Com. v. Holmes, K.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KARIM ALI HOLMES, :
:
Appellant : No. 26 EDA 2017
Appeal from the Order dated September 1, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0003176-2015
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 12, 2017
Karim Ali Holmes (“Holmes”) appeals from the judgment of sentence
imposed following his conviction of attempted murder. See 18 Pa.C.S.A.
§ 901. We affirm.
On April 22, 2015, Stanley Sutton (“Sutton”) was at his girlfriend’s
house when he received a phone call from Holmes, a longtime friend with
whom he had recently been “beefing.” Holmes wanted to purchase marijuana.
Sutton and Holmes agreed to meet at the corner of Radbourne Road and
Crosley Avenue in Upper Darby, Pennsylvania. When Sutton arrived at the
agreed-upon location, Holmes was further up the street, so Sutton walked
toward Holmes to meet him. Sutton and Holmes walked together and talked
before Sutton gave Holmes marijuana in exchange for cash.
Holmes directed Sutton into an alley behind Randbourne Road. Sutton
followed Holmes, who was walking a few feet in front of him, further into the
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alley. Sutton heard gunshots, and saw a man shooting toward him from the
opposite side of the alley. A guardrail separated Sutton from the shooter.
After Sutton heard the gunshots, he turned around and walked out of the
alley. Sutton then “felt [his] body feeling different.” Sutton used his cell
phone to call the police, and when he approached a playground on Crosley
Road, he told the police that he was stopping at the park because he could
not breathe.
Sutton identified the shooter as a man known to him only as “Slick.”
Sutton had known Slick for a few months, and had “hung around with him
plenty of times in his house.” Sutton had also seen Slick and Holmes together
on several occasions.
At approximately 11:37 p.m., Upper Darby Police Officers Francis
Devine (“Officer Devine”) and Joseph DiFrancesco were dispatched to a
playground located near the intersection of Crosley Road and Clover Lane,
after receiving several calls for multiple shots fired. When the officers arrived,
they saw Sutton lying on the ground, holding a cell phone, and bleeding
profusely from a gunshot wound near his abdomen. Officer Devine also
observed numerous bullet holes on Sutton’s clothing, near his right shoulder.
Sutton was transported to Penn Presbyterian Medical Center in
Philadelphia for treatment. The parties stipulated that Sutton’s injuries were
life threatening, and that they constituted serious bodily injury.
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During the investigation, the police found shell casings in the alley, and
a blood trail leading from the entrance of the alley to the sidewalk where the
responding officers found Sutton.
Holmes was later arrested and charged with various offenses, including
attempted murder, based on an accomplice theory of liability, i.e., that Holmes
had intentionally lured Sutton into the alley so that Slick could shoot him.
Following a jury trial, Holmes was convicted of attempted murder. The trial
court deferred sentencing and ordered a pre-sentence investigation report
(“PSI”). The trial court subsequently sentenced Holmes to a term of 10 to 20
years in prison, with credit for time served.
Holmes filed a timely Notice of Appeal1 and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
On appeal, Holmes raises the following issues for our review:
1 The Notice of Appeal, filed by trial counsel, incorrectly states that the appeal
lies from the guilty verdict, rather than the judgment of sentence. See
Commonwealth v. O’Neill, 578 A.2d 1334, 1335 (Pa. Super. 1990) (stating
that “it is well settled that in criminal cases[,] appeals lie from judgment of
sentence rather than from the verdict of guilt.”). On December 21, 2016, trial
counsel was permitted to withdraw, and the trial court appointed Jordan Glenn
Zeitz, Esquire (“Attorney Zeitz”), as appellate counsel. On February 28, 2017,
this Court entered an Order directing Holmes to show cause why his appeal
should not be quashed as interlocutory. However, the Order was sent to trial
counsel rather than Attorney Zeitz. On May 4, 2017, this Court dismissed the
appeal for failure to file a brief. Attorney Zeitz filed an Application to Reinstate
Appeal. This Court reinstated Holmes’s appeal on May 19, 2017, and
forwarded a copy of the February 28, 2017 Order to Attorney Zeitz. Attorney
Zeitz did not respond to the Order. Nevertheless, we will treat this appeal as
having been properly taken from the judgment of sentence.
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I. Whether the trial court erred by summarily denying [] Holmes’s
[] Motion for judgment of acquittal without making any factual
findings or conclusions of law[?]
II. Whether the verdict is against the weight of the evidence
and/or is unsupported by substantial evidence[?]
III. Whether the trial court erred by summarily denying [Holmes’s]
post-sentence Motion for modification of his sentence[,] which
was unduly harsh, manifestly excessive, and/or not otherwise
appropriate under the sentencing code[?]
IV. Whether the trial court erred by allowing the Commonwealth
to strike two black jurors[,] in violation of Batson v. Kentucky,
476 U.S. 79 (1986)[?]
Brief for Appellant at 4.2
We will address Holmes’s first and second claims together. In his first
claim, Holmes argues that the trial court erred in denying his Motion for
judgment of acquittal. Id. at 11. In his second claim, Holmes contends that
2 Holmes identifies a fifth issue in his Statement of Questions Involved.
However, in the Argument section of his brief, he withdrew the claim. Brief
for Appellant at 17.
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the verdict is against the weight of the evidence,3 and is “unsupported by
substantial evidence.” Id.4
Holmes argues that “the Commonwealth’s theory of prosecution against
[Holmes] is based wholly on inference, suspicion and conjecture[.]” Id. at
13. Holmes asserts that the record merely established that he met Sutton to
purchase marijuana; he and Sutton walked down the alley to complete the
drug transaction; and he ran away after another individual, located on the
other side of the alley, started shooting in their direction. Id. at 13.
3 Holmes failed to provide any argument relating to his claim that the verdict
is against the weight of the evidence. See Pa.R.A.P. 2119(a). Thus, to the
extent that Holmes challenges the weight of the evidence, his claim is waived.
See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating
that “where 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.”). Moreover,
Holmes failed to raise his challenge to the weight of the evidence with the trial
court before sentencing, or in a post-sentence motion. See Pa.R.Crim.P. 607;
see also Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)
(holding that the appellant waived his weight of the evidence claim by not
raising it before the trial court).
4 We observe that in the Argument section of his brief, Holmes failed to include
a separate discussion of his first claim. See Pa.R.A.P. 2119(a) (providing that
“[t]he argument shall be divided into as many parts as there are questions to
be argued …, followed by such discussion and citation of authorities as are
deemed pertinent.”). Instead, Holmes indicated that he consolidated the
discussion of his claims because they involve “the same or substantially similar
issues.” Brief for Appellant at 11 n.6. Because “[a] motion for judgment of
acquittal challenges the sufficiency of the evidence to sustain a conviction on
a particular charge[,]” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa.
Super. 2010), and Holmes challenges the sufficiency of the evidence in his
second claim, we will address Holmes’s claims together.
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Here, as the trial court observed, “[Holmes] does not specify which
element of the charge the Commonwealth has failed to prove” in his Pa.R.A.P.
1925(b) Concise Statement. See Trial Court Opinion, 2/22/17, at 5. “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.”
Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016) (citation
omitted); see also Pa.R.A.P. 1925(b)(4)(ii) (providing that “the Statement
shall concisely identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”).
Holmes likewise failed to set forth in his brief the elements of attempted
murder and the requirements for accomplice liability, or identify which
elements the Commonwealth failed to establish. Therefore, Holmes’s claim is
waived. See Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super.
2015) (stating that “[w]here a 1925(b) statement does not specify the
allegedly unproven elements, the sufficiency issue is waived on appeal.”)
(citation, brackets, and ellipses omitted); see also Commonwealth v.
Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (concluding that appellant
waived his sufficiency claim where his argument was underdeveloped, he did
not “set forth the elements of the crimes he was convicted of” or “which
specific elements were not met,” and he “failed to specify which elements he
was challenging in his 1925 statement”).
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In his third claim, Holmes asserts that his sentence is “unduly harsh,
manifestly excessive, and/or not otherwise appropriate under the Sentencing
Code.” Brief for Appellant at 13. Holmes contends that the trial court did not
explain why an aggravated range sentence was justified by the PSI and the
sentencing guidelines. Id. at 14. Holmes further claims that he deserves a
shorter sentence because he has a 3-year-old daughter; he works as a
landscaper; he was not on probation or parole at the time of the underlying
offense;5 and he does not have a history of mental health problems. Id.
Holmes’s claim challenges the discretionary aspects of his sentence.
See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “It is
well-settled that, with regard to the discretionary aspects of sentencing, there
is no automatic right to appeal.” Commonwealth v. Mastromarino, 2 A.3d
581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether the
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. [720]; (3) whether the 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).
5 Contrary to Holmes’s assertion, he was on probation at the time of the
offense. Indeed, his probation was revoked as a result of this offense.
Holmes’s appeal from the judgment of sentence imposed following the
revocation of his probation is docketed at No. 1590 EDA 2017.
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Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Holmes failed to include a separate Pa.R.A.P. 2119(f) Statement
in his brief, or to otherwise argue that he has presented a substantial question
for our review. See Pa.R.A.P. 2119(f) (providing that “[a]n appellant who
challenges the discretionary aspects of a sentence in a criminal matter shall
set forth in a separate section of the brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of a sentence.”) (emphasis added). The Commonwealth objected to this
defect. Accordingly, Holmes’s third claim is waived. See Commonwealth v.
Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (stating that “if an
appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth
objects, the issue is waived for purposes of review.”). Moreover, although
Holmes filed a post-sentence Motion to modify sentence, the Motion did not
include his present assertion that his sentence is manifestly excessive. See
Moury, 992 A.2d at 170 (stating that “[o]bjections to the discretionary
aspects of a sentence are generally waived if they are not raised at the
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sentencing hearing or in a motion to modify the sentence imposed.”).6
In his fourth claim, Holmes argues that the trial court erred by allowing
the Commonwealth to strike two black jurors, in violation of Batson. Brief
for Appellant at 16. Holmes claims that the Commonwealth’s basis for striking
each juror was “suspect.” Id.In order to establish a Batson claim, a defendant must
establish a prima facie case of purposeful discrimination. To do
so, a defendant must demonstrate that he/she is of a cognizable
racial group; that the prosecution has exercised peremptory
challenges to exclude members of that racial group from the panel
of venirepersons; and finally, that these facts and any other
relevant circumstances raise an inference that the prosecutor
used peremptory challenges to exclude venirepersons on the basis
of race. Implicit in this scheme is the notion that peremptory
challenges constitute a jury selection practice that allows for such
discrimination by those who have a design to discriminate. If a
defendant succeeds in establishing a prima facie case of
purposeful discrimination, the prosecution is then required to
provide non-discriminatory reasons for striking the potential
jurors.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 113-14 (Pa. 1998) (citations
omitted). Further, to prove a Batson challenge, the moving party must
provide a full record of the alleged violation. Commonwealth v. Uderra,
6 We note that the trial court had the benefit of a PSI in imposing the sentence.
See N.T., 11/22/16, at 13 (wherein the trial court indicated that it had read
and reviewed the PSI “very carefully”); see also Commonwealth v. Devers,
546 A.2d 12, 18 (Pa. 1988) (stating that where the trial court had the benefit
of a PSI, this Court will presume that the trial court was aware of, and
considered all relevant factors, and “[h]aving been fully informed by the [PSI],
the sentencing court’s discretion should not be disturbed.”). Additionally, the
trial court noted the depravity of the “act of bringing a person [Holmes] knew
well to a scene to be shot and to be killed,” and that Holmes had previously
committed various acts against the victim that were not prosecuted. N.T.,
11/22/16, at 13-14.
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862 A.2d 74, 84 (Pa. 2004). Specifically, the moving party must identify the
race of all the venirepersons removed by the prosecution, the race of the
jurors who served, and the race of the jurors acceptable to the Commonwealth
who were stricken by the defense. Commonwealth v. Washington, 927
A.2d 586, 609 (Pa. 2007).
Here, Holmes failed to develop a record to support his Batson
challenge. See Uderra, 862 A.2d at 84. As the trial court noted, Holmes
only placed on record the race of the two prospective jurors struck
by the Commonwealth. He did not place on the record the race
of jurors actually chosen, the race of other jurors subject to
peremptory challenges by the prosecutor, the race of jurors
acceptable to the Commonwealth but struck by the defense, or
the racial makeup of the venire.
Trial Court Opinion, 2/22/17, at 14; see also Washington, 927 A.2d at 609.
Instead, Holmes simply states that “the jury pool had a very limited number
of potential black jurors” and the Commonwealth’s asserted basis for striking
each juror was “suspect.” Brief for Appellant at 16-17. Holmes’s bald claim
of discrimination does not entitle him to relief. See Commonwealth v.
Sanchez, 36 A.3d 24, 46 (Pa. 2011) (concluding that appellant was not
entitled to Batson relief where he “challenge[d] only one of the
Commonwealth’s race-neutral explanations and adduce[d] no evidence in
support of his bald assertion of discrimination.”); see also Commonwealth
v. Saunders, 946 A.2d 776, 783 (Pa. Super. 2008) (stating that “the striking
of a number of individuals belonging to some cognizable minority group … is
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not dispositive that a violation of Batson has occurred.” (citation and brackets
omitted)).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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