J.S45037/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
DARNELL LEE,                                :
                                            :
                            Appellant       :     No. 2383 EDA 2013


              Appeal from the Judgment of Sentence March 1, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0005987-2009

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 23, 2014

        Appellant, Darnell Lee, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas following his jury trial and

convictions for second degree murder,1 robbery,2 carrying a firearm on a

public street or public property in violation of the Uniform Firearms Act,3 and

conspiracy.4 Appellant asserts that he is entitled to a new trial because the



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 3701(a)(1)(i).
3
    18 Pa.C.S. § 6108.
4
    18 Pa.C.S. § 903(a)(1).
J. S45037/14

guilty verdicts of murder and robbery were against the weight of the

evidence.   We affirm the convictions but vacate the judgment of sentence

for robbery because it merged with his second degree murder conviction for

purposes of sentencing.

      The trial court summarized the facts of this case as follows:5

            On June 3, 2008, at about 9:30 p.m., [the victim]


         at 3858 North 15th Street, Philadelphia.      Around 11:20

         four-door white Chevrolet Malibu parked on the 1500 block
         of Pike Street. While McCoy and Fields were sitting in the
         vehicle, [Appellant] and [his co-defendant] Daniel Johnson
              -

         and co-defendant approached Fields on the
         passenger side of the vehicle. [Appellant] then said,

         silver gun that was tucked into his waistband. McCoy said,

         and money. When McCoy told [Appellant] that his phone

         [Appellant] and co-

         vehicle and started fighting with [Appellant]. During this
         struggle, [Appellant] and McCoy moved toward the rear of
         the vehicle, where McCoy was shot at least twice. McCoy
         was shot a third time after co-defendant ran to the rear of
         the vehicle. This shooting occurred at or around 11:31
         p.m. on June 3, 2008.



5
  Appellant was tried jointly with his co-defendant, Daniel Rasheed R.
Johnson. As we discuss infra, a prior panel of this Court, in the direct appeal
                   -defendant, affirmed in part and vacated in part.
Commonwealth v. Johnson, 213 EDA 2013 (unpublished memorandum)
(Pa. Super. Dec. 19, 2013).



                                     -2-
J. S45037/14

          Afterward, [Appellant] jumped onto a bicycle and fled
       toward 16th and Smedley Streets. As Fields tried to exit
       the front passenger door, co-
       stuck under the vehicle. Fields made eye contact with co-
       defendant, who then ran in the same direction as
       [Appellant].    When Fields exited the vehicle, she
       approached McCoy and saw him lying on the ground. He
       had a hole in his face and was struggling to breathe.
       Blood was pooled behind his head and was coming from
       his face and hand. Fields called 911 and ran into the bar,


          McCoy was transported to Temple University Hospital,
       where he was pronounced dead at approximately 1:27
       a.m. on June 4, 2008. Dr. Gary Collins, deputy chief
                                                             y.
       While performing his examination, Dr. Collins found that
       McCoy sustained three gunshot wounds. Two gunshot
       wounds were penetrating wounds and one gunshot wound
       was a perforating wound. . . .

          Dr. Collins concluded to a reasonable degree of medical
       certainty that the cause of death was the penetrating
       gunshot wound to the head. . . . Dr. Collins further
       concluded to a reasonable degree of medical certainty that
       the manner of death was homicide. He submitted the two
                                                 o the Firearms
       Identification Unit.

                               *    *    *

          Detective John Cahill was assigned to investigate this
       homicide. At approximately 2:15 a.m., Detective Cahill
       responded to the crime scene with Detective Ted Hagan.
       On June 4, 2008, Detective [James] Dunlap assisted with
       the recovery of surveillance footage from the digital video
       recording player at the bar. He found a total of eight video
       cameras around the interior and exterior of the bar. . . .
       Camera Number 5 was an exterior camera located on the
       front of the property at the southwest corner of 15th and
       Pike Streets, and viewed the 1500 block of Pike Street
       westbound. Camera Number 6 was located outside the
       entrance door at 15th and Pike Streets and viewed the



                                   -3-
J. S45037/14

       southwest corner of 15th and Pike Streets.         Camera
       Number 7 viewed the sidewalk on Pike Street. . . .

          Detective Dunlap checked the operability of the video
       recording player and determined that it was functioning
       properly. When he checked the time, Detective Dunlap
       observed that it was military time and discovered that it
       was nine minutes faster than the actual time determined
       by the U.S. Naval Observatory.          Detective Dunlap
       downloaded all eight camera views, copied them onto a
       digital video disc, and gave it to the assigned detective.
       Detective Dunlap recovered a one-half hour block of video
       running on June 3, 2008 from 23:20 to 23:50 (11:20 p.m.
       to 11:50 p.m.). He also recovered one fifty-minute block
       of video from 22:30 to 23:20 (10:30 p.m. to 11:20 p.m.)
       from Camera Numbers 5 and 6, both exterior cameras.
       Camera Number 5 had the best camera view of the
       incident. Because multiple camera views could not be
       shown at once, Detective Dunlap used software to copy
       and compile camera views into one running video.

          The first video clip was recorded at 23:29:36 from
       Camera Number 5 and displayed a male and female
       entering a white Malibu several feet from the corner. The
       next video clip showed two men riding bicycles on Pike
       Street traveling toward 15th Street. The two men rode
       past the camera and turned southbound onto 15th Street,
       where they were recorded by Camera Number 6. The men

       Street. The subsequent video clip came from Camera
       Number 5 and showed bicycles crossing the street. One
       bicycle rode onto the curb to the driver side of the white
       Malibu and the other bicycle rode to the passenger side.
       Someone was inside the vehicle because the brake lights

       side of the vehicle. A man wearing a striped shirt exited
       the vehicle, but then went back inside the vehicle.

          The video then showed one of the men running away.
       At the scene, the passenger door was open and a person
       and an object were on the ground. At that time, people
       started to exit the bar and gather into a large crowd.
       Police then arrived and secured the scene. In addition to
       compiling these several camera views, Detective Dunlap


                                 -4-
J. S45037/14

       took 130 still photographs from the video. These still
       photographs accurately depicted the views from Camera
       Number 5 and Camera Number 6.

          After reviewing this video, Detective Hagan returned to


       The video displayed Capehart walking westbound on the
       1500 block of Pike Street prior to the murder. During this
       interview, Capehart did not appear to be under the
       influence of drugs or alcohol. After reviewing her five-
       page statement, Capehart signed it.         Capehart was
       interviewed a second time by Detective Cahill on June 6,
       2008. During this interview, Detective Cahill learned that
       [Appellant] was her cousin and that his nickname was
                                  -
       Cahill learned that, on the evening of the murder,
       [Appellant] and co-
       residence, which was approximately one and one-half

       that [Appellant] and co-defendant were in front of her
       house when she left to go to the bar at 8:45 p.m. Co-
       defendant was wearing cargo shorts and a red or burgundy
       shirt. [Appellant] was wearing a white shirt, tan cargo
       pants[,] and a bulletproof vest. Co-defendant had a red
       bicycle and [Appellant] had a blue and pink bicycle. The
       day before giving this statement, Capehart had seen the
       blue and pink bicycle in front of her house, but she had not
       seen the red bicycle since the shooting.

          Capehart left the bar at about 11:30 p.m. When she
                                                          ho
       told her that he heard gunshots. Capehart then went
       upstairs and called a friend who was still at the bar.

       been shot. When Capehart went back downstairs, she
       encountered [Appellant] and Durell at her front door.
       [Appellant] told her that he was leaving because too many
       police were around. Finally, Capehart stated that she had
       not seen [Appellant] or co-defendant since the murder.
       Capehart did not appear to be under the influence of drugs
       or alcohol during this second interview. After reviewing
       her eight and one-half page statement, Capehart signed it.
       She identified co-defendant after being shown a


                                  -5-
J. S45037/14

       photographic array. She also identified [Appellant] after
       being shown a photograph.

          On June 10, 2008, Detective Hagan interviewed Naja
       McCoy and took her statement.      Ms. McCoy informed
       Detective Hagan that McCoy was her blood cousin, but that
       she considered him her brother because they were raised
       in the same household. Ms. McCoy also knew [Appellant]
       because she grew up with him in the neighborhood. She


       residence because she was best friends with Lekita Gilliard


       year, she helped Kita buy bicycles for the children. As a
       result, bicycles were always on the porch. However, after
       the murder, the bicycles were missing.

          Ms. McCoy also told Detective Hagan that she went to

       and 4:30 p.m. When she arrived, she saw [Appellant],
       who was wearing a dark hooded sweatshirt, white tee-
       shirt[,] and dark jeans. After she hugged [Appellant], he
       showed her that he was also wearing a bulletproof vest.
       She asked him why he was wearing it, and he told her that
       he was being careful because he took a chrome gun from

       leaving
       [Appellant] introduced Ms. McCoy to [co-defendant], who

       that she saw co-defendant. It was also the last time that
       she saw [Appellant]. At trial, Ms. McCoy confirmed that

       after the murder. Ms. McCoy further testified that she
       reviewed her four-page statement and signed it. She also
       signed and dated photographs of co-defendant and
       [Appellant], which were attached to her statement.

          On June 10, 2008, Detective Cahill interviewed Fields,
       who had been in a relationship with McCoy for two years.
       Detective Cahill first met Fields at the homicide unit and
       delayed interviewing her because she was crying and
       hysterical. In her statement, Fields described the two men



                                  -6-
J. S45037/14

          Afterward, [Appellant] jumped onto a bicycle and fled
       toward 16th and Smedley Streets. As Fields tried to exit
       the front passenger door, co-
       stuck under the vehicle. Fields made eye contact with co-
       defendant, who then ran in the same direction as
       [Appellant].    When Fields exited the vehicle, she
       approached McCoy and saw him lying on the ground. He
       had a hole in his face and was struggling to breathe.
       Blood was pooled behind his head and was coming from
       his face and hand. Fields called 911 and ran into the bar,


          McCoy was transported to Temple University Hospital,
       where he was pronounced dead at approximately 1:27
       a.m. on June 4, 2008. Dr. Gary Collins, deputy chief
                                                             y.
       While performing his examination, Dr. Collins found that
       McCoy sustained three gunshot wounds. Two gunshot
       wounds were penetrating wounds and one gunshot wound
       was a perforating wound. . . .

          Dr. Collins concluded to a reasonable degree of medical
       certainty that the cause of death was the penetrating
       gunshot wound to the head. . . . Dr. Collins further
       concluded to a reasonable degree of medical certainty that
       the manner of death was homicide. He submitted the two
                                                 o the Firearms
       Identification Unit.

                               *    *    *

          Detective John Cahill was assigned to investigate this
       homicide. At approximately 2:15 a.m., Detective Cahill
       responded to the crime scene with Detective Ted Hagan.
       On June 4, 2008, Detective [James] Dunlap assisted with
       the recovery of surveillance footage from the digital video
       recording player at the bar. He found a total of eight video
       cameras around the interior and exterior of the bar. . . .
       Camera Number 5 was an exterior camera located on the
       front of the property at the southwest corner of 15th and
       Pike Streets, and viewed the 1500 block of Pike Street
       westbound. Camera Number 6 was located outside the
       entrance door at 15th and Pike Streets and viewed the



                                   -3-
J. S45037/14

       southwest corner of 15th and Pike Streets.         Camera
       Number 7 viewed the sidewalk on Pike Street. . . .

          Detective Dunlap checked the operability of the video
       recording player and determined that it was functioning
       properly. When he checked the time, Detective Dunlap
       observed that it was military time and discovered that it
       was nine minutes faster than the actual time determined
       by the U.S. Naval Observatory.          Detective Dunlap
       downloaded all eight camera views, copied them onto a
       digital video disc, and gave it to the assigned detective.
       Detective Dunlap recovered a one-half hour block of video
       running on June 3, 2008 from 23:20 to 23:50 (11:20 p.m.
       to 11:50 p.m.). He also recovered one fifty-minute block
       of video from 22:30 to 23:20 (10:30 p.m. to 11:20 p.m.)
       from Camera Numbers 5 and 6, both exterior cameras.
       Camera Number 5 had the best camera view of the
       incident. Because multiple camera views could not be
       shown at once, Detective Dunlap used software to copy
       and compile camera views into one running video.

          The first video clip was recorded at 23:29:36 from
       Camera Number 5 and displayed a male and female
       entering a white Malibu several feet from the corner. The
       next video clip showed two men riding bicycles on Pike
       Street traveling toward 15th Street. The two men rode
       past the camera and turned southbound onto 15th Street,
       where they were recorded by Camera Number 6. The men

       Street. The subsequent video clip came from Camera
       Number 5 and showed bicycles crossing the street. One
       bicycle rode onto the curb to the driver side of the white
       Malibu and the other bicycle rode to the passenger side.
       Someone was inside the vehicle because the brake lights

       side of the vehicle. A man wearing a striped shirt exited
       the vehicle, but then went back inside the vehicle.

          The video then showed one of the men running away.
       At the scene, the passenger door was open and a person
       and an object were on the ground. At that time, people
       started to exit the bar and gather into a large crowd.
       Police then arrived and secured the scene. In addition to
       compiling these several camera views, Detective Dunlap


                                 -4-
J. S45037/14

       took 130 still photographs from the video. These still
       photographs accurately depicted the views from Camera
       Number 5 and Camera Number 6.

          After reviewing this video, Detective Hagan returned to


       The video displayed Capehart walking westbound on the
       1500 block of Pike Street prior to the murder. During this
       interview, Capehart did not appear to be under the
       influence of drugs or alcohol. After reviewing her five-
       page statement, Capehart signed it.         Capehart was
       interviewed a second time by Detective Cahill on June 6,
       2008. During this interview, Detective Cahill learned that
       [Appellant] was her cousin and that his nickname was
                                  -
       Cahill learned that, on the evening of the murder,
       [Appellant] and co-
       residence, which was approximately one and one-half

       that [Appellant] and co-defendant were in front of her
       house when she left to go to the bar at 8:45 p.m. Co-
       defendant was wearing cargo shorts and a red or burgundy
       shirt. [Appellant] was wearing a white shirt, tan cargo
       pants[,] and a bulletproof vest. Co-defendant had a red
       bicycle and [Appellant] had a blue and pink bicycle. The
       day before giving this statement, Capehart had seen the
       blue and pink bicycle in front of her house, but she had not
       seen the red bicycle since the shooting.

          Capehart left the bar at about 11:30 p.m. When she
                                                          ho
       told her that he heard gunshots. Capehart then went
       upstairs and called a friend who was still at the bar.

       been shot. When Capehart went back downstairs, she
       encountered [Appellant] and Durell at her front door.
       [Appellant] told her that he was leaving because too many
       police were around. Finally, Capehart stated that she had
       not seen [Appellant] or co-defendant since the murder.
       Capehart did not appear to be under the influence of drugs
       or alcohol during this second interview. After reviewing
       her eight and one-half page statement, Capehart signed it.
       She identified co-defendant after being shown a


                                  -5-
J. S45037/14

       photographic array. She also identified [Appellant] after
       being shown a photograph.

          On June 10, 2008, Detective Hagan interviewed Naja
       McCoy and took her statement.      Ms. McCoy informed
       Detective Hagan that McCoy was her blood cousin, but that
       she considered him her brother because they were raised
       in the same household. Ms. McCoy also knew [Appellant]
       because she grew up with him in the neighborhood. She


       residence because she was best friends with Lekita Gilliard


       year, she helped Kita buy bicycles for the children. As a
       result, bicycles were always on the porch. However, after
       the murder, the bicycles were missing.

          Ms. McCoy also told Detective Hagan that she went to

       and 4:30 p.m. When she arrived, she saw [Appellant],
       who was wearing a dark hooded sweatshirt, white tee-
       shirt[,] and dark jeans. After she hugged [Appellant], he
       showed her that he was also wearing a bulletproof vest.
       She asked him why he was wearing it, and he told her that
       he was being careful because he took a chrome gun from

       leaving
       [Appellant] introduced Ms. McCoy to [co-defendant], who

       that she saw co-defendant. It was also the last time that
       she saw [Appellant]. At trial, Ms. McCoy confirmed that

       after the murder. Ms. McCoy further testified that she
       reviewed her four-page statement and signed it. She also
       signed and dated photographs of co-defendant and
       [Appellant], which were attached to her statement.

          On June 10, 2008, Detective Cahill interviewed Fields,
       who had been in a relationship with McCoy for two years.
       Detective Cahill first met Fields at the homicide unit and
       delayed interviewing her because she was crying and
       hysterical. In her statement, Fields described the two men



                                  -6-
J. S45037/14

                                                                   -
           skinned black male in his twenties who was approximately
           six feet and one inch tall. This man was wearing a black
           hoodie and a white tee-shirt, and she saw a tattoo on the

           She described the man on the passenger side of the
           vehicle as being between 18 to 20 years old with light
           brown skin and a scruffy beard. This man was wearing tan
           khaki pants and a gray hoodie. After the interview, she
           reviewed her three-page statement and signed it.

              After being shown a photographic array, Fields
           identified Johnson as the man who stood on the passenger
           side of the vehicle. She next identified [Appellant] as

           vehicle.  These identifications were signed and
           attached to her statement. At trial, Fields stated
           that she was certain of her identifications.

              During this interview, Detective Cahill showed Fields the
           signed statement she provided to Detective Knecht[6] . . .
           at 12:52 a.m. on June 4, 2008.          She reviewed this
           statement and corrected one minor typographical error.
           No other corrections were made. At trial, she stated that

           her ability, but that there were a few inaccurate
           statements in that document. Fields denied stating that

           did not have a gun. During her interview with Detective
           Knecht and at trial, Fields stated that this was incorrect
           because [Appellant] did possess a gun during this incident.

           five-feet seven inches and five-feet nine inches] tall
           because he was the same height as McCoy, who was about

           hearing.    At the preliminary hearing, Fields identified
           Johnson as the man who was at the passenger side of the
           vehicle trying to pick up the red bicycle.




6
    Our review of the record did not reveal t



                                       -7-
J. S45037/14

            On June 10, 2008, Sergeant William Britt assigned
         Detectives Burke and Rocks[7] to search for [Johnson and
         Appellant] as fugitives. On June 13, 2008, based on
         information received, Sergeant Britt and several officers
         went to 3731 North 16th Street, where they found
         Chandler. Chandler was subsequently transported to the
         homicide unit, where he was interviewed.        Detective
         [Joseph] Bamberski testified that two warrants had been
         issued for Chandler to appear as a witness by the time of

         he has not been seen since June 13, 2008, when he
         provided a signed statement.


         members of the U.S. Marshals Fugitive Task Force went to
         the area of 24th and Norris Streets. During their
         surveillance, they observed Johnson riding a bicycle
         northbound on 24th Street toward Diamond Street. They
         pursued him, but then lost him when he fled into a public
         housing authority development.      On June 14, 2008,
         Sergeant Britt and members of the U.S. Marshals Fugitive
         Task Force went to Apartment 905 at 4455 Holden Street
         based on information received. When they arrived, they
         found and arrested co-defendant and [Appellant]. . . .

Trial Ct. Op., 12/17/13, at 2-4, 6-13 (footnotes, citations, and some



      Appellant was convicted following a jury trial and sentenced to life

imprisonment without the possibility of parole for second degree murder and




imprisonment for conspiracy to commit murder and two and one-half to five

years for carrying a firearm on public streets in Philadelphia. Appellant filed

7




                                     -8-
J. S45037/14

a timely post-sentence motion, which was denied, and then the instant

appeal.     Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal8 and the trial court filed a responsive

opinion.

      Appellant claims that the court erred in denying his motion for a new

trial based on the weight of the evidence.9

that Fields gave two different descriptions of the male who came to the

           side of the vehicle with respect to his height and facial hair. Id. at



having been involved in the shooting.        Id.   He contends the verdict was

against the weight of the evidence because it was based solely upon the

inconclusive testimony of the lone eyewitness to the shooting. 10     Id. at 17.

We find no relief is due.


8
  We note that Appellant was ordered to file a Rule 1925(b) statement no
later than twenty-one days from September 3, 2013, which was September
24th. Appellant filed his Rule 1925(b) statement on October 15, 2013. This
Court has stated that where the trial court addresses the issues raised in an
untimely 1925(b) statement, we can address the merits of the appeal
without a remand. Commonwealth v. Fischere, 70 A.3d 1270, 1275 n.2
(Pa. Super. 2013), appeal denied, 83 A.3d 167 (Pa. 2013).
9
  Appellant preserved this issue in his post-sentence motion.          See Post
Sentence Mot., 3/11/13, at 1 (unpaginated).
10
   We note with displeasure that the argument section of
spans three pages, consisting primarily of a recitation of the facts. The sole
legal authority cited is two civil cases, without pinpoint citation, for the
standard of review. We remind counsel:




                                       -9-
J. S45037/14

     Our Supreme Court has held that

        [a] motion for a new trial alleging that the verdict was
        against the weight of the evidence is addressed to the
        discretion of the trial court. An appellate court, therefore,
        reviews the exercise of discretion, not the underlying
        question whether the verdict is against the weight of the
        evidence. The factfinder is free to believe all, part, or
        none of the evidence and to determine the credibility of
        the witnesses. The trial court will award a new trial only


        standard has been met, appellate review is limited to

        and relief will only be granted where the facts and
        inferences of record disclose a palpable abuse of
                                                  a motion for a
        new trial based on a weight of the evidence claim is the
        least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).

     Section 2502(b) of the Crimes Code defines second degree murder:

                                                 arguments that are
        sufficiently developed for our review.       The brief must
        support the claims with pertinent discussion, with
        references to the record and with citations to legal
        authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to
        authorities must articulate the principles for which they are
        cited. Pa.R.A.P. 2119(b).

           This Court will not act as counsel and will not develop
        arguments on behalf of an appellant. Moreover, when
        defects in a brief impede our ability to conduct meaningful
        appellate review, we may dismiss the appeal entirely or
        find certain issues to be waived. Pa.R.A.P. 2101.

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (some
citations omitted).   Because we are able to conduct meaningful appellate
review, we decline to find the issue waived. See id.



                                   - 10 -
