J-S40034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 MICHAEL CHRISTOPHER RODRIGUEZ             :
                                           :
                     Appellant             :   No. 159 WDA 2019

      Appeal from the Judgment of Sentence Entered January 3, 2019
    In the Court of Common Pleas of Mercer County Criminal Division at
                      No(s): CP-43-CR-0000043-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                       FILED AUGUST 08, 2019

        Michael Christopher Rodriguez (Rodriguez) appeals from the judgment

of sentence of 5 to 12 years’ imprisonment imposed by the Court of Common

Pleas of Mercer County (trial court) following his jury trial conviction for

Robbery and related crimes. After review, we vacate in part and affirm in

part.

        Michael Stanley was entering his car when Rodriguez and Clifford Wright

approached him and ordered him by gunpoint to the ground. Stanley complied

and the two took several items, including Stanley’s driver’s license and bank

card.    Rodriguez then grabbed Stanley’s car keys and took that car while

Wright drove away in a different one. Stanley called 911 and the police quickly

located the two vehicles and arrested the two men.

        Stanley could not identify Rodriguez and Wright as the robbers because

their faces were covered during the incident. However, inside Stanley’s car,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40034-19


the police found several items that had been taken from Stanley. The police

also recovered several of Stanley’s items in the car driven by Wright. During

a search incident to arrest, the police found Stanley’s driver’s license and bank

card in Rodriguez’s pockets.          Rodriguez then gave a recorded statement

denying that he robbed Stanley. Instead, he claimed, a man pulled up in

Stanley’s car and offered to rent it to Rodriguez for 24 hours, an offer that he

accepted.

       After a two-day trial, the jury found him guilty of Robbery, Robbery of

a Motor Vehicle, Theft by Unlawful Taking, Receiving Stolen Property,

Conspiracy (four counts), and Recklessly Endangering Another Person.1 The

trial court imposed a sentence of 5 to 12 years’ imprisonment for Robbery and

concurrent sentences on all of the remaining offenses.          Rodriguez’s post-

sentence motion was denied. He filed the instant appeal raising three issues.

       Rodriguez first argues that the trial court erred in denying a motion for

mistrial that he made during trial.            The motion for mistrial concerned

prejudicial references by Rodriguez during his recorded statement. Before the

recording was played, Rodriguez made an oral motion in limine to have those

remarks edited or muted out, which the Commonwealth agreed to do.

Rodriguez agreed with the Commonwealth to the trial court giving a cautionary



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118 Pa.C.S. §§ 3701(a)(1)(ii), 3702(a), 3921(a), 3925(a), 903(a)(1), and
2705.


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instruction to the jury to disregard any prejudicial remarks that inadvertently

remained. When the recording was played, Rodriguez referred to his “P.O.”

and returning from “doing five years.” Rodriguez then moved for a mistrial,

which the trial court denied.   Instead, consistent with the remedy agreed

upon, the trial judge instructed the jury to ignore any reference during

Rodriguez’s statement to other criminal activity. See N.T, 10/12/18, at 43.

      Rodriguez preserved this issue in his Rule 1925 statement, stating that

the trial court abused its discretion in denying his mistrial motion. However,

in his brief, Rodriguez presents only a three-paragraph argument, two of

which merely recite the standard of review for denial of a motion for mistrial

based on prior bad acts references.       Rodriguez’s third paragraph, which

purportedly sets forth why he is entitled to a new trial, simply states:

      During the second day of trial an oral Motion in Limine was made
      regarding content in Commonwealth’s Exhibit 20, a video
      recording of the police interview of Rodriguez, and references to
      prior bad acts contained therein. The Commonwealth agreed to
      exclude portions of the video requested by the Defense. The video
      was introduced through Officer Steven Hale of the Farrell Police
      Department. The Commonwealth played portions of the video
      during this testimony.       The Defense addressed the Court
      regarding two references to prior bad acts heard by the jury during
      the playing of the video that were not specifically included in the
      earlier motion in limine. The two reference[s] were made by
      Rodriguez where he talked about his “P.O.” and that “he just got
      back from doing five years.” Defense counsel requested a mistrial
      due to their prejudicial nature. The Court denied the motion.

Rodriguez’s Brief at 18-19 (internal citations to record omitted).

      “The failure to develop an adequate argument in an appellate brief may

result in waiver of the claim under Pa.R.A.P. 2119.”      Commonwealth v.

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Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007). Moreover, “[w]hile this

Court may overlook minor defects or omissions in an appellant's brief, we will

not act as his or her appellate counsel.” Commonwealth v. Freeman, 128

A.3d 1231, 1249 (Pa. Super. 2015).

         Rodriguez’s argument is woefully underdeveloped and appears to argue

that the prejudicial nature of the comments warrant a new trial per se. We

disagree. Rodriguez makes no effort to discuss or analyze applicable case

law. Instead, Rodriguez merely recites general standards and restates the

facts.    This is clearly inadequate and we will not develop an argument for

Rodriguez that he has failed to present.         Accordingly, we deem this issue

waived.2

         Next, Rodriguez attempts to challenge the sufficiency of evidence for all

nine of his convictions. The Pennsylvania Rules of Appellate Procedure require

an appellant to “concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for the

judge” within the concise statement of errors complained of on appeal.

Pa.R.A.P. 1925(b)(4)(ii). This Court has consistently held that for sufficiency

of the evidence challenges, an appellant’s Rule 1925 statement “needs to

specify the element or elements upon which the evidence was insufficient.”


____________________________________________


2Furthermore, Rodriguez’s argument does not address whether the fact that
he agreed ahead of time to issue a curative instruction bears on the trial
court’s ruling. See n.2 and n.3, supra.


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Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)).

Failure to do so results in waiver. Id.

       Rodriguez failed to comply with 1925(b)(4)(ii). His Rule 1925 statement

attempted to challenge every element of every conviction, averring “the

evidence introduced at trial was insufficient to prove Rodriguez’s guilt to the

conspiracy of and actual crimes of Robbery, Robbery of a Motor Vehicle, Theft

by Unlawful Taking, Receiving Stolen Property, and Recklessly Endangering

Another Person.” It is not the job of the courts to examine every element of

every crime and determine whether the Commonwealth’s evidence sufficed.

We thus deem this issue waived.3

       Finally, Rodriguez contends the trial court imposed illegal sentences for

Theft by Unlawful Taking and Receiving Stolen Property, as well as their



____________________________________________


3Moreover, Rodriguez’s argument in support of his sufficiency challenge is
only one paragraph:

       The Commonwealth was unable to show for certain that it was
       Rodriguez's intent to deprive the owner of his vehicle. And that
       he did so with force. Testimony was introduced that showed
       Rodriguez did not behave in a way following his possession of the
       vehicle to suggest there was a robbery.

See Rodriguez’s Brief, at 21. To the extent Rodriguez is challenging his
Robbery conviction, we would find the claim meritless even if preserved, since
Stanley testified that Rodriguez pointed a gun at his face during the theft.




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corresponding Conspiracy counts.               Rodriguez claims that these offenses

should have merged with Robbery and Conspiracy to Commit Robbery.4

       The Commonwealth and trial court concede that Rodriguez’s Theft by

Unlawful Taking and Receiving Stolen Property convictions should have

merged with Robbery, and that his convictions for Conspiracy to commit those

crimes should have merged with Conspiracy to Commit Robbery. However,

since all of these sentences were imposed concurrently, we are able to vacate

those sentences without upsetting the overall sentencing scheme.               See

Commonwealth v. Martinez, 153 A.3d 1025, 1033 (Pa. Super. 2016).

Therefore, remand for resentencing is unnecessary.

       Judgment of sentence for Theft by Unlawful Taking (count five),

Conspiracy to Commit Theft by Unlawful Taking (count six), Receiving Stolen

Property (count seven), and Conspiracy to Commit Receiving Stolen Property

(count eight) vacated. Judgment of sentence affirmed in all other respects.

Jurisdiction relinquished.




____________________________________________


4“When reviewing the legality of a sentence, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Seskey, 170 A.3d
1105, 1107 (Pa. Super. 2017).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2019




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