Com. v. Gardner, V. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT GARDNER :
:
Appellant : No. 624 EDA 2019
Appeal from the Judgment of Sentence Entered April 16, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014343-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED: APRIL 16, 2021
Appellant, Vincent Gardner, appeals nunc pro tunc from the judgment
of sentence entered in the Court of Common Pleas of Philadelphia County on
April 16, 2015. We affirm.
The trial court summarized the factual history of this matter as follows:
[O]n July 14th, 2013, at approximately 2:30 a.m., Appellant and
his brothers, Haleem and Quantel, forced their way into a house
located at 2829 Wharton Street, Philadelphia, Pennsylvania.
Haleem took out a revolver, put it to the head of an occupant of
the home, 13 year old [C.H.], then attempted to force the gun’s
barrel into [C.H.’s] mouth, and demanded money, drugs, and
guns. Nothing was identified as [having been] taken during the
invasion. This ordeal took approximately 15 minutes. During the
commission of the robbery, the minor was punched in the mouth
by Quantel Gardner, which caused it to bleed. [Appellant]
searched the house. After the Appellant and his brothers fled the
home, [C.H.] called his mother, … and then told Stephon Hill, his
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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uncle, what had occurred. [C.H.] had named the attackers to his
family members.
The next day, Stephon Hill searched out and found Haleem
Gardner, physically assaulted him and took a black and silver
revolver from him. This type of weapon was described by [C.H.]
as the weapon pulled on him during the home invasion. Stephon
Hill took the revolver from Haleem Gardner and gave it to a
Jacques Charles, who, later that evening, was gunned down in the
2700 block of Reed Street. He died from his injuries. The gun
taken by Stephon Hill and described by [C.H.], was found next to
the body of Jacques Charles, along with several .38 caliber bullets
in his pocket.
Although the facts related to the home invasion are simple
and straight forward, the only eyewitness testimony presented at
trial was long and drawn out, as [C.H.] was obviously reluctant
and intimidated to testify against his attackers from the witness
stand and fac[e] them in a courtroom. Given this reluctance and
his avoidance of directly answering questions, this [c]ourt, at the
Commonwealth’s request, declared him to be a hostile witness and
permitted the Commonwealth to utilize previous statements given
by [C.H.] to Philadelphia Police personnel, as well as testimony
given before a grand jury, as prior consistent statements. The
Commonwealth read from the prior statements the questions and
this witness’[s] answers, then asking if he recalled that question
and answer. The witness did recall some and denied many of the
questions specifically about the persons on trial in order to avoid
implicating them face to face. It was clear to this [c]ourt that the
witness was intimidated by their presence in the courtroom. N.T.,
09-17-2014, P. 17 to P. 122.
The same was true of the witness, Stephon Hill, who was
also deemed hostile and was then confronted with his prior
statements, given his clear combative nature and stated
reluctance to testify. Mr. Hill, on several occasions throughout his
testimony, spoke of actions against “snitches” and claimed that
the answers to detectives’ questions were fabricated by them in
order to frame the defendants. N.T., 09-17-2014, P. 159 to P.
223.
When the prior statements of [C.H.] and Stephon Hill were
read together, the jury was presented with a clear, albeit
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circuitous and drawn out, picture of what occurred that night in
the home during the invasion.
Trial Court Opinion, 7/30/19, at 2-4.
On September 22, 2014, a jury convicted Appellant of robbery, burglary,
and conspiracy to commit burglary.1 The following day, the trial court
convicted Appellant of the crime of persons not to possess a firearm. 2 On
April 16, 2015, the trial court sentenced Appellant to serve an aggregate term
of incarceration of fifty-five to 110 years.
Appellant filed a timely direct appeal, which was docketed at 1333 EDA
2015. However, on April 5, 2018, the case was dismissed due to Appellant’s
failure to file an appellate brief.
On December 18, 2018, Appellant filed a timely petition pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, seeking reinstatement
of his direct-appeal rights. On February 14, 2019, the PCRA court granted
Appellant relief and reinstated his direct appeal rights nunc pro tunc.
Appellant filed this appeal on March 5, 2019. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review, which we have
renumbered for disposition:
1. Was the evidence presented at trial insufficient as a matter of
law to support the verdict[?]
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1
18 Pa.C.S. §§ 3502, 3701, and 903, respectively.
2
18 Pa.C.S. § 6105.
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2. Did the court err when it allowed the introduction of a firearm
and bullets from unrelated homicide to be entered into evidence?
Appellant’s Brief at 3 (full capitalization omitted).
In his first issue, Appellant purports to argue that there was insufficient
evidence to support his convictions. Appellant’s Brief at 24-27. We analyze
arguments challenging the sufficiency of the evidence under the following
parameters:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder[’s]. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
Instantly, Appellant has abandoned any argument concerning the
sufficiency of the evidence. Regarding sufficiency-of-the-evidence issues, an
appellant must specify the elements upon which the evidence was insufficient
in order to preserve the issue for appeal. See Commonwealth v. Williams,
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959 A.2d 1252, 1257–1258 (Pa. Super. 2008) (finding waiver where the
appellant failed to specify the elements of particular crime not proven by the
Commonwealth). See also Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009) (finding claim waived under Williams for failure to specify
either in Rule 1925(b) statement or in argument portion of appellate brief
which elements of crimes were not proven beyond a reasonable doubt).
Appellant’s Pa.R.A.P. 1925(b) statement presents the following
pertinent issue, which fails to specify the elements of the crimes allegedly not
proven by the Commonwealth:
1. The evidence presented at trial was insufficient, as a matter of
law, to support the verdict.
Pa.R.A.P. 1925(b) Statement (Record Entry 60), 3/4/19, at 1.
In addressing this issue, the trial court stated the following:
Here, Appellant has made nothing more than a boilerplate
claim that the evidence presented at trial was insufficient to
support the convictions for burglary, robbery and conspiracy. He
has not specified the element(s) of the offense for which he
believes the evidence was lacking. As such, he has waived his
challenge to the sufficiency of the evidence.
Trial Court Opinion, 7/30/19, at 5.
Likewise, Appellant has failed to specify in his appellate brief the
elements of the crimes that allegedly were not established. Appellant’s Brief
at 24-27. Rather, Appellant’s argument consists of citation to case law and
challenges to the credibility and reliability of the testimony offered by the
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Commonwealth’s witnesses. Appellant’s argument concludes with the
following summation:
There was insufficient evidence to convict Appellant …. The
Judgment of Sentence and convictions must be vacated.
Appellant’s Brief at 27. Consequently, Appellant’s non-specific claim
challenging the sufficiency of the evidence, which fails to specify the elements
of the particular crimes allegedly not proven by the Commonwealth, is waived.
Williams, 959 A.2d at 1257–1258.
Appellant last argues that the trial court erred when it permitted the
introduction into evidence of a firearm and bullets that were discovered during
the investigation of an unrelated homicide. Appellant’s Brief at 20-23.
Specifically, Appellant states:
Stephon Hill according to a prior statement searched out
and found Harleem Gardner physically assaulted him and took a
black and silver revolver from him. The [c]ourt concluded that
this type of weapon was described by [C.H.] as the weapon pulled
on him during the home invasion. Stephon Hill took the revolver
from Harleem Gardner and gave it to Jacque Charles, who, later
that evening, was [g]unned down on the 2700 block of Reed
Street. He died from his injuries. The gun taken by Stephon Hill
and described by [C.H.], was found next to the body of Jacques
Charles, along with several .38 caliber bullets in his pockets.
Admission of the firearm and bullets recovered in the
homicide investigation was extremely prejudicial and outweighed
any probative value.
Id. at 21-22.
Before we address the merits of this issue, we must consider whether
the claim has been properly preserved for appellate review. Initially, we
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observe that Appellant has failed to specify where in the record the evidence
was admitted at trial and where he preserved this claim by lodging a proper
objection.
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). In addition, it is an appellant’s obligation to
demonstrate which appellate issues were preserved for review. Pa.R.A.P.
2117(c), 2119(e).
Furthermore, Pa.R.A.P. 2119 addresses arguments in appellate briefs
and corresponding references to the record and provides, in relevant part, as
follows:
If 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 place
in the record where the matter referred to appears ... .
Pa.R.A.P. 2119(c) (emphases added).
It is not the role of this Court to develop an argument for a litigant or to
scour the record to find specific evidence to support an appellant’s arguments.
J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super.
2012) (quoting Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2007)). Therefore, “[w]hen an allegation is unsupported [by] any
citation to the record, such that this Court is prevented from assessing this
issue and determining whether error exists, the allegation is waived for
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purposes of appeal.” Commonwealth v. Harris, 979 A.2d 387, 393 (Pa.
Super. 2009) (citing Pa.R.A.P. 2119(c)).
In order to preserve an issue for review, a party must make a
timely and specific objection at trial. A failure to object to an offer
of evidence at the time the offer is made, assigning the grounds
[for objection], is a waiver upon appeal of any ground of complaint
against its admission.
Commonwealth v. Griffin, 684 A.2d 589, 595 (Pa. Super. 1996) (citations
and quotation marks omitted).
In Commonwealth v. Colon, 846 A.2d 747 (Pa. Super. 2004), the
appellant’s counsel filed a motion in limine to exclude a witness’s testimony.
Id. 846 A.2d at 752. The court denied the motion, and the appellant’s counsel
failed to object on the record to the ruling. Id. Counsel also did not object
when the witness was called to testify. Id. Relying on Griffin, this Court
determined the appellant waived his right to argue the issue on appeal. Id.
at 753.
Instantly, Appellant’s bald assertion regarding the admission of a
firearm and bullets lacks any supporting citation or proof in the record. In
contradiction to Pa.R.A.P. 2119(c), in the argument portion of his appellate
brief, Appellant has failed to comply with the mandatory briefing requirements
by failing to offer citation to the notes of testimony. In addition, Appellant
has not directed our attention to a place in the record where a proper objection
to the admission of the evidence had been made.
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As stated supra, it is not our role to scour the record for the evidence
that could possibly support Appellant’s argument. J.J. DeLuca Co. Inc., 56
A.3d at 411. This Court has consistently held that failure to comply with
Pa.R.A.P. 2119(c) results in the waiver of the issue on appeal. Appellant’s
failure to comply with Rule 2119(c) compels our conclusion that this issue is
waived.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/21
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