J-S19015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :       PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    PALMAS C. ROBERTS                          :
                                               :
                      Appellant                :   No. 3777 EDA 2016
                                               :

              Appeal from the Judgment of Sentence July 19, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010482-2015


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                                      Filed July 20, 2018

       Appellant, Palmas C. Roberts, appeals from the July 19, 2016 judgment

of sentence imposed following his convictions of first-degree murder, robbery,

conspiracy to commit robbery, possession of an instrument of crime (“PIC”),

and violation of the Uniform Firearms Act (“VUFA”).1 We affirm.

       In its Pa.R.A.P. 1925(a) opinion, the trial court provided a thorough

recitation of the facts. To briefly summarize, however, on July 19, 2016, a

jury convicted Appellant of murder of the first degree, robbery, conspiracy to

commit robbery, and PIC for the murder and robbery of a drug dealer. Trial

Court Opinion, 6/28/17, at 2-6. On that same day, Appellant was sentenced

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1 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 903, 907(a), and 6105(a)(1)
respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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as follows: (1) on the charge of murder of the first degree, life without the

possibility of parole; 2) on the charge of robbery, ten to twenty years of

incarceration to be served consecutively to the sentence for murder; 3) on the

charge of conspiracy to commit robbery, ten to twenty years of incarceration

to be served consecutively to the sentence for robbery; and 4) on the charge

of possession of an instrument of a crime, two and one-half to five years of

incarceration to be served consecutively to the sentence for conspiracy. N.T.,

7/19/16, at 48-50.

      Following Appellant’s jury trial, the trial court held a waiver trial on the

VUFA charge.    The trial court convicted Appellant of VUFA and sentenced

Appellant to an additional five to ten years of incarceration to run

consecutively to the sentence for PIC. N.T., 7/19/16, at 49-50. This resulted

in an aggregate sentence of life without the possibility of parole, followed by

a consecutive term of twenty-seven and one-half to fifty-five years of

imprisonment. Id. at 48-50.

      On July 27, 2016, Appellant filed a timely post-sentence motion for the

modification of his sentence and for a new trial. In his post-sentence motion

Appellant averred that the verdict was against the weight of the evidence and

that the sentence constituted cruel and unusual punishment. On November

30, 2016, Appellant’s post-sentence motion was denied by operation of law.

Appellant filed a timely notice of appeal on December 10, 2016.              Both

Appellant and the trial court complied with Pa.R.A.P. 1925.


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      On October 4, 2017, this Court dismissed Appellant’s appeal due to the

failure to file a brief.   Following a request for reconsideration filed by

Appellant’s counsel on October 5, 2017, this Court reinstated the appeal on

October 23, 2017. This matter is now ripe for review.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      [I.] Whether the verdict was against the         sufficiency of the
      evidence when the critical cell phone records   were not attributed
      to the appellant, there was no physical         evidence, and an
      eyewitness does not identify the appellant      as involved in the
      crime.

      [II.] Whether the consecutive sentence to Life without the
      possibility of Parole is cruel and unusual punishment when it
      takes away all hope even when redemption may be somewhere
      down the line.

Appellant’s Brief at 3.

      In Appellant’s first issue, he purports to challenge the sufficiency of the

evidence.

             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. 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

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      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).

However, it is also well settled that an appellant’s Pa.R.A.P. 1925(b) statement

must specify the element or elements upon which the evidence was

insufficient in order to preserve the issue for appeal.   Commonwealth v.

Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (internal quotation marks and

citation omitted).

      Such specificity is of particular importance in cases where, as
      here, the [a]ppellant was convicted of multiple crimes each of
      which contains numerous elements that the Commonwealth must
      prove beyond a reasonable doubt. Here, Appellant not only failed
      to specify which elements he was challenging in his 1925
      statement, he also failed to specify which convictions he was
      challenging.

Id. (citation omitted).

      Here, Appellant’s Pa.R.A.P. 1925(b) statement provided that, “The

verdict was against the sufficiency of the evidence.”     Appellant’s Pa.R.A.P.

1925(b) statement, 5/1/17, at 1.       As noted, Appellant was convicted of

multiple crimes each containing multiple elements, but in his Pa.R.A.P.

1925(b) statement, Appellant only provided a vague statement alleging

insufficient evidence.    Appellant’s generic statement fails to identify the

convictions and the elements he is challenging.        For these reasons, we

conclude that Appellant’s sufficiency claim is waived due to the lack of

specificity in his 1925(b) statement. Gibbs, 981 A.2d at 281.

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       Furthermore, we point out that Appellant’s challenge to the sufficiency

of the evidence largely challenges the credibility of witnesses.      Appellant’s

Brief at 10.      More specifically, he challenges the inconsistency of two

witnesses’ testimony as to who telephoned the victim before his murder,

despite the identification of Appellant as the shooter by other witnesses. Id.

A challenge to the credibility of a witness’s testimony goes to the weight of

the evidence, not the sufficiency of the evidence. Gibbs, 981 A.2d at 281-

282. Issues of witness credibility necessarily include questions of inconsistent

testimony and are for the factfinder to resolve. Commonwealth v. Sanchez,

36 A.3d 24, 39 (Pa. 2011).           Nevertheless, Appellant fails to develop any

argument concerning the weight of the evidence. Accordingly, this issue is

waived. See Commonwealth v. McMullen, 745 A.2d 683 (Pa. Super. 2000)

(finding issues waived where Appellant failed to develop any argument).2

       We turn now to Appellant’s second issue wherein he avers that his

sentence is cruel and unusual punishment because it “takes away all hope.”

Appellant’s Brief at 11. Appellant asserts that the sentence of twenty-seven

to fifty-five years of imprisonment consecutive to life without the possibility of



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2 Appellant also alleges that the evidence was insufficient to sustain the guilty
verdict because of the lack of physical evidence. However, eyewitness
testimony, if believed by the jury, is sufficient to sustain a conviction. See
Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa. Super. 2018)
(concluding that a solitary witness’s testimony is sufficient evidence to prove
the commission of a crime).


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parole is cruel and unusual. Id. Appellant acknowledges that the mandatory

sentence of life without parole for first-degree murder is not at issue because

the sentencing court had no discretion regarding that sentence. Appellant’s

Brief at 11. Appellant only takes issue with the twenty-seven and one-half to

fifty-five year that was ordered to run consecutively to the life sentence. Id.

      Challenges to the consecutive nature of a sentence implicate the

discretionary aspects of a sentence. Commonwealth v. Gonzalez-Dejusus,

994 A.2d 595 (Pa. Super. 2010).           When an appellant challenges the

discretionary aspects of his sentence there is no automatic appeal; rather, the

appeal will be considered a petition for allowance of appeal. Commonwealth

v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court

noted in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

            [W]e 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).




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        Appellant has satisfied the first two elements of the four-part test from

Moury. Appellant filed a timely post-sentence motion and notice of appeal.

However, Appellant failed to include the necessary Pa.R.A.P. 2119(f)

statement, and the Commonwealth objected. Commonwealth’s Brief at 11.

Accordingly, Appellant waived his challenge to the discretionary aspects of his

sentence. Commonwealth v. Griffin, 149 A.3d 349, 354 (Pa. Super. 2016).3

        Finally, to the extent that Appellant’s four-sentence analysis4 can be

deemed an argument that his sentences are illegal,5 we reiterate that in

addition to first-degree murder, Appellant was convicted of committing: (1)

robbery, graded as first-degree felony; (2) conspiracy, graded as a first-

degree felony; (3) VUFA, graded as a second-degree felony; and (4) PIC,

graded as first-degree misdemeanor. For these four counts, Appellant was

sentenced to ten to twenty years, ten to twenty years, five to ten years, and

two and one-half to five years of incarceration, respectively.




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3  Because we concluded that Appellant waived his challenge to the
discretionary aspects of his sentence due to his failure to provide a Pa.R.A.P.
2119(f) statement, we need not address the substantial-question prong of the
test from Moury.

4   Appellant’s Brief at 11.

5We further note that even if Appellant’s woefully undeveloped argument did
not constitute a challenge to the legality of his sentence, this Court may
address the legality of a sentence sua sponte. Commonwealth v. Dennis,
164 A.3d 503, 510-511 (Pa. Super. 2017).

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      The statutory limits for first and second-degree felonies are set forth

below:

      [A] person who has been convicted of a felony may be sentenced
      to imprisonment as follows:

      (1) In the case of a felony of the first degree, for a term which
      shall be fixed by the court at not more than 20 years.

      (2) In the case of a felony of the second degree, for a term which
      shall be fixed by the court at not more than ten years.

18 Pa.C.S. § 1103(1)-(2). Similarly, a person who has been convicted of a

misdemeanor of the first degree may be sentenced to imprisonment for up to

five years. 18 Pa.C.S. § 1104(1). Thus, Appellant received legal sentences

within the statutory limits for each of the aforementioned crimes.

      Despite these legal sentences, Appellant baldly avers “There needs to

be some dignity left.” Appellant’s Brief at 11. We note that Appellant does

not explain how the sentences violate his dignity for these very serious crimes,

and our own efforts were equally fruitless.         Accordingly, we discern no

constitutional infirmity in Appellant’s sentence.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Therefore, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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