Com. v. Edens, W. ( 2017 )

J-S44022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WALEED EDENS,
Appellant No. 732 EDA 2016
Appeal from the Judgment of Sentence November 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012926-2012
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 12, 2017
Appellant, Waleed Edens, appeals from the judgment of sentence
following his convictions for aggravated assault, possession of a firearm by
an ineligible person, and carrying firearms on public streets in Philadelphia.1
We affirm.
The trial court summarized the factual history of this case as follows:
On July 25, 2012, Jerome Edens (“Complainant”) set out
to look for his son, [Appellant]. Complainant went to talk with
his son’s friend, Ezzes,[2] because he did not approve of the
amount of time Ezzes and [Appellant] were spending together.
Complainant was upset because [Appellant] was married with
children, but also in a relationship with Ezzes. After talking with
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1 18 Pa.C.S. §§ 2702(a)(1), 6105(a)(1), and 6108, respectively.
2 This individual, Troy Timms, is identified by his nickname “Ezzes.” N.T.,
7/8/15, at 31.
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Ezzes, Complainant proceeded home. When he arrived in front
of his house, Complainant began talking to a man named Ron
[Watkins]. At that point, [Appellant] approached the two men.
He was holding a cell phone in his hand. [Appellant] then pulled
out a gun. He told his father “I ain’t scared of you” and an
argument ensued. [Appellant] shot Complainant three times.
Complainant then attempted to run, but collapsed after taking
six steps. Police Officer Daniel Martinez responded to a radio call
for shots fired in the vicinity of 2700 N. Hutchinson Avenue in
the city and county of Philadelphia, PA. When the officer arrived,
he saw Complainant lying on the ground. Complainant told the
officer that his son shot him. He also provided the officer with
his son’s name, address, and the car he was driving. The officer
also observed several shell casings on the ground at the scene.
On the same day, [Appellant’s] car was found nearby at 3216
McMichaels Street in Philadelphia. Police obtained a search
warrant for the vehicle. No blood or any signs of injury were
observed inside the car. Police then obtained a search warrant
for [Appellant’s] residence at 5247 N. 15th Street in Philadelphia,
PA.7 Inside the property, police found multiple letters addressed
to [Appellant]. Police also found an empty AK-47 banana clip
and thirteen .40 caliber live rounds. After [Appellant] fled the
shooting, he went into hiding. [Appellant] was arrested by the
FBI Task Force at 3302 West Allegheny Avenue, Philadelphia, PA
on September 7, 2012.
7 Complainant is listed as the owner of the premises.
Trial Court Opinion, 12/9/16, at 2-3 (internal citation omitted).
The trial court summarized the procedural history as follows:
On July 9, 2015, a jury found [Appellant] guilty of
aggravated assault and carrying a firearm on the public streets
of Philadelphia. The jury acquitted [Appellant] of attempted
murder and carrying a firearm without a license. On the same
day, after a waiver trial where counsel agreed to incorporate all
testimony from the jury trial and stipulate that [Appellant] was
prohibited from carrying a firearm, the court found [Appellant]
guilty of possession of a firearm by a prohibited person. On
November 9, 2015, [Appellant] was sentenced to an aggregate
term of twelve to thirty years of incarceration followed by five
years of probation.6 On November 17, 2015, [Appellant] filed a
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post-sentence motion, which was denied on March 4, 2016. On
that same date, [Appellant] filed a timely Notice of Appeal.
6 Because [Appellant’s] prior conviction for robbery is
a violent offense, his conviction for aggravated
assault constituted a second strike. Therefore, the
court imposed the mandatory minimum sentence of
ten to twenty years of incarceration pursuant to 42
Pa.C.S. § 9714(a). He received a consecutive
sentence of incarceration of two to ten years for the
VUFA 6105 conviction. He was also sentenced to a
term of five years of probation to be served
consecutively to his incarceration for the VUFA 6108
conviction.
Trial Court Opinion, 12/9/16, at 1-2 (some internal footnotes omitted).
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. Were the guilty verdicts were [sic] against the weight of
the evidence where the evidence clearly showed that Appellant
was legally justified in using reasonable/deadly force against the
Commonwealth’s witness who is a known violent killer and who
was the aggressor?
B. Was the evidence insufficient to support the guilty verdicts
beyond a reasonable doubt?
C. Did the trial court err by not allowing the jury to consider
that the Commonwealth’s witness is a convicted murderer, while
at the same time allowing Appellant’s multiple robbery
convictions be considered not only for purposes of crimen falsi
but also erroneously to show Appellant has the propensity for
violence, which was overly prejudicial?
D. Did the trial court abuse discretionary aspects of
sentencing by imposing a consecutive and excessive sentence,
and erred by failing to properly consider compelling mitigating
factors?
Appellant’s Brief at 7.
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In his first issue, Appellant argues that the guilty verdicts were against
the weight of the evidence. Appellant’s Brief at 14. Appellant asserts that
the evidence “clearly showed” that Appellant was legally justified in using
deadly force against the Complainant, who “is a known violent killer and who
was the aggressor.” Id. at 14. Specifically, Appellant maintains that the
Complainant “tracked [A]ppellant down over two days” and it was the
Complainant who pulled a gun on Appellant. Id. at 15. Appellant further
contends that the evidence establishes that he could not reasonably retreat
to “complete safety.” Id. Appellant asserts that he feared for his life and
had no choice but to act in self-defense. Id. Appellant argues that the
Commonwealth has failed to negate Appellant’s self-defense argument. Id.
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. The
Pennsylvania Supreme Court has explained that “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.” To grant a new trial on the basis
that the verdict is against the weight of the evidence, this Court
has explained that “the evidence must be ‘so tenuous, vague
and uncertain that the verdict shocks the conscience of the
court.’”
This Court shall not undertake to reassess credibility of
witnesses, as it is well settled that we cannot substitute our
judgment for that of the trier of fact. Further, the finder of fact
was free to believe the Commonwealth’s witnesses and to
disbelieve the witness for the Appellant. See Commonwealth
v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (the finder
of fact is free to believe all, none, or part of the testimony
presented at trial).
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Commonwealth v. Chine, 40 A.3d 1239, 1243-1244 (Pa. Super. 2012)
(some internal citations omitted).
Our Supreme Court has stated the following with regard to a self-
defense claim:
If a defendant introduces evidence of self-defense, the
Commonwealth bears the burden of disproving the self-defense
claim beyond a reasonable doubt. Although the Commonwealth
is required to disprove a claim of self-defense ... a jury is not
required to believe the testimony of the defendant who raises
the claim.
Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011).
As a general rule, an individual is justified in using force
upon another person “when the actor believes that such force is
immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the
present occasion.” 18 Pa.C.S.A. § 505(a) (emphasis added).
However, the Commonwealth may disprove a claim that a
defendant’s use of deadly force was justifiable by establishing
that: 1) the defender did not reasonably believe deadly force
was necessary to protect himself from imminent danger of death
or great bodily harm, 2) the defender provoked the incident, or
3) the defender violated a duty to retreat with safety or avoid
the danger. Commonwealth v. Truong, 36 A.3d 592, 598–99
(Pa. Super. 2012) (en banc).
Chine, 40 A.3d at 1243-1244 (emphasis in original).
The trial court provided the following analysis in addressing Appellant’s
claim:
In the case at bar, the Commonwealth proved beyond a
reasonable doubt that [Appellant] did not act in self-defense.
The evidence established that [Appellant] was in fact the
aggressor. The Complainant was looking for [Appellant] because
he was unhappy with how much time he was spending with
Ezzes. [Appellant] approached Complainant in front of
Complainant’s house and said “I ain’t scared of you.” An
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argument ensued. [Appellant] pulled out a gun, shot three
times, hitting Complainant, and fled. This sequence of events,
which the jury found to be credible, does not connote one of
self-defense. Rather, it shows that [Appellant] was the original
aggressor. . . .
[Appellant] approached Complainant and had an angry
confrontation with him. . . . After he shot Complainant,
[Appellant] fled the scene and went into hiding... which indicated
a guilty [conscience].
Additionally, the Commonwealth disproved [Appellant’s]
claim of self-defense because it showed [Appellant] was
reasonably able to safely retreat after the first shot went off, but
instead he fired two additional shots. The use of deadly force is
not justifiable when the actor knows he can avoid such force
with complete safety by retreating.
Trial Court Opinion, 12/9/16, at 5-6.
The evidence of record supports the conclusion that Appellant was the
aggressor and that he was able to safely retreat during and following the
altercation. Thus, the Commonwealth has presented evidence disproving
Appellant’s claim of self-defense beyond a reasonable doubt.
Moreover, we cannot conclude that the trial court’s determination that
the verdict was not against the weight of the evidence was erroneous. In
light of the evidence of record, the conclusion that Appellant’s use of force
was not justified as self-defense is not “so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Chine, 40 A.3d at
1243-1244. As noted, the jury found Appellant’s version of the events to be
incredible. We decline Appellant’s invitation to substitute our judgment for
that of the fact-finder. Appellant’s first issue therefore lacks merit.
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In his second issue, Appellant argues that the evidence was insufficient
to support the guilty verdicts beyond a reasonable doubt. Appellant’s Brief
at 15-16. While Appellant identifies case law outlining the standard in
reviewing a sufficiency of the evidence claim, id. at 16, he sets forth the
following single sentence in support of his claim: “For the foregoing reasons
the evidence was wholly insufficient to sustain the guilty verdicts beyond a
reasonable doubt and the guilty verdicts should be reversed and the
sentence vacated.” Id. at 16.
As noted, Appellant was convicted of aggravated assault, possession of
a firearm by an ineligible person, and carrying firearms on public streets.
Appellant’s argument on this issue fails to identify which verdict allegedly
was not supported by sufficient evidence. Moreover, Appellant presents
absolutely no argument supporting his claim that there was insufficient
evidence supporting any of the verdicts. “The failure to develop an adequate
argument in an appellate brief may result in waiver of the claim under
Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2008). In this case, Appellant has presented no argument explaining
how his verdicts were not supported by sufficient evidence, and includes no
citation to the record to support his argument. We shall not develop an
argument for Appellant, nor shall we scour the record to find evidence to
support it. Consequently, we deem this issue waived.
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In his third issue, Appellant argues that the trial court erred by not
allowing the jury to consider the fact that the Commonwealth’s witness, the
Complainant, is a convicted murderer. Appellant’s Brief at 16. Appellant
sought to introduce Complainant’s prior conviction for voluntary
manslaughter in 1990, N.T., 5/26/15, at 11, and asserts that the trial court
erred in ruling that it was precluded from admission. Appellant’s Brief at 17.
Appellant further contends that the trial court erred in allowing the
admission of evidence of Appellant’s seven robbery convictions. Appellant’s
Brief at 18. Appellant maintains that “[t]he result was an incomplete and
inaccurate record that wrongly sanitized the [C]omplainant while demonizing
the [A]ppellant as a walking crime wave.” Id. at 18.
The following standard of review applies to evidentiary rulings by the
trial court:
On appeals challenging an evidentiary ruling of the trial court,
our standard of review is limited. A trial court’s decision will not
be reversed absent a clear abuse of discretion.
Commonwealth v. Bishop, 936 A.2d 1136, 1143
(Pa.Super.2007) (citing Commonwealth v. Hunzer, 868 A.2d
498 (Pa.Super.2005)). “Abuse of discretion is not merely an
error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.” Id.
Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. 2008).
Our Supreme Court has stated the following with regard to the
admissibility of prior bad acts evidence:
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Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (internal
citations omitted).
With regard to evidence of prior bad acts related to a claim of self-
defense, our Supreme Court has stated that:
this Court has held that when self-defense is properly at issue,
evidence of the victim’s prior convictions involving aggression
may be admitted, if probative, either (1) to corroborate the
defendant’s alleged knowledge of the victim’s violent character,
to prove that the defendant was in reasonable fear of danger, or
(2) as character/ propensity evidence, as indirect evidence that
the victim was in fact the aggressor. Commonwealth v. Beck,
485 Pa. 475, 402 A.2d 1371, 1373 (1979) (plurality) (citing and
applying Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748,
750–51 (1971)). Only those past crimes of the victim that are
similar in nature and not too distant in time will be deemed
probative, with the determination as to similar nature and
remoteness resting within the sound discretion of the trial judge.
Amos, 284 A.2d at 752.
Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa. 2012).
In explaining its reasoning for precluding the Complainant’s prior
manslaughter conviction, the trial court stated:
In this case, [Appellant’s] self-defense claim was based on
his allegation that Complainant was the aggressor. [Appellant]
sought to introduce Complainant’s prior conviction for voluntary
manslaughter in addition to Complainant’s violent conduct from
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1996. The court precluded the introduction of Complainant’s
1990 conviction for voluntary manslaughter but allowed the
introduction of evidence of Complainant’s violent conduct that
[Appellant] witnessed in 1996, where Complainant shot
[Appellant’s] stepmother two times in the leg. N.T. July 8, 2015
at 174. The court found Complainant’s conviction for voluntary
manslaughter was too distant in time to be of probative value
because it occurred over twenty years prior to the present case.
In Commonwealth v. Gilliard, 446 A.2d 951, 956 (Pa. Super.
1982), the defendant sought to demonstrate the decedent’s
alleged propensity for violence at the time of the incident at
issue by introducing evidence that the decedent had been
convicted of aggravated assault and attempted rape twenty-five
years before. The court held that the past convictions were
“much too remote to be relevant” and had appropriately been
excluded. Id. Similarly in Commonwealth v. Quarles, 456
A.2d 188, 192 (Pa. Super. 1983), a trial court’s exclusion of
evidence of the victim’s twenty-two year old conviction that the
defendant sought to admit as evidence of the victim’s propensity
for violence to support his claim of self-defense was upheld. The
Superior Court ruled the conviction was too attenuated and
“[w]e are unable to find any appellate decision in Pennsylvania
which has ever upheld the admissibility of a conviction which
was more than three years removed.” Id. Here, Complainant’s
manslaughter conviction occurred over twenty years prior to the
present case. This court determined that because the conviction
occurred over twenty years prior to the case at bar it was too
remote to have probative value. Therefore, Complainant’s
voluntarily manslaughter conviction from 1990 was properly
excluded because it was too remote to be probative.
Trial Court Opinion, 12/9/16, at 12-13.
The Complainant’s voluntary manslaughter conviction occurred more
than twenty years prior to the events of this case. The trial court
determined that the conviction was too remote in time to be relevant. We
cannot conclude that the trial court abused its discretion in making this
determination.
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Additionally, the trial court properly allowed the introduction of
evidence of Appellant’s seven robbery convictions in order to impeach his
credibility. Evidence of a crimen falsi conviction is admissible to impeach a
witness under Pa.R.E. 609, which provides, in relevant part, as follows:
Rule 609. Impeachment by Evidence of a Criminal
Conviction
(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted of a
crime, whether by verdict or by plea of guilty or nolo contendere,
must be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only
if:
(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
Pa.R.E. 609(a), (b). Robbery is a crime of dishonesty. See
Commonwealth v. Harris, 884 A.2d 920, 925 (Pa. Super. 2005) (“Robbery
and burglary are considered crimen falsi and convictions for these offenses
are admissible for impeachment purposes.”) (citing Commonwealth v.
Jackson, 585 A.2d 1001 (Pa. 1991) and Commonwealth v. Gordon, 512
A.2d 1191 (Pa. Super. 1986)).
As the trial court explained:
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[T]he Commonwealth introduced evidence of [Appellant’s] seven
robbery convictions to impeach his credibility as a witness.8 A
robbery conviction is a crime of dishonesty or crimen falsi.
Commonwealth v. May, 898 A.2d 559, 569 (Pa. 2006). The
convictions occurred in 2001 and [Appellant] was sentenced to
seven and a half to fifteen years of incarceration. [Appellant’s]
trial occurred in 2015. See Commonwealth v. Trippett, 932
A.2d 188, 199 (Pa. Super. 2007) (holding where the date of
conviction or last date of confinement is within ten years of trial,
evidence of the conviction of crimen falsi is per se admissible).
Because ten years did not elapse between the date [Appellant]
was released from confinement to the date of the case at bar,
the convictions meet the time bar requirement of the rule.
Therefore, because [Appellant’s] seven robbery convictions were
crimes of dishonesty and met the time requirement, they were
properly admitted to impeach his credibility.
8 Counsel stipulated that [Appellant] was convicted
of seven robberies in 2001. N.T. July 9, 2015, at pp.
29-30.
Trial Court Opinion, 12/9/16, at 13.
As outlined above, the convictions occurred in 2001, and Appellant
was sentenced to seven and one-half to fifteen years of incarceration.
Appellant’s trial in this case occurred in 2015. Thus, ten years had not
elapsed between the date Appellant was released from confinement to the
date the evidence was introduced. Accordingly, the trial court properly
admitted Appellant’s prior robbery convictions. Pa.R.E. 609(b).
In his final issue, Appellant argues that the trial court abused its
discretion “by imposing a consecutive and excessive sentence, and erred by
failing to properly consider compelling mitigating factors.” Appellant’s Brief
at 18. Specifically, Appellant asserts that the trial court failed “to consider
[A]ppellant’s rehabilitative needs, the effect of such a sentence on
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[A]ppellant’s wife and three children, and [failed to] consider [A]ppellant’s
horrible abuse at the hands of his father.” Id. at 18. Appellant maintains
that this case should be remanded for resentencing. Id. at 19.
Appellant’s issue challenges the discretionary aspects of his sentence.
We note that “[t]he right to appellate review of the discretionary aspects of
a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for
allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether 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. [708]; (3) whether
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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)).
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Here, Appellant failed to include a separate Pa.R.A.P. 2119(f)
statement in his brief. Because the Commonwealth has objected to this
omission, Commonwealth’s Brief at 17, we deem Appellant’s challenge
waived. See Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super.
2014) (where the appellant failed to include a separate Pa.R.A.P. 2119(f)
statement in his brief, and the Commonwealth objected to the omission, the
issue is waived).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
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