J-S59034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

ANDRE EDWARD

                            Appellant                  No. 1326 EDA 2016


              Appeal from the Judgment of Sentence April 6, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008857-2014,
                           CP-51-CR-0008859-2014

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 18, 2017

        Appellant, Andre Edward, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions of attempted murder,1 aggravated assault,2 firearms

not to be carried without a license,3 carrying firearms in public in

Philadelphia,4    recklessly   endangering   another   person,5   and   criminal


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. §§ 901, 2502.

2   18 Pa.C.S. § 2702(a).

3   18 Pa.C.S. § 6106.

4   18 Pa.C.S. § 6108.

5   18 Pa.C.S. § 2705.
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mischief.6 Appellant challenges the sufficiency of the evidence. We affirm

Appellant’s conviction, but vacate and remand his judgment of sentence.

        In its opinion, the trial court summarized the relevant facts as follows:

               On May 4, 2014, Mr. Byram Rogers went to the Gulf
           Gas Station to get food before work when he encountered
           Appellant. At that time, Appellant was dating Mr. Rogers’
           daughter. Mr. Rogers never had any issue in the past with
           Appellant except on one particular occasion where Mr.
           Rogers and his wife were scolding their daughter.
           Appellant then intervened in their attempt to discipline
           their daughter and was very disrespectful toward Mr.
           Rogers. As Mr. Rogers was walking into the gas station,
           he noticed Appellant talking to a guy in a Chevrolet
           Suburban. Appellant then said to Mr. Rogers, “[d]idn’t I
           tell you I didn’t want to see you around here no more.”
           Appellant immediately came toward Mr. Rogers so he
           pushed Appellant back and they got into a slight physical
           altercation. Appellant then said, “I am going to get my
           gun, going to my trunk . . . .” Appellant opened his trunk,
           closed it, hopped into his car and pulled away. Mr. Rogers
           then got into his car and began to drive home.

               On the drive home, Mr. Rogers noticed the same
           Suburban from the gas station following his vehicle. Mr.
           Rogers got out of his car and asked the man in the
           Suburban why he was following his vehicle. As Mr. Rogers
           approached the Suburban, the man in the Suburban drove
           off. Mr. Rogers got back into his car and backed up in the
           direction where the Suburban drove off. The Suburban
           began to drive very fast so Mr. Rogers turned off, drove up
           Lowber Street, and parked in the back of his house on the
           1700 block of Mohican Street. As Mr. Rogers tried to get
           into his back door he heard an engine revving and saw
           Appellant hanging out of the car window and “just letting
           loose. Pow. Pow. Pow. Pow.” Mr. Rogers then ran off to
           his neighbor’s house. He ran behind and then under his
           neighbor’s deck. He continued running down the driveway


6   18 Pa.C.S. § 3304(a)(2).



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         and saw glass bust out in the car in front of him. When
         Mr. Rogers got to the end of the driveway, he saw the car
         in reverse coming back down the driveway. Mr. Rogers
         dropped his hoagie and ran all the way around to the front
         of his house. He then saw Appellant cutting the corner
         shooting again. Mr. Rogers then dove between a van and
         a car and saw Appellant shoot through the van. Appellant
         then said “[y]ou bitch ass old head,” he jumped in the car
         and spun off down the block.

            During the shooting, Mr. Albert Rutty’s car was struck
         by a few bullets. The bullets struck and shattered Mr.
         Rutty’s back windshield and back door windows as he sat
         in the driver’s seat.   Fortunately, Mr. Rutty was not
         injured. After the incident, 14 [fired cartridge casings
         (FCCs)] were recovered from different locations on
         Mohican and the adjacent streets. Ballistics concluded that
         all 14 FCCs were fired from the same weapon.           The
         Commonwealth provided a certificate of non-licensure
         corresponding to Appellant carrying a firearm on May 4,
         2014.

Trial Ct. Op., 1/11/17, at 2-3 (record citations omitted).

      Following a bench trial, Appellant was convicted on September 10,

2015, of the above-mentioned offenses. Thereafter, on April 6, 2016, the

court sentenced Appellant to an aggregate sentence of eight to nineteen

years’ imprisonment and five years’ probation.7       Appellant timely filed a

notice of appeal on April 26, 2016.     The court ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

Appellant complied.


7 Although the parties and the trial court state Appellant was sentenced to a
consecutive five years’ probation, a review of the written sentencing order
indicates Appellant’s probation was ordered to run concurrent to his
confinement. See Sentencing Order, 4/6/16, at 1-2.



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      Appellant raises the          following issue    for   our review: “Evidence

presented at trial was insufficient as a matter of law to find [Appellant] guilty

beyond a reasonable doubt.” Appellant’s Brief at 7.

      Appellant argues there was insufficient evidence to convict him of all

the aforementioned offenses because there was no physical evidence

connecting him to the alleged shooting. Appellant specifically contends no

firearm was recovered in his home or vehicle that matched the shell casings

or bullet fragments found at the scene, the shooting was not captured on

video, and 911 calls were inconsistent regarding the description of the

vehicle Appellant was allegedly driving and his physical appearance.

Appellant   alleges   the    only    identification   evidence   presented   by   the

Commonwealth was the victim’s testimony, which Appellant claims was not

credible based on the victim’s multiple crimen falsi convictions and the fact

that he waited eleven hours to report the shooting because he was afraid it

was a potential violation of his probation.

      Additionally, Appellant argues the Commonwealth failed to prove

beyond a reasonable doubt that he had a specific intent to kill or cause

serious bodily injury for the offenses of attempted murder and aggravated

assault, respectively.      Appellant maintains that the evidence indicated the

shooter was merely attempting to scare the victim and not kill him, as

shown from the fact that none of the shots were fired at close range and




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some were fired through a vehicle window. Appellant concludes this Court

should reverse his judgment of sentence. We disagree.

      Preliminarily, we note that Appellant’s Rule 1925(b) statement alleges

that the “[e]vidence presented at trial was insufficient as a matter of law to

find [Appellant] guilty beyond a reasonable doubt.”     Appellant’s Pa.R.A.P.

1925(b) Statement, 12/6/16, at 1.        Such a general sufficiency of the

evidence challenge to all of his convictions may constitute waiver.

            [W]hen challenging the sufficiency of the evidence
            on appeal, the [a]ppellant’s 1925 statement must
            specify the element or elements upon which the
            evidence was insufficient in order to preserve the
            issue for appeal. Such specificity is of particular
            importance in cases where, as here, the [a]ppellant
            was convicted of multiple crimes each of which
            contains numerous elements that the Commonwealth
            must prove beyond a reasonable doubt.

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations

omitted); see also Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.

Super. 2001) (“When a court has to guess what issues an appellant is

appealing, that is not enough for meaningful review.” (citation and quotation

marks omitted)).

      Instantly, Appellant’s Rule 1925(b) statement does not fairly suggest

his challenge to the evidence identifying him as the shooter and fails to

identify any elements for any of the offenses of which he was convicted.8


8 Although the trial court authored a responsive opinion, it did not expressly
discuss Appellant’s present contention that the identification evidence was



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Therefore, Appellant’s sufficiency claim for all convicted offenses is waived.

See Pa.R.A.P. 1925(b)(4)(vii); Garang, 9 A.3d at 244.

      In any event, even if properly preserved, Appellant’s claim that he was

not the perpetrator would merit no relief, as the victim’s eyewitness

testimony    is   sufficient   to   support   Appellant’s   convictions.    See

Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (en banc)

(“it is settled that a positive identification by one witness is sufficient for

conviction”). Moreover, to the extent the trial court addresses and disposes

of the merits of Appellant’s sufficiency claim, including his arguments that

there was insufficient evidence of a specific intent to kill or cause serious

bodily injury, we affirm Appellant’s conviction on the basis of the trial court’s

opinion. See Trial Ct. Op. at 4-12.

      Nevertheless, we must address a discrepancy in Appellant’s sentence.

See supra note 7; see also In re M.W., 725 A.2d 729, 731 (Pa. 1999)

(holding a challenge to the court’s statutory authority to impose a sentence

implicates the legality of the sentence). While the parties and the trial court

state Appellant was sentenced to a consecutive five years’ probation, the



insufficient. Moreover, we note that an appellate brief must provide a
substantive argument and citation to relevant authority in support of a
sufficiency claim. See Pa.R.A.P. 2119(b), (c); Commonwealth v. Janda,
14 A.3d 147, 164 (Pa. Super. 2011) (stating a failure to cite law or evidence
in support of an argument in a brief constitutes waiver). Here, Appellant’s
brief fails to provide any relevant statutes and authority to support his
sufficiency claim for the various convictions.




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written sentencing order states Appellant was sentenced to a concurrent

five years’ probation.    See Sentencing Order at 1-2.        However, this Court

has held that there is “no support in the Pennsylvania statutes that the

General Assembly intended to permit defendants to serve a term of

probation and a term of state incarceration simultaneously.              To do [so]

would    run   contrary   to   the   various   policy   considerations   underlying

sentencing.”    Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super.

2011) (footnotes omitted). Although we have attempted to obtain a copy of

the sentencing transcript to resolve this discrepancy, we have been unable

to do so.      Therefore, we vacate Appellant’s judgment of sentence and

remand for clarification and/or correction of his probationary sentence. See

Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) (holding courts may

vacate sentencing orders that “involve clear errors in the imposition of

sentences that were incompatible with the record . . . or black latter law”).

        Conviction affirmed. Judgment of sentence vacated and remanded for

clarification. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




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