J. S76003/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
AZSION UPSHUR,                          :          No. 1447 WDA 2013
                                        :
                        Appellant       :


          Appeal from the Judgment of Sentence, August 5, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0012739-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 10, 2015

      Azsion Upshur appeals from the judgment of sentence entered on

August 5, 2013, following his convictions of robbery and criminal conspiracy.

We affirm, finding both of appellant’s claims waived.

      The facts, as aptly summarized by the trial court, are as follows.

                  At approximately 1:00 P.M. on November 14,
            2011, Joseph Boone arrived in the 2100 block of
            Bentley    Drive. [. . .]    Several   days     prior,
            Azsion Upshur (Appellant), Anthony Jefferson, and
            Raymond Pendleton planned to rob Boone. They
            targeted Boone because they knew him to sell
            marijuana, and believed he would have cash on him.
            According to their plan, Pendleton was to lure Boone
            into a hallway and then call Upshur and Jefferson to
            complete the robbery. Pursuant to this plan, when
            Boone arrived in the afternoon of May 12th,
            Pendleton called Appellant and stayed on the phone
            with him as he beckoned Boone into the hallway of
            2112 Bentley Drive. Once Boone was in the hallway,
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          Appellant put on a mask and hat, and immediately
          headed to the site.

                  When Boone saw Appellant and Jefferson
          running towards the hallway in masks[,] he tried to
          escape by running up the interior steps of the
          building. Pendleton left the area as Appellant and
          Jefferson pursued Boone up the steps. Jefferson was
          armed with a revolver even though a gun apparently
          was not part of the original plan. Appellant and
          Jefferson fought with Boone as they tried to rob him,
          dragging him back down the steps and striking his
          head against mailboxes inside the hallway on the
          first floor several times. The struggle caused Boone
          to wriggle out of his several shirts, both shoes, and a
          sock in his effort to get free. Shirtless and shoeless,
          Boone yelled, “take it, take it, you can have it” as he
          tried to run away into the courtyard. As Boone ran
          away[,] Jefferson followed and shot him in the hip,
          causing him to fall in the courtyard.         Jefferson
          caught up to Boone, stood over him, and shot him a
          second time. Appellant and Jefferson fled the area
          together.

                 Several neighbors moved Boone from the
          courtyard to the curb so that paramedics could more
          easily reach him.       While awaiting the medics,
          Pendleton approached the area where Boone lay on
          the sidewalk. Boone pointed at him and said, “your
          niggas did this to me.” Boone was transported to
          Mercy Hospital where he underwent emergency
          surgeries in an attempt to save his life, but these
          efforts were to no avail. Boone suffered multiple
          blunt force injuries, head trauma, lacerations to the
          back of his head and face, a gunshot wound to the
          right abdomen and a gunshot wound to the right hip.
          Boone died as a result of a perforating gunshot
          wound of the trunk which lacerated his liver and
          aorta. The medical examiner was able to determine
          that the muzzle of the firearm was less than three
          feet away from Boone’s body when the fatal shot
          was fired.




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                    Pendleton called Appellant and Jefferson later
             that day about what occurred. Both Appellant and
             Jefferson admitted they shared approximately $200
             from Boone, and Jefferson stated, “My bad bro, I
             didn’t mean for things to go this far.” In response
             Appellant stated, “You know how things go, bro. We
             got a couple dollars.” Based upon interviews of
             Pendleton and several other witnesses, charges were
             filed against Appellant as noted hereinabove.

Trial court opinion, 4/28/14 at 3-6 (citations and footnote omitted).

      Appellant was arrested and charged with one count of criminal

homicide, two counts of criminal conspiracy, one count of violation of the

Uniform Firearms Act, and one count of robbery.        A joint jury trial with

co-defendant Anthony Jefferson began on May 13, 2013, before the

Honorable Edward J. Borkowski. At the close of the Commonwealth’s case,

the trial court granted a motion for judgment of acquittal for the firearms

violation.   On May 20, 2013, the jury acquitted appellant of homicide and

conspiracy to commit homicide and convicted him of robbery and criminal

conspiracy to commit robbery.

      On August 5, 2013, the court sentenced appellant to an aggregate

sentence of 10 to 20 years’ imprisonment. A counseled notice of appeal was

filed on September 4, 2013. Appellant complied with the trial court’s order

to file a concise statement of errors complained of on appeal within 21 days

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

      The following issues are presented in appellant’s brief:



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              I.    Did the trial court err when it found the
                    evidence sufficient to support the defendant’s
                    conviction for robbery?

              II.   Was it error when [the] trial court permitted
                    the jury to hear a prior recorded statement of
                    a    testifying    codefendant    which    was
                    inadmissible hearsay and parts of the tape
                    were prejudicial to the defendant without being
                    probative of the issue for which they were
                    admitted?

Appellant’s brief at 3.1

        We find both of appellant’s claims to be waived.      At the outset, we

note that the issues contained in the brief are more specific than the issues

raised in the Rule 1925(b) statement. In addition to the requirement that

issues be included in a Rule 1925(b) statement, our court has strictly upheld

the specificity requirements of Rule 1925(b).           In Commonwealth v.

Lemon, 804 A.2d 34, 37 (Pa.Super. 2002), we held that an appellant, who

appealed on an insufficiency of the evidence claim, did not meet the

requirements of Rule 1925(b) where the appellant’s statement merely stated

that “[t]he verdict of the jury was against the evidence” and “[t]he verdict

was against the law.”

        In his Rule 1925(a) opinion, Judge Borkowski found appellant’s

sufficiency claim waived for lack of specificity as appellant failed to assert

the elements upon which he bases the claim of lack of sufficiency of

evidence. In point of fact, the argument presented in his brief does not aver


1
    The body of appellant’s brief also challenges the conviction for conspiracy.


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that a specific element of the crimes was not satisfied.     Rather, appellant

argues that while he was present at the scene of the crime, the

Commonwealth failed to prove his participation; this specific argument could

not be gleaned from appellant’s boilerplate Rule 1925(b) statement.       See

Commonwealth v. Thompson, 778 A.2d 1215, 1223-1224 (Pa.Super.

2001) (holding that “a Pa.R.A.P. 1925(b) statement which is too vague to

allow the court to identify the precise issue raised on appeal is equivalent to

no statement at all,” resulting in waiver). Thus, we agree that appellant’s

sufficiency issue is waived.

      Even if not deemed waived, we would find the sufficiency claim

presented in his brief meritless. Our review of the record confirms that the

Commonwealth presented more than sufficient evidence which established

appellant’s participation and complicity in the crime of robbery with his

co-conspirator. We would affirm based on the analysis provided in the trial

court’s opinion. (Trial court opinion, 4/28/14 at 7 n.6.)

      Appellant’s second issue is also waived, but on different grounds.

Appellant argues that the trial court erred in admitting into evidence the

tape recorded statement provided to the police by testifying witness

Pendleton.   Following review of the notes of testimony, we agree with the

Commonwealth that appellant did not object to the recorded statement

being played for the jury.       Rather, co-defendant Jefferson’s counsel,

Krisha Weyandt, Esq., objected to the recorded statement and, at a sidebar,



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offered her reasons why.     (Notes of testimony, 5/13-20/13 at 295-297.)

The record reflects appellant’s attorney remained silent; defense counsel did

not himself object nor did he join in co-defendant’s request.

      We have long held that “[f]ailure to raise a contemporaneous objection

to the evidence at trial waives that claim on appeal.” Commonwealth v.

Pearson, 685 A.2d 551, 555 (Pa.Super. 1996), citing Pa.R.A.P. 302(a);

Commonwealth v. Burkholder, 595 A.2d 59 (Pa. 1991).                  When a

co-defendant preserves an issue by objecting, the defendant waives the

issue unless he joins the objection. Commonwealth v. Woods, 418 A.2d

1346, 1352 (Pa.Super. 2008).

      Appellant cannot rely on an objection by his co-defendant to preserve

a claim for appeal, even if that objection had been -- but in this case was

not -- identical to what he raises now.2 Commonwealth v. Cannady, 590

A.2d 356, 362 (Pa.Super. 1991); Woods, supra. Thus, this issue is waived

for purposes of appeal.

      Judgment of sentence affirmed.




2
  In addition to appellant claiming the recorded statement is inconsistent, he
also argues that the statement is more prejudicial than probative; the


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




prejudicial versus probative nature of the recording was not argued at
sidebar. (Appellant’s brief at 16.)


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       TN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                          PENNSYL VANIA

 COMMONWEALTH OF PENNSYLVANIA,                              CRlMINAL DIVISION

    APPELLEE                                        CC NO.: 201212739

               V.

 AZSION UPSHUR,

        APPELLANT.



                                           OPINION

 BORKOWSKI, J.



                                PROCEDURAL HISTORY

        Appellant,    Azsion     Upshur,     was    charged     by    criminal     information

(201212739) with one count of criminal homicide,I one count of robbery,> one

count of carrying a firearm without a license,' and one count of criminal

conspiracy.'

       Appellant proceeded to a jury trial on May 13-20, 2013, at the conclusion of

which Appellant was found not guilty of criminal homicide; he was found guilty of

robbery and criminal conspiracy.

 ' 18 Po. C.S. § 2501(0) .
, 18 Po. C.S. §3 701 (0)( 1lei) or (ji).
l 18 Po. C.S . § 6106. This count was dismissed pursuant to Appellant ' s Motion for Judgment of
Acquittal .
, 18 Po. C.S. § 903(0)(1 ).


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       On August 5, 2013, Appellant was sentenced by the Trial Court to the

following:

       Count two: robbery - five years six months to eleven years incarceration;

       Count four: conspiracy - four years six months to nine years incarceration to

be served consecutive to the period of incarceration imposed at count two.

       Thus, the aggregate sentence was ten to twenty years incarceration.

       On Septe.mber 4, 2013, Appellant filed a notice of appeal, and this Trial

Court opinion follows .

                     STATEMENT OF ERRORS ON APPEAL

      Appellant's claims are set forth below exactly as Appellant presented them.

      a. Defendant believes, and therefore avers, that the evidence
      presented at trial was insufficient as a matter of law to convict
      him of the crimes charged. Thus, Defendant moved this
      Honorable Court to vacate the judgment of sentence and
      discharge Defendant.
      b. At trial, the Commonwealth moved to admit Exhibit 103
      which was a recording of Co-Defendant Pendleton's confession
      to police. Within said recording, Co-Defendant Pendleton
      implicated Defendant as a co-conspirator to the above-
      mentioned offenses. Defendant believes and therefore avers that
      admission of Commonwealth's exhibit number 103 was in error
      and unfairlY prejudiced Defendant. Thus, Defendant moves this
      Honorable Court to vacate judgment of sentence and order a
      new trial at the above-entitled matter.

                              FINDINGS OF FACT

      At approximately 1:00 P.M. on November 14,2011, Joseph Boone arrived

in the 2100 block of Bentley Drive, a housing project in the Hill District of the city

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of Pittsburgh, Allegheny County, and began conversing with friends. (T.T. 77, 85,

195-196)' Several days prior, Azsion Upshur (Appellant), Anthony Jefferson, and

Raymond Pendleton planned to rob Boone. They targeted Boone because they

knew him to sell marijuana, and believed he would have cash on him . (T.T. 127,

192, 257, 259, 262, 302, 463). According to their plan, Pendleton was to lure

Boone into a hallway and then call Upshur and Jefferson to complete the robbery.

Pursuant to this plan, when Boone arrived in the afternoon of May 12th, Pendleton

called Appellant and stayed on the phone with him as he beckoned Boone into the

hallway of 2112 Bentley Drive. Once Boone was in the hallway, Appellant put on

a mask and hat, and immediately headed to the site. (T.T. 141, 143, 196, 198,203,

262,264,268,303,318-319).

       When Boone saw Appellant and Jefferson running towards the hallway in

masks he tried to escape by running up the interior steps orthe building. Pendleton

left the area as Appellant and Jefferson pursued Boone up the steps. Jefferson was

armed with a revolver even though a gun apparently was not part of the original

plan. (T.T. 264-269, 304-306, 322). Appellant and Jefferson fought with Boone as

they tried to rob him, dragging him back down the steps and striking his head

against mailboxes inside the hallway on the first floor several times. The struggle

caused Boone to wriggle out of his several shirts, both shoes, and a sock in his


I The desienation "T.T" followed by numerals refers to Trial Transcript, May 13-20, 2013.

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effort to get free. (TT 181-182, 225, 235, 238-339). Shirtless and shoeless, Boone

yelled, "take it, take it, you can have it" as he tried to run away into the courtyard.

(T.T. 222-223, 324-325). As Boone ran away Jefferson followed and shot him in

the hip, causing him to fall in the courtyard. Jefferson caught up to Boone, stood

over him, and shot him a second time. (T.T. 87, 223, 325-327). Appellant and

Jefferson fled the area together. (T.T. 91, 266, 307, 327).

         Several neighbors moved Boone from the courtyard to the c.urb so that

paramedics could more easily reach him. (TT. 223, 239). While awaiting the

medics, Pendleton approached the area where Boone lay on the sidewalk. Boone

pointed at him and said, "your niggas did this to me." (T.T. 202,266,308).
                                                                      .
                                                                           Boone

was transported to Mercy Hospital where he underwent emergency surgeries in an

attempt to save his life, but these efforts were to no avail. (T.T. 92, 101-102).

Boone suffered mUltiple blunt force injuries, head trauma, lacerations to the back

of his head and face, a gunshot wound to the right abdomen and a gunshot wound

to the right hip. (T.T. 101-\02). Boone died as a result of a perforating gunshot

wound of the trunk which lacerated his liver and aorta. (T.T. 107, 116). The

medical examiner was able to determine that the muzzle of the firearm was less

than three feet away from Boone's body when the fatal shot was fired. (T.T. 109-

III ).




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       Pendleton called Appellant and Jefferson later that day about what occurred.

Both Appellant and Jefferson admitted they shared approximately $200 from

Boone, and Jefferson stated, "My bad bro, I dido't mean for things to go this far."

(T.T. 269, 309-310). In response Appellant stated, "You know how things go, bro.

We got a couple dollars." (T.T. 269, 310). Based upon interviews of Pendleton and

several other witnesses, charges were filed against Appellant as noted hereinabove.

                                  DISCUSSION

                                        I.

      Appellant alleges in his first claim that the evidence was insufficient to

convict him of the crimes charged. Appellant does not specify which elements of

the two charges he is challenging. Given the lack of specificity engendered by this

claim the Trial Court cannot address it. In this regard the Pennsylvania Superior

Court has stated:

      If Appellant wants to preserve a claim that the evidence was
      insufficient, then the I 925(b) statement needs to specify the
      elements upon which the evidence was insufficient. This Court
      can then analyze the element or elements on appeal. The instant
      1925(b) statement simply does not specify the allegedly
      unproven elements. Therefore, the sufficiency issue is waived.

Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa, Super. 2008) (citations and

quotations omitted).




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        Appellant's claim is waived:

                                                  II.

        Appellant's second claim alleges that the admission of PendletOn's recorded

 statement waS in error based on the argument that it unfairly prejudiced Appellant.

This claim is without merit.

        The admission of a non-testifying codefendant's statement that implicates

the defendant at a joint trial constitutes a violation of the Confrontation Clause.

However, this aspeCt of the Confrontation Clause is not implicated in A",pellant's

case. Commonwealth v. Housman, 986 A.2d 822, 835-836 (Pa. 2009) (Brotan rule

not implicated where codefendant takes the stand and is            Sll bjected   to full and fair

cross examination). Pendleton conspired with Appellant and Jefferson to rob

Boone, but Pendleton was tried separately and testified at Appellant's trial as a




6 Even if the Superior Court was to address Appellant's claim. it is clear that the evidence was
sufficient to establish the crimes of robbery and conspiracy, and Appellant's claim is without
merit. Specifically, the evidence included: (I) the testimony of co-actor Raymond Pendleton; (2)
testimony of SebOOn Davis who observed Appellant preparing for the robbery and which
corroborated Pendleton's testimony; (3) identification testimony of an eyewitness who saw
Appellant fleeing the scene with Jefferson, both of whom were masked; and (4) testimony from
an eyewitness about the fight during the robbery. (T.T. 132-145, 198.200,210,222,259-266).
See Commonwealth v. Spencer, 639 A.2d 820, 822·824 (Pa. Super. 1994) (evidence sufficient to
sustain convictions of robbery and criminal conspirdcy where eyewitness identified defendant as
masked robber, and this identification was corroborated by the testimony of defendant's
accomplice); Commonwealth v. Smith, 396 A.2d 744, 748 (Pa. Super. 1978) (evidence sufficient
to sustain conviction of robbery where seven eyewimesses identified defendant, even though
defendant testified otherwise). See also Commonweallh v. Brown, 52 A.3d 1139, 1171 (Pa.2012)
(evidence sufficient to sustain murder conviction based on repudiated out-of-court statements).

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    Commonwealth witness pursuant to a plea agreement 7 However, once Pendleton

    took the stand he recanted his previous account of the robbery wherein he

    implicated Appellant. The prosecution requested and the Trial Court granted the

request to introduce Pendleton's recorded statement of events as a prior

inconsistent statement. (TT. 297). Additionally, the Trial Court permitted the

prosecution to treat Pendleton as a hostile witness, and he was subjected to

vigorous examination by the Commonwealth regarding his previously recorded

statement of events. (T.T. 258-274, 277-278): While neither counsel for Appellant

nor Jefferson asked Pendleton any questions, he was available for cross-

examination. (T.T. 278).

         Since the co-defendant (Pendleton) actually testified, the Confrontation

Clause was not implicated, and the admission of the statement is reviewed pursuant

to Pa. R.E. 803.1(1) (inconsistent statement of witness). See also Commonwealth v.

Brady, 507 A.2d 66 (Pa. 1986) (holding that a prior inconsistent statement of a

non-party witness is admissible as substantive evidence as long as it is made under

highly reliable circumstances and the witness is available for cross-examination at




7 Pendleton was charged at criminal infonnation (CC 20 1212738). Pendleton's truthful testimony
at Appellant's trial was a condition of the plea offer from the Commonwealth, scheduled for
court after Appellant's trial. However, once Pendleton recanted his earlier statement the
Commonwealth withdrew the original plea offer. Pendleton pled guilty on November 20,2013,
to third degree murder, conspiracy, and robbery, and was sentenced to an aggregate tenn of
imprisonment of twenty-two years six months to fifty years.

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trial). Here, the Trial Court considered Pendleton's tape recorded statement and the

circumstances surrounding it, and found it admissible:

      The Court finds in this instance it's admissible for two
      purposes: One is not only its content but his demeanor given his
      representation that he was under duress or forced to make these
      statements. It rebuts that notion. Especially if accurate at the
      very end of the statement where he states that he hasn't been
      threatened or forced to do anything. Secondly, the Court
      believes that under the letter and spirit of the prior inconsistent
      statement, [hearsay exceptions] -- The prior inconsistent
      statement is [substantive] evidence, Brady, its progeny, as well -
      as the Rules of Evidence itself that the jury is entitled and
      should hear exactly what he said on that prior in the recorded
      statement. So over your objection it will be admitted.

(T.T. 297).

      As such, Appellant was not unfairly prejudiced by the admission of

Pendleton '5 statement and the Trial Court did not err in admitting it as a prior

inconsistent statement. See Brown, 52 A.3d at 1171 (written statements adopted by

witnesses but recanted at trial were admissible as prior inconsistent statements

where witnesses were available for cross examination and admitted they signed the

statements); Commonwealth v. Wilson , 707 A.2d 1114, 1118 (Pa. 1998)

(contemporaneous electronic audio recording satisfies requisite level of reliability

such that it may be admitted as substantive evidence as a prior inconsistent

statement).

      Appellant's claim is without merit.




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                                CONCLUSION


      Based upon the foregoing, the judgment of sentence imposed by this Court

should be affirmed.


                                            By the Court,



DATE:_--LI-=--J_r_
                 1    i_
                                            Edward J.




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