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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                            :
KEVIN WHITE,                                :         No. 2492 EDA 2014
                                            :
                          Appellant         :


             Appeal from the Judgment of Sentence, March 7, 2014,
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0013419-2010,
               CP-51-CR-0013420-2010, CP-51-CR-0013421-2010


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JANUARY 22, 2016

        Kevin White appeals from the March 7, 2014 judgment of sentence

resulting from his convictions of third-degree murder, conspiracy to commit

robbery, three counts of robbery, and two counts of aggravated assault.1

We affirm.

        The trial court recited the following relevant facts:

                    On July 14, 2010 Anthony White (“Anthony”)
              hosted a party for his friends at his address of
              4913 North Camac Street. On July 15, 2010, at
              approximately 1:00 a.m., Kevin White ([appellant,
              unrelated to Anthony White]) and Lashawn Peterson
              (“Lashawn”) were sitting on the porch of 4939
              Camac Street when they were approached by Lamar
              Clanton (“Lamar”) and Nasir Johnson (“Nasir”).
              Lamar and Nasir discussed robbing the party down
              the block that Anthony was hosting. Lamar and

1
    18 Pa.C.S.A. §§ 2502(c), 903(c), 3701(a)(1), 2702(a), respectively.
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            Nasir planned to gain entrance to the party while
            [appellant] and Peterson kept watch outside for
            police. The four men then walked down the street to
            Anthony’s house.

                   At approximately 1:45 a.m., Nasir attempted
            to gain entrance to the party. Anthony refused to let
            Nasir into the party and as Anthony was attempting
            to close the inside door, Lamar ran onto the porch
            with a blue-green garment covering his face and
            fired his gun. The first bullet went through the
            screen door, passed through Anthony’s shoulder, and
            hit Rendell Miller (“Rendell”), [killing him]. Anthony
            then succeeded in closing the door, after which two
            more shots were fired.          Another party guest,
            Glenn Thornton (“Glenn”), was seated on a chair
            near the door and was grazed in the chest by a
            bullet. Anthony watched through the window as
            Lamar and Nasir ran off the porch heading northward
            up the street.        Throughout this whole time
            [appellant] was standing close by, acting as a
            lookout.

                  Ryan Hatchell (“Ryan”) was driving down the
            4900 block of North Camac Street at approximately
            1:45 a.m. when he heard the gun shots and saw a
            muzzle flash on the porch of the party house. He
            saw two individuals run from the house toward
            4939 North Camac Street, the house at which
            [appellant] had been sitting earlier that evening.
            Ryan then called the police. In responding to the
            radio call, Officer Comitalo went to 4939 North
            Camac Street and found [appellant] on the porch.
            The officer obtained consent to search the house and
            found Lashawn on the second floor lying down on a
            blue-green shirt with his eyes closed, [in an attempt
            to appear as though he was sleeping]. The shirt
            matched the description of the shooter.

Trial court opinion, 3/20/15 at 3-4.

      Following a jury trial, appellant was convicted of the aforementioned

charges on October 4, 2013. On March 7, 2014, the trial court sentenced


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appellant to 19-40 years’ imprisonment.             Appellant filed post-sentence

motions on March 14, 2014.         On August 7, 2014, the trial court denied

appellant’s post-sentence motions.        Appellant filed notice of appeal on

August 26, 2014. On October 24, 2014, the trial court ordered appellant to

produce a concise statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b).        Appellant complied with the trial court’s order on

November 28, 2014.          The trial court has filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            I.      Is the Defendant entitled to an arrest of
                    judgment on all charges including murder in
                    the third degree, conspiracy to commit
                    robbery, three counts of robbery and two
                    counts of aggravated assault where the verdict
                    is not supported by sufficient evidence?

            II.     Is the Defendant entitled to a new trial on all
                    charges where the greater weight of the
                    evidence does not support the guilty verdict?

Appellant’s brief at 3.

                                        I.

      The first issue appellant raises for our review is whether the

Commonwealth presented sufficient evidence to warrant convictions for

third-degree      murder,   robbery,   conspiracy    to   commit   robbery,   and

aggravated assault. Before we can address the merits of appellant’s claim,

we must first determine that appellant’s issues were preserved for the

purposes of appeal.


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      It is well settled that in order to properly preserve issues on appeal for

a sufficiency of the evidence claim, an appellant is required to specify the

elements of the crime upon which the evidence presented by the

Commonwealth was insufficient within his Pa.R.A.P.               1925(b) concise

statement of errors complained of on appeal. Commonwealth v. Manley,

985 A.2d 256, 262 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa.

2010),   citing    Commonwealth         v.   Williams,    959   A.2d    1252,     1257

(Pa.Super. 2008). Failure to do so will result in a waiver of appeal for any

offenses not listed in the concise statement. Williams, 959 A.2d at 1257,

quoting Commonwealth v. Flores, 921 A.2d 517, 522 (Pa.Super. 2007)

(emphasis deleted).

      Here, a review of appellant’s concise statement of errors complained of

on appeal reveals that appellant avers that the Commonwealth presented

insufficient evidence to warrant convictions for the following offenses:

third-degree      murder,    robbery,   conspiracy   to   commit       robbery,    and

aggravated assault.         Appellant’s concise statement with respect to his

sufficiency of the evidence claim is as follows:

            That the defendant is entitled to an arrest of
            judgment on CP-51-CR-0013421-2010, with regard
            [to] the charges of murder in the third degree,
            robbery and criminal conspiracy to rob—the lead
            murder bill in this matter; an arrest of judgment on
            CP-51-CR-0013420-2010, with regard to the charges
            of aggravated assault and robbery, (victim
            Glenn Thornton); and an arrest of judgment on
            CP-51-CR-0013419-2010, with regard to the charges
            of aggravated assault and robbery, (victim


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            Anthony White), as the evidence on all of the bills is
            insufficient to support the verdict.

            The Commonwealth did not prove that the defendant
            was a perpetrator, conspirator, or an accomplice to
            any of the crimes enumerated. Moreover, and with
            regard to the murder bill, the Commonwealth did not
            prove that the defendant acted with malice. With
            regard to the conspiracy bill, the Commonwealth
            utterly failed to prove that the defendant agreed to
            commit any crime with anybody else. Thus, the
            evidence is woefully insufficient to sustain any of the
            jury’s findings and, hence, an arrest of judgment
            must be awarded.

Appellant’s Rule 1925(b) statement, 11/28/14 at 1-2.

     With the above statement, appellant has waived any sufficiency of the

evidence appeal relating to his convictions of robbery and aggravated

assault because he did not enumerate any element of those crimes, nor did

he attempt to explain how the evidence was insufficient.         See Manley,

supra at 262. Therefore, we need only address whether the Commonwealth

presented   sufficient   evidence   to   warrant   appellant’s   conviction   of

third-degree murder and conspiracy to commit robbery.

     In regards to the sufficiency of the evidence of the third-degree

murder conviction, appellant makes the following argument:

            The Commonwealth, as the verdict winner has the
            right to all reasonable inferences flowing from the
            evidence. However, and on the murder bill and
            where the Defendant did not shoot and kill the victim
            and where the Defendant had not entered into a
            conspiracy to murder the victim, and where the
            Defendant rendered no aid in murdering the victim,
            there is simply no basis upon which the Defendant
            could be found guilty of murder.


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Appellant’s brief at 10-11. Appellant’s statement is clearly missing text and

it is difficult for this court to discern appellant’s exact argument because he

does not adequately develop his argument that the evidence was not

sufficient to warrant a conviction of third-degree murder.          Moreover,

appellant does not address the issue that he raised in his Rule 1925(b)

statement, supra, that the Commonwealth failed to sufficiently prove that

he acted with malice. Therefore, appellant has waived his sufficiency of the

evidence claim as it relates to his third-degree murder conviction.       See

Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.Super. 2012) (finding an

issue to be waived for “bald assertions” without any other relevant analysis).

      We now turn to appellant’s claim that the Commonwealth failed to

present sufficient evidence to warrant a conviction for conspiracy to commit

robbery.   In his brief, appellant admits to entering into a conspiracy to

commit robbery:

            Thus and in that the Defendant did not conspire
            to do anything other but to rob, the Defendant
            should only have been found guilty of criminal
            conspiracy to rob and robbery on the murder bill
            and should not have been found guilty of any offense
            dealing with victims Glen [sic] Thornton and
            Anthony White. Thus, the undersigned respectfully
            requests that an arrest of judgment be granted to
            the Defendant on the charge of murder in the third
            degree on CP-51-CR-0013421-2010 and on all
            charges on the remaining bills.

Appellant’s brief at 14 (emphasis added). By admitting that he should have

been convicted of conspiracy to commit robbery, appellant is effectively


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waiving his claim that the evidence was not sufficient, and therefore no relief

is due.

                                      II.

      In his second issue, appellant avers that the verdict is contradictory to

the weight of the evidence presented. When considering the weight of the

evidence, we use the following standard:

                   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 the 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. Widmer, 744 A.2d 745, 753
            (Pa. 2000).

                  This does not mean that the exercise of
            discretion by the trial court in granting or denying a
            motion for a new trial based on a challenge to the
            weight of the evidence is unfettered. In describing



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           the limits of a trial court’s decision, we have
           explained:

                 The term “discretion” imports the
                 exercise of judgment, wisdom and skill
                 so as to reach a dispassionate conclusion
                 not exercised for the purpose of giving
                 effect to the will of the judge. Discretion
                 must be exercised on the foundation of
                 reason, as opposed to prejudice,
                 personal motivations, caprice or arbitrary
                 actions. Discretion is abused where the
                 course pursued represents not merely an
                 error in judgment, but where the
                 judgment is manifestly unreasonable or
                 where the law is not applied or where the
                 record shows that the action is a result of
                 partiality, prejudice, bias, or ill will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013), quoting Widmer,

744 A.2d at 753 (citations omitted) (emphasis deleted).

     Under his weight of the evidence argument, appellant further attacks

the sufficiency of the evidence presented by the Commonwealth:

           While jury verdicts are almost always sacrosanct, a
           jury verdict can be overturned where there is
           insufficient evidence. A verdict must be based on
           the concept of guilt beyond a reasonable doubt. It
           cannot be based on speculation, conjecture, or
           surmise. All jury verdicts are usually sacrosanct, it is
           not unheard [of] for a jury verdict to be overturned.
           The undersigned would concede that a jury verdict
           would be rarely disturbed on the basis of a claim
           against the sufficiency of the evidence.

Appellant’s brief at 15-16 (emphasis added). Challenges to the sufficiency of

the evidence and the weight of the evidence are separate claims involving

different standards of review and relief.      See Widmer, 744 A.2d at



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751-752. Here, by making a sufficiency of the evidence argument under the

guise of a weight of the evidence claim, appellant waives the latter claim,

and therefore no relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2016




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