J-A19007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHRON LINDER                               :
                                               :
                       Appellant               :   No. 1180 EDA 2018

          Appeal from the Judgment of Sentence Entered March 5, 2018
              In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0001350-2017,
                                         CP-46-CR-0006389-2016


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                        FILED FEBRUARY 11, 2020

        Shron Linder challenges the judgment of sentence entered in the

Montgomery County Court of Common Pleas, following his convictions for

corrupt organizations, attempted burglary, and conspiracy to commit

burglary. On appeal, Linder argues the court erred in denying his pre-trial

motions to suppress and his motion to dismiss pursuant to Pa.R.Crim.P. 600.

He also claims insufficient evidence supported his conviction, and the

Commonwealth withheld exculpatory evidence. After careful review, we

affirm.

        Linder was one of five co-conspirators in a sophisticated criminal

enterprise responsible for committing a string of burglaries in Montgomery,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Chester, and Delaware counties.1 This large-scale burglary ring targeted

affluent homes, stealing high value and easily transportable items such as

jewelry, designer purses, and cash. The police were able to link Linder and his

confederates to the burglaries through cellular phone records, surveillance

videos, DNA evidence, and stolen property.

       The Commonwealth charged Linder and the other members of the

criminal enterprise with several counts of corrupt organizations and conspiracy

to commit burglary. Linder filed pre-trial motions, challenging (a) seizures of

his person following car stops in Whitpain Township, Pennsylvania and Cherry

Hill, New Jersey; (b) a search warrant issued by a Delaware court; (c) an

alleged violation of the speedy trial rule; and (d) an alleged failure to preserve

and disclose exculpatory evidence. The court addressed these motions during

a three-day suppression hearing.

       At the suppression hearing, the Commonwealth presented evidence of

the contested car stops. First, Sergeant Peter Benedetti of the Cherry Hill, New

Jersey Police Department testified he responded to an attempted home

invasion and thereafter conducted a search of the neighborhood for suspicious

vehicles. During the canvass, Sergeant Benedetti encountered a parked

vehicle—with its lights off—in a dead-end area of the neighborhood, a quarter

mile from where the attempted burglary occurred.
____________________________________________


1 The other co-conspirators involved in the criminal enterprise were Jerrel
Jaynes, Kebbie Ramseur, Ralph Mayrant, and Wasim Shazad. See Affidavit of
Probable Cause.


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      As he approached the vehicle, Sergeant Benedetti observed Ralph

Mayrant in the driver’s seat and Linder in the front passenger seat. During the

encounter, neither of the men could explain their presence in the

neighborhood, and so Sergeant Benedetti asked them to step out of the car.

He then ran criminal background checks on the men and discovered that

Linder had an active arrest warrant. Sergeant Benedetti then placed Linder

under arrest. Thereafter, he entered the vehicle and, in plain view, noticed

several high-end watches in the center console and passenger compartments.

Officer Benedetti confiscated the watches and impounded the car.

      Next, Officer Francis Rippert of the Whitpain Township, Pennsylvania

Police Department testified he responded to a report of three shadowy figures

in a housing development with flashlights. Following his arrival, he observed

a parked car in the development, with its lights on. Officer Rippert, without

activating his emergency lights, pulled alongside the vehicle.

      Officer Rippert testified that he stopped merely to inquire if the

occupants were lost. However, as the encounter continued, the driver, Kebbie

Ramseur, and his passengers, Jerrel Jaynes and Linder, exhibited signs of

nervousness   and   provided   conflicting   explanations   for   being   in   the

development. Officer Rippert also noticed that Linder had reached down under

the seat in an attempt to remove a police scanner and two-way radios from a

bag. This suspicious activity, coupled with Linder’s refusal to hand over the

bag, led Officer Rippert to believe there might be a weapon inside. He then

had Linder removed from the car, handcuffed, and detained near the vehicle.

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        Following his removal from the car, Linder was frisked by Officer Rippert

for weapons, but none were found on him. The encounter eventually ended

with the arrest of Ramseur and Jaynes for outstanding warrants. Linder on the

other hand was free to leave.

        In addition, the suppression court addressed Linder’s claim that the

Delaware search warrants were invalid, as they pertained to crimes committed

outside of Delaware’s jurisdiction. Moreover, Linder disputed that he had any

involvement in the alleged burglaries in Delaware. He also argued, and the

Commonwealth denied, that the criminal complaint was refiled to circumvent

the speedy trial rule.

        The court denied Linder’s motions. Immediately after the denial of his

motions, Linder proceeded to a stipulated bench trial in which the

Commonwealth incorporated the affidavits of probable cause for each docket.

On Docket 1350-2017, the court found Linder guilty of one count of corrupt

organizations and five counts of conspiracy to commit burglary.2 On Docket

6389-2016, Linder was found guilty of one count of attempted burglary and

one count of conspiracy to commit burglary.3 The court sentenced Linder to

an aggregate sentence of 8 ½ to 17 years’ imprisonment on both dockets in

addition to restitution. This appeal is now properly before us.


____________________________________________


2   See 18 Pa. C.S.A. §§ 911(b)(3), 3502(a)(2), and 903.

3   See 18 Pa. C.S.A. §§ 3502(a)(2), 901(a), and 903.


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     On appeal, Ramseur presents six issues for our review:

     1. [Whether] the [] Suppression Court err[ed] in denying
     [Linder’s] motion to suppress fruits of Delaware search warrants
     seeking cellular telephone records allegedly associated with
     [Linder], where the affidavit of probable cause failed to establish
     a nexus between the phone records sought and the Delaware
     burglaries investigated [;] those search warrants lacked probable
     cause that [Linder] was involved in any criminal activity in the
     state of Delaware, and the Delaware detective lacked jurisdiction
     to investigate criminal activity in Pennsylvania?

     2.[Whether] the [] Trial Court err[ed] in denying [Linder’s] motion
     to dismiss pursuant to Rule 600 for the offenses originally charged
     in Delaware County where the Commonwealth failed to put forth
     a good-faith reason for the delay between the initial charging in
     Delaware County [;] the Commonwealth took no steps to
     prosecute those charges for a six-month period [;] and where the
     withdrawal of those charges and refiling in Montgomery County
     was done for the sole purpose of evading the Commonwealth’s
     duty to bring [Linder] to trial within 365 days of filing criminal
     charges?

     3. [Whether] the [] Suppression Court err[ed] in denying
     [Linder’s] motion to suppress the car stop, in Cherry Hill, New
     Jersey and the fruits thereof, where police lacked probable cause
     or reasonable suspicion to seize [Linder’s] person?

     4. [Whether] the [] Suppression Court err[ed] in denying
     [Linder’s] motion to suppress the car stop in Whitpain Township
     and the fruits thereof, where police lacked probable cause or
     reasonable suspicion to seize [Linder’s] person?

     5. [Whether] the Commonwealth commit[ed] a Brady violation in
     destroying video surveillance evidence viewed by and obtained by
     the Lower Merion Township Police Department related to the
     burglary at 837 Lafayette Road, which was never provided to
     [Linder’s] counsel and which at the time of trial the attorney for
     the Commonwealth certified no longer existed where such
     evidence would, by the Commonwealth’s own admission, show no
     evidence of a burglary of that residence?

     6. [Whether] the [] Trial Court err[ed] in convicting [] [Linder]
     where insufficient evidence existed that [Linder] entered the


                                    -5-
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        burglarized homes or conspired with others to burglarize the
        homes for which he was convicted at trial?

Appellant’s Brief, at 4-5.4

        We start with Linder’s contention that the suppression court erred in

denying his motion to suppress cellphone records, obtained pursuant to search

warrants issued in the state of Delaware. More specifically, he argues the

search warrants lacked probable cause because the affidavits failed to

establish a nexus between the burglaries investigated in Delaware and those

committed in Pennsylvania. See Appellant’s Brief, at 8. Furthermore, he

asserts that, even if probable cause existed, the Delaware Superior Court

would not have jurisdiction to issue search warrants for electronically stored

information pertaining to a crime outside its jurisdiction. See id., at 12.

        In reviewing the denial of a suppression motion, we must determine

whether the record supports the lower court’s factual findings and whether

the     legal   conclusions    drawn     from    those   facts   are   correct.   See

Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our

standard of review is highly deferential to the suppression court’s factual

findings and credibility determinations, we afford no deference to the court’s

legal conclusions, and review such conclusions de novo. See Commonwealth

v. Hughes, 836 A.2d 893, 898 (Pa. 2003).

        Initially, we note the Delaware affidavit of probable cause was never

filed, either independently, or as an exhibit to the suppression hearing. The

____________________________________________


4   Liner concedes that his seventh issue is moot. See Appellant’s Brief, at 21.

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list of record documents transmitted pursuant to Pa.R.A.P. 1931(d) and served

upon Linder does not contain a notation, or any other indication, that the

affidavit was part of the certified record transmitted on appeal.5 Furthermore,

Linder fails to articulate in his brief the evidence he wants suppressed and

how that evidence adversely impacts the present case.

       Therefore, our review of Linder’s claim is impossible due to these

deficiencies.    As    such,    we    find     Linder’s   claim   here   waived.   See

Commonwealth v. Barge, 743 A.2d 429, 429-430 (Pa. 1999) (holding if the

absence of the evidence is attributable to the appellant’s failure to comply with

the relevant procedural rules, the claims will be deemed to have been waived);

see also Commonwealth v. B.D.G., 959 A.2d 362, 373 (Pa. Super. 2008)

(finding claim waived for failure to include relevant document in the certified

record).

       Linder alleges next the trial court erred in denying his Rule 600 motion

in which he claimed the Commonwealth violated his right to a speedy trial. He

argues that 468 days of non-excludable time had elapsed between the filing

of the initial criminal complaint on July 19, 2016 and the commencement of

the trial on December 6, 2017. See id., at 13. Therefore, as more than 365


____________________________________________


5 “The purpose of Rule 1931(d) is to assist appellants by providing notice as
to what was transmitted so that remedial action can be taken if necessary.
Rule 1931(d) does not absolve the appellant from the duty to see that this
Court receives all documentation necessary to substantively address the
claims raised on appeal.” Commonwealth v. Bongiorno, 905 A.2d 998,
1001 (Pa. Super. 2006) (en banc).

                                             -7-
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days of non-excludable time had passed, Linder contends the Commonwealth

committed a Rule 600 violation. See id.

      In reviewing Rule 600 issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion. See Commonwealth

v. Hill, 736 A.2d 578, 581 (Pa. 1999). The proper scope of review is limited

to the Rule 600 evidentiary hearing, and the findings of the trial court. See

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004). Further,

we must view the facts in the light most favorable to the prevailing party. See

Commonwealth v. Jackson, 765 A.2d 389, 392 (Pa. Super. 2000).

      As a general rule, the Commonwealth must bring a defendant to trial

within 365 days of the date the complaint is filed. See Pa.R.Crim.P

600(A)(2)(a). However, if trial commences more than 365 days after the filing

of the complaint, a defendant is not automatically entitled to discharge

pursuant to Rule 600. See Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.

Super. 2015).

      Rather, a court must first account for any excludable time and excusable

delay. See Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super.

2013). Excludable time is any period of delay that is attributable to the

defendant or his counsel. See Commonwealth v. Matis, 710 A.2d 12, 16

(Pa. 1998). Excusable delay, in contrast, is any period of delay that is the

result of circumstances beyond the Commonwealth’s control despite its due

diligence. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. 2007).


                                     -8-
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      Our courts employ a three-step inquiry for evaluating whether there is

a Rule 600 violation. We begin by calculating the “mechanical run date,” which

is 365 days after the complaint was filed. See Commonwealth v. Wendel,

165 A.3d 952, 956 (Pa. Super. 2017). Then, we determine if any excludable

time and excusable delay exists. See id. And, finally, we add the amount of

excludable time and excusable delay, if any, to the mechanical run date in

order to compute the adjusted run time. See id

      The primary point of dispute among the parties regards the calculation

of the mechanical run date. Linder asserts the mechanical run date is 365 days

from the filing of the Delaware County criminal complaint on July 19, 2016.

See Appellant’s Brief, 13. Conversely, the Commonwealth claims the

appropriate date to start our Rule 600 analysis is the date in which the

Commonwealth refiled the initial complaint in Montgomery County; January

20, 2017. See Appellee’s Brief, at 28.

      When there are multiple identical criminal complaints filed in a case, a

determination must be made as to whether the Commonwealth intended to

evade the timeliness requirements of Rule 600 by withdrawing the charges

and then refiling them at a later date. See Commonwealth v. Peterson, 19

A.3d 1131, 1141 (Pa. Super. 2011). If the Commonwealth withdraws the first

complaint to avoid a Rule 600 violation and refiles the charges afterwards to

circumvent that rule, then the mechanical run date starts from the filing of

the initial complaint. See Commonwealth v. Claffey, 80 A.3d 780, 786 (Pa.


                                    -9-
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Super. 2013). However, where the prosecution has not attempted an end run

around the rule, the appropriate run date starts when the Commonwealth files

the subsequent complaint. See Peterson, 19 A.3d at 1141.

      The trial court did not make an explicit finding on whether the

Commonwealth re-filed the criminal complaint in an effort to circumvent Rule

600. The court merely addressed Linder’s argument on its face and found that

various requests for continuances by defense counsel constituted excludable

time sufficient to extend the adjusted run date beyond the date of the

stipulated bench trial.

      On appeal, Linder does not argue that the Commonwealth attempted to

evade Rule 600’s dictates. Nor does our review of the record indicate any

evidence to support this assertion. Rather, the record is entirely consistent

with the conclusion that the Commonwealth re-filed the complaint in an effort

to consolidate the criminal charges that were pending in separate counties.

Hence, viewing the record in a light most favorable to the prevailing party

below, we conclude the stipulated bench trial that occurred on December 6,

2017, was within 365 days of January 20, 2017, the date the Commonwealth

re-filed the criminal complaint. We therefore conclude the trial court did not

err in denying Linder’s Rule 600 motion. See Commonwealth v. Lauro, 819

A.2d 100, 105 (Pa. Super. 2003).

      In his third and fourth issues, Linder contends the suppression court

erred in denying his motions challenging the police interactions in Cherry Hill,


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New Jersey and Whitpain Township, Pennsylvania. See Appellant’s Brief, at

14, 17. Specifically, Linder contests the seizure of his person during these

police encounters and the evidence acquired therefrom. Because Linder

alleges the police unlawfully detained him on two separate occasions, we

address his third and fourth issues contemporaneously.

      First, Linder claims he was illegally detained because the police in Cherry

Hill, New Jersey lacked reasonable suspicion to believe he was involved in

illegal activity. See Appellant’s Brief, at 14. In fact, Linder argues that the

police-citizen interaction from its inception was an investigative detention, as

he was not free to leave once Sergeant Benedetti approached the vehicle and

identified himself as a police officer. See id., at 15. As such, he concludes the

fruits of this illegal seizure should be suppressed. See id., at 16.

      A police-citizen encounter may implicate the liberty and privacy

interests of the citizen as guaranteed by the Fourth Amendment to the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

See Commonwealth v. Smith, 172 A.3d 26, 31 (Pa. Super. 2017). Fourth

Amendment jurisprudence recognizes three levels of interactions between

police officers and citizens: (1) a mere encounter; (2) an investigative

detention; and (3) a custodial detention. See id., at 32.

      The first of these encounters is a mere encounter, which need not be

supported by any level of suspicion, as it carries no official compulsion for a

citizen to stop or respond. See Raglin, 178 A.3d at 871. The second, an


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investigative detention, must be supported by reasonable suspicion; it

subjects a suspect to a stop and a period of detention, but does not constitute

an arrest. See Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa.

Super. 2016). Finally, a custodial detention or an arrest must be supported by

probable cause. See Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa.

Super. 2008).

      The difference between an investigative detention and a mere encounter

is whether the individual was seized by the police. See Commonwealth v.

Au, 42 A.3d 1002, 1004 (Pa. 2012). “[A] person is seized only when, by

means of physical force or show of authority, his freedom of movement is

restrained.” U.S. v. Mendenhall, 446 U.S. 544, 553 (1980) (internal

quotation omitted). To that end, courts must employ a totality of the

circumstances approach, with no single factor dictating the ultimate

conclusion as to whether there was a seizure. See Commonwealth v.

Strickler, 757 A.2d 884, 890 (Pa. 2000).

      The suppression court found that Sergeant Benedetti’s initial interaction

with Linder was a mere encounter rather than an investigative detention. Upon

seeing a suspicious vehicle, backed into a driveway, Sergeant Benedetti

approached the parked car and identified himself as a police officer. See N.T.,

Suppression Hearing, 11/30/17, at 44. For such interaction to constitute an

investigative detention, there must have been some level of coercion that

conveyed a demand for compliance or threat of tangible consequences from


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refusal. See Commonwealth v. Luczki, 212 A.3d 530, 548 (Pa. Super.

2019) (stating “all law enforcement communications with a citizen do not

automatically constitute detentions”). There is no evidence of any compulsion

or coercion applied by Sergeant Benedetti other than identifying himself as a

police officer. Accordingly, there is no evidence that Sergeant Benedetti

displayed the type of authority necessary to find the encounter to have been

an investigative detention from the start. See Mendenhall, 446 U.S. at 553.

      However, we conclude that the encounter ripened into an investigative

detention when Officer Benedetti removed Linder from the vehicle and placed

him in one of the responding police vehicles. See N.T., Suppression Hearing,

11/30/17, at 32. As such, we must determine whether Officer Benedetti

possessed reasonable suspicion of criminal activity to support the investigative

detention at that time.

      To conduct an investigative detention, police must have reasonable

suspicion of criminal activity. See Commonwealth v. Downey, 39 A.3d 401,

405 (Pa. Super. 2012). Reasonable suspicion arises when an officer has reason

to believe that criminal activity is afoot. See Commonwealth v. Cook, 735

A.2d 673, 677 (Pa. 1999). Even innocent factors, viewed together, may arouse

reasonable suspicion that criminal activity is afoot. See id., at 676. Moreover,

“in determining whether the officer acted reasonably in such circumstances,

due weight must be given, not to his inchoate and unparticularized suspicion




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or hunch, but to the specific reasonable inferences he is entitled to draw from

the facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 27 (1968).

      The certified record supports the suppression court’s conclusion that

Sergeant Benedetti had reason to suspect that criminal activity was afoot

during the encounter. Sergeant Benedetti testified at the suppression hearing

that Linder was unable to offer any explanation as to why he was parked on a

dimly lit, dead-end street in close proximity to the location of the attempted

burglary. See N.T., Suppression Hearing, 11/30/17, at 31, 39-40. He also

testified that, upon approaching the car, he ascertained that the hood of the

vehicle was warm, indicating to him that it had recently been driven. See id.,

at 47. This was significant as police set up a perimeter in the neighborhood so

no vehicles could exit the area. See id., at 23. Therefore, based on the totality

of the circumstances, Officer Benedetti had reasonable suspicion to detain

Linder, while he ran a warrant check. And so Linder’s challenge here is

meritless.

      Second, Linder asserts the police in Whitpain Township, Pennsylvania

lacked reasonable suspicion to conclude he was in possession of a weapon or

might gain control of one. See Appellant’s Brief, at 17-18. Therefore, he

concludes the fruits of this detention should be suppressed. See id., at 19.

      A police officer is entitled to conduct a limited search of an individual for

weapons if the officer observes suspicious conduct which leads the officer to

reasonably believe that criminal activity is afoot and that the person may be


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armed and dangerous. See Commonwealth v. Hemingway, 192 A.3d 126,

129-130 (Pa. Super. 2018) (citations omitted). To conduct a protective frisk

for   weapons,    the   police   must    have    reasonable    suspicion.   See

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011). “In order

to establish reasonable suspicion, the police officer must articulate specific

facts from which he could reasonably infer that the individual was armed and

dangerous.” Commonwealth v. Mack, 953 A.2d 587, 590 (Pa. Super. 2008)

(citation omitted). Further, the facts indicating that an individual is armed and

dangerous must be viewed under the totality of the circumstances. See

Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011).

      Here, the record supports the conclusion that under the totality of the

circumstances presented, Officer Rippert had reasonable suspicion to believe

that Linder was armed and dangerous. First, Linder was seen reaching down

under his seat and manipulating a bag, which appeared to contain a police

scanner and two-way radios. See N.T., Suppression Hearing, 12/04/17, at 84-

85. Second, when Officer Rippert asked to see the bag, Linder tossed it across

the seat. See id., 85. This led Officer Rippert to believe that his safety was at

risk. In light of the totality of the circumstances, we conclude that Officer

Rippert articulated specific facts from which he could reasonably infer that

Linder may have been reaching for a weapon. See Commonwealth v.

Cooper, 994 A.2d 589, 592-593 (Pa. Super. 2010). The suppression court

therefore properly denied Linder’s motion to suppress.


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         Next, Linder alleges the Commonwealth committed a Brady violation

by failing to preserve and disclose video surveillance of a home invasion.

Specifically, Linder argues that the Commonwealth had an obligation to

disclose this evidence as it would have been favorable to him. See Appellant’s

Brief, at 19-20. As such, Linder claims he suffered prejudice because of the

Commonwealth’s failure to preserve the video and disclose it to him. See id.,

at 20.

         Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution’s

failure to divulge exculpatory evidence is a violation of a defendant’s

Fourteenth Amendment due process rights. See Commonwealth v. Ly, 980

A.2d 61, 75 (Pa. 2009). In order to establish a Brady violation, the burden is

on the defendant to plead and prove that “(1) the prosecutor has suppressed

the evidence; (2) the evidence, whether exculpatory or impeaching, is helpful

to the defendant; and (3) the suppression prejudiced the defendant.”

Commonwealth v. Carson, 913 A.2d 220, 244 (Pa. 2006).

         The evidence alleged to have been withheld by the Commonwealth must

have been “material evidence that deprived the defendant of a fair trial.”

Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 2011) (citation omitted).

“Favorable evidence is material, and constitutional error results from its

suppression by the government, if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to


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undermine confidence in the outcome.” Commonwealth v. Johnson, 815

A.2d 563, 573 (Pa. 2002) (citation omitted).

      Although Brady requires disclosure by the government of evidence that

is both exculpatory and material, our Supreme Court has limited the

Commonwealth’s disclosure duty. The Commonwealth is not required to

deliver its entire file to defense counsel. See Ly, 980 A.2d at 75. As such,

defendants do not have a general right of discovery in criminal cases. See

Commonwealth v. Counterman, 719 A.2d 284, 297 (Pa. 1998). The

criminally accused only have a right to evidence that is favorable to them and,

if suppressed, would deprive them of a fair trial. See Ly, 980 A.2d at 75.

      In the present case, we agree with the suppression court that Linder’s

Brady claim was meritless. See Trial Court Opinion, 6/25/18, at 26-27. Here,

the record confirms that the surveillance video was not destroyed, as Linder

asserted in his brief. See N.T. Suppression Hearing, 12/4/17, at 48-49.

Rather, it was in the homeowner’s possession the entire time. See id., at 49.

Thus, this evidence was equally available to Linder’s defense counsel, and so,

as the court determined, either side could have subpoenaed it. See id., at 52;

see also Commonwealth v. Spotz, 896 A.2d 1191, 1248 (Pa. 2006) (stating

“it is well established that no Brady violation occurs where the parties had

equal access to the information. . . .”) (citation and internal quotations

omitted).




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      Moreover, despite not having custody of the video, the Commonwealth

accepted Linder’s stipulation that the video did not show a burglary. See N.T.,

Suppression Hearing, 12/4/17, at 53. Even so, it is impossible to conceive how

this video alone would have changed the outcome of Linder’s stipulated bench

trial since the video is neither exculpatory nor material. See Carson, 913 A.2d

at 244; see also Johnson, 815 A.2d at 573. Therefore, Linder is not able to

establish that the Commonwealth committed a Brady violation here. For that

reason, Linder is not entitled to relief.

      In his final issue, Linder argues the trial court erred in finding that the

evidence was sufficient to support his convictions, especially his corrupt

organizations conviction. See Appellant’s Brief, at 20-21.

      Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the fact-finder to find every element of the crime beyond a

reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.

Super. 2003). “The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.

Super. 2007) (citation omitted).

      “The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt


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raised as to the defendant’s guilt is to be resolved by the trier of fact. See id.

“As an appellate court, we do not assess credibility nor do we assign weight

to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d

581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb

the verdict “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.”

Bruce, 916 A.2d at 661 (citation omitted). Furthermore, a mere conflict in

the testimony of the witness does not render the evidence insufficient because

it is within the province of the fact finder to determine the weight to be given

to the testimony and to believe all, part, or none of the evidence. See

Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).

      Initially, we note that Linder raised challenges to the sufficiency of the

evidence underlying his convictions for attempted burglary and conspiracy to

commit burglary in his Pa.R.A.P. 1925(b) statement. See Appellant’s Pa.R.A.P.

1925(b) Statement, 6/01/2018, at 2. However, Linder’s brief does not

advance any argument regarding his conspiracy to commit burglary conviction

and, as a result, we will not address this issue. See Commonwealth v.

Boxley, 948 A.2d 742, 749 n.7 (Pa. 2008) (refusing to address claim raised

in a Pa.R.A.P. 1925(b) statement, but subsequently abandoned in an appellate

brief). Moreover, Linder’s argument regarding his attempted burglary

conviction is underdeveloped and otherwise without citation to the record or

to any legal authority. See Commonwealth v. LaCava, 666 A.2d 221, 228


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n.9 (Pa. 1995) (holding that issues not mentioned or developed in an appellate

brief are waived). Therefore, his claim challenging the evidence supporting his

attempted burglary conviction is waived. See Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa. Super. 2009).

      Additionally, Linder failed to raise a sufficiency argument regarding his

corrupt organizations conviction in the concise statement of errors complained

of on appeal. See Pa.R.A.P. 1925(b). “Any issues not raised in a Rule 1925(b)

statement will be deemed waived.” Commonwealth v. Lord, 719 A.2d 306,

309 (Pa. 1998). Consequently, it is waived. See id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




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