Com. v. Williams Moore, D. ( 2017 )


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  • J-S60034-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                              :
    :
    :
    DONAVIN LENDALL WILLIAMS                   :
    MOORE                                      :
    :   No. 311 WDA 2017
    Appellant                :
    Appeal from the Judgment of Sentence January 23, 2017
    In the Court of Common Pleas of Fayette County
    Criminal Division at No(s): CP-26-CR-0000760-2016
    BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 12, 2017
    This is an appeal from the judgment of sentence entered in the Court
    of Common Pleas of Fayette County following Appellant’s conviction in a
    non-jury trial on the charges of criminal attempt-homicide, aggravated
    assault, recklessly endangering another person, firearms not to be carried
    without a license, possession with the intent to deliver a controlled
    substance, and possession of a controlled substance.1 We affirm.
    Following his arrest, Appellant, who was represented by counsel,
    proceeded to a bench trial on January 6, 2017, before the Honorable Gerald
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2705, and 6106(a)(1); 35 P.S. §§
    780-113(a)(30) and (a)(16), respectively.
    ____________________________________
    *    Former Justice specially assigned to the Superior Court.
    J-S60034-17
    R. Solomon. Judge Solomon has aptly summarized the testimony presented
    at the bench trial as follows:
    In the early morning hours of March 25, 2016, Sanford
    Lewis observed two men arguing on the street in Masontown.
    N.T. 1/6/17 at 5. [He saw the men] enter[] a bar and, a short
    time later, the taller of the two came back out and headed to his
    vehicle. Id. The other man came out [of the bar] with a pool
    stick in his hand and struck the taller man in the back, after
    which an argument ensued. Id. After [the man swung the pool
    stick] again at the taller man, the taller man started firing a
    pistol. Id. at 5-6. [Mr.] Lewis recognized the [taller man, who
    was the shooter,] and identified him as Appellant. Id. at 7-8.
    The shorter of the two men [ ] ran away as Appellant continued
    to fire at him. Id. at 6, 15.
    Officer Michael Yeager of the Masontown Police
    Department [testified that, as he was responding to the scene,
    he] saw a black male, whom he identified as Willie Batie, running
    away. Id. at 18. [Upon arrival] at the scene, [Officer] Yeager
    was informed by [Mr.] Lewis that shots were fired. Id. at 19.
    [Officer] Yeager then began a search for [Mr.] Batie and found
    him on the porch of the home of [Mr.] Batie’s father. Id. [Mr.]
    Batie’s shirt was covered with blood. Id. Cutting off [Mr.]
    Batie’s shirt to render aid, [Officer] Yeager observed three
    gunshot wounds, one in the stomach, one in the left shoulder[,]
    and one on the back of the left arm. Id. at 19-20.
    Later, [Officer] Yeager observed a surveillance video from
    a local business of the incident and identified the shooter as
    Appellant.    Id. at 21.     From the video, [Officer] Yeager
    [observed] the weapon prior to [Mr.] Batie swinging the pool
    stick and also observe[d] Appellant raise the weapon and fire.
    Id. at 22-23.
    Corporal Richard Hunter, assigned to the Forensic Services
    Unit of the Pennsylvania State Police, arrived at the crime scene
    at 4:43 [a.m. on] March 25, 2016. Id. at 28-29. At the scene,
    [Corporal] Hunter collected nine .32 auto casings and two
    deformed bullets. Id. at 30. As to [Corporal] Hunter, the
    Commonwealth and Appellant stipulated that he performed a
    gunshot residue test on Appellant, which revealed that Appellant
    may have recently discharged a firearm. Id. at 39-40.
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    J-S60034-17
    [Police Officer] Alex Metros, [of] the Masontown Police
    Department, arrived at the crime scene and, after becoming
    aware of Appellant’s location, went with other officers to [the]
    location. Id. at 44. After [Appellant] was taken into custody at
    the residence, a protective sweep was made of the residence
    and [Officer] Metros observed marijuana. Id. at 45.        After
    transporting Appellant to the police station, [Officer Metros]
    returned to the residence and obtained the consent of Andrea
    Buchanan, the lessee of the residence, to search the residence.
    Id. at 45-46. The search of the residence revealed a large
    number of baggies of marijuana, [three] scales, a loaded .32
    caliber handgun, paraphernalia, cell phones, ammunition, a
    weed stem, a shoulder holster, and indicia [of residence] for
    Appellant. Id. at 49-58.
    [At trial,] the Commonwealth...called [Sergeant] John
    Brant, [of] the Brownsville Police Department[,] who rendered
    assistance in apprehending Appellant. Id. at 69-70. [Sergeant]
    Brant was examined and tendered as an expert in the field of
    drug distribution, manufacture[,] and intent to deliver controlled
    substances. Id. at 74-77. [Appellant] offered no objection to
    [Sergeant] Brant testifying as an expert. Id. at 79. [Sergeant]
    Brant took part in the protective sweep of the residence and
    observed drug paraphernalia and two [of the] scales. Id. at 71.
    He later took part in the search of the residence. Id. at 79.
    [Sergeant Brant testified that, in] his opinion, as an expert, from
    what was found during the search...Appellant possessed the
    drugs with the intent to deliver. Id. at 82. [Sergeant] Brant
    further opined that the indicia found at the residence [led] him
    to believe that Appellant lived [in] or occupied the residence.
    Id. at 87.
    Following his apprehension, Appellant was interviewed by
    Sergeant Scott Miller of the Masontown Police Department. Id.
    at 89, 94. After [Sergeant] Miller advised Appellant of his
    Miranda rights, Appellant signed a Miranda Rights Warning
    Sheet. Id. at 95. Waiving his rights, Appellant admitted having
    an altercation with Willie Batie, admitted that the .32 caliber
    handgun found at the residence was his, and [admitted that] the
    suspected marijuana and paraphernalia was his. Id. at 99.
    Following [Sergeant] Miller’s testimony, the Commonwealth and
    [Appellant] entered into a stipulation that the suspected
    marijuana found at the residence was, in fact, marijuana. Id. at
    103-04.
    -3-
    J-S60034-17
    The victim, Willie Batie, [testified] that on the night of the
    incident he was shot four times, suffered injuries, and was
    hospitalized. Id. at 104. He further testified that he did not
    know the person who shot him. Id. at 105.
    Sergeant John Thacik, a Forensic Firearm and Tool [M]ark
    Examiner with the Pennsylvania State Police who was qualified to
    testify as an expert in the field of firearms and tool mark
    examination, [testified] without objection. Id. at 107, 109.
    [Sergeant] Thacik, [who] received the firearm at issue, along
    with undischarged bullets, determined that [the firearm] was
    functional; [he] then test fired the firearm and recovered the
    discharged bullets. Id. at 110-11, 114. He then compared the
    discharged bullets with two discharged and mutilated bullets[,
    which] he had received [from the] evidence[,] and determined
    that all four had been discharged from the firearm at issue. Id.
    at 114-16.
    Following    [Sergeant]  Thacik’s    testimony,     the
    Commonwealth rested. Appellant then rested without presenting
    any testimony or evidence.
    Trial Court Opinion, filed 5/8/17, at 2-6.
    At the conclusion of the trial, Judge Solomon convicted Appellant of
    the offenses indicated supra, and on January 19, 2017, Appellant,
    represented by counsel, proceeded to a sentencing hearing, at the
    conclusion of which the trial court sentenced Appellant to an aggregate of
    ten years to twenty years in prison. On January 23, 2017, the trial court sua
    sponte filed an amended sentencing order to reflect the correct charges at
    each   count.     This   timely   appeal   followed,   and   all   Pa.R.A.P.   1925
    requirements have been met.
    On appeal, Appellant presents the following issues:
    1. Whether the verdict was against the weight of the evidence
    and the law since the Commonwealth did not establish that
    Appellant did not act in justifiable self-defense; and whether
    -4-
    J-S60034-17
    the Commonwealth’s evidence was insufficient to prove
    otherwise beyond a reasonable doubt?
    2. Whether the verdict was against the weight of the evidence
    and the law since the Commonwealth did not establish that
    Appellant had the intent to deliver?
    3. Did the Court err in permitting the police officer from
    testifying as an expert?
    Appellant’s Brief at 7.
    In his first and second issues, Appellant intertwines claims that the
    trial court’s verdicts were against the weight of the evidence and the
    evidence was insufficient to sustain his convictions.     However, it is well-
    settled that weight of the evidence claims are distinct from sufficiency of the
    evidence claims. See Commonwealth v. Widmer, 
    560 Pa. 308
    , 318-19,
    
    744 A.2d 745
    , 751-52 (2000).        With regard to the former, in order to
    preserve the issue for appeal, an appellant “must present his challenge to
    the weight of the evidence to the trial court for a review in the first instance
    either in a post-sentence motion, by written motion before sentencing, or
    orally prior to sentencing.” Commonwealth v. Richard, 
    150 A.3d 504
    , 516
    (Pa.Super. 2016) (citing Pa.R.Crim.P. 607(A); Commonwealth v. Griffin,
    
    65 A.3d 932
    , 938 (Pa.Super. 2013)). A claim challenging the weight of the
    evidence generally cannot be raised for the first time in a Rule 1925(b)
    statement. Commonwealth v. Burkett, 
    830 A.2d 1034
     (Pa.Super. 2003).
    An appellant’s failure to avail himself of any of the prescribed methods for
    presenting a weight of the evidence issue to the trial court constitutes
    waiver of that claim. 
    Id.
    -5-
    J-S60034-17
    In the case sub judice, as the trial court aptly suggested, Appellant
    failed to preserve his weight of the evidence claims.         See Trial Court
    Opinion, filed 5/8/17, at 6. Specifically, despite being advised of his post-
    sentence rights, Appellant did not raise his weight of the evidence claims in
    a post-sentence motion. See Pa.R.Crim.P. 607(A). Also, he did not raise
    his weight of the evidence claims by written motion before sentencing or
    orally prior to sentencing. See 
    id.
     Further, although Appellant included his
    weight of the evidence claims in his Rule 1925(b) statement, such efforts did
    not preserve the claims for appellate review. See Burkett, 
    supra.
    With regard to Appellant’s sufficiency of the evidence claims, in his
    first argument, Appellant vaguely alleges the following:
    Appellant admitted that he shot the victim thereby
    admitting the elements. Based on [the] victim’s reputation and
    demeanor, [A]ppellant believed that Castillo[2] was going to
    harm him, so [A]ppellant shot him.
    Therefore, based on the evidence               presented   by
    [A]ppellant, self-defense was applicable[.]
    Appellant’s Brief at 11 (footnote added).
    We conclude that Appellant’s first sufficiency argument does not
    permit meaningful review. Specifically, Appellant has not identified which
    convictions he is challenging, has not identified the evidence purportedly
    related to “the victim’s reputation and demeanor,” and has not otherwise
    ____________________________________________
    2
    Willie Batie was the victim in this case. Appellant has not properly
    identified or explained to whom “Castillo” refers.
    -6-
    J-S60034-17
    developed an argument related to self-defense.           Appellant’s failure to
    discuss his sufficiency claim in any substantive, meaningful way has
    impeded our review.     Accordingly, we find this claim to be waived.       See
    Commonwealth v. McDermitt, 
    66 A.3d 810
    , 814 (Pa.Super. 2013)
    (holding undeveloped claims to be waived).
    In his second argument, with regard to the sufficiency of the evidence,
    Appellant baldly suggests the Commonwealth failed to prove he had the
    “intent to deliver” a controlled substance.      See Appellant’s Brief at 12.
    However, as with his previous sufficiency claim, Appellant’s claim is woefully
    undeveloped. Specifically, aside from setting forth this Court’s standard of
    review for sufficiency claims, and citing cases generally related to this
    standard of review, Appellant has not developed his claim in any meaningful
    manner.     Accordingly, we find Appellant’s second sufficiency claim to be
    waived. See McDermitt, 
    supra.
    With regard to his final issue, whether the trial court erred in
    permitting a police officer to testify as an expert at trial, Appellant has
    presented    no    argument.   Rather,   he   simply   indicates   “Appellant   is
    withdrawing said argument.”      Accordingly, we decline to review this issue
    further. See 
    id.
    For all of the foregoing reasons, we affirm Appellant’s judgment of
    sentence.
    Affirmed.
    -7-
    J-S60034-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/12/2017
    -8-
    

Document Info

Docket Number: 311 WDA 2017

Filed Date: 9/12/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024