S.A. § 6105(a)(1)). The jury found
Appellant not guilty of attempted murder (18 Pa. C.S.A. § 901), carrying a firearm without a
license (18 Pa. C.S.A. § 6106), and possessing a firearm without a license on the public streets of
Philadelphia (18 Pa. C.S.A. § 6108). (N.T. 11/2/18 at 49-62).
On February 22, 2019, this Court sentenced Appellant to two consecutive terms of ten
(10) to twenty (20) years' incarceration for his convictions of aggravated assault and unlawildly
possessing a firearm as a convicted felon. This Court imposed no sentence on Appellant's
conviction for possessing an instrument of a crime, and Appellant's aggregate sentence is
therefore twenty (20) to forty (4(3) years' incarceration. (N.T. 2/22/19 at 17).
On March 5, 2019, Appellant filed a post-sentence motion for judgment of acquittal or a
new trial, which this Court denied on March 6, 2019, On April 9, 2019, Appellant filed a Notice
1
to the Superior Court,' and on June 24, 2019, Appellant filed a Statement of Errors
.-omplained of on Appeal pursuant to Pa. R.A.P. 1925(b).
FACTS
Around 11 :00 p.m, on February 22, 2017, Philadelphia Police Officer Jonathan Mangual
("Officer Mangual") was on patrol with his partner, Officer Jonathan Edmunds, when they
received a report of a 911 call regarding a shooting on the 2400 block of North Patton Street in
the city and county of Philadelphia, Pennsylvania. The 911 call reported a male gunshot victim
being dragged by "a black male offender" toward a vacant Int. Officers Mangual and Edmund
were about fifteen (15) blocks away from 2400 North Patton Street, and they responded to the
location in approximately one minute. (NA', 10130/18 at 51-53).
Upon arriving at the location, Officer Mangual observed the shooting victim, Lamont
Randell ("Mr. Randell"), laying on the sidewalk. Another male stood beside Mr. Randell and
was "flagging" down the officers. Mr. Randell's face was covered in blood and he was laying
next to a set of stairs near a vacant lot. (Id, at 53-54). Officer Mangual tended to Mr. Randell
and transported him to Temple University Hospital. All the while, Mr. Randell bled profusely
This Court's Order denying Appellant's post-sentence motion is dated March 6, 2019, and it
was docketed on that date. However, this Court did not send Appellant's counsel any notice of
the Order or a copy thereof until March 11, 2019, and there is no docket notation indicating that
r
counsel otherwise received notice a copy of the Order before then. Therefore, the deadline for
filing an appeal was April 10, 2019, thirty days after this Court mailed Appellant's counsel a
copy of the Order. See Pa. R.A.P. 108(a)(1) ("Mn computing any period of time under these
rules involving the date of entry of an order by a court or other government unit, the day of entry
shall be the day the clerk of the court or the office of the government unit mails or delivers
copies of the order to the parties, or if such delivery is not otherwise required by law, the day the
clerk or office of the government unit makes such copies public.").
from his face, was "in and out of conscious," and was unable to audibly respond to Officer
Mangual's questions. (1d. at 56-58).2
Philadelphia Police Officer Javier Montanez ("Officer Montanez") also responded to the
shooting and assisted in securing the scene by placing police tape around the locations where
"blood and live bullets" were found. (Id, at 82-#5). The crime scene extended from 2434 Patton
Street to around 2426 Patton Street, and therein Officer Montanez and his fellow officers
discovered six live .22 caliber bullets in front of 2443 Patton Street and one live .45 caliber bullet
in front of 2434 Patton Street. No fired cartridge casings ("FCCs") were recovered from the
scene, (N.T. 10/31/18 at 136).3 Officers also observed blood smears on the steps and sidewalk in
front of 2434 Patton Street, and blood on the sidewalk beside the vacant lot near 2434 Patton
Street. (Id. at 86-98).
The 36 -year -old victim, Mr. Randell, testified that at the time of the shooting he had been
walking to Erie Avenue after having left the home where his children resided. (N.T. 10/31/18 at
79-80). Upon reaching Patton Street, he encountered a male and a female standing together in the
front doorway of a residence. Mr. Randell asked the female, who was smoking a cigarette on the
step, if he could buy a cigarette from her. (Id. at 81). At this point the male stepped forward and
said, "What the eff you said to my girl?" A confrontation ensued in which Mr. Randell called the
male a "pussy." (Id. at 81-82). After addressing the male as such, Mr. Randell turned away
from him to watch the female who was then "walking around [Mr. Randell] as if she was going
2 Although Officer Mangual could not personally hear the victim responding to any questions
that night, his body camera recorded Lamont Randall providing his name and stating that he did
not know the person who shot him. (Id. at 64, 76).
3 The .22 caliber bullets were recovered around twenty (20) to thirty- (30) feet away from the
location of the .45 caliber bullet. (N.T. 11/1/18 at 41).
3
to swing" at him. When Mr. Randell turned back to the male, he heard two gunshots and felt one
bullet strike him in his left cheek. The other bullet struck his spine and paralyzed him, The next
thing Mr. Randell recalls is awaking in the hospital where he remained for "months." While
hospitalized, Mr. Randell identified Appellant as the shooter in a photo array on March 9.2017,
and he provided a statement to detectives on March 14, 2017. (Id. at 81-82, 89-90, 98-99).
At trial Mr. Randell again identified Appellant as the shooter. He also identified, by
photograph, the doorway of the residence from which Appellant shot him. Mr. Randell testified
that he saw Appellant standing in. the doorway holding a black handgun in his right hand and
pointing the weapon at Mr. Randell. The streetlights were lit and Mr. Randell could clearly see
Appellant's face and hear the two gunshots. (Id. at 83-87). Mr, Randell further testified that he
was unarmed at the time but there were bullets in the jacket he wore, which, according to Mr.
Randell, belonged to a family member. (Id. at 97-98).
Detectives Ronald Palumbo ("Detective Palumbo") and Edward Keppol ("Detective
Keppol") were assigned to investigate the shooting, and based on information they received from
another detective (Detective Waring), these detectives soon developed Appellant as the
suspected shooter. The detectives thereafter learned that Appellant resided at 2434 Patton Street
- the same address where officers recovered a .45 caliber live bullet and observed blood stains
on the steps and sidewalk. The detectives also obtained a photograph of Appellant. (N.T.
10/31/18 at 5-19, 144-148).4
4 Detectives Palumbo and Keppol testified that they responded to the shooting scene after first
visiting the- hospital and discovering that Mr. Randell could not communicate because of his
gunshot injuries. When they arrived at the crime scene, the detectives observed blood on the
front steps of 2434 North Patton Street and knocked several times on the front and back doors of
the residence, but nobody answered. (Id. at 5-8, 47-49, 133-134).
4
.in March 9, 2017, Detectives Palumbo and Keppol
elicited another detective, Detective
,fehael Repici, to present Mr. Runde]] a photo array at
the hospital. Although Mr. Rande11
could not yet speak because his jaw remained wired
shut from his injuries, he identified
Appellant as the shooter by nodding his head and signing
Appellant's photograph. (Id. at 55, 59;
and N.T. 11/1/18 at 8, 116-120). Around one
week later, on March 14, 2017, Detective Keppol
obtained a formal statement from Mr. Randcll in
which he advised that Appellant had shot him.
(N.T. 10/31/18 at pg, 15, 58-60),5
Detective Palumbo subsequently obtained a search
warrant for Appellant's residence at
2434 Patton Street. (N.T. 10/31/18 at 15-19).
Although Appellant was not home when the
warrant was executed on March 31 2017, officers
recovered mail indicating that Appellant lived
there and that a woman named Zaaqia Badia
("Ms. Badia") received mail at the residence. (Id.
at
20-21, 61). Detective Keppol received further
information that Ms. Badia was with Appellant at
the time of the shooting, but the detectives could
not locate her. (N.T. 11/1/18 at 9).6
Pursuant to an arrest warrant, Appellant was taken into
custody on April 2, 2017. The
detectives recovered Appellant's cell phone upon his
arrest and subsequently obtained search
warrants for information relating to both Appellant's
and Ms. Badia's cell phones. The
detectives sought to learn whether Appellant and Ms.
Badia made phone calls and/or text
messages to each other or other persons on the night
of the shooting, and to pinpoint the
The detectives also learned that Darnell
5
Willingham ("Mr. Willingham") was the 911 caller
who reported the shooting. In his 911 call, Mr.
Willingham had referenced two women and two
males, in addition to Mr. Randal, who were
present at the shooting. (Td, at 42; N.T. 11/1/18 at
50). The detectives took a statement from Mr,
Willinghamn and showed him a photo array that
included Appellant, but he could not positively
identify Appellant as the shooter. (N.T. 10131/18
at 9-12).
6The parties stipulated to the authenticity of a
marriage application for Appellant and Ms. Badia
dated January 6, 2017, (Id. at 87-88).
5
location(s) from which the calls/tex-ts were made. (NA', 10/31/18 at 25-28; N.T. 11/1/18 at 18,
84).
Regarding the cell phones, the Commonwealth presented the testimony of Detective
James Dunlap, who the parties stipulated is an expert in "historical cell site analysis." Detective
Dunlap explained that by examining data from cell phone towers maintained by service
providers (e.g., Verizon), he can estimate the general location from which a call/text is made or
received from a particular phone number. Upon analyzing the two cell phone numbers provided
to him in this case - i.e., the numbers of Appellant and Ms. Badia -Detective Dunlap
determined that around 11:00 p.m. on the night of the shooting, both phones were
making/receiving calls and/or texts within a "square mile or two" of the shooting location.
(11/1/18 at 89, 90,108). Following the shooting, the users of the two phones separated, and
during the several hours thereafter one phone was used in the area of Southwest Philadelphia and
the other phone was used in the area of North Philadelphia. (Id. at 108113).
At the conclusion of the above evidence and testimony, the jury found Appellant guilty of
aggravated assault and possessing an instrument of a crime, but not guilty of attempted murder,
carrying a firearm without a license, and carrying a firearm on the public streets of Philadelphia.
(N,T. II/2/18 at 49-51). The parties thereafter agreed to a stipulated trial on the charge under 18
Pa. C.S.A. § 6015, pursuant to which the parties stipulated that Appellant was ineligible to
possess a firearm because of a prior felony conviction. The jury found Appellant guilty on this
charge. (Id. at 62).
Following a sentencing hearing on February 22, 2019, this Court sentenced Appellant to
consecutive terms of ten (10) to twenty (20) years' incarceration for his convictions of
aggravated assault and illegally possessing a firearm. This Court imposed no sentence for
Appellant's conviction of possessing an instrument of a crime. (N.T. 2/22/19 at 17).
ISSUES
Appellant raises the following issues in his Rule 1925(b) Statement:
a. "The evidence was insufficient to convict Defendant of all charges as there was
inadequate evidence to prove beyond a reasonable doubt that Defendant was ever
in possession of a firearm and multiple types of bullets were found at the scene,
indicating multiple people were present."
b. "The trial court erred as the -verdict was against the weight of the evidence
presented by the Commonwealth. The conviction was based solely on eyewitness
testimony and hearsay with no physical evidence to corroborate."
c. "The Court erred in admitting the contents of an anonymous tip, including Mr.
English's name."
d. "The trial court erred in allowing hearsay testimony regarding a 9-1-1 call without
playing the actual phone call."
e. "The Court erred when it denied Defendant's Motion for Mistrial when the
complainant claimed he had a .45 caliber bullet lodged in his neck and after a
sequestration violation where a police officer conferred with the complainant."
f. "The Court erred in stopping multiple witnesses while testifying, including
evidence regarding strike patterns, even though there was no objection to the
testimony,"
g. "The Sentencing court abused its discretion in sentencing defendant to an
aggregate sentence of 20-40 years incarceration where the court impermissibly
considered defendant's decision to exercise his constitutional rights to a trial as
evidence of his lack of remorse and where the court additionally failed to consider
his background and personal characteristics, all of which indicated that the
imposition of a mitigated sentence was warranted."
h. "The trial court erred an abused its discretion in denying petitioner's post -
sentencing motion where the verdict of guilt was against the weight of the
evidence to such a degree as to shock the conscience, such that a new trial must
be awarded to petitioner,"
7
ANALYSIS
a -b. Whether the verdicts were against the sufficiency and weight of the
evidence.
The standard for "reviewing the sufficiency of the evidence is whether reviewing all the
evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact -finder to find every element of the crime beyond a reasonable doubt."
Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citations omitted here). "In
applying the above test, [the Superior Court] may not weigh the evidence and substitute [its]
judgment for the fact -finder," and "the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence." Id, "Any doubts regarding a
defendant's guilt may be resolved by the fact -finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may he drawn from the combined
circumstances." Id. "The Commonwealth may sustain its burden of proving every element of
the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Id."Moreover, in applying the above test, the entire record must be evaluated and all evidence
actually received must be considered." Id, "Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced, is free to believe all, part or
none of the evidence." Id.Mr. Randell testified that Appellant stood in the doorway of 2434 Patton Street, pointed a
black handgun at Mr. Randell, and shot Mr. Randell twice. Mr. Randell testified that the
streetlights were lit and he could clearly see Appellant's face and_ hear the two gunshots. (N.T.
10/31/18 at 83-87). Mr. Randell identified Appellant as the shooter in the photo array provided
by detectives, and he gave a statement in which he identified Appellant as the shooter. (Id. at 15,
55, 59; N.T. 11/1/18 at 8, 116-120). Mr. Randell's eyewitness testimony alone sufficed to
8
establish that Appellant shot him. See e.g. Commonwealth v, Brown, 617 Pa. 107, 150 (Pa.
2012) ("testimony of a single eyewitness, alone, [is] sufficient to convict even though it
conflict's] with other trial testimony") (citing Commonwealth v, Duncan, 473 Pa. 62 (1977)).
In addition, the detectives' testimony established that blood stains were located on the
sidewalk and steps of 2434 North Patton Street, that Appellant lived at this address, that a .45
caliber live bullet was recovered in front of this residence, that several .22 caliber live bullets
were recovered around 20 to 30 feet away, and that Appellant's cell phone was in the vicinity of
his home at the time of the shooting. Viewed in the Commonwealth's favor, the above evidence
amply sustains Appellant's convictions on the charges of aggravated assault (18 Pa. C,S.A. §
2702(a)(1))7 and possessing an instrument of a crime (18 Pa. C.S.A. § 907).R Insofar as Appellant
stipulated that he had a prior felony conviction that made him ineligible to possess a firearm, the
evidence further sustains his conviction under 18 Pa. C.S.A. § 6105(a)(1).9
7"A person is guilty of aggravated assault if he attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life." See 18 Pa. C.S. § 2702(a)(1).
"Attempt, in the context of an assault, is established when the accused intentionally acts in a
manna which constitutes a substantial or significant step toward perpetrating serious bodily
injury upon another." Commonwealth v. Lopez, 654 A.2d 1150, 1154-1 55 (Pa. Super. 1995).
1
"The finder of fact is free to conclude that the accused intended the natural and probable
consequences of his actions to result therefrom," Id.6 To sustain a conviction for possessing an instrument of a crime, the evidence rmist establish
that "(1) the defendant possessed the instrument with the intent to employ it criminally; (2) the
instrument is one commonly used for criminal purposes; and (3) [the] defendant possessed the
instrument under circumstances not manifestly appropriate for lawful uses." Commonwealth v.
Gladden, 665 A,2d 1201, 1206 (Pa. Super. 1995).
4A person is guilty under Section 6105(a) of the Uniform Firearms Act if he possesses a firearm
despite having a prior conviction for an offense enumerated under Section 6105(b), See 18 Pa.
C.S, § 6105(a).
Nor were the verdicts against the weight of the evidence. "An allegation that the verdict
is against the weight of the evidence is addressed to the discretion of the trial court."
Commonwealth v. Widmer, 560 Pa. 308, 319-320 (Pa. 2000). "A new trial should not be granted
because of a mere conflict in the testimony or because the judge on the same facts would have
arrived al a different conclusion." Id. "A trial judge must do more than reassess the credibility of
the witnesses and allege that he would not have assented to the verdict if he were a juror." Id."Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit
as the thirteenth juror." Id. "Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or
to give them equal weight with all the facts is to deny justice." Id.Mr. Ranclell credibly testified that Appellant shot him right outside Appellant's home.
Mr. Randell's trial testimony was consistent with his pretrial identifications of Appellant as the
shooter. It was the jury 's prerogative to accept or reject Mr. Randell's testimony and the
Commonwealth's corroborative evidence. Since Appellant fails to articulate any facts in his
favor that "are so clearly of greater weight that to ignore them or to give them equal weight with
all the thcts is to deny justice," his challenge to the weight of the evidence is meritless,
c. Whether this Court "erred in admitting the contents of an anonymous tip,
including Mr. English's name."
Appellant fails to cite where this Court admitted "the contents of an anonymous tip" that
included Appellant's name, and fails to allege the grounds on which the purported testimony was
erroneously admitted. Moreover, Detective Keppol's testimony established that the detectives
pursued Appellant as the shooting suspect, by name, based on information received from
Detective Waring. Detective Keppol testified:
[Commonwealth]. At some point, do you develop a suspect?
10
A. Yes. Fairly quickly, yes.
[Commonwealth]. When you say fairly quickly, can you recall the timeline?
A. Probably the next day, I received information from - -
[Defense Counsel]. Objection.
[Commonwealth]. Did you receive information?
A. Yes, I did.
[Commonwealth]. Who did you receive information from?
A. From Detective Waring.
!Commonwealth]. And do you - are you aware of where he received that
information?
A. Yes.
[Commonwealth]. Do you know who - how he got the information?
[Defense Counsel]. Objection.
[Commonwealth], I don't need the contents of it, hut - -
'1'he Court. How he got it?
[Commonwealth]. Yes.
'1'he Court. Too broad a question.
A. From the information received from Detective Waring, yes, a
suspect was developed.
[Commonwealth.] Were you given a specific name?
A. Yes.
[Commonwealth]. What name did you get?
[Defense Counsel] Objection.
The Court. Overruled.
A. Darryl English.
.
[Commonwealth]. In finding the name out, do you look up the name Darryl
English?
A. Yes.
[Commonwealth]. Do you do an address check of Darryl English?
A. Yes.
[Commonwealth]. Do you recall when in the timeline you do that?
A. Probably when I received the information from Detective
Waring.
.
[Commonwealth]. Now that you have a name, do you start coming up with a plan to
-
put a name and an address do you also try to attempt to find a
photograph of Darryl English?
A. Yes.
[Commonwealth]. Once you get name and a photograph, what do you do?
a
A. The photograph is placed into a photo array and it's shown to
the complainant in this case, the victim.
I!
N.T.( 10/31/18 at 144-147),
The above testimony reflects that this Court permitted Detective Keppol to explain what
prompted the detectives' investigatory focus on Appellant. To the extent Appellant intends to
argue that Detective Keppol's testimony contained hearsay vis-a-vis the information he received
from Detective Waring, such argument is unavailing.
"1-hearsay is an out -of-court statement offered into evidence to prove the truth of the
matter asserted, Commonwealth v, Fstepp, 17 A.3d 939, 945 (Pa. Super. 2011) (citing Pa.R.E.
801(c)). "As a general rule, hearsay is inadmissible as such evidence lacks guarantees of
trustworthiness fundamental to the Anglo-American system of jurisprudence." Id. "However, an
out -of-court statement offered not for its truth hut to explain the witness's course of conduct is
not hearsay and thus, is not excludable under the hearsay rule." Id. (citing Commonwealth v.
Riga, 593 Pa. 659, 693 (2007); Commonwealth v. Dugan, 897 A,2d 496, 500 (Pa. Super. 2006).
The Superior Court "has repeatedly upheld the introduction of out -of-court statements for the
purpose of showing that based on information contained in the statements, the police followed a
certain course of conduct that led to the defendant's arrest." Commonwealth v. Underwood, 500
A,2d 820, 822-823 (Pa. Super. 1985) (citations omitted here).
Detective Keppol did not olThr any testimony regarding the "content" of an anonymous
tip to prove the truth of the matter asserted in the tip. Detective Keppol simply testified that
based on information received from another detective, he and his partner followed a certain
course of conduct that led to Appellant's arrest, Such testimony is neither hearsay nor
inadmissible. Sec p,P, Underwood, supra.
12
d. Whether this Court "erred in allowing hearsay testimony regarding a 9-1-1
call without playing, the aetttal phone call."
Whatever issue Appellant purports to raise here should be deemed waived. "[I]t is
axiomatic that issues are preserved when objections are made timely to the error or offense."
Commonwealth v. Baumhammers, 599 Pa. 1, 23-24 (2008); Pa. R.A.P. 302(a). The "failure to
offer a timely and specific objection results in waiver of the claim," Id.Trial in this case lasted around four (4) days, involved multiple witnesses, and resulted in
a few hundred pages of transcribed witness testimony. Yet Appellant fails to identify in the
transcripts where his counsel objected to the alleged hearsay testimony and/or requested the
playing of the 911 call, and he fails to identify where this Court overruled any pertinent objection
or denied any request to play the 911 call.
"When a court has to guess what issues an appellant is appealing, that is not enough for
meaningful review." Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (citations
omitted here). "When an appellant fails adequately to identify in a concise manner the issues
sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis
which is pertinent to those issues." Id. "In other words, 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.Because Appellant completely fails to identify the specific rulings which he purports
were erroneous, this issue should be deemed waived.
Moreover, the record reflects that Appellant's counsel had elicited detailed testimony
regarding the content of the 911 call, including testimony about a written report sutrunarizing the
9-1-1 call. (See e.g., N.T. 11/1/18 at 72-78). It therefore was Appellant who elicited the
13
evidence which he now apparently claims was erroneously admitted, and whatever challenge he
purports to assert in his Rule 1925(b) Statement is accordingly meritless.
e. Whether this Court "erred when it denied Defendant's Motion for Mistrial
when the complainant claimed he had a .45 caliber bullet lodged in his neck
and after a sequestration violation where a police officer conferred with the
complainant."
"The decision to declare a mistrial is within the sound discretion of the court and will not
be reversed absent a flagrant abuse of discretion." Commonwealth v. Bracey, 831 A.2d 678, 682
(Pa. Super. 2003) (citations omitted here). "A mistrial is an extreme remedy that must be
granted only when an incident is of such a nature that i is unavoidable effect is to deprive
defendant of a fair trial." Id. (citations omitted here). "A trial court may remove taint caused by
improper testimony through curative instructions," Id. "Courts must consider all surrounding
circumstances before finding that curative instructions were insufficient and the extreme remedy
of a mistrial is required." Id.During trial counsel's cross-examination of Detective Keppol, the detective testified that
Mr. Randell had stated that he had a .45 caliber bullet lodged in his neck. After counsel elicited
this testimony, counsel requested a mistrial and this Court denied the request. Counsel then
continued questioning Detective Keppol about his conversation with Mr. Randell, which
occurred the previous day in the Court's witness sequestration room, regarding the bullet lodged
in his neck. Among other things, Detective Keppol testified that Mr. Randall had said it was his
"doctor" who advised that he had a .45 caliber bullet in his neck:
[Defense Counsel]. The doctor told him, the doctor?
A. That's correct.
[Defense Counsel]. Is that the surgeon?
A. That's what he told me. I don't know if it was the surgeon, if it
was an ER doctor. I talked to him yesterday and asked him
how he was feeling and he told me - he said, still have a
bullet in my neck. It's a .45 caliber bullet and if it goes a
14
certain way or if I get hit there, it's going to hit my jugular and
I could die.
[Defense Counsel], And so the .40 he represented to you that the .45 caliber bullet
remains in his body, yes?
A. Yes.
[Defense Counsel]. And that a doctor, not a ballistician, not a firearms expert, a doctor
looked in and said, 1 recognize that caliber of bullet?
A. I didn't say that. I said what he told me.
[Defense Counsel]. That's what he told you?
A. He told me he has a .45 caliber bullet in the neck and that the
doctor told him.
[Defense Counsel I. Olcay.
A. That's the end of the story.
(N.T. 11/1/18 at 34-30.
Trial counsel argued that Detective Keppol's above testimony was an unfair surprise
because counsel was unaware of the detective's conversation with Mr. Randall, and because
there was no ballistics evidence supporting that Mr. Randell was shot with a ,45 caliber bullet.
(Id. at 132-140). Trial counsel's argument, and appellate counsel's renewal of that argument, is
meritless.
This Court ruled that trial counsel could produce witnesses and other relevant evidence
concerning the caliber of bullet that struck Mr. Randell, and concerning the validity of Mr.
Randell's above testimony that counsel elicited. This Court tbrthermore offered to instruct the
jury that it must disregard Detective Keppol's testimony regarding the caliber of bullet in Mr.
Randell's neck because the testimony had no evidentiary support. As this Court explained,
defense counsel declined these offers:
And let's just go on the record. We had a sidebar conversation yesterday whereby
the defense objected to the detective's testimony that Mr. Randell told him yesterday that
he still had a .45 caliber bullet lodged in his neck. The detective testified to that in front
of the jury. In remedy, I offered to instruct the jury that they are not to - that they are to
disregard that testimony as not having been proven by evidence in this case,
15
This morning, I again asked counsel if for the defense if she would like to have
that instruction read to the jury. Counsel for the defense said no, that based on tactical
reasons, she would rather not have that reiterated to the jury.
And in regard to the motion for mistrial], I think we discussed that at sidebar
I
also, so we'll put it on the record. What I ruled was that you could certainly bring that or
any other detective on the stand to testify,- as to the validity of that statement, that
although I had limited your cross-examination of detectives during the course of the trial
in regards to ballistics, that I would not lift that limitation and you could cross-examine
the detectives or bring them on your own case or the DA could put them back on and
question them in regard to the .45 caliber bullet. In the end, what happened is that
Commonwealth brought in the FIU examiner as part of the Commonwealth's case and
you were given latitude to cross-examine on that issue, so I denied the motion for
mistrial.
(N.T. 11/2/18 at 40-41).
In the circumstances outlined above, a mistrial over Detective Keppol's testimony, which
trial counsel herself developed in her cross-examination, plainly was not merited. Bracey, 831
A.2d 678, 682 ("A mistrial is an extreme remedy that must be granted only when an incident is
of such a nature that its unavoidable effect is to deprive defendant of a fair trial.").
Trial counsel relatedly argued that a mistrial was warranted because Detectives Keppol
and Palumbo had spoken with Mr. Randall before Mr. Randall testified but after Detective
Palumbo testified, in violation of this Court's sequestration order. Detective Keppol described
the scope of the conversation as follows:
[Defense Counsel]. Whyl sic] the three of you were in that room, why' siel your
fellow detective was joining you in that room. What was
discussed?
A. 1 just explained to you what was discussed. We went in there
with the district attorney. We talked to the complainant in this
case asking him how he's doing, how he was feeling, and that's
when he told us about the .45 caliber bullet in his neck, right?
The district attorney started to ask him what happened, you
know, what happened the night that it happened that he got
shot, and then he started to tell us what happened.
[Defense Counsel]. Ail three of you?
16
In the beginning, yes.
[District Attorney], And when we went into the room the other day to speak to Mr.
Randell, did Mr. Randell even know why he was here today?
A. No.
[District Attorney]. No one told the witness how to testify yesterday, correct?
A. No.
[District Attorney]. Nor did anyone discuss their testimony with the witness yesterday.
correct?
A. No one discussed their testimony.
(N.T. 11/1/18 at 55-56, 81-82).
"The remedy of a mistrial is an extreme one and is required only when an incident is of
such a nature that its unavoidable effect deprives a defendant of a fair and impartial trial."
Commonwealth v. Rashid. 160 A..3d 838, 847 (Pa. Super. 2017). Although Detective Palumbo
should not have conversed with the sequestered witness (Mr. Randell} after the detective had just
testified, the record indicates that the conversation was innocuous and there is no evidence
suggesting otherwise. The record simply does not support any inference that the conversation's
unavoidable effect was the deprivation of Appellant's right to a fair and impartial trial, and this
Court therefore properly denied Appellant's mistrial motions,
f. Whether this Court "erred in stopping multiple witnesses while testifying,
including evidence regarding strike patterns, even though there was no
objection to the testimony."
Whatever issue Appellant purports to raise should be deemed waived. "An appellant's
concise statement must properly specify the error to be addressed on appeal." Commonwealth v.
Jackson, 2019 Pa. Super. 221 (Pa. Super. 2019) (citations omitted here). "In other words, the
Rule 1925(b) statement must he specific enough lbr the trial court to identify and address the
issue an appellant wishes to raise on appeal." Id. "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
17
statement at alt." 1(1. "The court's review and. legal analysis can be fatally impaired when the
court has to guess at the issues raised." Id. "Thus, if a concise statement is too vague, the court
may find waiver," Id.Ilere, Appellant fails to inform this Court of its alleged errors. Appellant neither
identifies in the transcripts where the alleged errors occurred, nor alleges how this Court's
rulings were en.oneous. This Court therefore cannot identify and address whatever purported
errors Appellant references, and his inexcusably vague claim should he deemed waived.
g. Whether this Court abused its discretion in sentencing Appellant to twenty
(20) to forty (40) years' incarceration.
"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth
v. Lirkle, 107 A.3d 127, 132 (Pa. Super. 2015) (citations omitted here). "In this context, an
abuse of discretion is not shown merely by an error in judgment." Td. "Rather, the appellant
must establish, by reference to the record, that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision." Id. "An abuse of discretion may not be found merely
because an appellate court might have reached a different conclusion." Commonwealth v. Perry,
612 Pa. 557, 565 (2011). "In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing judge's discretion, as he or she is in the
best position to measure factors such as the nature of the crime, the defendant's character, and the
dekndant's display of remorse, defiance, or indifference." Commonwealth v. Andrews, 720 A.2d
764, 768 (Pa. Super. 1998).
When imposing sentence, this Court was required to "consider the factors set out in 42
Pa. C.S.A. § 9721(b), that is, the protection of the public, gravity of the offense in relation to
18
impact on victim and community, and rehabilitative needs of the defendant...." Commonwealth
v. Shiigars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (citations omitted here). This Court also was
required to "consider the sentence ranges set forth in the Sentencing Guidelines, but it [was] not
bound by the Sentencing Guidelines." Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super.
2008). "It is well established that the Sentencing Guidelines are purely advisory in nature." Id.(qutgin Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007)); Commonwealth v. Walls,
592 Pa. 557 (Pa. 2007). Furthermore, this Court was "required to consider the particular
circumstances of the offense and the character of the defendant." Commonwealth v. Dotter, 589
A,2d 726, 730 (Pa. Super. 1991).
"Where pre -sentence reports exist," appellate courts "presume that the sentencing judge
was aware of relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors." Commonwealth v. Devers, 519 Pa. 88,
101-102 (1988). "A pre-sentence report constitutes the record and speaks for itself." Id. at 102.
"[S]entencers are under no compulsion to employ checklists or any extended or systematic
definitions of their punishment procedure." Id. "flaying been fully informed by the pre -sentence
report, the sentencing court's discretion should not be disturbed." Id. "This is particularly true ...
in those circumstances where it can be demonstrated that the judge had any degree of awareness
of the sentencing considerations, and there [courts] will presume also that the weighing process
took place in a meaningful fashion." Id.; see also Commonwealth v. Best, 120 A.3d 329, 348-349
(Pa. Super. 2015) (quoting Devers, supra).Here, the record confirms that before imposing sentence this Court had closely
considered Appellant's presentence report, his criminal history, his failures to rehabilitate, and
his conduct in this case. (N.T. 2/22/19 at 13-18). Appellant's abysmal criminal history includes
19
multiple arrests and four (4) adjudications as a juvenile, and no less than thirteen (13) arrests and
four (4) convictions as an adult. (Id.), One of Appellant's prior convictions involved, like this
case, his shooting another person in the face. Moreover, while incarcerated pending the instant
trial, Appellant committed multiple disciplinary infractions and thus has displayed zero intention
to rehabilitate. (id,).
Appellant is a repeat violent offender who shot Mr. Randell pointblank in the face,
paralyzing him likely for life, In light of Appellant's heinous conduct in this case, together with
his penchant for violent crime and wholesale disregard of its effect on his victims and
community, this Court's sentence of 20 to 40 years' incarceration is thoroughly justified. °
CONCLUSION
For the reasons set forth in the lbregoing Opinion, this Court's judgment of sentence.
should be atiirniecl.
BY T11E COURT:
DATE: "94 SUSAN L SCHULMAN, J.
if)Appellant's final claim of error, which is listed in subparagraph "Ii" of his Rule 1925(h)
Statement, challenges the weight of the evidence. This claim is redundant to the claim asserted
in subparagraph "b" and is meritless for the same reasons set forth above.
20
PROOF OF SERVICE
Darece Williford, secretary to Honorable Susan I. Schulman, hereby certify that I
served, on October 30, 2019 by First -Class and Inter-Office mail, a true and correct copy of
the foregoing Order on the following:
Melissa Thomas, Esquire
Thomas & Robbins, LIE
11)0 S. Broad Street, Suite 715
Philadelphia, Pennsylvania 19110
(Inter-Office Mail)
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(Inter-office mail)
!
Datece Williford