J-A25021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEFON THOMAS LANDING,

                            Appellant                No. 2101 MDA 2015


          Appeal from the Judgment of Sentence November 20, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000854-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 23, 2016

       Appellant, Stefon Thomas Landing, appeals from the judgment of

sentence entered November 20, 2015, in the Court of Common Pleas of

Lancaster County. We affirm.

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

       On January 4, 2015, the decedent, Devonte Gantt, requested his
       friend, Amos Clay III, to accompany him during a narcotics
       (Marijuana) transaction. Gantt gave Clay a firearm to carry
       during the transaction.     Gantt and Clay then left Gantt’s
       residence and met [Appellant], who was purchasing the
       Marijuana. After walking into a nearby corner store to get
       change, [Appellant] walked down the block with Gantt and Clay
       to a breezeway directly adjacent to 711 High Street. Next, Clay
       alleged that after Gantt removed the marijuana, [Appellant] tried
       to grab the bag, and then pulled out a firearm and shot Gantt
       when he resisted. From there, [Appellant] and Clay exchanged
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      gunfire as [Appellant] ran away and both [Appellant] and Clay
      were struck. Gantt ran through the breezeway and into a
      backyard, where he ultimately passed away. [Appellant], on the
      contrary, asserted that Clay shot him first when Gantt handed
      him the Marijuana and, thus, was entitled to a claim of self-
      defense.

Trial Court Opinion, 3/30/16, at 2 (internal citations omitted).

      As a result, Appellant was charged with several criminal counts.          On

October 23, 2015, following a jury trial, Appellant was convicted of one

count each of murder of the third degree, aggravated assault, and firearms

not to be carried without a license. A pre-sentence investigation report was

ordered, and on November 20, 2015, Appellant was sentenced to an

aggregate   term   of   twenty-two   and   one-half   to   forty-five   years   of

incarceration and restitution. N.T., 11/20/15, at 20-21; Sentencing Order,

11/20/15, at 1.

      On November 24, 2015, the Commonwealth filed a motion to modify

sentence. By order entered November 25, 2015, the trial court granted the

motion and thereby amended Appellant’s restitution sentence.              Order,

11/25/15, at 1.    Appellant timely appealed.    The trial court and Appellant

complied with the requirements of Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issue for our review:

      Did the Trial Court abuse its discretion when it failed to find that
      the verdict was against the weight of the evidence because the
      Commonwealth failed to disprove, beyond a reasonable doubt,
      Appellant’s claim of self-defense where the testimony of the
      Commonwealth’s star and sole eye-witness Amos Clay was so
      contrary to the incontrovertible physical facts as to render
      reliance thereupon shocking to one’s sense of justice?

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J-A25021-16


Appellant’s Brief at 4 (footnote omitted).

      We examine a challenge to the weight of the evidence under the

following standards:

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. A new trial should not be granted
      because of a mere conflict in the testimony or because the judge
      on the same facts would have arrived at a different conclusion.
      Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice. It has often been stated that
      a new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.

            An appellate court’s standard of review when presented
      with a weight of the evidence claim is distinct from the standard
      of review applied by the trial court:

            Appellate review of a weight claim is a review of
            the exercise of discretion, not of the underlying
            question of whether the verdict is against the
            weight of the evidence. Because the trial judge
            has had the opportunity to hear and see the
            evidence presented, an appellate court will give the
            gravest consideration to the findings and reasons
            advanced by the trial judge when reviewing a trial
            court’s determination that the verdict is against the
            weight of the evidence. One of the least assailable
            reasons for granting or denying a new trial is the
            lower court’s conviction that the verdict was or was
            not against the weight of the evidence and that a
            new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (emphasis

in original) (internal citations and quotation marks omitted).




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      Before we can address the merits of Appellant’s claim, however, we

first must determine whether it has been waived.            Rule 607 of the

Pennsylvania Rules of Criminal Procedure requires, inter alia, that:

      (A) A claim that the verdict was against the weight of the
      evidence shall be raised with the trial judge in a motion for a
      new trial:

            (1) orally, on the record, at any time before
            sentencing;

            (2) by written motion at any time before sentencing;
            or

            (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A); see also Commonwealth v. Priest, 18 A.3d 1235,

1239 (Pa. Super. 2011).      As noted in the comment to this rule, “[t]he

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Pa.R.Crim.P. 607 cmt. Failure to properly preserve the claim will result in

waiver, even if the trial court addresses the issue in its opinion.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).

      Following our thorough review of the transcripts of record, we are

unable to identify where Appellant orally raised the weight of the evidence

claim prior to sentencing. Specifically, Appellant did not raise it at the time

the verdict was rendered, N.T., 1/23/15, at 714-717, nor did he challenge it

at the sentencing hearing.    N.T., 11/20/15, at 1-22.    Moreover, Appellant

fails to direct our attention to any place in the record where he raised the



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issue prior to sentencing. See Commonwealth v. Samuel, 102 A.3d 1001,

1005 (Pa. Super. 2014) (“The Rules of Appellate Procedure require that

appellants adequately develop each issue raised with discussion of pertinent

facts and pertinent authority.     It is not this Court’s responsibility to comb

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

claim.”).

      Additionally, there is no evidence of record that a written motion

challenging the weight of the evidence was filed prior to sentencing. There

is no entry in the docket reflecting such a filing nor has our thorough review

of the record revealed such. Moreover, Appellant does not cite to any such

written motion.

      Finally, the only post-sentence motion filed in this matter was a

motion to modify sentence filed by the Commonwealth.            Commonwealth’s

Motion to Modify Sentence, 11/24/15, at 1-3.                In that motion, the

Commonwealth sought to amend the amount of restitution Appellant was

ordered to pay.   Id. The record reflects no post-sentence motion filed by

Appellant. Again, Appellant fails to identify for this Court any such filing.

      We note that Appellant did raise this issue in his Pa.R.A.P. 1925(b)

statement.      This   is   insufficient,   however,   to   preserve   the   claim.

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008)

(Appellant’s inclusion of the issue in his Pa.R.A.P. 1925(b) statement will not

save it from being waived where he failed to raise it in the court below);

see also Sherwood, 982 A.2d at 494 (where the appellant failed to

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J-A25021-16



preserve a weight of the evidence claim before the trial court, the fact that

the appellant included the issue in his Pa.R.A.P. 1925(b) statement and the

trial court addressed it in its Pa.R.A.P. 1925(a) opinion did not preserve his

claim for appellate review); Pa.R.A.P. 302(a) (“Issues not raised in the lower

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

Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278, 1288 (Pa.

Super. 2004) (en banc) (the fact that an issue is included in a Pa.R.A.P.

1925(b) statement does not obviate its waiver under Pa.R.A.P. 302(a)).

       Our review of the record reveals that Appellant did not present a

weight of the evidence claim orally or in writing before sentencing or in a

post-sentence motion. Thus, his claim is waived on this basis.1

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




____________________________________________


1
  Assuming arguendo that Appellant had not waived his weight of the
evidence claim, we would have affirmed on the basis of the trial court’s
discussion. Trial Court Opinion, 3/30/16, at 2-5.



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