Com. v. Jackson, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARQUIS JACKSON
Appellant No. 1292 EDA 2013
Appeal from the Judgment of Sentence April 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007141-2011
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 29, 2015
Appellant, Marquis Jackson, appeals from the April 11, 2013 aggregate
judgment of sentence of 18 to 36 years’ imprisonment, imposed after being
found guilty by a jury of attempted murder, aggravated assault, possessing
an instrument of crime, carrying a firearm on public streets in Philadelphia,
simple assault, and recklessly endangering another person.1 After careful
review, we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
The Commonwealth presented evidence that
Appellant shot the complainant, Mr. Donzel Murril,
multiple times at close range. The complainant
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1
18 Pa.C.S.A. §§ 901, 2702, 907, 6108, 2701, and 2705, respectively.
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testified that on May 31, 2011, at approximately
9:40 p.m., he was sitting in a parked vehicle with his
girlfriend near the 7400 block of Edmund Street,
Philadelphia. The complainant was sitting in the
driver’s seat and his girlfriend, Verdell Goodman,
was positioned in the passenger seat. The
complainant observed Appellant emerge from an
alleyway and walk to a nearby corner. Street lights
illuminated the area and Appellant was not wearing
clothing around his head or face. Appellant then
walked to the driver’s side of the complainant’s
vehicle, holding a firearm in his hand. The
complainant verbally greeted the Appellant, whom
he knew for five or six years. Appellant then
discharged his firearm multiple times, striking the
complainant in the leg, back and elbow. The
complainant then started his vehicle and drove
briefly before stopping to permit Ms. Goodman to
assume control. Ms. Goodman transported the
complainant to the hospital for medical treatment.
When presented with a photo-array at the hospital,
the complainant immediately identified Appellant.
Ms. Goodman also testified to the
circumstances surrounding the shooting, providing a
substantially similar account as the complainant.
Ms. Goodman initially observed the shooter, whom
she identified in court as Appellant, emerge from a
nearby driveway and walk to a street corner. After
peeping around the corner, Appellant walked back in
the direction of their vehicle. A street light activated
at that point in time and Ms. Goodman observed
Appellant holding a gun, his arm extended
downward. Appellant approached the driver’s side of
the vehicle prompting the complainant to greet him
and identify himself. Appellant responded to the
verbal identification by raising the gun and
discharging it toward the vehicle from a distance of
approximately twenty-five to thirty feet. The
complainant then complied with Ms. Goodman’s
demand to drive away. Ms. Goodman assumed
control of the vehicle shortly thereafter. Ms.
Goodman subsequently made a photo-array
identification of Appellant. Before viewing the photo-
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array, Ms. Goodman initially misidentified an
individual shown to her approximately forty-five
minutes after the shooting as looking like the
shooter.
The Commonwealth also presented evidence
relating to the intimidation of witnesses. The
complainant’s mother, Ms. Dolly Evans testified that
she was approached by two individuals on June 30,
2011 at a store located at Loring and Torresdale
Avenue, Philadelphia. Ms. Evans recognized one of
the individuals and knew him as “Rob.” After a brief
verbal exchange, the second individual struck Ms.
Evans on the jaw, stating “take this message to your
son.” The two individuals immediately entered their
vehicle and left the area. The complainant testified
that he was also approached by Rob on the same
date at the same location. The complainant knew
Rob as a local resident and frequently observed him
in Appellant’s company. The complainant further
characterized Rob as Appellant’s “right-hand man.”
Rob inquired “why you go to court on my young
boy?” and followed up, stating “suppose I come and
shoot your house up.”
Trial Court Opinion, 12/18/13, at 1-3 (citations to notes of testimony
omitted).
On June 1, 2011, Appellant was charged with the aforementioned
offenses.2 Appellant was arrested the following day. On March 29, 2012,
the Commonwealth filed a motion to consolidate Appellant’s trial with that of
Demaris Robinson, who was charged with witness intimidation against the
complainant in the instant matter. Commonwealth’s Motion for
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2
Appellant was also charged with one count of firearms not to be carried
without a license which was nolle prossed. See generally 18 Pa.C.S.A.
§ 6106(a)(1).
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Consolidation, 3/29/12, at 2 (unnumbered). On May 2, 2012, the
Commonwealth’s motion was granted.
Following a four-day trial commencing on January 14, 2013, Appellant
was found guilty on January 17, 2013 of the aforementioned crimes. On
April 11, 2013, Appellant was sentenced to an aggregate term of 18 to 36
years’ imprisonment. Thereafter, on April 16, 2013, Appellant filed a timely
post-sentence motion, asserting the verdict was against the weight of the
evidence and that the trial court imposed an excessive sentence. Appellant’s
Post-Sentence Motion, 4/16/13, at 1-3. On April 29, 2013, the trial court
denied Appellant’s motion without a hearing. That same day, Appellant filed
a timely notice of appeal.
On August 16, 2013, the trial court ordered Appellant to file, within 21
days, a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). On September 7, 2013,
Appellant complied, albeit, untimely.3 On December 18, 2013, the trial court
filed its Rule 1925(a) opinion.
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3
We note that September 7, 2013 was a Saturday. Curiously, said
document is stamped “Filed 09/07/2013 09:35:29 PM Post Trial Unit.”
Nevertheless, Appellant’s Rule 1925(b) statement was due the prior day on
September 6, 2013, therefore, Appellant’s Rule 1925(b) statement was filed
one day late. We note that the untimely filing of a concise statement on
direct appeal is the equivalent of a complete failure to file, which constitutes
per se ineffective assistance of counsel. Commonwealth v. Burton, 973
A.2d 428, 432-433 (Pa. Super. 2009) (en banc). Generally, such failure
would compel remand. See Pa.R.A.P. 1925(c)(3) (requiring remand for
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issues for our review.
1. Whether the trial court committed error first by
granting a motion for consolidation, and second by
proceeding to admit evidence against Appellant of
[the] Commonwealth’s motion to consolidate an
unrelated victim intimidation case initially creating a
co-defendant matter with Appellant’s current case
when the case involved a totally different defendant,
victim, incident and facts, and where the co-
defendant was no longer facing trial because he
entered a guilty plea before trial?
2. Whether the evidence at trial was sufficient to
sustain the charges of Attempted Murder,
Aggravated Assault, Simple Assault, VUFA § 6108,
Possessing an Instrument of Crime, and REAP?
Appellant’s Brief at 5.
In his first issue, Appellant argues the trial court erred by granting a
motion to consolidate his trial with that of Robinson, and further by ruling to
admit evidence that Robinson approached the complainant for the purpose
of intimidating him to not attend Appellant’s preliminary hearing. Id. at 10-
12.
We first address Appellant’s contention that the trial court erred in
granting the Commonwealth’s motion to consolidate his trial with Robinson’s.
In his brief, Appellant concedes that Robinson pled guilty before trial;
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(Footnote Continued)
filing of a concise statement nunc pro tunc in instances of counsel’s per se
ineffectiveness). However where, as here, the late filing did not prevent the
trial court from addressing the merits of Appellant’s issues in its 1925(a)
opinion, this Court may decide the appeal on the merits. Commonwealth
v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing Burton, supra.-5-
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therefore there was no joint trial. Id. at 11. The trial court concluded that
Appellant’s issue is moot based on Robinson’s decision to plead guilty. We
agree.
Appellant claims that the trial court erroneously
granted [the] Commonwealth’s motion to consolidate
a victim intimidation case with his. The legality of
the [trial] court’s decision to consolidate
notwithstanding, Appellant’s challenge is moot as the
co-defendant entered into a negotiated guilty plea
prior to trial and Appellant was tried alone.
Furthermore, the fact of co-defendant’s entrance into
a guilty plea was not presented to the jury at
Appellant’s trial. Appellant’s claim therefore does
not warrant relief.
Trial Court Opinion, 12/18/13, at 10-11 (footnote omitted).
Accordingly, we only need to address Appellant’s claim that the trial
court erred in denying Appellant’s pretrial motion to exclude the intimidation
testimony attributed to Robinson. Appellant’s Brief at 11. Specifically,
Appellant argues the trial court erred in ruling that even after Robinson pled
guilty “it would still admit testimony regarding the intimidation of the
[c]omplainant.” Id. Additionally, Appellant argues that critical to this case
is the fact that he was in custody at the time of Robinson’s arrest, and there
was no evidence connecting him to the intimidation offense. Id. at 11-12.
In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. Commonwealth v. Selenski, 18
A.3d 1229, 1232 (Pa. Super. 2011), vacated in part on other grounds, 92
A.3d 766 (Pa. 2014). Questions concerning the admissibility of evidence are
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within “the sound discretion of the trial court, and its discretion will not be
reversed absent a clear abuse of discretion.” Id. (citation omitted). “An
abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.” Commonwealth v. Harris, 884 A.2d
920, 924 (Pa. Super. 2005) (internal citations and quotation marks omitted),
appeal denied, 928 A.2d 1289 (Pa. 2007). Furthermore, “if in reaching a
conclusion the trial court over-rides [sic] or misapplies the law, discretion is
then abused and it is the duty of the appellate court to correct the error.”
Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)
(citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).
Instantly, Appellant does not point to a specific place in the trial where
the evidence of Robinson’s intimidation of the complainant was admitted into
evidence. At no point in Appellant’s brief does he direct this Court to the
specific evidence he claims was admitted in error. Rather, his argument
generally alleges that the trial court’s determination that the intimidation
evidence was admissible was in error. Absent specific citations to the record
we cannot review Appellant’s claim. See Pa.R.A.P. 2119(c) (stating, “[i]f
reference is made to the pleadings, evidence, charge, opinion or order, or
any other matter appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a reference to the
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place in the record where the matter referred to appears[]”). Accordingly,
Appellant’s first issue is waived.
In Appellant’s second issue, he avers the evidence at trial was
insufficient to sustain all six charges. Appellant’s Brief at 15-17. However,
before addressing the merits of Appellant’s claim, we must determine
whether Appellant has preserved his issues for appellate review.
By its text, Rule 1925(b) requires that concise statements “identify
each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii);
see also Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006)
(stating “[w]hen a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review[]”), appeal denied, 919 A.2d 956(Pa. 2007). Any issues not raised in accordance with Rule 1925(b)(4) will be
deemed waived. Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has made
clear that Rule 1925(b) is a bright-line rule. Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011). Additionally, with regard to claims pertaining to
the sufficiency of the Commonwealth’s evidence, we have stated as follows.
In order to preserve a challenge to the sufficiency of
the evidence on appeal, an appellant’s Rule 1925(b)
statement must state with specificity the element or
elements upon which the appellant alleges that the
evidence was insufficient. Such specificity is of
particular importance in cases where, as here,
the appellant was convicted of multiple crimes
each of which contains numerous elements that
the Commonwealth must prove beyond a
reasonable doubt.
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Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
quotation marks and citations omitted; emphasis added).
Appellant’s Rule 1925(b) statement baldy asserts, “whether the
evidence at trial was sufficient to sustain the charges of attempted murder,
aggravated assault, simple assault, VUFA § 6106, possessing an instrument
of a crime, and REAP?” Appellant’s Rule 1925(b) Statement, 9/7/13, at 1
(capitalization corrected). Appellant fails to specify which elements of which
crimes he is challenging. Accordingly, we agree with the trial court that
Appellant’s issue is waived for failure to sufficiently raise it in his Rule
1925(b) statement. See Trial Court Opinion, 12/18/13, at 3 (finding waiver
on the basis that “Appellant completely failed to indicate which element(s)
he is challenging[]”); see Garland, supra.Based on the foregoing, we conclude that both of Appellant’s issues
are devoid of merit or waived. Accordingly, the trial court’s April 11, 2013
judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2015
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