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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                   v.


     CURTIS WILLIAMS

                          Appellant           :   No. 3690 EDA 2017

              Appeal from the Judgment of Sentence June 22, 2017
     In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005345-2015

BEFORE:       OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 13, 2019

         Appellant, Curtis Williams, appeals from the June 22, 2017 Judgment of

Sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction of First -Degree Murder' and various firearms offenses.

He avers    that he was impermissibly tried on the First -Degree Murder charge
because the Commonwealth did not seek the death penalty, and contends he

is   entitled to    a   hearing based on unrelated cases finding that one of the

investigating officers in his case regularly conducted coercive interrogations.

Appellant's issues merit no relief.

         In its Opinion, the trial court fully and accurately set forth the relevant

facts and procedural history, and we need not restate them in their entirety.

See Trial Ct. Op., dated 12/24/18, at 1-11; Trial Ct. Op., dated 3/26/18, at



'    18 Pa.C.S. § 2502.


      Retired Senior Judge assigned to the Superior Court.
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1-11. In sum, on December 20, 2014, Appellant shot and killed the Victim,                a

drug dealer known to carry large quantities of money on his person, at 1600

Paul Street in Philadelphia. Several people heard the gunshots; two people

saw Appellant running from the scene holding            a   silver gun. Police officers

arrested Appellant on December 27, 2014, in possession of the gun that

testing later determined had been used to shoot the Victim.

       Appellant filed   a   Motion to Suppress challenging his arrest, which the

court denied after   a   hearing.

       Prior to the commencement of Appellant's trial on June 19, 2017, the

court informed the jurors that they would be sitting for          a   homicide trial, "not

a   death penalty case[.]" Trial proceeded with the Commonwealth presenting

testimony from numerous police officers and investigators, the witnesses who

heard the gunshots and saw Appellant fleeing the scene, and others from the

neighborhood.

       On   June   22,    2017, the jury found Appellant guilty. The court

immediately sentenced Appellant to, inter alia,     a   term of life imprisonment for

the First -Degree Murder conviction. Appellant filed         a   Post -Sentence Motion,

which the court denied.

       Appellant timely appealed. On November 27, 2017, the trial court

directed Appellant to file     a   Concise Statement of Matters Complained of on

Appeal, pursuant to Pa.R.A.P. 1925(b). On December 7, 2017, Appellant filed




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a   Waiver of Counsel and    a   request for     a   Grazier2 hearing. On December 26,

2017, Appellant's counsel filed       a       Rule 1925(b) Statement, challenging the

sufficiency and weight of evidence supporting his murder conviction, and

asserting that the trial court erred in denying Appellant's Motion to Suppress.

       On February 2, 2018,       after   a   Grazier hearing, the trial court permitted
Appellant to proceed pro se on his direct appeal. Appellant filed                     a   pro se

Supplemental Rule 1925(b) Statement, asserting that he should not have

been tried for First -Degree Murder. The trial court issued                   a   Rule 1925(a)

Opinion on March 26, 2018, addressing the issues raised in both counsel's and

Appellant's Rule 1925(b) Statements.

       On May 29, 2018, Appellant filed a Motion to Compel Trial Counsel to

Provide Appellant   a   Copy of the Trial Transcripts with this Court. On June 25,

2018, we remanded the matter to the trial court to provide Appellant with

relevant documents to allow for           a   complete and judicious assessment of the

issues raised on appeal.

       Appellant was furnished with the relevant documents, and the trial court

allowed Appellant to file another supplemental 1925(b) statement, in which

he alleged prosecutorial misconduct and                that   a   Philadelphia police detective

fabricated evidence       and     suborned           perjury. The       trial court   issued   a

Supplemental 1925(a) Opinion on December 24, 2018.

       On appeal, Appellant raises the following two issues:




2   Commonwealth v. Grazier, 713 A.2d                  81 (Pa. 1998).

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        1.   Whether the Commonwealth extracted provisions from Title 42
             Pa.C.S.[ ] §[ ]9711 specifically §[ ]9711(a)(1)(2)(3) and (4),
             [which] prohibited the Commonwealth from trying [Appellant]
             on a first degree murder charge?

        2. Whether the court was in error for denying        [Appellant] an
           evidentiary hearing on the record based          [on] claims of
             Detective Pitts fabricating evidence and suborning perjury?
Statement of Questions Presented, Appellant's Br. at 3.
        In his first issue, pro se Appellant asserts that 42 Pa.C.S.    §   9711(a)

prohibited the Commonwealth from trying him on            a   First -Degree Murder

charge because the Commonwealth had elected to not pursue the death

penalty.3 Appellant's Br. at 6. Appellant misconstrues the language of Section




3 Section 9711(a), entitled "Sentencing procedure for murder of the first
degree," provides as follows:

        (a) Procedure in jury     trials.-
        (1) After a verdict of murder of the first degree is recorded and
        before the jury is discharged, the court shall conduct a separate
        sentencing hearing in which the jury shall determine whether the
        defendant shall be sentenced to death or life imprisonment.

        (2) In the sentencing hearing, evidence concerning the victim and
        the impact that the death of the victim has had on the family of
        the victim is admissible. Additionally, evidence may be presented
        as to any other matter that the court deems relevant and
        admissible on the question of the sentence to be imposed.
        Evidence shall include matters relating to any of the aggravating
        or mitigating circumstances specified in subsections (d) and (e),
        and information concerning the victim and the impact that the
        death of the victim has had on the family of the victim. Evidence
        of aggravating circumstances shall be limited to those
        circumstances specified in subsection (d).



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9711(a). The clear and unambiguous language of this section addresses only

the situation in which the Commonwealth is seeking the death penalty. There

is no   language in this provision that precludes the Commonwealth from

proceeding with       a   conviction for First Degree Murder when it does not seek

the death penalty.         It   is   within the Commonwealth's discretion to seek the

death penalty in First -Degree Murder cases. Commonwealth v. Travaglia,

723 A.2d 190, 197 (Pa. Super. 1998); Commonwealth v. Chamberlain, 30

A.3d 381, 424-425 (Pa. 2011).             If the Commonwealth elects to seek the death
penalty, the sentencing procedure set forth in Section 9711(a) applies.

However, where the Commonwealth elects not to seek the death penalty, "the

[trial court]    is   entrusted with determining the appropriate sentence, and

the jury's function is confined to determining the guilt of the accused."

Commonwealth v. Stevens, 739 A.2d 507, 514                       (Pa.   1999) (citation

omitted).




        (3) After the presentation of evidence, the court shall permit
        counsel to present argument for or against the sentence of death.
        The court shall then instruct the jury in accordance with
        subsection (c).

        (4) Failure of the jury to unanimously agree upon a sentence shall
        not impeach or in any way affect the guilty verdict previously
        recorded.

42 Pa.C.S.   §   9711(a).



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        Here, the Commonwealth elected not to seek the death penalty. Thus,

the sentencing procedures provided in Section 9711(a) did not apply.

Accordingly, Appellant's claim   is   without merit.

        In his second issue, Appellant avers that the trial court erred in denying

him an evidentiary hearing on claims that Detective Pitts regularly fabricated

evidence and suborned perjury. See Appellant's Br. at 8. Appellant does not

cite to where in the record he requested that hearing. See Pa.R.A.P. 2101

(requiring    conformance     with     appellate     briefing     requirements);      2111

(prescribing contents of an appellant's brief); 2119(c) and 2132 (requiring               a

brief to contain reference to where in the record the matter refers to appears);

Coulter v. Ramsden, 94 A.3d 1080, 1088                 (Pa. Super. 2014) ("Appellate

arguments which fail to adhere to these rules may be considered waived, and

arguments which are not appropriately developed are waived.").

        Instead, Appellant cites to trial testimony in which          a   witness testified

that when Detective Pitts showed him          a   single color photograph, he did not

identify Appellant; rather, "they identified [Appellant.]". Appellant's Br. at            9

(quoting N.T., 6/20/17, at 215).        Appellant then avers that that testimony

"and supporting case law substantiates that [D]etective Pitts had             a   customary

and unconstitutional practice of suborning perjury to           justify an illegal arrest."




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Appellant's Br. at 9 (citing Commonwealth v. Thorpe, No. 3876 EDA 2017).4

He concludes     with   a   request that we remand for an evidentiary hearing.

        Without citation to the record or any argument beyond            a   summary

statement that Detective Pitts had       a   "customary and unconstitutional practice

of suborning perjury to justify an illegal arrest," this Court is unable to provide

meaningful review. Accordingly, this issue is waived. Commonwealth v.

Buterbaugh,       91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to

conform to the Rules of Appellate Procedure results in waiver of the underlying

issue); Commonwealth v. Brougher, 978 A.2d 373, 375-76 (Pa. Super.

2009) (failure to develop argument and cite relevant authority for the

argument results in waiver).

     Judgment of Sentence affirmed.
Judgment Entered.




J    seph D. Seletyn,
Prothonotary



Date: 8/13/19




4 3876 EDA 2017 is a citation to an appeal in Commonwealth v. Thorpe that
this Court discontinued at the request of the Commonwealth -Appellant.


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