Com. v. Johnson, R.

J-S74016-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT JOHNSON, :
:
Appellant : No. 35 EDA 2014
Appeal from the Judgment of Sentence December 11, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0011137-2012
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 23, 2014
Robert Johnson (“Johnson”) appeals from the December 11, 2013
judgment of sentence entered by the Philadelphia County Court of Common
Pleas. Upon finding that Johnson waived the issues raised, we dismiss the
appeal.
The trial court summarized the factual history of the case as follows:
[Johnson] was arrested July 11, 2012 after
police officers recovered a firearm from a vehicle in
which [Johnson] was the front seat passenger. The
record from trial shows that Police Officers James
Battista and Joseph lnnamorato pulled over a vehicle
for a Motor Vehicle Code violation. The driver and
[Johnson] showed their hands as police approached
the stopped car and then provided the police with
their identification[s]. After running the vehicle
occupants’ names through the computer system in
the police car and discovering there was an
outstanding warrant for [Johnson]’s arrest,[FN]1 the
police officers returned to the stopped vehicle. Both
officers noticed the driver and [Johnson] reaching
*Retired Senior Judge assigned to the Superior Court.
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towards the floor area of the car. Officer Battista
asked [Johnson] to put up his hands and exit the
vehicle. Officer Battista then observed that the floor
mat below where [Johnson] had been sitting was
raised and there appeared to be an object
underneath it. After placing [Johnson] under arrest
based upon his outstanding warrant, Officer Battista
looked under the floor mat and recovered a black .45
caliber handgun loaded with nine live rounds of
ammunition. The driver of the vehicle was also
placed under arrest and police recovered narcotics
from his person. (N.T. 7/17/13, p. 51-85, 130).
On July 17-18, 2013, [Johnson] appeared
before this [c]ourt for a trial by jury. Although
[Johnson] initially was charged with three violations
of the Uniform Firearms Act: Carrying a Firearm
Without a License (18 Pa.C.S. § 6106), Carrying
Firearms on Public Streets or Public Property in
Philadelphia (18 Pa.C.S. § 6108); and Persons Not to
Possess, Use, Manufacture, Control, Sell or Transfer
Firearms (18 Pa.C.S. § 6105), the Commonwealth
chose to proceed on only the § 6105 charge.
[Johnson] stipulated at trial that he belonged to a
class of persons not permitted to carry firearms.
(N.T. 7/7/13, p. 162). The jury found [Johnson]
guilty.
On December 11, 2013, this [c]ourt sentenced
[Johnson] to 5 to 10 years [of] state incarceration,
to be served consecutively to any other sentence. As
conditions of his sentence, he was ordered to
undergo random urinalysis, obtain his GED, complete
a job training program, attend drug treatment, seek
and maintain employment, stay out of trouble with
the law, and pay mandatory court costs. (N.T.
12/11/13, p. 19).
__________________________________
[FN]1
This fact was not made known to the jury.
Instead, Officer Battista simply testified that he
returned to the car “[b]ased on information that [he]
received after running [Johnson]’s name through the
computer.” (N.T. 7/17/13, p. 59).
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Trial Court Opinion, 5/30/14, at 1-2 (footnote in the original).
Johnson filed a timely notice of appeal, followed by a court-ordered
concise statement of errors complained of on appeal. He raises the following
issues for our review:
A. Did the [trial c]ourt err in allowing a jury trial to
proceed with only the VUFA 6105 charge, when
[Johnson] was also charged with VUFA 6106 and
6108, and stipulated that he was in a class of
citizens barred from ever legally possessing a firearm
due to a prior conviction[?] Under the particular
circumstances of this case, the VUFA 6105 charge
should have been severed and decided separately
from the other two charges to avoid undue
prejudice. The case was a constructive possession
case[;] therefore, if the jury would have found
[Johnson] guilty of VUFA 6106, then the severed
part of the case would have been very easy to
stipulate to the former conviction and have the jury
deliberate (probably for 2 minutes) that [Johnson]
was also guilty of VUFA 6105. There was a
stipulation that the firearm was operable, so that
added element to VUFA 6106 as opposed to VUFA
6105 would not have resulted in any confusion for
the jury.
B. Did the [trial c]ourt err by not giving a curative
instruction at any point during the trial or at the
opening and closing statement of the Assistant
District Attorney, where that attorney inappropriately
referred to [Johnson] legally not being able to
possess a firearm, and referring to the State
Legislature putting [Johnson] in a category of people
who cannot possess a firearm[?]
Johnson’s Brief at 3.
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Johnson’s lengthy first issue boils down to a simple claim – that the
Commonwealth should not have been permitted to withdraw the charge of
carrying a firearm without a license1 and proceed solely on the charge of
possession of a firearm by a prohibited person.2 Rather, according to
1
The Uniform Firearms Act defines carrying a firearm without a license as
follows:
(1) Except as provided in paragraph (2), any person
who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his
person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license
under this chapter commits a felony of the third
degree.
(2) A person who is otherwise eligible to possess a
valid license under this chapter but carries a firearm
in any vehicle or any person who carries a firearm
concealed on or about his person, except in his place
of abode or fixed place of business, without a valid
and lawfully issued license and has not committed
any other criminal violation commits a misdemeanor
of the first degree.
18 Pa.C.S.A. § 6106(a) (footnote omitted).
2
Section 6105(a) of the Uniform Firearms Act defines possession of a
firearm by a prohibited person as follows:
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use,
control, sell, transfer or manufacture a firearm in this
Commonwealth.
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Johnson, the trial court should have required the Commonwealth to try him
on both charges and bifurcated the verdict so that the jury was required to
determine whether he carried a firearm without a license, and only then
consider whether he was a person prohibited from carrying a firearm.
Johnson’s Brief at 8, 12-13. The Commonwealth contends that this claim is
waived, as Johnson failed to object at the time the Commonwealth informed
the trial court that it was proceeding solely on the prohibited person charge.
Commonwealth’s Brief at 6-7.
“[T]o preserve a claim of error for appellate review, a party must
make a specific objection to the alleged error before the trial court in a
timely fashion and at the appropriate stage of the proceedings; failure to
raise such objection results in waiver of the underlying issue on appeal.”
Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citations
omitted). In violation of our Rules of Appellate Procedure, Johnson fails to
identify in his appellate brief where in the record he preserved the issue
raised. See Pa.R.A.P. 2117(c), 2119(e). Indeed, Johnson does not claim to
(2)(i) A person who is prohibited from possessing,
using, controlling, selling, transferring or
manufacturing a firearm under paragraph (1) or
subsection (b) or (c) shall have a reasonable period
of time, not to exceed 60 days from the date of the
imposition of the disability under this subsection, in
which to sell or transfer that person's firearms to
another eligible person who is not a member of the
prohibited person's household.
18 Pa.C.S.A. § 6105(a).
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have raised the issue before the trial court. See generally Johnson’s Brief
at 7-13. The law is well settled that issues not raised before the trial court
are waived and cannot be raised for the first time on appeal. Pa.R.A.P.
302(a); see also Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.
Super. 2009) (finding an argument raised on appeal waived based upon the
appellant’s failure to identify where in the record he raised the argument
before the trial court).
Although not the duty of this Court when conducting appellate review,
we nonetheless scoured the record in an attempt to discern where, if at all,
Johnson preserved this issue for our review. Our search proved fruitless, as
the certified record on appeal does not include a transcription of the
Commonwealth withdrawing the charge of carrying a firearm without a
license.
It is black letter law in this jurisdiction that an
appellate court cannot consider anything which is not
part of the record in the case. It is also well[]settled
in this jurisdiction that it is Appellant’s responsibility
to supply this Court with a complete record for
purposes of review. A failure by Appellant to insure
that the original record certified for appeal contains
sufficient information to conduct a proper review
constitutes waiver of the issue sought to be
examined.
Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007)
(internal citations omitted). Therefore, we find this issue waived.
As his second issue on appeal, Johnson asserts that the trial court
erred by failing to provide a curative instruction to the jury regarding the
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Commonwealth’s opening statement, during which the Commonwealth said:
“This defendant, Robert Johnson, can never own, possess, control[, or] carry
a firearm, a gun, a handgun, a rifle, any kind of gun, ever, never [sic].”
N.T. 7/17/13, at 36. He baldly states that this amounted to “prosecutorial
misconduct” and that the trial court’s failure to address this with the jury
“was gross error,” depriving Johnson of “his right to a fair and impartial trial
guaranteed under the laws of the Commonwealth of Pennsylvania and the
United States of America.” Johnson’s Brief at 14. He does not develop any
argument in support of these claims, nor does he cite to any legal authority.
The Commonwealth again asserts that this issue is waived for a number of
reasons, one of which is Johnson’s failure to cite to a single legal authority in
support of his argument or engage in any meaningful analysis.
Commonwealth’s Brief at 9.
Rule of Appellate Procedure 2119(a), governing the argument section
of an appellate brief, requires: “The argument … shall have at the head of
each part--in distinctive type or in type distinctively displayed--the particular
point treated therein, followed by such discussion and citation of authorities
as are deemed pertinent.” Pa.R.A.P. 2119(a). “This Court is neither
obliged, nor even particularly equipped, to develop an argument for a party.
To do so places the Court in the conflicting roles of advocate and neutral
arbiter.” Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super.
2008) (en banc) (internal citations omitted). Thus, where an appellant cites
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no legal authorities and fails to develop meaningful analysis of the argument
raised, the issue is waived for lack of development. Commonwealth v.
Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal denied, 95 A.3d
275 (Pa. 2014).
Johnson’s violations of the Rules of Appellate Procedure leave us with
no issues to review on appeal.
Briefs and reproduced records shall conform in all
material respects with the requirements of these
rules as nearly as the circumstances of the particular
case will admit, otherwise they may be suppressed,
and, if the defects are in the brief or reproduced
record of the appellant and are substantial, the
appeal or other matter may be quashed or
dismissed.
Pa.R.A.P. 2101. We therefore dismiss his appeal.
Appeal dismissed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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