Com. v. Philmore, L. ( 2017 )


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  • J   -S06038-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    LARON PHILMORE
    Appellant               No. 2758 EDA 2015
    Appeal from the Judgment of Sentence April 4, 2005
    in   the Court of Common Pleas of Philadelphia County Criminal Division
    at No(s): CP-51-CR-0306321-2004
    BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                                FILED MAY 08, 2017
    Appellant,   Laron D.     Philmore, appeals nunc pro tunc from the
    judgment of sentence entered            in the Philadelphia County Court of Common
    Pleas following a       jury trial and his convictions for voluntary manslaughter,'
    carrying      a   firearm without   a   license,2 and carrying firearms on   a   public
    street.3       Appellant pleaded guilty to persons not to possess firearms.4
    Appellant challenges the weight and sufficiency of the evidence. We affirm.
    The trial court summarized the procedural history of this case as
    follows:
    *   Former Justice specially assigned to the Superior Court.
    '   18 Pa.C.S. § 2503.
    2   18 Pa.C.S. § 6106.
    3   18 Pa.C.S. § 6108.
    4   18 Pa.C.S. § 6105.
    J   -S06038-17
    On April 4, 2005, [the trial court] sentenced
    [Appellant] to
    a total term of seven (7) to fourteen (14) years of
    imprisonment.
    direct appeal was filed on [Appellant's] behalf. His
    No
    judgments of sentence, therefore, became final on May 4,
    2005.
    On January 6, 2006, [Appellant] timely filed a pro se
    [Post Conviction Relief Act] PCRA Petition. Earl Kaufmann,
    Esquire, was subsequently appointed to represent
    [Appellant]. Attorney Kaufmann filed a Finley[5] letter
    stating that in his professional opinion, the issues raised by
    [Appellant] in his pro se petition were without merit and
    did not entitle [him] to relief. Having concluded that there
    were no other issues that could be raised on behalf of
    [Appellant], Attorney Kaufmann sought and was
    subsequently granted permission to withdraw as counsel.
    Thereafter, Lee Mandell, Esquire, was appointed to
    represent [Appellant.] Attorney Mandell filed an amended
    PCRA Petition on [Appellant's] behalf.      In his Amended
    Petition, [Appellant] sought PCRA relief in the form of
    reinstatement of his direct appellate rights nunc pro tunc.
    On August 18, 2015, [Appellant's] motion to file an
    appeal nunc pro tunc was heard and granted.          On
    September 11, 2015, [Appellant], through his counsel,
    filed a timely Notice of Appeal Nunc Pro Tunc.
    On February 26, 2016, this court ordered counsel       for
    [Appellant] to file a Concise Statement of Matters
    Complained of on appeal pursuant to Pa.R.A.P. § 1925(b).
    On March 14, 2016, [Appellant] filed a Statement of
    Matters Complained of on Appeal.
    Trial Ct. Op., 5/25/16, at 1-2 (footnote omitted).         The trial court filed   a
    responsive opinion.
    Appellant raises the following issues for our review:
    5   Commonwealth v. Finley, 
    550 A.2d 213
            (Pa. Super. 1988) (en banc).
    -2
    J   -S06038-17
    1. Is [Appellant] entitled to an Arrest of Judgment on the
    charge of Voluntary Manslaughter and any related charges
    where the evidence is insufficient to sustain the verdict
    and where the Commonwealth did not prove beyond a
    reasonable doubt that [Appellant] had failed to act in self-
    defense?
    2. Is [Appellant] entitled to a new trial where, as here, the
    greater weight of the evidence does not support the
    verdict?
    Appellant's Brief at 3.
    As a prefatory matter, we consider whether Appellant has waived his
    sufficiency of the evidence claim. Appellant's sufficiency argument consists
    of the following, reproduced verbatim.
    In ruling on a sufficiency claim, all of the evidence must be
    read in the light most favorable to the Commonwealth and
    the Commonwealth is entitled to all reasonable inferences
    arising there from. Commonwealth v. Boyle, 
    368 A.2d 661
     (Pa. 1977). If, under the standard, the evidence is
    not sufficient to sustain the charge, the [c]ourt is required
    to dismiss the case and discharge the defendant.
    Commonwealth v. Poindexter, 
    375 A.2d 384
    , aff'd 
    399 A.2d 390
     (Pa. 1979).[6] Most obviously, the due process
    clause protects the accused against conviction except upon
    proof beyond a reasonable doubt of every fact necessary
    to constitute the crime with which he is charged. See, In
    Re: Winship, 
    397 U.S. 358
     (1970).                  While the
    Commonwealth is entitled to all reasonable inferences
    arising from the evidence there is no statutory authority or
    case law which would provide the Commonwealth with the
    benefit of unreasonable inferences.
    Here, the greater weight of the evidence only places
    [Appellant] on the street at the time he shot the victim.
    However, the evidence does not establish, other than by
    6    We note that the Pennsylvania Supreme Court reversed this Court in
    Poindexter. See 
    id. at 391
    .
    -3
    J   -S06038-17
    what [Appellant] himself told the [c]ourt, what occurred
    that lead [sic] to the shooting. [Appellant] claimed that he
    shot in self-defense. The Commonwealth could not refute
    that. Accordingly, the greater weight of the evidence
    supports [Appellant's] claim that he shot in self-defense
    and the greater weight of the evidence supports the fact
    that the Commonwealth did not prove beyond a
    reasonable doubt that [Appellant] had failed to act in self-
    defense. Thus, [Appellant] must be awarded a new trial as
    the verdict is not supported by the greater weight of the
    evidence.
    Appellant's Brief at 9-10.
    In Commonwealth v. Johnson, 
    985 A.2d 915
     (Pa. 2009), our
    Supreme Court opined:           "[W]here an appellate brief fails to provide any
    discussion of    a   claim with citation to relevant authority or fails to develop the
    issue in any other meaningful fashion capable of review, that claim is
    waived." Id. at 924 (citation omitted). The argument section of Appellant's
    brief fails to mention, let alone discuss, any of the elements of the offenses
    for which the evidence           is   insufficient.   Appellant fails to provide any
    discussion of the sufficiency of the evidence with citation to legal authority.
    See id. Therefore, this issue         is   waived. See id.
    Appellant's second issue, viz., that the "greater weight of the evidence
    does not support the verdict" is not addressed in the argument section of his
    brief. See Pa.R.A.P. 2119(a) (stating that our Appellate Rules mandate that
    an appellant must develop an argument with citation to and analysis of
    relevant legal authority).       See also Commonwealth v. Nelson, 
    567 A.2d 673
    , 676 (Pa.          Super.   1989)       (stating that we   must deem an issue
    -4
    J   -S06038-17
    abandoned, and therefore waived, where it has been identified on appeal but
    not properly developed      in   the appellant's brief).   We find   this issue
    abandoned and waived. See 
    id.
    Accordingly, we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    J    seph D. Seletyn,
    Prothonotary
    Date: 5/8/2017
    -5
    

Document Info

Docket Number: Com. v. Philmore, L. No. 2758 EDA 2015

Filed Date: 5/8/2017

Precedential Status: Precedential

Modified Date: 5/8/2017