J-S15017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES WILLIAMS                           :
                                               :
                       Appellant               :   No. 1164 WDA 2019

          Appeal from the Judgment of Sentence Entered June 24, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0004919-2016


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 18, 2020

        Appellant, Charles Williams, appeals from the judgment of sentence

entered on June 24, 2019. We affirm.

        The trial court ably summarized the underlying facts of this case:

          Lisa Habedana testified at trial that she watched two black
          men shoot at a car and run away. She called 911 and told
          them a person may have been inside the car. Next, Brian
          Kennelly testified that, while attending a family birthday
          party, he heard a white car running and saw two black men
          walking toward the car. [45] minutes later, he returned to
          the area to retrieve his cell phone and observed that the
          same white car was still there. When he returned once more
          to the area after the birthday party, he saw that white car
          had crashed into a curb, the passenger door was open and
          the body of a deceased man, later identified as Chauncy
          Howard, was leaning backward in the driver's seat.

          Detective Christopher Braden testified that he was
          investigating an unrelated offense when he heard gunshots.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       He was dispatched to the area of the fleeing suspects. He
       passed another officer while looking for suspects.         He
       received a radio call from Officer Matt Smith for backup, with
       the call stating that the suspects were at gunpoint. Officer
       Smith testified that he responded to a shots fired call and
       while en route he received an update that males had fled the
       scene. He stopped and spoke with Jay Ashley who told Officer
       Smith that Ashley had seen two young black males running.
       Officer Smith next observed a red jeep with five black males.
       The jeep took off at a high rate of speed and ran a stop sign.
       Officer Smith engaged his lights and siren and pursued the
       vehicle. During this pursuit, Officer Smith observed the back
       left passenger of the jeep throw a gun out of the window.
       Two blocks later, the jeep made an abrupt stop and a
       passenger exited the vehicle and ran. With the assistance of
       other officers, Officer Smith secured the scene and recovered
       the gun. He also observed a bag in the car which appeared
       to him to contain narcotics.

       Lorelei Como testified that she lived near the shooting and
       saw someone jump over her wall and hide on her porch. She
       called 911 and described the person on her porch as a young
       black male wearing dark pants and a dark hoodie. The police
       arrived shortly thereafter.

       [Lieutenant] Kevin Faulds testified that he responded to the
       man on porch call at Como's residence and discovered
       Appellant hiding behind a bench on the porch. [Lieutenant]
       Faulds said that Appellant yelled, "I don't have a gun."
       [Lieutenant] Faulds observed that Appellant was looking from
       side to side for a possible escape route.         Eventually,
       [Lieutenant] Faulds patted down Appellant and felt what he
       thought was a folding knife. The item was actually a loaded
       .380 caliber magazine. The officer also recovered Appellant's
       cell phone at that time. A canine officer, "Bruno," alerted to
       a nearby window well where the gun matching the magazine
       was recovered.

       In addition, Detective John Godleski testified as to the
       evidence he recovered from the scene as part of his duties
       within the Mobile Crime Unit. [Detective] Godleski collected
       the weapon which had been thrown from the jeep and stated
       that a magazine with six live rounds was found in the gun.
       The gun from under the window well, a .380 Glock, was

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        collected and found to contain a magazine with only two
        rounds. He also recovered .380 and .40 [caliber] shell
        casings near the crashed white Chevy Malibu and a fired
        bullet from the victim's lap, along with heroin, marijuana,
        several phones, and $3253.37 in cash from inside the Malibu.

        Dan Wolfe of the Allegheny County Crime Lab testified as an
        expert witness on gun shot residue. A gunshot residue kit
        was collected from Appellant and sent to the lab for testing.
        In Wolfe's expert opinion, Appellant was exposed to gunshot
        residue, meaning he either fired a gun, was near a gun that
        was fired[,] or came into contact with a surface that had
        residue on it. William Best, an expert on firearms and tool
        markings, testified that the Glock .380 was operable. Sara
        Bitner, an expert in forensic biology, testified that DNA was
        recovered from the Glock and that Appellant could not be
        excluded as a contributor to the DNA recovered. She further
        stated that only 1 in 584,800 African-Americans could not be
        excluded. She stated that she could not conclude a DNA
        match between the Glock and Appellant due to the presence
        of other DNA on the Glock. Dr. Willis Ennis, an expert in
        forensic patholog[y], determined the cause of death to be
        multiple gunshot wounds and the manner of death to be
        homicide.

        Detective Ray Murray of the Computer Crime Unit testified
        that he ran a cell phone dump of the victim's phone which
        generated an 850 page report. Of particular note, the victim
        and Appellant exchanged text messages shortly before the
        victim was killed. The last message, "Come outside," was
        made from Howard's phone at 2:15 p.m.              Appellant
        responded "ait" at 2:22 p.m. The homicide call came in at
        2:35 p.m., [13] minutes later.

        Rachel Harden testified that she and Howard were in a
        romantic relationship and that Howard was the father of her
        child. She testified that Howard was a drug dealer and that
        he used Appellant as one of his runners. She stated that
        Appellant and Howard knew each other well and that the two
        of them appeared in a rap video together. She testified that
        she told a detective on the date of the murder that Appellant
        and Howard had an argument the night before.

Trial Court Opinion, 9/17/19, at 3-5 (footnotes omitted).


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       The jury found Appellant guilty of third-degree murder, carrying a

firearm without a license, possession of a firearm by a minor, and persons not

to possess a firearm.1 On June 24, 2019, the trial court sentenced Appellant

to serve an aggregate term of 260 to 520 months in prison, followed by three

years of probation.

       Appellant filed a timely notice of appeal.        He raises four claims on

appeal:

          1. Whether the evidence was sufficient to sustain the verdict
          when the Commonwealth failed to present any physical
          evidence or any credible evidence tending to establish every
          material element of the crimes alleged?

          2. Whether the circumstantial evidence relied in support of
          the homicide charge was sufficient when the jury was forced
          to rely on mere speculation, conjecture and random choice to
          reach the verdict?

          3. Whether the trial court abused its discretion in allowing the
          case to be decided by the jury when the verdict is contrary
          to the weight of the evidence?

          4. Whether the trial court erred in denying [Appellant’s]
          petition for writ of habeas corpus when the Commonwealth
          failed to present prima facie evidence of the essential
          elements of criminal homicide?

Appellant’s Brief at 4 (headings and some capitalization omitted).2

____________________________________________


1  18 Pa.C.S.A.       §§ 2502(c),      6106(a)(1),   6110.1(a),   and   6105(a)(1),
respectively.

2 The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the order and, within the Rule



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       First, Appellant claims that the evidence was insufficient “to sustain the

verdict when the Commonwealth failed to present any physical evidence or

any credible evidence tending to establish every material element of the

crimes alleged.” Appellant’s Brief at 4. We conclude that Appellant's claim on

appeal is waived, as Appellant's Rule 1925(b) statement does not sufficiently

identify the error or errors that Appellant intended to challenge on appeal.

       As this Court has continuously held:

         If Appellant wants to preserve a claim that the evidence was
         insufficient, then the 1925(b) statement needs to specify the
         element or elements upon which the evidence was
         insufficient. This Court can then analyze the element or
         elements on appeal. [Where a] 1925(b) statement [] does
         not specify the allegedly unproven elements[,] . . . the
         sufficiency issue is waived [on appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(quotations and citations omitted).

       In this case, Appellant's Rule 1925(b) statement vaguely declares that

the evidence was insufficient “to sustain the verdict when the Commonwealth

failed to present any physical evidence or any credible evidence tending to

establish every material element of the crimes alleged.”        Appellant’s Rule

1925(b) Statement, 8/2/19, at 2. This statement fails to “specify the element

or elements upon which the evidence was insufficient” to support Appellant’s



____________________________________________


1925(b) statement, Appellant raised the same claims that are contained in his
brief to this Court. See Appellant’s Rule 1925(b) Statement, 8/2/19, at 1-2.


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four convictions – and we must conclude that Appellant's first sufficiency of

the evidence claim is waived on appeal. Williams, 959 A.2d at 1257.

     Next, Appellant claims that the evidence was insufficient to support his

third-degree murder conviction.    We review Appellant's sufficiency of the

evidence challenge under the following standard:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial
        in the light most favorable to the verdict winner, there is
        sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In applying
        the above test, we may not weigh the evidence and substitute
        our judgment for [that of] the fact-finder. In addition, we
        note that the facts and circumstances established by the
        Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant's guilt may be
        resolved by the fact-finder unless the evidence is so weak
        and inconclusive that as a matter of law no probability of fact
        may be drawn from the combined circumstances. The
        Commonwealth may sustain its burden of proving every
        element of the crime beyond a reasonable doubt by means
        of wholly circumstantial evidence. Moreover, in applying the
        above test, the entire record must be evaluated and all
        evidence actually received must be considered. Finally, the
        trier of fact while passing upon the credibility of witnesses
        and the weight of the evidence produced, is free to believe
        all, part or none of the evidence.

Commonwealth v. Vargas, 108 A.3d 858, 867-868 (Pa. Super. 2014) (en

banc), quoting Commonwealth v. Brown, 23 A.3d 544, 559–560 (Pa.

Super. 2011) (en banc).

     According to Appellant, the evidence is insufficient to support his

third-degree murder conviction because “the jury was forced to rely on mere




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speculation, conjecture and random choice to reach the verdict.” Appellant’s

Brief at 16. This claim fails. As the trial court explained:

        when considered in the light most [] favorable to the
        Commonwealth, as the verdict winner, [the evidence is
        sufficient to support Appellant’s third-degree murder
        conviction]. Cell phone evidence puts Appellant at the crime
        scene. Gunshot residue [was found on Appellant’s person,
        Appellant’s] DNA [was found on the discarded gun, Appellant
        was found in possession of a] .380 [caliber] clip with missing
        cartridges, [a] .380 [caliber firearm was] found discarded in
        the window well near where Appellant was hiding[, and .380
        caliber cartridge casings were found at the murder scene].
        All of this evidence] tend[s] to prove that Appellant
        possessed one of the two weapons involved in the homicide.
        Evidence of Appellant's attempt to flee, hide, and destroy
        evidence further support a finding of guilty. Text messages
        put Appellant in communication with the decedent and show
        that they planned to meet [around the time of the murder]
        and testimony provides a motive. Any challenge to the
        sufficiency [of the evidence] is without merit.

Trial Court Opinion, 9/17/19, at 6-7.

      We agree with the trial court’s succinct analysis and conclude that

Appellant’s sufficiency of the evidence claim thus fails.

      For his third claim on appeal, Appellant contends that the jury’s verdict

was against the weight of the evidence. Appellant's weight of the evidence

claim is waived, as Appellant failed to raise the claim before the trial court.

      As our Supreme Court has explained:

        in a challenge to the weight of the evidence, the function of
        an appellate court on appeal is to review the trial court's
        exercise of discretion based upon a review of the record,
        rather than to consider de novo the underlying question of
        the weight of the evidence. In determining whether this
        standard has been met, appellate review is limited to whether
        the trial judge's discretion was properly exercised, and relief

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        will only be granted where the facts and inferences of record
        disclose a palpable abuse of discretion. It is for this reason
        that 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) (quotations and

citations omitted).

      A weight of the evidence challenge must first be raised with the trial

court either before sentencing or in a post-sentence motion. Pa.R.Crim.P.

607(a). In this case, Appellant did not file a post-sentence motion and, after

a thorough review of the record, we do not see where Appellant properly

raised his weight claim before the trial court. Further, Appellant’s brief does

not specify where he supposedly raised his weight of the evidence claim to the

trial court. See Pa.R.A.P. 2119(c) (declaring that, if reference is made to the

record, “the argument must set forth . . . a reference to the place in the

record where the matter referred to appears”); see also Commonwealth v.

Harris, 979 A.2d 387, 393 (Pa. Super. 2009) (“[w]hen an allegation is

unsupported any citation to the record, such that this Court is prevented from

assessing this issue and determining whether error exists, the allegation is

waived for purposes of appeal”). Thus, the claim is waived.

      Finally, Appellant claims that the trial court erred when it denied his

pretrial petition for writ of habeas corpus, where he contended that the case

against him must be dismissed because the Commonwealth failed to present

a prima facie case. This claim is moot, as the jury found Appellant guilty of

crimes that included third-degree murder and we have concluded that the


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evidence was sufficient to support Appellant’s conviction on that charge. See

Commonwealth v. Lee, 662 A.2d 645 (Pa. 1995) (defendant's adjudication

of guilt rendered moot any allegation that Commonwealth failed to establish

prima     facie   case   of   homicide   at   defendant's   preliminary   hearing);

Commonwealth v. McCullough, 461 A.2d 1229 (Pa. 1983) (that the

Commonwealth did not establish a prima facie case of robbery at the

defendant's preliminary hearing was immaterial where the Commonwealth

met its burden of proving the underlying offense at trial beyond a reasonable

doubt).

        Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2020




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