J-S46023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JOHN KERKULA,

                        Appellant                  No. 2451 EDA 2014


         Appeal from the Judgment of Sentence of July 29, 2014
             In the Court of Common Pleas of Bucks County
          Criminal Division at No(s): CP-09-CR-0007936-2013


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 30, 2015

     Appellant, John Kerkula, appeals from the judgment of sentence

entered on July 29, 2014. We affirm.

     As the learned trial court explained:

       Appellant was charged by criminal complaint on August 6,
       2013, with [multiple counts of robbery, conspiracy, and
       other, related crimes]. The[] charges stemmed from an
       incident which occurred [on] the night of August 5, 2013,
       on Route 413 in Bristol Township, Bucks County, in the
       parking lot of a [7-Eleven convenience store]. . . .

       Appellant waived his right to a trial by jury. Appellant’s
       [bench] trial began on March 25, 2014. On March 26,
       [2014, the trial court found Appellant] guilty [of four counts
       of robbery (under 18 Pa.C.S.A. § 3701(a)(1)(ii), (iii), (iv)
       and (v)) and four counts of conspiracy (under 18 Pa.C.S.A.
       § 903(c))].    Viewing the evidence in the light most
       favorable to the Commonwealth[] as the verdict winner, the
       following relevant testimony was presented at trial[.]
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       On August 5, 2013, at approximately 10:30 [p.m.,]
       Appellant was positioned as a front-seat passenger in a Ford
       Crown Victoria in the parking lot of the [7]-Eleven. The
       vehicle was being operated by Jarod Evans. . . . The victim
       in this case, Skyler Sargeant, accompanied by Franklin
       Talley, entered the rear of the vehicle to make an illegal
       purchase of Percocet[.]

       After entering the vehicle, Sargeant proceeded to remove
       money from her pocket to purchase the drugs she believed
       the occupiers of the Crown Victoria possessed. Sargeant
       removed approximately $870[.00] from her person, which
       she stated that the front-seat passenger of the vehicle,
       [Appellant], then took from her. After the money was
       taken, Talley left the car, and Evans and [Appellant]
       informed Sargeant that she was not getting her money
       back, and then told her to exit the car as well.

       When Sargeant refused to exit the vehicle, Appellant and
       Evans threatened to shoot her. Sargeant was not deterred
       by the threat and a physical confrontation occurred over the
       money, resulting in Sargeant being physically forced from
       the vehicle. In a final effort to recover her money, Sargeant
       proceeded to grab onto the driver’s window as the car
       began to exit the parking lot. Sargeant hung onto the
       vehicle for a period of time as it pulled away, despite the
       car [traveling] approximately 25 to 35 miles per hour.

       Officer Tom Van Winkle of the Bristol Township police
       spotted the vehicle and [] Sargeant clinging to it as it pulled
       out from the [7]-Eleven. He immediately activated his
       emergency lights. Officer Van Winkle saw the car continue
       up a curb and off the roadway until [] Sargeant fell off. At
       no point during the pursuit did Officer Van Winkle lose sight
       of the Crown Victoria.

       Officer Van Winkle was able to stop the vehicle after
       approximately a quarter mile of pursuit when it pulled into
       the Stadium Bar.       After approaching the vehicle and
       speaking with the occupants, Officer Van Winkle was able to
       affirmatively identify [] Appellant as the passenger. He
       determined that the car was owned by [] Appellant’s
       brother, who was not in the vehicle at the time. At no point


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          were any drugs or weapons found on the person of [] Evans
          [or] Appellant, or within the Crown Victoria.

          While Officer Van Winkle was speaking with Evans and
          [Appellant], other officers appeared at the scene.
          Furthermore, [] Sargeant had followed the car after she had
          fallen from it and relayed to the officers what had occurred,
          stating, while visibly upset, that she had been robbed and
          threatened by the occupants in the vehicle which had been
          pulled over by Officer Van Winkle. A search of the car
          recovered no weapons or drugs, but it did result in the
          recovery of the approximately $870[.00] that [] Sargeant
          stated had been stolen.

          Appellant was taken into custody that night and given his
          Miranda[1] warnings by Sergeant Kevin Burns of the Bristol
          Township police. After receiving his Miranda warnings,
          Appellant spoke freely with Sergeant Burns without an
          attorney. He stated that he went to the [7]-Eleven to meet
          some females, and that [] Sargeant and [] Talley proceeded
          to enter the back of his vehicle without prompting.

Trial Court Opinion, 11/7/14, at 1-4 (internal citations and some internal

capitalization omitted).

       On July 29, 2014, the trial court sentenced Appellant to serve an

aggregate term of four to ten years in prison, and to serve a consecutive

term of two years of probation.            Appellant did not file a post-sentence

motion.

       Appellant filed a timely notice of appeal and the trial court ordered him

to file and serve a concise statement of errors complained of on appeal,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).           Appellant

listed the following two claims in his Rule 1925(b) statement:
____________________________________________


1
    See Miranda v. Arizona, 384 U.S. 436 (1966).



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        1. [Appellant] was denied [the] opportunity to complete a
        plea agreement because the district attorney required that
        co-defendant also plead guilty.

        2. The verdict of guilty was against the weight of the
        evidence.

Appellant’s    Rule   1925(b)   Statement,   10/3/14,   at   1   (some   internal

capitalization omitted).

      Within Appellant’s brief to this Court, Appellant has failed to include a

“statement of the questions involved” section, as is required by Pennsylvania

Rule of Appellate Procedure 2116.        However, the argument section of

Appellant’s brief is headed in the following manner:

        Appellant’s issues can be addressed in a single argument.
        The denial of the motion to withdraw the guilty plea, then
        denied a fair trial. This denial by the trial court was an
        error.

Appellant’s Brief at 6 (some internal capitalization omitted).

      The argument section of Appellant’s brief does not contain any

argument or claim that the trial court erred when it denied Appellant’s

“motion to withdraw the guilty plea.”         See Appellant’s Brief at 6-8.

Therefore, any such claim is waived. See Commonwealth v. Leatherby,

116 A.3d 73, 83 (Pa. Super. 2015) (holding that, were the appellant “fails to

expand upon [a] claim in the argument section of his brief . . . the claim is

waived”).     Further, Appellant waived his weight of the evidence claim on

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




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Pa.R.Crim.P. 607(A); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal”).2

       Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




____________________________________________


2
  To the extent Appellant’s brief claims that the evidence is insufficient to
support his convictions, the claim is waived because Appellant did not raise
the claim in his court-ordered Rule 1925(b) statement.             Pa.R.A.P.
1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b) s]tatement . . .
are waived”).



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