Com. v. Baskerville, V. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT BASKERVILLE,
Appellant No. 395 MDA 2014
Appeal from the Judgment of Sentence September 22, 2010
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0005324-2009
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 27, 2015
Appellant, Vincent Baskerville, appeals nunc pro tunc from the
judgment of sentence imposed following his jury conviction of two counts of
possession with intent to deliver a controlled substance,1 one count of
resisting arrest,2 one count of possession of drug paraphernalia,3 and one
count of disorderly conduct.4 Appellant challenges the sufficiency and the
weight of the evidence. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S.A. § 5104.
3
35 P.S. § 780-113(a)(32).
4
18 Pa.C.S.A. § 5503.
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Appellant’s convictions arose out of his arrest in the early morning
hours of December 28, 2008, when police broke up a street fight in
downtown Harrisburg. At trial, Harrisburg Police Officer Nicholas Ishman
testified that Appellant attempted to flee the scene, wriggling out of the
jacket or sweatshirt he was wearing, and had to be tackled. (See N.T. Trial,
8/09/10, at 17). On his arrest, police found one baggy containing four
corner tied baggies of marijuana, one baggy containing a rock of crack
cocaine, and $158 in cash. (See id. at 20-22). The Commonwealth and
Appellant stipulated that the controlled substances consisted of a 2.5 gram
bag of cocaine, and 8.3 grams of marijuana. (See id. at 12).
Dauphin County Criminal Investigation Division Detective John
Goshert, admitted as an expert on street level drug trafficking, testified that
the drugs found on Appellant were possessed with intent to deliver. (See
id. at 64). On cross-examination defense counsel asked:
Q. Had there not been the testimony that the defendant said
that he did not use drugs, had that not been part of the case,
would that have changed your opinion?
A. That one might have been too close to call[.]
(Id. at 72).
On August 10, 2010, the jury found Appellant guilty of all counts
previously noted. And on September 22, 2010, the court sentenced him to
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an aggregate term of not less than three nor more than six years’
incarceration in a state correction institution.
On October 18, 2013, the court reinstated Appellant’s post-sentencing
rights nunc pro tunc, after he filed a petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546, claiming abandonment of
counsel. (See Order, 10/18/13). After argument, the trial court denied
Appellant’s post-sentence motion on January 29, 2014, with an
accompanying memorandum. This timely appeal followed.5
Appellant raises two questions for our review:
1. Did the trial court err in denying Appellant’s post[-]
sentence motion when the evidence presented at trial was
insufficient to sustain the jury’s verdicts of guilt or a finding that
each and every element of the crimes charged was established
beyond a reasonable doubt?
2. Did the trial court err in denying Appellant’s post[-]
sentence motion when the jury’s verdicts of guilt were so against
the weight of the evidence as presented at trial so as to shock
one’s sense of justice?
(Appellant’s Brief, at 6).
“[W]ith respect to our sufficiency review, our standard of review is de
novo, however, our scope of review is limited to considering the evidence of
record, and all reasonable inferences arising therefrom, viewed in the light
____________________________________________
5
Appellant filed a timely statement of errors on March 19, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on April 8,
2014. See Pa.R.A.P. 1925(a).
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most favorable to the Commonwealth as the verdict winner.”
Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014) (citations
omitted).
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted).
Here, preliminarily, we note that although Appellant purports to
challenge all of his convictions, his argument only addresses the two
convictions for possession with intent to deliver. (See Appellant’s Brief, at
13-28). Therefore, all other claims are waived. See Pa.R.A.P. 2119; see
also Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012)
(argument waived for failure of adequate development, citing Pa.R.A.P.
2119).
Next, we observe that Appellant failed to provide a specific
identification of insufficiency in his Rule 1925(b) statement of errors,
precluding meaningful trial court review. Appellant’s statement presented
only a boilerplate generic challenge:
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1. The evidence presented at trial was insufficient to
sustain the jury’s verdicts of guilt for the above captioned
charges or a finding that each and every element of the crimes
charged was established beyond a reasonable doubt, even when
viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner.
(Statement of Matters [sic] Complained of upon Appeal, 3/19/14).
Because Appellant failed to identify the basis of the claim of
insufficiency, it is waived. See Commonwealth v. Williams, 959 A.2d
1252, 1256-57 (Pa. Super. 2008) (citing Commonwealth v. Flores, 921
A.2d 517 (Pa. Super. 2007)).
Moreover, Appellant’s claim would not merit relief. The essence of
Appellant’s argument for insufficiency is that the drugs found on him could
have been for his personal use. (See Appellant’s Brief, at 13). We review
sufficiency challenges in the light most favorable to the Commonwealth as
verdict winner. See Rushing, supra at 420-21; Widmer, supra at 751-
52. Appellant’s first claim does not merit relief.
Appellant’s second claim challenges the weight of the evidence. (See
Appellant’s Brief, at 6).
Our standard of review is well-settled:
The weight given to trial evidence is a choice for the factfinder.
If the factfinder returns a guilty verdict, and if a criminal
defendant then files a motion for a new trial on the basis that
the verdict was against the weight of the evidence, a trial court
is not to grant relief unless the verdict is so contrary to the
evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
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review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.
Moreover, when evaluating a trial court’s ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.
. . . [W]e note that the jury is free to believe all, part, or none
of the evidence and to determine the credibility of the witnesses.
Commonwealth v. Ferguson, 2015 WL 49438, *4-5 (Pa. Super. filed
January 5, 2015) (citations omitted).
Here, in an abbreviated argument of three sentences which improperly
relies on the sufficiency argument, Appellant asserts “the Commonwealth’s
expert . . . lacked the proper facts such that his conclusions are incorrect.”
(Appellant’s Brief, at 27). Appellant does not develop, or even specify the
details of this argument. He offers no authority whatsoever in support of his
claim. This argument is waived as well. See Pa.R.A.P. 2119; see also
Commonwealth v. Perez, 93 A.3d 829, 842 (Pa. 2014), cert. denied, 135
S. Ct. 480 (2014) (boilerplate undeveloped weight claim waived).
Moreover, the issue would not merit relief. Trial counsel’s hypothetical
question did not undermine the credibility of the Commonwealth’s expert.
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At most, it suggested a basis for speculation about facts not in evidence, and
contrary to the facts of record. On independent review, we discern no basis
on which to conclude that the trial court abused its discretion in finding that
the jury’s verdict did not shock one’s sense of justice. See Ferguson,
supra at *4-5.
Judgment of sentence affirmed.
Judge Panella joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
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