J-S74006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

WARREN MILLER

                            Appellant                       No. 657 EDA 2016


            Appeal from the Judgment of Sentence January 12, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012957-2013


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED OCTOBER 14, 2016

        Appellant Warren Miller appeals from the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County after a jury

convicted him of First-Degree Murder, Recklessly Endangering Another

Person (REAP), Possession of an Instrument of Crime (PIC), Firearms not to

be    Carried    Without    a   License,   and   Carrying   Firearms   in   Public   in

Philadelphia.1     Appellant argues that there was insufficient evidence to

support his convictions, contending that the Commonwealth failed to

disprove his claim of self-defense and show he acted with malice.               After

careful review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(a), 2705, 907(a), 6106(a)(1), and 6108, respectively.
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      The trial court aptly summarized the factual background of this case as

follows:

            On the evening of August 14, 2012, Ramses Everett, his
      brothers Jamar and Amir Everett, and friend Keith Gant played
      basketball in Fairmount Park, 5200 Parkside Avenue, in
      Philadelphia.   On the nearby benches, [Appellant] and his
      brother Jaylen smoked marijuana.

            At approximately 7:30 p.m., Aara “Azza” Fisher, escorted
      her friend, the decedent Lite Belesky, to the park…, where he
      sought to purchase crack cocaine. At or about 7:45 p.m.,
      Belesky called his paramour, Debra Cosenza, to come pick him
      up, as he was intoxicated on Xanax and alcohol and feared
      becoming embroiled in a dispute.

            After the phone call, Belesky approached [Appellant] and
      Jaylen Miller and asked them to sell him crack cocaine.
      [Appellant] refused and pointed a black .45 caliber pistol at
      Belesky.

             At approximately 8:00 p.m., Cosenza drove near 5200
      Parkside Avenue, where she saw Belesky argue with a group of
      men from 100 feet away. Niema Bray, who drove along Parkside
      Ave. prior to the shooting, saw Belesky stand in front of
      [Appellant] with his hands in the air, as if he was trying to
      surrender. Consanza attempted to call Belesky’s phone but
      suddenly heard five or six shots ring out and saw Belesky fall
      down. Ramses Everett saw [Appellant] stand over Belesky and
      fire three shots into his prone back, stopping only because the
      magazine had emptied. Bray also witnessed [Appellant] stand
      over Belesky and shoot him in the back. Ramses, Jamar, and
      Amir Everett and Gant fled the park via Aberdeen Street. Bray
      observed [Appellant] hide a weapon in his pants and flee behind
      Ramses’ group.

            At 8:02 p.m., Officer Daniel Barr and Detective Matthew
      Carey independently received a radio call for shots fired. At
      8:10 p.m., law enforcement officers discovered a hysterical
      Cosenza screaming near Belesky’s unresponsive body.       Law
      enforcement discovered no weapons near the body. Medics
      arrived and pronounced Belesky dead at the scene.

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            According to Philadelphia Deputy Medical Examiner Dr.
     Albert Chu, an expert in forensic pathology, Belesky sustained
     five gunshot wounds, including fatal, penetrating wounds to the
     left lateral back, the left lateral lower chest, and left lower center
     back. Belesky further suffered two perforating gunshot wounds
     to the left lateral lower back and to the right posterior proximal
     thigh. The medical examiner recovered three projectiles from
     the body and submitted them to the Police Department. The
     wounds to Belesky’s back and right thigh were consistent with
     Belesky falling face down from the leg wound and sustaining
     three gunshot wounds caused by a shooter standing above and
     behind his body. Dr. Chu concluded, to a reasonable degree of
     medical certainty, that the cause of death was homicide by
     multiple gunshot wounds.

            The Philadelphia Police Crime Scene Unit discovered eleven
     fired cartridge casings (“FCCs”) at the crime scene. Officer
     Norman DeFields, a ballistics expert with the Firearms
     Identification Unit, examined each of the FCCs and concluded, to
     a reasonable degree of scientific certainty, that all were fired
     from the same .45 caliber pistol.        Officer DeFields further
     determined that the recovered projectiles were .45 caliber and
     fired from the same weapon as the FCCs.

            In September 2012, Saheed Hasson, [Appellant’s] friend
     who was in Upper Darby at the time of the shooting, visited
     [Appellant] at an apartment near the crime scene. During the
     ensuing conversation, [Appellant] admitted to shooting Belesky
     in the chest and leg on the evening of the murder, and firing
     three more rounds into Belesky’s back after he fell to the
     ground. On September 20, 2012, Detective Gregory Rodden
     interviewed Hasson at the Homicide Unit, where Hasson
     recounted the contents of his and [Appellant’s] conversation and
     revealed that [Appellant] possessed a black and silver .45 caliber
     pistol prior to the shooting.

           On October 1, 2013, Officers James Cook and Alfred
     Hendley arrested [Appellant] and escorted him to Homicide for
     questioning. Since assigned Detectives Rodden, Gary White, and
     Crystal Williams were investigating an unrelated homicide at the
     time, they were precluded from conducting a formal interview
     until 10 a.m. on October 2, 2013.         During the interview
     conducted at 11:40 a.m., [Appellant] told detectives that he

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      fired the entire magazine of his black .45 pistol at Belesky in
      self-defense. [Appellant] further stated that Belesky wielded a
      knife during the incident and that [Appellant] abandoned his
      pistol in the park.

            On October 23, 2012, police arrested Ramses Everett on
      unrelated sexual assault charges. On October 25, while Ramses
      Everett remained in custody, Detective Robert Fetters
      interviewed him about the August homicide.            During the
      interview, Ramses Everett identified [Appellant] as the shooter,
      [Appellant’s] black .45 caliber pistol as the murder weapon, and
      described how [Appellant] shot the prone Belesky.

Trial Court Opinion, 4/22/16, at 2-5 (internal citations omitted).

      After Appellant was charged with first-degree murder and related

charges, he proceeded to a jury trial.     On March 30, 2015, the Honorable

Steven R. Geroff declared a mistrial when the jury could not return a verdict.

On January 12, 2016, Appellant was again tried before a jury, who convicted

Appellant on all the aforementioned charges. On the same day, Appellant

was given a mandatory life sentence without parole for the first-degree

murder   conviction   and   concurrent   sentences   of   one   to   two   years

imprisonment for the Firearms Not to be Carried Without a License

conviction, three to twelve months for the Carrying Firearms in Public in

Philadelphia conviction, and three to twelve months for the REAP conviction.

      On January 22, 2016, Appellant filed a timely post-sentence motion

which the trial court denied on January 26, 2016. Appellant filed a timely

notice of appeal on February 22, 2016.       On February 24, 2016, the trial

court ordered Appellant to file a Concise Statement of Errors Complained of

on Appeal pursuant to Pa.R.A.P. 1925(b).       On March 11, 2016, Appellant



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filed a pro se Concise Statement.      On March 18, 2016, John Belli, Esq.

entered his appearance as Appellant’s counsel and filed a Concise Statement

on April 19, 2016.    In its responsive opinion pursuant to Rule 1925(a),

although the trial court asserted that Appellant had waived his claims by

failing to file a timely 1925(b) statement, the trial court reviewed the merits

of Appellant’s proposed sufficiency challenges.

      As an initial matter, we must review the trial court’s assertion that

Appellant has waived all his claims by failing to file a timely 1925(b) concise

statement.    From our review of the record, we note that Appellant’s trial

counsel, Leon Goodman, Esq. seemingly abandoned Appellant after he filed

a timely notice of appeal on Appellant’s behalf. While the docket indicates

that the trial court’s order directing Appellant to file a 1925(b) statement

was sent to Atty. Goodman, it is unclear why Atty. Goodman did not respond

or seek to formally withdraw his representation.          The trial court then

appointed Appellant’s current counsel, John Belli, after the time to file a

timely 1925(b) statement had elapsed.       Atty. Belli then filed a 1925(b)

statement, but did not expressly seek permission to do so nunc pro tunc.

      However, this Court has emphasized that both the complete failure to

file a 1925(b) statement and the untimely filing of a 1925(b) statement

constitute per se ineffectiveness in which prejudice is legally presumed, as

an attorney has no reasonable basis designed to effectuate the client’s

interest for doing so and waives all issues for appeal.    Commonwealth v.

Burton, 973 A.2d 428, 432–33 (Pa.Super. 2009). As stated above, it does

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not appear from the record that Appellant’s trial counsel properly sought to

withdraw his representation, leaving Appellant without counsel to file his

1925(b) statement.        We note that Atty. Belli could not have filed a timely

1925(b) statement on Appellant’s behalf as he was appointed after the time

limit for doing so expired. Thus, Appellant’s failure to file a timely 1925(b)

statement was a result of his trial counsel’s per se ineffectiveness.

       Pennsylvania Rule 1925(c)(3) provides that “[i]f an appellant in a

criminal case was ordered to file a Statement and failed to do so, such that

the appellate court is convinced that counsel has been per se ineffective, the

appellate court shall remand for the filing of a Statement nunc pro tunc and

for the preparation and filing of an opinion by the judge.”             Pa.R.A.P.

1925(c)(3).     Moreover, in the case of an untimely filing, this Court has

decided the appeal on the merits when the trial court had adequate

opportunity to prepare an opinion addressing the issues being raised on

appeal. Burton, 973 A.2d at 433. Since the trial court in this case filed an

opinion addressing the claims raised in Atty. Belli’s untimely 1925(b)

statement, there is no need to remand the case and we may proceed to

review the merits of this appeal.2


____________________________________________


2
  We also note that Appellant filed a pro se concise statement within the
applicable time period under Rule 1925(b). As a general rule, our courts
prohibit hybrid representation and do not typically entertain pro se filings
while an appellant is represented by counsel. See Commonwealth v. Ali,
608 Pa. 71, 89, 10 A.3d 282, 293 (2010); Commonwealth v. Ellis, 534 Pa.
(Footnote Continued Next Page)


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      Appellant raises the following issues for our review:

      A. Must Appellant’s first-degree murder conviction be reversed
         because the Commonwealth failed to present sufficient
         evidence to prove beyond a reasonable doubt that Appellant
         acted with malice and that Appellant did not kill the decedent
         in self-defense or defense of others?

      B. Must Appellant’s first PIC and REAP convictions [sic] be
         reversed because the Commonwealth failed to present
         sufficient evidence to prove beyond a reasonable doubt that
         Appellant did not call the decedent in self-defense or in
         defense of others?

Appellant’s Brief, at 3.

      In evaluating a challenge to the sufficiency of the evidence, our

standard of review is as follows:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant's guilt is to be resolved by the fact[-
      ]finder unless the evidence is so weak and inconclusive that, as
      a matter of law, no probability of fact can be drawn from the
      combined circumstances.
                       _______________________
(Footnote Continued)

176, 180-81, 626 A.2d 1137, 1139–40 (1993). But see Commonwealth
v. Cooper, 611 Pa. 437, 27 A.3d 994 (2011).



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Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      In his sufficiency claims, Appellant claims his first-degree murder

conviction cannot stand because there was no evidence that he acted with

malice. Our Legislature defines first-degree murder as an intentional killing,

that is “willful, deliberate, and premeditated.” 18 Pa.C.S. § 2502(a), (d). To

sustain a conviction of first-degree murder, the Commonwealth must prove

beyond a reasonable doubt that: “(1) a human being was killed; (2) the

accused caused the death; and (3) the accused acted with malice and a

specific intent to kill.” Commonwealth v. Sanchez, 614 Pa. 1, 23-24, 36

A.3d 24, 37 (2011). Our Supreme Court has emphasized that “the finder of

fact may infer malice and specific intent to kill based on the defendant's use

of a deadly weapon on a vital part of the victim's body.” Commonwealth

v. Hitcho, ___Pa.___, 123 A.3d 731, 746 (2015) (citing Commonwealth

v. Arrington, 624 Pa. 506, 86 A.3d 831, 840 (2014), cert. denied, ___U.S.

___, 135 S.Ct. 479, 190 L.Ed.2d 363 (2014)).

      In this case, the Commonwealth presented evidence from several

eyewitnesses that Appellant shot the unarmed victim in the chest and the

thigh. Even after the victim fell to the ground, Appellant continued to fire

shots into the victim’s back.       Consistent with Hitcho, supra, it was

reasonable for the jury to infer that Appellant acted with malice and

intended to kill the victim as he shot the victim several times in vital parts of




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the victim’s body. Thus, the Commonwealth presented sufficient evidence to

show Appellant acted with malice and intended to kill the victim.

     Appellant does not specifically challenge any other elements of the

crimes of which he was convicted, but argues that there is insufficient

evidence to support all of his convictions as the Commonwealth failed to

disprove that he acted in self-defense or in the defense of others. Appellant

concedes that he did shoot the victim, but only did so after the victim

threatened him with a knife.

     Section 505 of the Crimes Code authorizes the use of force for self-

protection under the following circumstances: “[t]he use of force upon or

toward another person is justifiable when the actor believes that such force

is immediately necessary for the purpose of protecting himself against the

use of unlawful force by such other person on the present occasion.        18

Pa.C.S. § 505. Our Supreme Court has further clarified:

            By way of background, a claim of self-defense (or
     justification, to use the term employed in the Crimes Code)
     requires evidence establishing three elements: “(a) [that the
     defendant] reasonably believed that he was in imminent danger
     of death or serious bodily injury and that it was necessary to use
     deadly force against the victim to prevent such harm; (b) that
     the defendant was free from fault in provoking the difficulty
     which culminated in the slaying; and (c) that the [defendant] did
     not violate any duty to retreat.” Commonwealth v. Samuel,
     527 Pa. 298, 590 A.2d 1245, 1247–48 (1991).              See also
     Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449
     (1997); 18 Pa.C.S. § 505.2 Although the defendant has no
     burden to prove self-defense, … before the defense is properly in
     issue, “there must be some evidence, from whatever source, to
     justify such a finding.” Once the question is properly raised, “the
     burden is upon the Commonwealth to prove beyond a

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      reasonable doubt that the defendant was not acting in self-
      defense.” Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627,
      630 (1977).

Commonwealth v. Mouzon, 617 Pa. 527, 531–32, 53 A.3d 738, 740

(2012).

      In this case, there is no evidence to justify a finding that Appellant

acted in self-defense. The record reveals that three eyewitnesses testified

that the victim did not lunge at Appellant with a knife. In fact, one witness

testified that the victim had his hands in the air in an attempt to surrender

when he was first shot by Appellant. Even after the victim fell face down on

the ground, the eyewitnesses observed Appellant unloading his firearm into

the victim’s back. The responding officers did not find a knife on the victim’s

body or anywhere near the crime scene. From this evidence, it was rational

for the jury to infer that Appellant’s claim that the victim was armed was

false, find incredible Appellant’s claim that he reasonably believed it was

necessary to use deadly force as the victim placed his life in danger.

Accordingly, we conclude the Commonwealth presented sufficient evidence

to prove beyond a reasonable doubt that Appellant did not act in self-

defense.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2016




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