J-S60034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DONAVIN LENDALL WILLIAMS                   :
    MOORE                                      :
                                               :   No. 311 WDA 2017
                      Appellant                :

           Appeal from the Judgment of Sentence January 23, 2017
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000760-2016


BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 12, 2017

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Fayette County following Appellant’s conviction in a

non-jury trial on the charges of criminal attempt-homicide, aggravated

assault, recklessly endangering another person, firearms not to be carried

without a license, possession with the intent to deliver a controlled

substance, and possession of a controlled substance.1 We affirm.

        Following his arrest, Appellant, who was represented by counsel,

proceeded to a bench trial on January 6, 2017, before the Honorable Gerald



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1
  18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2705, and 6106(a)(1); 35 P.S. §§
780-113(a)(30) and (a)(16), respectively.


____________________________________
*    Former Justice specially assigned to the Superior Court.
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R. Solomon. Judge Solomon has aptly summarized the testimony presented

at the bench trial as follows:

             In the early morning hours of March 25, 2016, Sanford
      Lewis observed two men arguing on the street in Masontown.
      N.T. 1/6/17 at 5. [He saw the men] enter[] a bar and, a short
      time later, the taller of the two came back out and headed to his
      vehicle. Id. The other man came out [of the bar] with a pool
      stick in his hand and struck the taller man in the back, after
      which an argument ensued. Id. After [the man swung the pool
      stick] again at the taller man, the taller man started firing a
      pistol. Id. at 5-6. [Mr.] Lewis recognized the [taller man, who
      was the shooter,] and identified him as Appellant. Id. at 7-8.
      The shorter of the two men [ ] ran away as Appellant continued
      to fire at him. Id. at 6, 15.
            Officer Michael Yeager of the Masontown Police
      Department [testified that, as he was responding to the scene,
      he] saw a black male, whom he identified as Willie Batie, running
      away. Id. at 18. [Upon arrival] at the scene, [Officer] Yeager
      was informed by [Mr.] Lewis that shots were fired. Id. at 19.
      [Officer] Yeager then began a search for [Mr.] Batie and found
      him on the porch of the home of [Mr.] Batie’s father. Id. [Mr.]
      Batie’s shirt was covered with blood. Id. Cutting off [Mr.]
      Batie’s shirt to render aid, [Officer] Yeager observed three
      gunshot wounds, one in the stomach, one in the left shoulder[,]
      and one on the back of the left arm. Id. at 19-20.
            Later, [Officer] Yeager observed a surveillance video from
      a local business of the incident and identified the shooter as
      Appellant.    Id. at 21.     From the video, [Officer] Yeager
      [observed] the weapon prior to [Mr.] Batie swinging the pool
      stick and also observe[d] Appellant raise the weapon and fire.
      Id. at 22-23.
            Corporal Richard Hunter, assigned to the Forensic Services
      Unit of the Pennsylvania State Police, arrived at the crime scene
      at 4:43 [a.m. on] March 25, 2016. Id. at 28-29. At the scene,
      [Corporal] Hunter collected nine .32 auto casings and two
      deformed bullets. Id. at 30. As to [Corporal] Hunter, the
      Commonwealth and Appellant stipulated that he performed a
      gunshot residue test on Appellant, which revealed that Appellant
      may have recently discharged a firearm. Id. at 39-40.



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            [Police Officer] Alex Metros, [of] the Masontown Police
     Department, arrived at the crime scene and, after becoming
     aware of Appellant’s location, went with other officers to [the]
     location. Id. at 44. After [Appellant] was taken into custody at
     the residence, a protective sweep was made of the residence
     and [Officer] Metros observed marijuana. Id. at 45.        After
     transporting Appellant to the police station, [Officer Metros]
     returned to the residence and obtained the consent of Andrea
     Buchanan, the lessee of the residence, to search the residence.
     Id. at 45-46. The search of the residence revealed a large
     number of baggies of marijuana, [three] scales, a loaded .32
     caliber handgun, paraphernalia, cell phones, ammunition, a
     weed stem, a shoulder holster, and indicia [of residence] for
     Appellant. Id. at 49-58.
           [At trial,] the Commonwealth...called [Sergeant] John
     Brant, [of] the Brownsville Police Department[,] who rendered
     assistance in apprehending Appellant. Id. at 69-70. [Sergeant]
     Brant was examined and tendered as an expert in the field of
     drug distribution, manufacture[,] and intent to deliver controlled
     substances. Id. at 74-77. [Appellant] offered no objection to
     [Sergeant] Brant testifying as an expert. Id. at 79. [Sergeant]
     Brant took part in the protective sweep of the residence and
     observed drug paraphernalia and two [of the] scales. Id. at 71.
     He later took part in the search of the residence. Id. at 79.
     [Sergeant Brant testified that, in] his opinion, as an expert, from
     what was found during the search...Appellant possessed the
     drugs with the intent to deliver. Id. at 82. [Sergeant] Brant
     further opined that the indicia found at the residence [led] him
     to believe that Appellant lived [in] or occupied the residence.
     Id. at 87.
           Following his apprehension, Appellant was interviewed by
     Sergeant Scott Miller of the Masontown Police Department. Id.
     at 89, 94. After [Sergeant] Miller advised Appellant of his
     Miranda rights, Appellant signed a Miranda Rights Warning
     Sheet. Id. at 95. Waiving his rights, Appellant admitted having
     an altercation with Willie Batie, admitted that the .32 caliber
     handgun found at the residence was his, and [admitted that] the
     suspected marijuana and paraphernalia was his. Id. at 99.
     Following [Sergeant] Miller’s testimony, the Commonwealth and
     [Appellant] entered into a stipulation that the suspected
     marijuana found at the residence was, in fact, marijuana. Id. at
     103-04.



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             The victim, Willie Batie, [testified] that on the night of the
       incident he was shot four times, suffered injuries, and was
       hospitalized. Id. at 104. He further testified that he did not
       know the person who shot him. Id. at 105.
              Sergeant John Thacik, a Forensic Firearm and Tool [M]ark
       Examiner with the Pennsylvania State Police who was qualified to
       testify as an expert in the field of firearms and tool mark
       examination, [testified] without objection. Id. at 107, 109.
       [Sergeant] Thacik, [who] received the firearm at issue, along
       with undischarged bullets, determined that [the firearm] was
       functional; [he] then test fired the firearm and recovered the
       discharged bullets. Id. at 110-11, 114. He then compared the
       discharged bullets with two discharged and mutilated bullets[,
       which] he had received [from the] evidence[,] and determined
       that all four had been discharged from the firearm at issue. Id.
       at 114-16.
             Following    [Sergeant]  Thacik’s    testimony,     the
       Commonwealth rested. Appellant then rested without presenting
       any testimony or evidence.

Trial Court Opinion, filed 5/8/17, at 2-6.

       At the conclusion of the trial, Judge Solomon convicted Appellant of

the offenses indicated supra, and on January 19, 2017, Appellant,

represented by counsel, proceeded to a sentencing hearing, at the

conclusion of which the trial court sentenced Appellant to an aggregate of

ten years to twenty years in prison. On January 23, 2017, the trial court sua

sponte filed an amended sentencing order to reflect the correct charges at

each   count.     This   timely   appeal   followed,   and   all   Pa.R.A.P.   1925

requirements have been met.

       On appeal, Appellant presents the following issues:

       1. Whether the verdict was against the weight of the evidence
          and the law since the Commonwealth did not establish that
          Appellant did not act in justifiable self-defense; and whether

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         the Commonwealth’s evidence was insufficient to prove
         otherwise beyond a reasonable doubt?
      2. Whether the verdict was against the weight of the evidence
         and the law since the Commonwealth did not establish that
         Appellant had the intent to deliver?
      3. Did the Court err in permitting the police officer from
         testifying as an expert?

Appellant’s Brief at 7.

      In his first and second issues, Appellant intertwines claims that the

trial court’s verdicts were against the weight of the evidence and the

evidence was insufficient to sustain his convictions.     However, it is well-

settled that weight of the evidence claims are distinct from sufficiency of the

evidence claims. See Commonwealth v. Widmer, 560 Pa. 308, 318-19,

744 A.2d 745, 751-52 (2000).        With regard to the former, in order to

preserve the issue for appeal, an appellant “must present his challenge to

the weight of the evidence to the trial court for a review in the first instance

either in a post-sentence motion, by written motion before sentencing, or

orally prior to sentencing.” Commonwealth v. Richard, 150 A.3d 504, 516

(Pa.Super. 2016) (citing Pa.R.Crim.P. 607(A); Commonwealth v. Griffin,

65 A.3d 932, 938 (Pa.Super. 2013)). A claim challenging the weight of the

evidence generally cannot be raised for the first time in a Rule 1925(b)

statement. Commonwealth v. Burkett, 830 A.2d 1034 (Pa.Super. 2003).

An appellant’s failure to avail himself of any of the prescribed methods for

presenting a weight of the evidence issue to the trial court constitutes

waiver of that claim. Id.

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       In the case sub judice, as the trial court aptly suggested, Appellant

failed to preserve his weight of the evidence claims.         See Trial Court

Opinion, filed 5/8/17, at 6. Specifically, despite being advised of his post-

sentence rights, Appellant did not raise his weight of the evidence claims in

a post-sentence motion. See Pa.R.Crim.P. 607(A). Also, he did not raise

his weight of the evidence claims by written motion before sentencing or

orally prior to sentencing. See id. Further, although Appellant included his

weight of the evidence claims in his Rule 1925(b) statement, such efforts did

not preserve the claims for appellate review. See Burkett, supra.

       With regard to Appellant’s sufficiency of the evidence claims, in his

first argument, Appellant vaguely alleges the following:

            Appellant admitted that he shot the victim thereby
       admitting the elements. Based on [the] victim’s reputation and
       demeanor, [A]ppellant believed that Castillo[2] was going to
       harm him, so [A]ppellant shot him.
            Therefore, based on the evidence               presented   by
       [A]ppellant, self-defense was applicable[.]

Appellant’s Brief at 11 (footnote added).

       We conclude that Appellant’s first sufficiency argument does not

permit meaningful review. Specifically, Appellant has not identified which

convictions he is challenging, has not identified the evidence purportedly

related to “the victim’s reputation and demeanor,” and has not otherwise
____________________________________________


2
  Willie Batie was the victim in this case. Appellant has not properly
identified or explained to whom “Castillo” refers.



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developed an argument related to self-defense.           Appellant’s failure to

discuss his sufficiency claim in any substantive, meaningful way has

impeded our review.     Accordingly, we find this claim to be waived.       See

Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa.Super. 2013)

(holding undeveloped claims to be waived).

      In his second argument, with regard to the sufficiency of the evidence,

Appellant baldly suggests the Commonwealth failed to prove he had the

“intent to deliver” a controlled substance.      See Appellant’s Brief at 12.

However, as with his previous sufficiency claim, Appellant’s claim is woefully

undeveloped. Specifically, aside from setting forth this Court’s standard of

review for sufficiency claims, and citing cases generally related to this

standard of review, Appellant has not developed his claim in any meaningful

manner.     Accordingly, we find Appellant’s second sufficiency claim to be

waived. See McDermitt, supra.

      With regard to his final issue, whether the trial court erred in

permitting a police officer to testify as an expert at trial, Appellant has

presented    no    argument.   Rather,   he   simply   indicates   “Appellant   is

withdrawing said argument.”      Accordingly, we decline to review this issue

further. See id.

      For all of the foregoing reasons, we affirm Appellant’s judgment of

sentence.

      Affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2017




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