J-S37029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LARRY CARTER,

                        Appellant                   No. 2588 EDA 2014


           Appeal from the Judgment of Sentence April 25, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CCR-0014438-2011


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 26, 2015

     Appellant, Larry Carter, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on April 25,

2014, following a bench trial. We affirm.

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

           On June 23, 2011, at approximately 11:00 p.m., Albert
     Young-El (“Young-El”) was visiting a family member at 615 Perth
     Place in the City and County of Philadelphia.           Young-El
     disembarked from his bicycle and began to ask people whether
     they knew his cousin “Miz.” It was a pleasant night and many
     people from the neighborhood were outside. Someone in the
     area pointed Young-El towards Appellant, who he knew from the
     neighborhood as “El Train.” Appellant was sitting on a stoop
     with a young woman wearing yellow.           Young-El introduced
     himself, and Appellant told him to “get out of here.”

           Nydira Price (“Price”), who lived at 743 Green Street in the
     Spring Garden Apartments, was at home that night with her
     mother and her eight-year-old daughter. She saw Appellant,
     who she knew from the neighborhood by the nickname “El
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       Train,” speaking with Young-El. Appellant was with several other
       men from the neighborhood. Appellant yelled, “I want my
       fuckin’ money back.” Price had previously seen Appellant selling
       drugs in the neighborhood.

             As Young-El turned around, Appellant went to a small
       depression in a grassy area and removed a blue steel automatic
       gun. He then shot Young-El in the lower left side of his back,
       between his hip bone and his back. Young-El fell off the bike.
       Young-El, laying on the ground, could not see what was
       happening around him but heard many doors closing. Someone
       yelled, “Somebody call the cops, somebody call the cops.” That
       was the last Young-El remembered before losing consciousness.

              Appellant then walked away across the blacktop. Price
       observed the scene and saw that people were going about their
       business as though nothing had happened. Children were still
       playing and neighbors walked over Young-El’s prone body; at
       least two people kicked him. When she realized that no one had
       called the police, Price backed into her doorway and tried to
       think of what to do. Price was terrified that if she called 911, the
       police would come to her home, potentially putting her family in
       danger.     Then, however, she remembered that she had
       previously met Officer Joseph Ferrero[1] and had his cellphone
       number.9
              9
                Price had previously met Officer Ferrerro May 18th,
              2011, when she had gone to the police station to
              make a report. She had identified a number of
              neighbors on a computer screen and Officer Ferrerro
              asked her to call him if she observed any crimes in
              the neighborhood.

             Philadelphia Police Officer John Crichton and his partner
       Officer Lutz, after receiving information of the shooting over the
       radio, responded to the scene at approximately 11:13 p.m. As
       he pulled up to the projects and entered the courtyard, Officer
       Crichton observed a bike lying on the ground with Young-El
       collapsed atop it, shot in the left side . . . . Approximately
____________________________________________


1
  The trial court spelled Officer Ferrero’s surname is a variety of ways. The
correct spelling is Ferrero. N.T., 1/15/14, at 52.



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     fifteen (15) to twenty (20) people were in the courtyard at the
     time. Young-El mumbled that he had been shot. Price remained
     at her door, watching as the police arrived. She heard Young-El
     mumble, “El Train did it; that fuckin El Train did it.” However,
     Officer Lutz also asked Young-El who had shot him and he
     responded, “I don’t know.”

           Officer Crichton decided that it was in Young-El’s best
     interest not to wait for a medic, and so he and his partner
     transported Young-El in the police car to Hahnemann Hospital.
     As they picked up Young-El, other officers began to arrive on the
     scene.

           It was approximately 11:15 p.m. when Price called Officer
     Ferrerro. He was in bed with his girlfriend when the phone rang,
     but he answered anyway.         Price was very excited as she
     informed Officer Ferrerro that she had just seen “El Train,” who
     Ferrerro knew as Larry Carter, shoot someone. She stated that
     the two men were involved in an argument, that Young-El was
     on a bicycle, and that “El Train” had shot him. Officer Ferrerro
     asked her if she had called 911 and informed Price he would
     have to call her back. Officer Ferrerro called Officer David
     Blackburn, who was working that night, and spoke with him
     regarding the information he had received.

            Officer Ferrerro then called Price back and stated that he
     had notified the police officers who were on location, and Price
     responded, “Well, he’s still standing out there.” Officer Ferrerro
     then called Officer Blackburn, but Officer Blackburn did not see
     Appellant. Officer Ferrerro then informed Officer Blackburn that
     Appellant was still in the area. Although Officer Ferrerro called
     Price back and asked her if she would speak with a
     detective, . . . she was reluctant to do so. Price did not have
     further contact with the police that night due to her fear of
     retaliation; cooperating with the police is not safe.10 Following
     his conversation with Officer Blackburn, Officer Ferrerro went
     back to bed.
           10
              At trial, Price testified that she was afraid because
           of an incident where neighborhood girls had called
           the police regarding a drug dealer in the
           neighborhood, and he had shot up their house.
           Officer Ferrerro also discovered that Price had
           witnessed a few neighbors from the Penn Town

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           Homes beat up due to “snitching,” and heard of
           someone’s house being shot up.

            Officer Blackburn responded in plain clothes and an
     unmarked car to the area of the shooting with his partner,
     Officer Butler. Upon arrival they were informed that the victim
     had already been transported, and thus they left the immediate
     area to patrol the neighborhood until receiving flash information.
     They then received information over the radio that “El Train”
     may have been involved in the shooting, as well as the phone
     call from Officer Ferrerro. Officer Blackburn knew “El Train” was
     Appellant’s nickname. Officer Blackburn then searched the area
     for Appellant, and found his car, a 2000 GMC Yukon, black in
     color, parked west of 6th Street on Green Street. The officers
     then parked their car to set up surveillance.

           Appellant then came through a cutout in a fence that lead
     into Marshall Place, stopped and looked around, then walked
     across the street and into the car. Appellant drove eastbound on
     Green Street, made a left hand turn the wrong way up 6 th Street
     to Fairmount, and made several turns until finally stopping at 4 th
     Street and Callowhill Street. The officers followed him, calling to
     marked cars for assistance in making the stop. Upon stopping
     Appellant, they asked for license, registration, and insurance.
     Although Appellant provided the officers with registration and
     insurance, he stated he did not have a license, at which time
     Officer Blackburn initiated a live stop and placed Appellant under
     arrest. Appellant was then taken directly to Central Detective
     Special Investigations Unit (“SIU”).

           Philadelphia Police Detective Edward Keppol was on duty at
     the Central Detectives SIU that evening. He and his partner,
     Detective Polumbo, responded to the crime scene at 615 Perth
     Place. There were no witnesses to be interviewed, however,
     they recovered one nine (9) millimeter Luger fired cartridge
     casing. They then went to Hahnemann Hospital to interview
     Young-El; however, they could not, as Young-El was in
     emergency surgery.       Detectives Keppol and Polumbo then
     returned to Central Detectives to speak with Appellant and
     question him regarding the shooting. Appellant refused to give a
     formal statement and insisted he knew nothing about the
     shooting. Thus, after getting no information from him, Appellant
     was released.


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            After Young-El emerged from his coma at the hospital, he
     could only remember gradually what had happened. At first, he
     insisted he did not want to press charges. However, after
     talking to his young daughter, he decided to speak with the
     police. Detective Keppol interviewed him on July 19, 2011, at
     9:05 a.m. Although paralyzed from the waist down, Young-El
     was coherent enough to review a photo array. Young-El stated
     that “El Train” had shot him, that he had known “El Train” for
     years, and that he was a black male about thirty (30) years old,
     six (6) feet and one (1) inches tall. Young-El identified Appellant
     from a photo array quite quickly. He circled and signed his
     identification.

           On July 21, 2011, Detective Keppol executed a search
     warrant on Appellant’s home at 1508 S. Dorrance Street in the
     City and County of Philadelphia. No weapons were found on the
     property.

           On December 4, 2011, Police Officer Joseph Poretta
     responded to 2648 S. 61st Street after receiving information that
     Appellant’s girlfriend lived there and he might have been staying
     with her. There was a warrant issued for Appellant’s arrest in
     response to the shooting of Young-El. At approximately 1:30
     p.m., Officer Poretta received a call that there was a male with a
     gun at that residence, and so he and his partner, Officer O’Brien,
     responded to the location. Officer Poretta went to the front door
     and Officer O’Brien to the back; they found Appellant standing in
     the living room with his girlfriend. Officer Poretta patted him
     down and asked for his information. Appellant told officers his
     name was John Green. However, having possessed Appellant’s
     description, Officer Poretta attempted to put Appellant in
     handcuffs as he resisted. Officer O’Brien then provided photo ID
     of Appellant and they placed him under arrest.

           Appellant attempted to pull away from them, stiffened up,
     stopped walking to the car. The officers had to push him into
     the back seat. As they struggled with him, Appellant blurted
     out, “It’s okay. I have a lawyer; I will beat this case like I beat
     every other case.”

          At some time in August, 2012, Officer Ferrerro spoke with
     ADA Stacey Hughes regarding Price’s statement. He explained
     to ADA Hughes that it would take much convincing to get Price
     to make a statement because she had begged Officer Ferrerro

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      not to let anyone know that she had spoken up, due to her fear
      something would happen to her family.

             On August 8, 2012, Officer Ferrerro came to Price’s home
      and stated that he was there because he had received a phone
      call, and informed Price she would have to give a statement.
      She then gave a statement about what she had seen and other
      information about Appellant. She had known him since October
      2010 and knew him to drive a purple Cadillac, a gold car, and a
      black SUV, which he was driving the night of June 23, 2011.
      Two or three days after giving the statement, she was relocated
      by the District Attorney’s Office.11 Price’s statement was also
      brought to Detective Keppol’s attention at that time.
            11
               The District Attorney’s Office also provided Price
            with $460 a month for daily necessities, $2,800 for
            rent, and $700 for subsistence.

            Young-El has only “half a spine” and will not be able to
      walk again. He remained in Hahnemann Hospital from June 23,
      2011 until October 25, 2011, and was readmitted twice
      subsequent to his discharge. He underwent a total of seven (7)
      surgeries.12  Following his discharge, Young-El was sent to
      Magee rehab facility; however, he caught pneumonia there.
      From Magee, Young-El was discharged to a nursing home.
            12
               Three of those surgeries were performed during
            his time at Hahnemann.

             Young-El cannot stand by himself. He cannot walk and a
      doctor informed him he would never be able to walk. Young-El’s
      injuries necessitate a full time caretaker, twenty-four (24) hours
      a day, seven (7) days a week. Due to incontinence, he wears
      diapers and has a colostomy bag. Since the shooting, he has
      lost over fifty (50) pounds.

Trial Court Opinion, 10/22/14, at 3–9 (citations to the record omitted).

      Appellant   was   arrested   December   5,   2011,   and   charged   with

attempted murder, aggravated assault, multiple Violations of the Uniform

Firearms Act (“VUFA”), possessing an instrument of crime (“PIC”), simple


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assault, and recklessly endangering another person (“REAP”).        Appellant

waived a jury trial, and the court nol prossed the charges of simple assault

and REAP.    Appellant proceeded to a bench trial on November 26, 2013.

The trial was bifurcated and concluded on January 30, 2014, whereupon the

trial court found Appellant guilty on all remaining counts.

      On April 25, 2014, the trial court sentenced Appellant to an aggregate

term of thirty and one-half to sixty-one years of imprisonment. On April 29,

2014, Appellant filed a counseled Post-Trial Motion for Reconsideration of

Sentence and/or for New Trial and/or In Arrest of Judgment. On August 28,

2014, Appellant’s motion was denied by operation of law. Appellant filed a

timely notice of appeal to this Court on September 4, 2014. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

         1. Whether Appellant’s convictions for attempted murder,
            aggravated assault, possessing an instrument of crime,
            possession of a firearm by a prohibited person, carrying
            firearms on public street or public property in Philadelphia
            and carrying a firearm without a license were supported by
            sufficient evidence to establish all of the elements of each
            offense beyond a reasonable doubt where the testimony of
            the Complainant and the witness, Nydira Price, was so
            contradictory and so impeached upon cross-examination to
            the point where it was not worthy of belief and no
            reasonable inferences of guilt beyond a reasonable doubt
            could be drawn?

         2. Whether the verdict was against the greater weight of the
            evidence, so as to shock one’s sense of justice, where the
            testimony of the Complainant and the witness, Nydira
            Price, was so contradictory and so impeached upon cross-
            examination to the point where it was not worthy of belief

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              and no reasonable inferences could establish that
              Appellant committed the crimes of attempted murder,
              aggravated assault, possessing an instrument of crime,
              possession of a firearm by a prohibited person, carrying
              firearms on public street or public property in Philadelphia
              and carrying a firearm without a license?

          3. Whether it was error for the trial court to admit testimony
             of witness Nydira Price’s fear of retaliation where no
             evidence of any actual threats of retaliation and/or
             intimidation was offered by the Commonwealth?

          4. Did the court abuse its discretion in sentencing Appellant
             to an excessive sentence?

          5. Did the sentencing court err in denying Appellant’s timely
             filed post-Trial Motion to reconsider?

Appellant’s Brief at 5–6.2

       Appellant’s first issue relates to the sufficiency of the evidence.   In

reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). It is within

the province of the fact-finder to determine the weight to be accorded to

each witness’s testimony and to believe all, part, or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015).

The Commonwealth may sustain its burden of proving every element of the
____________________________________________


2
   We have presented the issues in a different order than set forth in
Appellant’s brief.



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crime by means of wholly circumstantial evidence.             Commonwealth v.

Vogelsong, 90 A.3d 717 (Pa. Super. 2014), appeal denied, 102 A.3d 985

(Pa. 2014).    Moreover, as an appellate court, we may not re-weigh the

evidence     and   substitute   our   judgment   for   that   of   the   fact-finder.

Commonwealth v. Rogal, ___ A.3d ___, 2015 PA Super 148 (filed July 7,

2015).

      Appellant first argues that the Commonwealth did not establish beyond

a reasonable doubt that Appellant shot the victim or that he did so with the

specific intent to kill him.    Appellant acknowledges the victim’s testimony

that the victim was shot in the back after observing Appellant run into a

grassy area and pull out a gun. Appellant’s Brief at 22; N.T., 11/26/13, at

12–13. He contends however, that the victim did not actually state that he

saw Appellant shoot him.        Appellant’s Brief at 22.   Additionally, Appellant

maintains that the victim told police he saw Appellant with two boys as the

victim approached Appellant on the victim’s bicycle, but in court, the victim

stated that Appellant was sitting on the steps to a home with a girl dressed

in yellow.     Id. at 22–23.      Appellant further alleges that the victim’s

testimony contradicted the testimony of witness Nydira Price (“Price”), who

allegedly stated that she heard Appellant, while standing in a group of three

men, say, “I want my fuckin’ money.”         Id. at 23.    Regarding the victim’s

injury, Appellant suggests that because the wound was to the lower back

and not “the head, chest, or stomach,” the shooting was not “done to bring


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about a killing.” Id. at 25. He posits that the “intended target area of the

body could have been the legs or lower part of the body but because of the

[victim’s] movement and body position on the ground he was struck in the

back near his spine.”    Id.   For these reasons, Appellant maintains the

evidence was insufficient to support the conviction for attempted murder.

     Appellant’s suggestion that the shooting in the lower back could not

support the conviction for attempted murder, where the victim is paralyzed

and now lacks “one-half” of his spine, is specious. Appellant cites no case

law to support the premise that a shooting must be to the head, chest, or

stomach only in order to prove attempted murder. Appellant was admitted

to Hahnemann Hospital on June 23, 2011, underwent three operations in the

ensuing months, and was discharged on October 25, 2011. N.T., 11/26/13,

at 55. Defense counsel stipulated “to [the] entire stack of medical records.”

Id. at 54. That the bullet may have entered the victim’s body through the

back or side, and whether that was the “target area,” is irrelevant.        The

firing of a bullet in the general area in which vital organs are located is

sufficient to prove specific intent to kill beyond a reasonable doubt.

Commonwealth v. Manley, 985 A.2d 256, 272 (Pa. Super. 2009) (citing

Commonwealth v. Padgett, 348 A.2d 87, 88 (Pa. 1975)).                Indeed,

although the fatal slug “entered the victim through the buttock, the jury

could properly infer the specific intent to kill from these circumstances.”

Commonwealth v. Wyche, 467 A.2d 636, 637 (Pa. Super. 1983).


                                   - 10 -
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      The evidence established that Appellant shot the victim in the back

near his spine. N.T., 11/26/13, at 15, 27. As a result of his injuries, the

victim was in the hospital for four months, was readmitted on several

occasions thereafter, and ultimately was transferred to a rehabilitation

facility and nursing home.     Id. at 22.     He underwent seven surgeries,

including the partial removal of his spine and will never walk again. Id. at

15.

      The trial court stated as follows:

            Appellant first argues that the evidence was insufficient to
      sustain his conviction for attempted murder. Attempt is defined
      by statute as follows: “a person commits an attempt when with
      the intent to commit a specific crime, he does any act which
      constitutes a substantial step towards the commission of the
      crime.” 18 Pa.C.S. § 901(a). A person may be convicted of
      attempted murder “if he takes a substantial step toward the
      commission of a killing, with the specific intent in mind to
      commit such an act.” Commonwealth v. Dale, 2003 PA Super
      413, 836 A.2d 150, 152-53 (Pa. Super. Ct. 2003). The intent
      prerequisite to a finding of murder is malice, which is “a
      wickedness of disposition, hardness of heart, cruelty,
      recklessness of consequences, and a mind regardless of social
      duty, indicating unjustified disregard for the probability of death
      or great bodily harm.” Id. A factfinder may properly infer
      malice from the use of a deadly weapon on a vital part of the
      victim’s body. Commonwealth v. Seibert, 424 Pa. Super. 242,
      622 A.2d 361, 364 (1993) (citation omitted).

           The torso may be considered a vital part of the body.
      Commonwealth v. Drumheller, 570 Pa. 117, 142, 808 A.2d 893,
      908 (2002).

             Here, the testimony introduced at trial established that
      Appellant fired a gun at Young-El’s back, specifically in his torso
      near his spine, leaving him paralyzed from the waist down. N. T.
      11/26/13 at 12-15; N. T. 1/15/14 at 11. Thus, the evidence was
      sufficient to show that Appellant used a deadly weapon on a vital

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      part of the victim’s body, and Appellant is not entitled to relief
      upon this claim.

Trial Court Opinion, 10/22/14, at 10–11.

      Price identified Appellant as “El Train” and as the shooter immediately

after the shooting and at trial. N.T., 1/15/14, at 16, 73–74. Price testified

that she watched Appellant shoot the victim from behind. Id. at 10. The

victim identified Appellant as “El Train” and as the shooter, as well. Id. at

71; N.T., 11/26/13, at 25. The victim testified that as he walked away from

Appellant, the victim continued to look at Appellant over his shoulder “the

whole time.” N.T., 11/26/13, at 29. In his statement to police one month

after the shooting, the victim told police that El Train shot him.         N.T.,

1/15/14, at 39–41, 115.       He identified Appellant from a photo array and

accurately described Appellant’s height, weight, and clothing he wore on the

night of the shooting. Id. at 48–49; N.T. 1/15/14, at 82, 113–115. There

was ample evidence in the record that Appellant was the shooter and that he

had the specific intent to kill.

      Appellant’s sufficiency argument regarding his aggravated assault

conviction is based on his contention that the evidence was insufficient to

establish that Appellant 1) fired a gun at the victim’s back and 2) caused or

attempted to cause serious bodily injury. Appellant’s Brief at 26. “A person

is guilty of aggravated assault if he: (1) attempts to cause serious bodily

injury to another, or causes such injury intentionally, knowingly or recklessly

under circumstances manifesting extreme indifference to the value of human

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life[.]” 18 Pa.C.S. § 2702(a)(1). “Bodily injury” is defined as “impairment

of physical condition or substantial pain,” while the Crimes Code defines

“serious bodily injury” as “[b]odily injury which creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” 18 Pa.C.S. §

2301.

        Both the victim and Price testified that Appellant shot the victim in the

back.    N.T., 11/26/13, at 15, 27; N.T., 1/15/14, at 10, 16, 73–74.             As a

result of his injuries, the victim was in the hospital for four months, was

readmitted on several occasions thereafter, underwent seven surgeries,

including the partial removal of his spine, and will never walk again. N.T.,

11/26/13 at 15, 22. Based on the foregoing, we conclude that the evidence

admitted at trial and all reasonable inferences drawn therefrom, viewed in

the light most favorable to the Commonwealth as verdict winner, were

sufficient to prove every element of aggravated assault beyond a reasonable

doubt. Diamond, 83 A.3d 119.

        Appellant’s issue concerning his VUFA convictions is waived for failure

to assert any particularized argument.            See Appellant’s Brief at 28.

Appellant    reproduces     the   VUFA     statutes     and   concludes   that   “the

Commonwealth was unable to prove . . . the necessary elements.” Id. As

the     requisite   specificity   is   lacking,   the    claim   is   unreviewable.

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (“In


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J-S37029-15


order to develop a claim challenging the sufficiency of the evidence properly,

an appellant must specifically discuss the elements of the crime and identify

those which he alleges the Commonwealth failed to prove.”) (emphasis

added). Moreover, Appellant’s argument pertaining to this issue contains no

citation to relevant legal authority beyond reference to our standard of

review.    Because Appellant’s argument lacks analysis of relevant law and

fails to apply law to the facts of the case, it is not properly developed. This

failure to develop a legal argument precludes appellate review, and we

conclude that this issue is waived. Samuel, 102 A.3d 1001.

      Appellant next challenges the weight of the evidence supporting the

verdict and contends that the verdict shocks the conscience because

“Appellant’s involvement . . . is based on mere conjecture.” Appellant’s Brief

at 32. The trial court will award a new trial only when the jury’s verdict is so

contrary    to   the   evidence   as    to      shock   one’s   sense   of   justice.

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015). “In

determining whether this standard has been met, appellate review is limited

to whether the trial judge’s discretion was properly exercised, and relief will

be granted only where the facts and inferences of record disclose a palpable

abuse of discretion.”   Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa.

2008). Thus, “the trial court’s denial of a motion for a new trial based on a

weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).


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      Here, Appellant fails to cite to the record in support of his broad

allegations and fails to cite any case law beyond the standard of review of

such a claim.   He suggests “it may be that [Price] thought that Appellant

shot the victim simply because she saw him talking to the victim while

standing in a group with two other males on the night of the shooting.”

Appellant’s Brief at 32.    To the contrary, Price was unwavering in her

testimony that she watched as Appellant yelled, “I want my fuckin’ money,”

raised his hand, fired one shot, and the victim fell. N.T., 1/15/14, at 10.

      Appellant further contends that the victim’s testimony that he knew of

no reason why Appellant would “want to shoot him” suggests the verdict was

against the weight of the evidence.     That the victim could not identify a

motive does not undermine the victim’s testimony that Appellant shot him.

Moreover, Appellant asserts that neither the victim nor Price saw a gun in

the hands of Appellant. He fails to cite to the record in support of such a

claim. The Rules of Appellate Procedure require that appellants adequately

develop each issue raised with discussion of pertinent facts and pertinent

authority. See Pa.R.A.P. 2119. “It is not this Court’s responsibility to comb

through the record seeking the factual underpinnings of an appellant’s

claim.” Samuel, 102 A.3d at 1005 (citing Commonwealth v. Mulholland,

702 A.2d 1027, 1034 n.5 (Pa. 1997)).

      In denying the weight-of-the-evidence claim, the trial court stated as

follows:


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      [T]his [c]ourt simply does not agree with the assessment of [the
      victim’s] and Price’s testimony as “contradictory” and impeached
      by cross-examination. After having the opportunity to listen to
      the testimony of each witness and observe their demeanors in
      court, the testimony of police officers, and all other relevant
      evidence, this [c]ourt found the testimony of [the victim] and
      Price credible, believable, and compelling.

Trial Court Opinion, 10/22/14, at 14.          The trial court did not abuse its

discretion in denying this weight-of-the-evidence claim.

      Appellant next argues that it was error for the trial court to admit

Price’s admission of fear and retaliation “where no evidence of any actual

threats” were offered by the Commonwealth.           Appellant’s Brief at 15, 28.

While so labeling his argument, Appellant then asserts in his brief that the

testimony “falls within the ambit of hearsay.” Id. at 29.

      The trial court held that this issue was waived.          Trial Court Opinion,

10/22/14, at 14 (“Appellant now argues there was no evidence to support

these statements [of fear], however, at trial his objections to Price’s

testimony were related to hearsay”).         While acknowledging the finding of

waiver, Appellant wholly fails to respond or assert the claim’s preservation.

In arguing its merits, Appellant mixes suggestions of hearsay evidence with

allegations   that   Price’s   expressions   of   fear   were   mere    speculation.

Appellant’s Brief at 29–30.

      As pointed out by the Commonwealth, Appellant fails to identify the

particular testimony he asserts is prejudicial and where it can be found in

the record.     Further, while Appellant contends Price’s testimony was


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“irrelevant” and “overly prejudicial,” he made no such objection at trial.

Commonwealth Brief at 19. Instead, he objected based on hearsay. N.T.,

1/15/15, at 19. This constitutes waiver. See Commonwealth v. Cousar,

928 A.2d 1025 (Pa. 2007) (holding that the appellant failed to preserve

issue for appeal because objection he lodged in the trial court differed from

basis raised on appeal). “The rule is well settled that a party complaining,

on appeal, of the admission of evidence in the [c]ourt below will be confined

to the specific objection there made.” Id. at 1041.

      Even if not waived, the issue lacks merit.      Price testified that she

telephoned Police Officer Ferrero, whose telephone number she had from an

unrelated encounter, rather than call 911 “[b]ecause I was scared that the

people from the neighborhood were going to come to my house.”             N.T.

1/15/14, at 15.    This testimony was not hearsay nor was it specifically

directed at Appellant. It was a mere explanation for “why [Price] had acted

[in] a certain way.”   Trial Court Opinion, 10/22/14, at 15.    “Admission of

evidence is within the sound discretion of the trial court and will be reversed

only upon a showing that the trial court clearly abused its discretion.”

Commonwealth v. Tyson, 2015 PA Super 138, *2, ___ A.3d ___, ___ (Pa.

Super. 2015) (filed June 10, 2015). “An abuse of discretion is not merely an

error of judgment, but is rather the overriding or misapplication of the law,

or the exercise of judgment that is manifestly unreasonable, or the result of




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bias, prejudice, ill-will or partiality, as shown by the evidence of record.” Id.

We would find no abuse of discretion by the trial court.

      Appellant’s final two issues relate to the discretionary aspects of his

sentence. Appellant claims the sentence imposed was excessive, the court

failed to consider his background and character, and the motion to

reconsider his sentence was improperly denied. Appellant’s Brief at 18. It is

well settled that there is no absolute right to appeal the discretionary

aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa.

Super. 2006). Rather, an appellant’s appeal should be considered to be a

petition for allowance of appeal.     Commonwealth v. W.H.M., 932 A.2d

155, 162 (Pa. Super. 2007).

      As we observed in Commonwealth v. Corley, 31 A.3d 293 (Pa.

Super. 2011):

      We held in Commonwealth v. Malovich, 903 A.2d 1247, 1250
      (Pa. Super. 2006), that before we reach the merits of such a
      claim,

            we must engage in a four part analysis to determine:
            (1) whether the appeal is timely; (2) whether
            Appellant preserved his issues; (3) whether
            Appellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a
            substantial    question    that   the    sentence   is
            inappropriate     under     the    sentencing    code.
            Commonwealth v. Hyland, 875 A.2d 1175, 1183
            (Pa. Super. 2005). The third and fourth of these
            requirements arise because Appellant’s attack on his
            sentence is not an appeal as of right. Id. Rather,
            he must petition this Court, in his concise statement

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              of reasons, to grant consideration of his appeal on
              the grounds that there is a substantial question. Id.
              Finally, if the appeal satisfies each of these four
              requirements, we will then proceed to decide the
              substantive merits of the case. Id.

Id. at 295–296.

     The first requirement of the four-part test is met in that Appellant filed

a timely appeal following the imposition of sentence. However, the record

reflects that Appellant did not meet the second requirement because he

failed to raise his current challenge in a post-sentence motion or at

sentencing.      While Appellant filed a counseled Post-Trial Motion for

Reconsideration of Sentence and/or for New Trial and/or In Arrest of

Judgment on April 29, 2014, his reference to his sentence averred only, “The

defendant respectfully prays that the [c]ourt will reconsider his sentence.”

Id. at unnumbered 2. There is no other particularized argument. Such a

bald, conclusory claim is insufficient to preserve his sentencing issue. The

fact that an issue is included in a Rule 1925(b) statement does not preclude

its waiver under Pa.R.A.P. 302(a).      See Commonwealth v. Melendez-

Rodriguez, 856 A.2d 1278, 1288–1289 (Pa. Super. 2004) (en banc).

Therefore, the issue has been waived, and we need not consider it on its

merits.

     Even if not waived, the issue lacks merit.      Appellant included in his

appellate brief the necessary separate concise statement of the reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Thus, we


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would look to the statement to determine whether Appellant raised a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.             A determination as to whether a

substantial   question    exists   is     made      on   a   case-by-case   basis.

Commonwealth v. Griffin, 65 A.3d 932, 935 appeal denied, 76 A.3d 538

(Pa. 2013).    This Court will grant the appeal “only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa. Super.

2000).

      Appellant avers in his Pa.R.A.P. 2119(f) statement that the trial court

abused its discretion by imposing an excessive sentence and failed to

consider the background and character of Appellant. Appellant’s Brief at 18.

This Court has also held that “an excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.”   Commonwealth v. Caldwell, 2015 PA Super 128,

*4, ___ A.3d ___, ___, (Pa. Super. 2015) (filed May 29, 2015). Therefore,

if the issue had not been waived, we would have found that Appellant

asserted a substantial question in his brief.




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     The substance of the issue, however, lacks merit, and we would have

affirmed the merits based upon the following statements by the trial court at

sentencing:

           My sentence is based on numerous considerations. I had
     considered the presentence investigation report, the prior record
     score report.    I’ve considered the appropriate portions of
     Commonwealth’s memorandum for sentencing. I’ve considered
     the arguments of defense counsel, the arguments and witness of
     the Commonwealth. And also the victim impact statement that’s
     been provided to the Court.

            There are three considerations in general in addition to
     other things that go into the sentencing at this point. First of all,
     it is the need to protect the community. And I think there is a
     substantial need in this case to protect the community, the
     gravity of the offense and the defendant’s rehabilitative needs.

            In this case in considering the portions of the presentence
     investigation report there were mitigating factors there. Let me
     start with that. You did have a very sad upbringing; your lawyer
     is right. There was [sic] some tragic things in there, very sad
     existence that you had as a child. It’s unfortunate. I suppose
     the trajectory of your life was set very early on. And it was
     difficult for you to get off of that track.

            It does look like maybe there were one or two times when
     you did try at least in some regard to get off track. But then you
     seemed to be right back on the path you had been on. Doesn’t
     look like you had a whole lot of support, at least positive
     support. And I really couldn’t discern any positive role models or
     people in your life that may have pointed you in the right
     direction. All of that is very sad. And I did think about that as I
     was reading through all that paperwork and thinking about your
     case. It’s just too bad, it really is, for you to end up a statistic
     like this. That’s really what you resorted to, that’s what your life
     has led to, just being a statistic.

           We all get one chance at life and one would hope that
     you’d be able to have a meaningful impactful presence. Most of
     your life, at least to this point, you’ve chosen not to have a
     meaningful impactful presence, at least not in a positive way.

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            So in terms of needs to protect the community, that’s one
      of my considerations. When you are in the community, you
      don’t seem to make very good choices, decisions, productive
      decisions. Decisions you tend to make are destructive or a
      destructive path and counter-productive.        So that’s a
      consideration.

            So in addition to that, when I think about the rehabilitative
      needs that you might have, you’ve been arrested so many times.
      It’s shocking how many times you’ve been arrested. I don’t
      know—I think I saw 17 times, I think, on the report. You’ve
      been arrested a lot of times.

            Then in addition to that you’ve been incarcerated a
      number of times. You’ve been put on probation a number of
      times and violated a number of times. So that doesn’t seem to
      work. You’ve been in for short stints and you get out and you do
      the same thing so that’s not working.

            So your rehabilitative needs are of a concern to the
      [c]ourt. Can’t just do the same thing that’s been happening
      because it’s not doing anything, it’s not changing your behavior.
      I’m explaining this because I want you to understand as best
      you can.

N.T. (Sentencing), 4/25/14, at 32–36.

      In addition, we would rely on the statements the court made in its

Pa.R.A.P. 1925 (a) opinion, as follows:

             At sentencing, Appellant presented testimony of his
      difficult childhood, including the fact that his mother gave up her
      parental rights when Appellant was nine, as well as testimony
      that Appellant was a good husband and father.

            The Commonwealth presented evidence that he had been
      arrested at least eighteen (18) times, including nine (9) arrests
      in the district in which the instant shooting occurred, despite the
      fact that he does not live in that area. Additionally, Officer
      Blackburn testified to Appellant’s reputation in the community as
      “someone you don’t mess with.” At the time of the shooting,
      Appellant was thirty-one (31) years of age.

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            [The victim] submitted a victim impact statement by letter,
      stating that the shooting took a great toll on his life. He was in a
      coma for six (6) months and developed bed sores as a result,
      one of which is still open. He cannot bathe and will never be
      able to sit up in a chair again. He has half a spine, is paralyzed
      from the waist down, and is 85% bed bound. He is in constant,
      uncontrollable pain. He is incontinent and requires use of a
      colostomy bag. He cannot be there for his seven year old
      daughter. He is a burden on his thirty-six year old daughter who
      takes [care] of him. He is constantly depressed and suffers from
      suicidal thoughts.

            His testimony directly contradicted his statement at trial,
      that he does “not really mind” his injuries; this suggests that he
      was intimidated or afraid to testify regarding his true feelings in
      open court, facing Appellant.

            This Court had the benefit of the presentence report, the
      prior record score report, the appropriate portions of the
      Commonwealth’s sentencing memorandum, the arguments of
      defense counsel (including that regarding Appellant’s difficult
      childhood), the arguments and witness of the Commonwealth, as
      well as the victim impact statement. This Court weighed three
      considerations in addition to that information: the need to
      protect the community, the gravity of the offense, and
      Appellant’s rehabilitative needs.       Although taking into
      consideration Appellant’s tragic childhood, this Court also
      balanced that against the severity of Appellant’s crimes and his
      lengthy criminal history, showing an indication that Appellant
      may not be amenable to rehabilitation.

Trial Court Opinion, 10/22/14, at 16–17 (internal citations to the record

omitted).     Therefore, even if Appellant had properly preserved his

sentencing claim, we would reject it as meritless.

      Furthermore, because the trial court did not err in sentencing

Appellant, his additional issue on appeal that the trial court abused its

discretion in denying his post-sentence motion entitles him to no relief.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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