J-S67019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSHUA JORDAN,                             :
                                               :
                      Appellant                :      No. 3272 EDA 2016

              Appeal from the Judgment of Sentence July 15, 2016
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012114-2013

BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 29, 2017

        Joshua Jordan (“Jordan”) appeals from the judgment of sentence

imposed following his conviction of first-degree murder, possession of a

firearm without a license, possession of a firearm on the streets of

Philadelphia, and possession of an instrument of crime.1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and

procedural background, which we adopt for the purpose of this appeal. See

Trial Court Opinion, 11/3/16, at 1-4.

        Jordan filed this timely appeal, and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.


____________________________________________


1   See 18 Pa.C.S.A. §§ 2502, 6106, 6108, 907.

* Former Justice specially assigned to the Superior Court.
J-S67019-17



      On appeal, Jordan raises the following claims for our review:


      1. Was the evidence presented was [sic] insufficient to sustain a
         conviction because the witness statements were inconsistent,
         unreliable, and failed to prove [Jordan’s] participation in the
         alleged crime?

      2. Was the weight of the evidence presented not sufficient to
         support [Jordan’s] conviction?

      3. Did the trial court err in overruling defense counsel’s
         objection concerning [Jordan’s] mailing of discovery he
         received to his parents[,] since it gave rise to an
         impermissible inference that the discovery mailed was being
         used to intimidate potential Commonwealth witnesses?

Brief for Appellant at 7 (capitalization omitted).

      We will address Jordan’s first two claims together. In his first claim,

Jordan   contends   that   the   evidence   was      insufficient   to   support   his

convictions.   Brief for Appellant at 11-14.         In his second claim, Jordan

asserts that his convictions are against the weight of the evidence. Id. at

14-15.

      In its Opinion, the trial court addressed Jordan’s sufficiency and weight

claims, and determined that they were waived, as Jordan failed to specify in

his Concise Statement which of his convictions were not supported by

sufficient evidence or were against the weight of the evidence.            See Trial

Court Opinion, 11/3/16, at 4-5.

      This Court may find waiver where a concise statement is too vague.

See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).

“When a court has to guess what issues an appellant is appealing, that is not


                                      -2-
J-S67019-17



enough for meaningful review.”      Commonwealth v. Dowling, 778 A.2d

683, 686 (Pa. Super. 2001) (citation omitted). “A Concise Statement which

is too vague to allow the court to identify the issues raised on appeal is the

functional equivalent of no Concise Statement at all.” Id. at 686-87.

      Additionally, as this Court has consistently held,

      [i]f Appellant wants to preserve a claim that the evidence was
      insufficient, then the 1925(b) statement needs to specify the
      element or elements upon which the evidence was insufficient.
      This Court can then analyze the element or elements on appeal.
      [Where a] 1925(b) statement [] does not specify the allegedly
      unproven elements[,] . . . the sufficiency issue is waived [on
      appeal].

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

(quoting Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa. Super.

2007)). The same is true for a challenge to the weight of the evidence. See

Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super. 2015).

      Here, Jordan collectively stated his sufficiency and weight claims in his

Concise Statement as follows: “The evidence and the weight of the evidence

were insufficient to sustain the verdict.” Concise Statement, 11/2/16, at 1.

The Statement thus failed to specify the element or elements upon which

the evidence was purportedly insufficient or against the weight of the

evidence. See Williams, 959 A.2d at 1257; Freeman, 128 A.3d at 1248-

49. Given that Jordan was convicted of multiple crimes, we agree with the

trial court’s determination that Jordan’s sufficiency and weight claims are

waived based on the vagueness of his Concise Statement. See Trial Court



                                     -3-
J-S67019-17



Opinion, 11/3/16, at 4-5. Accordingly, we affirm on this basis as to Jordan’s

first two claims. See id.2

       In his third claim, Jordan contends that “the [t]rial [c]ourt erred in

overruling defense counsel’s objection concerning [Jordan’s] mailing [of]

discovery he received to his parents[,] since it gave rise to an impermissible

inference that the discovery was being used to intimidate potential

Commonwealth witnesses, which was irrelevant in that its prejudicial effect

outweighed its probative value.” Brief for Appellant at 16. Jordan asserts

that “the Commonwealth’s theory was that [Jordan’s] parents would be able

to contact potential Commonwealth witnesses in an effort to change their

testimony.” Id. Jordan claims that “the [t]rial [c]ourt’s overruling defense

counsel’s objection cannot be deemed harmless error to the extent that

Kenneth White gave a different description of the shooter from [Jordan;]
____________________________________________


2 Had we not found waiver based on the vagueness of Jordan’s Concise
Statement, we would have concluded that Jordan’s brief suffers from the
same deficiencies. In his brief, Jordan failed to specify which crimes, let
alone which element or elements of those crimes, were unsupported by, or
against the weight of, the evidence. See Brief for Appellant at 11-14, 14-
15. The Rules of Appellate Procedure state unequivocally that each question
an appellant raises is to be supported by discussion and analysis of pertinent
authority. See Pa.R.A.P. 2119(a). Appellate arguments which fail to adhere
to these rules may be considered waived, and arguments which are not
appropriately developed are waived. See Commonwealth v. Murchinson,
899 A.2d 1159, 1160 (Pa. Super. 2006) (deeming appellant’s claims waived
under Pa.R.A.P. 2119(a) because he did not develop meaningful argument
with specific references to relevant caselaw and to the record to support his
claims); see also Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa.
Super. 2004) (declining to review appellant’s claim where there was limited
explanation and development of the argument).



                                           -4-
J-S67019-17



there was no physical evidence to connect [Jordan] to the crime[;] and that

[Jordan] testified that he did not shoot the [d]ecedent.” Id.

      In its Opinion, the trial court addressed Jordan’s third claim, set forth

the relevant law, and determined that the claim lacks merit. See Trial Court

Opinion, 11/3/16, at 5-7.   We agree with the reasoning of the trial court,

and affirm on this basis as to Jordan’s third claim. See id.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




                                     -5-
0042_Opinion
                                                                                                                  Circulated 12/05/2017 11:02 AM




                                                 IN THE COURT OF COMMON PLEAS
                                            FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                     CRIMINAL TRIAL DIVISION

                       COMMONWEALTH OF                                                                 CP-51-CR-0012114-2013
                                                         CP-51-CR-0012114-2013 Comm v Jordan, Joshua
                       PENNSYLVANIA
                                                                                                             FILED
                                                                           Opinion



                                v.

                       JOSHUA JORDAN
                                                              111111111111111 Ill II II
                                                                      7522285151
                                                                                            Ill               NOV X 3 2016
                                                                                                         Criminal Appeals Unit
                                                                         OPINION                       First Judicia\ District of PA
                       BRONSON,J.                                                                      November 3, 2016



                       On July 15, 2016, following a jury trial before this Court, defendant Joshua Jordan was

               convicted of one count each of first degree murder (18 Pa.C.S. § 2502), possession of a firearm

               without a license (18 Pa. C.S. § 6106), possession of a firearm on the streets of Philadelphia (18

               Pa. C.S. 6108), and possession of an instrument of crime (18 Pa. C.S. 907). The Court

               immediately imposed the mandatory sentence of life in prison for the murder charge (18 Pa.C.S.

               § 1102(a)(l)) and sentenced defendant to a consecutive aggregate term of 6 Yi to 13 years

               incarceration on the remaining charges. The Court added an additional 3 to 6 months consecutive

               incarceration for contempt of court after defendant yelled, "Fuck you all family" to the family of

               the decedent after the sentencing. N. T. 7/15/ 16 at 19. Defendant filed a post-sentence motion on

               July 20, 2016, and a Notice of Appeal on August 9, 2016. The Court denied defendant's post-

               sentence motion on October 13, 2016.1




               I Because the Court had not yet ruled on defendant's post-sentence motion, defendant's appeal was premature and
               the Court retained jurisdiction to rule on the motion. See Commonwealth v. Borrero, 692 A.2d 158, 161 n.4 (Pa.
               Super. 1997). While the Court's denial of defendant's post-sentence motion perfected the appeal, see
               Commonwealth v. Cooper, 27 A.3d 994, I 007 (Pa. 2011 ), defendant elected to discontinue the appeal on October
               20, 2016, and then refile it on October 21, 2016.
       Defendant now appeals from the judgment of sentence entered by the Court on the

grounds that: 1) "[t)he evidence and the weight of the evidence were insufficient to sustain the

verdict;" 2) the Court erred in overruling a defense objection concerning defendant mailing trial

discovery to his parents; and 3) the Court erred in overruling a defense objection pertaining to

witness Shawn Adams' motive to identify defendant. Statement of Matters Complained of on

Appeal ("Statement of Errors") at ,i,i 3-5. For the reasons set forth below, defendant's claims are

without merit and the judgment of sentence should be affirmed.

                                   I. FACTUAL BACKGROUND

       At trial, the Commonwealth presented the testimony of Philadelphia Police Detectives

Ohmarr Jenkins and John Komorowski, Philadelphia Police Officers Michael Kilroy, Christian

Cruz, Craig Perry, Jesus Cruz, Robert Bakos, and Brian Waltman, Philadelphia Deputy Medical

Examiner Dr. Albert Chu, Unique Riggins, Kenneth White, Shawn Adams, and Isaac Guy.

Defendant testified on his own behalf and presented the testimony of Andrea Jordan and Elbert

Jordan. Viewed in the light most favorable to the Commonwealth as the verdict winner, the

evidence established the following.

       On July 14, 2014, at approximately 9:58 p.m., Craig Jackson, the decedent, was playing a

game of basketball at the courts at Band Olney Streets in Philadelphia. N.T. 7/11/16 at 236-237;

7/12/16 at 78-81. Jackson's team was playing against defendant's team. N.T. 7/11/16 at 237;

7/13/16 at 42-43. As the game progressed, Jackson and defendant fouled each other, inciting an

argument that escalated, with a physical fight seemingly imminent. N.T. 7/11/16 at 239-242;

7/12/16 at 81, 84, 115-116; 7/13/16 at 35, 42-43, 54. Defendant left the court, went to his book

bag, and withdrew a semi-automatic firearm, pointing it at Jackson. N.T. 7/11/16 at 241-243;

7/13/16 at 35, 38, 43. Jackson told defendant "If you're going to shoot, go ahead and shoot."




                                                 2
N.T. 7/13/16 at 43-44. Defendant responded by shooting at Jackson multiple times, striking

Jackson once in the left chest, and once in the left buttock. N.T. 7/11/16 at 248; 7/12/16 at 118-

119, 127-128; 7/13/16 at 35, 37, 44, 54, 83-84, 114, 133.

       Defendant then fled the scene, placing the gun back into the book bag. N.T. 7/13/16 at

36, 44, 136-137, 150-151, 176. Jackson was transported to Einstein Hospital by emergency

medical personnel, where he was pronounced dead on July 14, 2013. N.T. 7/12/16 at 194-195;

7/13/16 at 113.

       Witnesses Unique Riggins and Isaac Guy saw defendant later that night. N.T. 7/13/16 at

44, 147. Defendant had changed his clothes and told Riggins and Guy, 'Tm not playing with

this nigger. If he lives, I'm going to shoot him again." N.T. 7/13/16 at 44, 147-148.

       In police interviews shortly after the shooting, witnesses Riggins and Shawn Adams both

identified defendant as the shooter from a photo array. N.T. 7/11/16 at 260, 269; 7/13/16 at 46,

55-56. Police attempted to arrest defendant at home on July 20, 2013, but he was not present at

the time. N.T. 7/12/16 at 224. Police encountered defendant on the street on July 21, 2013, and

asked him to identify himself. N.T. 7/12/16 at 204. Defendant gave a false name, and multiple

birthdates. N.T. 7/12/16 at 203-206. After being shown a photograph the police had retrieved of

the person whose name defendant was using, defendant gave his real name and birthdate. N.T.

7/12/16 at 207-208. Upon his arrest, defendant stated that "he wasn't on the basketball courts

that night." N.T. 7/12/16 at 208-209.

       While in prison awaiting trial, defendant made a series of phone calls. Commonwealth

Exhibit C-12, C-43; N.T. 7/12/16 at 227-233. In one conversation, defendant told his mother

that he "really should've ran." In several other conversations, he repeatedly asked whether there

were video cameras covering the playground, making sure that his brother Isaiah had "checked




                                                 3
every aspect of that park." In another conversation, defendant and Isaiah urgently discussed the

problem that someone named "Pete" had the gun and wanted to "swap it out" instead of

destroying it. Isaiah assured defendant that he would "break that jawn down ... and throw it,

throw it, throw it," to which defendant replied, "You got it?" In another conversation, after

hearing that the defense investigator confirmed that there were no cameras covering the crime

scene, defendant told Isaiah, "I was at the crib through wink wink. Know what I'm saying I was

at the crib." Isaiah and defendant also discussed the problem of "the motherfuckers that saying

[defendant] did it." Isaiah assured defendant that they would find out who those people were

before court. Id

                                          II. DISCUSSION

       A. Sufficiency and Weight of the Evidence

       Defendant's challenge to the sufficiency and weight of the evidence reads, in its entirety,

as follows: "The evidence and the weight of the evidence were insufficient to sustain the

verdict." Statement of Errors at 13. Defendant also raised a weight claim in his post-sentence

Motion for New Trial, which read, in its entirety: "The verdicts were against the weight of the

evidence." Motion for New Trial 14.

       As to the sufficiency claim, our Superior Court has said the following:

       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. Gibbs, 981 A.2d 274, 281 (Pa.Super.2009), appeal denied, 607
       Pa. 690, 3 A.3d 670 (2010). "Such specificity is of particular importance in cases
       where, as here, the appellant was convicted of multiple crimes each of which
       contains numerous elements that the Commonwealth must prove beyond a
       reasonable doubt." Id. at 281 (citation omitted).

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). Here, defendant's boilerplate

sufficiency claim fails to specify any elements of any of the offenses that defendant believes to




                                                 4
be unsupported by sufficient evidence. Accordingly, the Court was given no clue as to what

claims defendant intends to raise on appeal regarding the sufficiency of the evidence. Therefore,

this claim is waived. Id.

       Defendant's weight claim is equally infirm. A mere averment that the verdict was against

the weight of the evidence without identifying which verdict or verdicts to which defendant is

referring, and without giving specific reasons as to why the verdicts were contrary to the weight

of the evidence will result in waiver of the weight claims. Commonwealth v. Freeman, 128 A.3d

1231, 1248-1249 (Pa. Super. 2015).

       B. Mailing ofDiscovery to Defendant's Parents

       Defendant next claims that the Court "erred in overruling defense counsel's objection

concerning the [ d]efendant mailing discovery he received to his parents, since it gave rise to an

impermissible inference that the discovery was being used to intimidate potential

Commonwealth witnesses." Statement of Errors at ,i 4. This claim is without merit.

       The law concerning the admission of evidence in Pennsylvania is well settled:

       The admission of evidence is a matter vested within the sound discretion
       of the trial court, and such a decision shall be reversed only upon a
       showing that the trial court abused its discretion. In determining whether
       evidence should be admitted, the trial court must weigh the relevance and
       probative value of the evidence against the prejudicial impact of that
       evidence. Evidence is relevant if it logically tends to establish a material
       fact in the case or tends to support a reasonable inference regarding a
       material fact. Although a court may find that evidence is relevant, the
       court may nevertheless conclude that such evidence is inadmissible on
       account of its prejudicial impact.

Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (internal citations omitted); see Pa.R.E.

401-403.

       Here, the challenged ruling permitted the Commonwealth to elicit from defendant, on

cross-examination, that he had mailed copies of the witness statements in his case, which he had




                                                 5
received from his attorney, to his mother and brother. N.T. 7/14/16 at 32-35. According to

defendant, this evidence gave rise to "an impermissible inference" that defendant was using the

statements to intimidate witnesses.2 However, when combined with other evidence in the case,

the mailing of the statements was, in fact, compelling evidence that defendant was attempting to

interfere with the witnesses.

        In particular, the Commonwealth proved, through recordings of defendant's prison

telephone calls, that he and his brother Isaiah concluded that since there were no surveillance

cameras at the playground, and since the police did not have the gun, the only problem with the

case was the witnesses. As Isaiah told defendant, "Only thing is the motherfuckers that saying

you did it. But you gonna find out, we gonna find out who saying." Commonwealth Exh. C-12

(conversation of 7 /27 /13).

        Accordingly, defendant's mailing of the witness statements to his home, where Isaiah

lived, was highly probative of defendant's attempt to interfere with witnesses. Contrary to

defendant's assertion in the Statement of Errors, the inference of witness intimidation was not

"impermissible." Statement of Errors ,i 4. Our Supreme Court "has long recognized that any

attempt by a defendant to interfere with a witness's testimony is admissible to show the

defendant's consciousness of guilt." Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003).

        Moreover, the evidence regarding the mailing of the statements was also admissible to

corroborate other evidence of witness intimidation in the case, and thereby to help explain the

conduct of important Commonwealth witnesses. Witness Shawn Adams, who had identified

defendant as the shooter in his statement to the police, denied that he saw the shooting when he

testified at trial. N .T. 7 /12/16 at 119; 131. In addition, Adams testified at the preliminary hearing


2At trial, counsel did not base his objection on any impermissible inferences from the evidence. The only ground
given for the objection was relevance. N.T. 7/14/16 at 34.




                                                         6
that he had heard that there was a price on his head and that several individuals had threatened

him about coming to court. N.T. 7/12/16 at 150-153.3 Adams also testified at trial that he was

physically assaulted a few days after he testified at the preliminary hearing as a result of having

testified. N.T. 7/12/16 at 162, 182-183.

           Witness Isaac Guy heard the shots being fired and then saw the defendant and his brother

run out of the playground. N.T. 7/13/16 at 133-136. He testified that he delayed in reporting what

he saw to the police because he was worried that it "was going to come back at [him]." And that

"snitches get stitches, so you don't want to rat on that person." N.T. 7/13/16 at 144-145.

           Accordingly, the evidence of the mailed statements was highly probative of defendant's

consciousness of guilt and provided corroboration of other evidence of pervasive witness

intimidation in the trial. Therefore, the evidence was properly admitted.

           C. Question to Defendant Assuming Facts Not in Evidence

           Finally, defendant asserts that the Court "erred in overruling defense counsel's objection

as to the motive of Shawn Adams identifying the [ d]efendant because it assumed facts which

were not in evidence." Statement of Errors at 15. This claim is without merit.

           During the cross-examination of the defendant, the prosecutor asked whether defendant

knew of any motive for witness Shawn Adams to have identified defendant as the shooter. N.T.

7/14/16 at 37. Defendant claims that this question was improper because there was no evidence

that Adams had, in fact, identified defendant as the shooter. Absent such evidence, the question

would have been predicated upon "facts not in evidence" and would have been objectionable.

           It is true that Adams testified at trial that he did not see the shooting. N. T. 7 /12/16 at 119.

However, in his statement to police prior to the trial, Adams stated that he saw defendant shoot

the decedent, and Adams identified defendant as the shooter from a photo array. The statement,

3
    At trial, Adams claimed to have no memory of that testimony. N.T. 7/12/16 at 150-153.




                                                          7
including the identification from the photo array, was read to the jury in its entirety during the

trial. N.T. 7/12/16 at 121-140. The statement was admissible for its truth under the hearsay

exception for prior inconsistent statements signed and adopted by the declarant. See Pa.R.E.

803.l(l)(b). Moreover, when confronted at trial with the statement, Adams ultimately admitted

that he had identified defendant as the shooter, and that his prior identification was truthful. N.T.

7/12/16 at 131-134.

       Accordingly, defendant's contention that there was no evidence that Adams had

identified defendant as the shooter is refuted by the record. Therefore, the challenged question

did not assume any facts that were not in evidence. No relief is due.

                                        III. CONCLUSION

        For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.




                                                              BY THE COURT:




                                                           �




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