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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
WESLEY AARON DAVIS, JR.,                   :          No. 2398 EDA 2018
                                           :
                          Appellant        :


          Appeal from the Judgment of Sentence Entered July 3, 2018,
              in the Court of Common Pleas of Delaware County
               Criminal Division at No. CP-23-CR-0004440-2017


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 26, 2019

        Wesley Aaron Davis, Jr., appeals from the July 3, 2018 judgment of

sentence entered by the Court of Common Pleas of Delaware County following

his conviction of persons not to possess a firearm.1 After careful review, we

affirm.

        The trial court provided the following synopsis of the relevant procedural

history of this case:

              On July 12, 2017, appellant was arrested by members
              of the Sharon Hill Police Department and charged
              with[, inter alia, persons not to possess a firearm.]

              ....

              On April 24, 2018, appellant’s jury trial began with
              jury selection and the panel was sworn in on April 25,
              2018[,] with the trial concluding that day. . . .

1   18 Pa.C.S.A. § 6105(a)(1).
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            Appellant was convicted of the sole count, Count 1,
            persons not to possess a firearm. Appellant’s bail was
            revoked and the [trial court] scheduled a sentencing
            hearing for July 3, 2018.        In preparation for
            sentencing, the [trial court] required that a
            pre-sentence investigation report (PSI) be prepared,
            which included a psychological evaluation of
            appellant.

            On July 3, 2018, appellant was sentenced by the [trial
            court to a term of 54-108 months’ imprisonment.]

            ....

            On July 11, 2018[,] appellant’s counsel filed a
            post-sentence motion alleging that a new trial was
            warranted as there was insufficient evidence
            presented at the time of trial to establish beyond a
            reasonable doubt the elements of the offense of
            person not to possess a firearm and that the verdict
            was against the weight of the evidence. The [trial
            court], without a hearing, denied the post-sentence
            motion on July 16, 2018.

            Appellant’s counsel filed a[ notice of] appeal on
            August 14, 2018. On August 15, 2018, [the trial
            court] sent to appellant’s counsel a request for a
            concise statement of [errors] complained of on appeal
            [pursuant to Pa.R.A.P. 1925(b)]. On August 31,
            2018, [appellant complied.]

Trial court opinion, 9/12/18 at 1-5 (extraneous capitalization and footnotes

omitted). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            I.     Was there sufficient evidence presented at the
                   time of [t]rial to establish beyond a reasonable
                   doubt the elements of the offense of Person Not
                   to Possess a Firearm?




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               II.     Was the verdict of the [j]ury as to Person Not to
                       Possess a Firearm against the weight of the
                       evidence?

Appellant’s brief at 4.

      Appellant first contends that the Commonwealth failed to produce

sufficient evidence to warrant a conviction of persons not to possess a firearm.

The Commonwealth avers that appellant has waived the issue on appeal

because his Rule 1925(b) statement was “vague and conclusory” and “did not

sufficiently     identify   the     alleged   errors   the   trial   court    committed.”

(Commonwealth’s brief at 9.)

      The Pennsylvania Rules of Appellate Procedure require an appellant to

“concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge,” within the

concise        statement       of      errors       complained       of      on   appeal.

Pa.R.A.P. 1925(b)(4)(ii). Pennsylvania courts have consistently held that for

sufficiency of the evidence challenges, an appellant’s Rule 1925(b) statement

“needs to specify the element or elements upon which the evidence was

insufficient.”       Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super.

2015), quoting Commonwealth v. Williams, 959 A.2d 1252, 1257

(Pa.Super. 2008) (citation omitted). Failure to do so results in waiver of the

issue on appeal. Id.

      Here, similar to the defendant in Tyack, appellant provides a boilerplate

Rule 1925(b) statement, averring as follows: “Was there sufficient evidence



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presented at the time of [t]rial to establish beyond a reasonable doubt the

elements of the offense of Person Not to Possess a Firearm?” (Appellant’s

Rule 1925(b) statement; see also Tyack, 128 A.3d at 260.) Appellant failed

to specify any element upon which the Commonwealth’s evidence was

insufficient. Accordingly, appellant’s first issue has been waived on appeal.

          In the alternative, should we render a decision on the merits of

appellant’s first issue, we would nevertheless find that appellant is not due

relief.    As noted by the trial court, the Commonwealth met its burdens of

proving the elements of persons not to possess a firearm.                Indeed, the

Commonwealth introduced eyewitness testimony of appellant pulling a firearm

out of his pocket and discarding it. (Notes of testimony, 4/25/18 at 57.) The

Commonwealth also introduced evidence of appellant’s prior robbery

conviction,     which   precluded   him    from   legally   possessing   a   firearm.

Accordingly, the Commonwealth has presented sufficient evidence to warrant

a conviction of persons not to possess a firearm.

          In his second issue, appellant argues that the jury’s guilty verdict was

against the weight of the evidence. Appellant’s entire weight of the evidence

argument is as follows:

                The Commonwealth has the burden to prove that the
                [a]ppellant had the intent to control and power to
                control a firearm. The video (Exhibit C-1) is the best
                evidence of what occurred subsequent to the stop of
                the vehicle in which the [a]ppellant was the occupant.
                As indicated, the [j]ury did observe the video of the
                body cam footage from Officer Hand’s body camera.
                It is respectfully suggested after viewing [the] same


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            that the verdict of the Jury was against the weight of
            the evidence.

Appellant’s brief at 15.

      When reviewing weight of the evidence issues on appeal, we are

governed by the following standard:

                  An appellate court’s standard of review
                  when presented with a weight of the
                  evidence claim is distinct from the
                  standard of review applied by the trial
                  court. Appellate review of a weight claim
                  is a review of the exercise of discretion,
                  not of the underlying question of whether
                  the verdict is against the weight of the
                  evidence.

            Commonwealth v. Mucci, 143 A.3d 399, 410-411
            (Pa.Super. 2016), (quoting Commonwealth v. Clay,
            [] 64 A.3d 1049, 1054-1055 ([Pa.] 2013)).         To
            successfully challenge the weight of the evidence, a
            defendant must prove the evidence is “so tenuous,
            vague and uncertain that the verdict shocks the
            conscience of the court.” Mucci, 143 A.3d at 411
            (quoting Commonwealth v. Sullivan, 820 A.2d 795,
            806 (Pa.Super. 2003)).

Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017),

appeal denied, 171 A.3d 1286 (Pa. 2017).

      Here, appellant has not met his burden of proving that the evidence is

“so tenuous, vague and uncertain that the verdict shocks the conscience of

the court.” Rather, appellant attempts to re-litigate whether the video footage

from Officer Hand’s body camera establishes that appellant possessed the

intent to control or the ability to control a firearm. Appellant fails to provide

any argument as to how the evidence was tenuous, vague, or uncertain. See


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Mucci, 143 A.3d at 411. Accordingly, we find that the trial court did not abuse

its discretion when it denied appellant’s post-sentence motion challenging the

weight of the evidence.

      Judgment of sentence affirmed.



      Dubow, J. joins in this Memorandum.

      Bowes, J. files a Concurring Memorandum in which Dubow, J. joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/26/19




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