J-S68020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
DEMETRIUS YOUNG,                          :
                                          :
                   Appellant              :   No. 460 EDA 2015

           Appeal from the Judgment of Sentence December 5, 2014,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0015003-2012

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED NOVEMBER 16, 2015

        Demetrius Young (”Young”) appeals from the judgment of sentence

entered following is convictions of third-degree murder, carrying a firearm

without a license, and possession of instruments of crime.1 For the following

reasons, we affirm.

        Young’s convictions stem from an altercation outside of a Philadelphia

night club that resulted in the death of one man, Marcus Smith (“Victim”).

The trial court summarized the facts underlying this appeal as follows:

             In 2011, [Victim], Felicia Madison, [Victim’s] fiancée,
             and Cortez Pryor were living together. In May of
             2011, Pryor was stopped by the police while driving
             [Victim’s] car. Pryor ran from the police into Madison
             and [Victim’s] house. The police arrested [Victim]
             instead of Pryor. After that incident[,] Pryor and
             [Victim’s] relationship deteriorated. N.T. 12/2/2014
             at 135-39, 146.


1
    18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 907(a).
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          On April 1, 2012, at about 3:45 a.m., Sheila Williams
          was outside waiting to enter the Wheels of Soul
          nightclub located at 61st and Market Streets in
          Philadelphia. A red car pulled up and Williams heard
          [Young], who was sitting in the passenger seat,
          comment “there go that niggah right there.” Williams
          paid attention to the men because she believed there
          was going to be a fight. The driver, later identified as
          Cortez Pryor, exited the car and met [Victim] at the
          back of the car. [Victim] punched Pryor. [Young] got
          out of the car and grabbed [Victim]. Pryor retrieved
          a firearm from the car and returned to the
          altercation. As soon as [Victim] broke free of
          [Young’s] hold, Pryor shot [Victim].           [Victim]
          immediately fell to the ground and Williams heard
          twenty to thirty shots. After the shooting, [Young]
          and Pryor drove away in the red car towards 60th
          Street. On April 2, 2012, Williams identified co-
          defendant Pryor as the shooter from a photo array.
          On May 2, 2012, Williams identified [Young] from a
          photo array. N.T. 12/2/2014 at 150-60, 168-69,
          171, 209.

          On the night of the shooting[,] Darryl Seals,
          [Victim], and James McGill were at the Wheels of
          Soul nightclub at 60th and Market Streets.        At
          around 3:45 a.m., McGill and [Victim] left the
          nightclub. Seals heard gunshots and ran outside and
          saw that [Victim] had been shot. Seals got his car
          and drove [Victim] to the Hospital of the University
          of Pennsylvania. N.T. 12/3/2014 at
          141 -42, 144, 146 -48.

          At 3:58 a.m., [Victim] was pronounced dead at the
          Hospital of the University of Pennsylvania. According
          to Dr. Sam Gulino, the Chief Medical Examiner for
          the County of Philadelphia, Smith suffered ten
          gunshot wounds: four to the leg, three to the chest,
          two to the arm, one to the back, and one to the hip.
          [Victim] suffered injuries to the lung, heart,
          diaphragm, liver, and spine as a result of these
          gunshots. N.T. 12/3/2014 at 109, 111-118.



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Trial Court Opinion, 3/20/15, at 2-4 (footnotes omitted).

      A jury convicted Young of the offenses listed above. On December 5,

2014, he was sentenced to an aggregate term of nineteen and a half to

thirty-nine years in prison. On December 15, 2014, Young filed timely post-

sentence motions, which the trial court denied the following day. One week

later, on December 23, 2014, Young filed another untimely post-sentence

motion. The trial court denied this untimely motion on December 31, 2014.

Young filed his notice of appeal on January 30, 2015.

      On April 2, 2015, this Court issued a rule directing Young to show

cause why this appeal should not be dismissed as untimely. Young did not

respond and on May 11, 2015, this Court referred the issue of the timeliness

of this appeal to the panel assigned to decide the merits of this appeal.

      It is well established that a defendant must file a notice of appeal

within thirty days of the entry of the judgment of sentence, but that where

the defendant files timely post-sentence motions, this period is tolled until

the   entry   of    an   order   disposing   of   the   post-sentence   motion.

Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004); see also

Pa.R.A.P. 903; Pa.R.Crim.P. 720(A)(2).       It is also well established that an

untimely post-sentence motion does not toll the period of time in which to

file an appeal.     Commonwealth v. Millisock, 873 A.2d 748, 750 (Pa.

Super. 2005).      Thus, the period of time for Young to file a timely appeal

began to run on the date the trial court denied his post-sentence motion,



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December 16, 2014.       The filing of the second, untimely post-sentence

motion did not extend the appeal period. Young, therefore, was required to

file his appeal on or before January 15, 2015.

     While this Court generally cannot extend the time to file an appeal, we

have allowed exceptions when there has been a “breakdown in the

processes of the court.” Commonwealth v. Patterson, 940 A.2d 493, 498

(Pa. Super. 2007).    In Patterson, a panel of this Court found such a

breakdown where the trial court had failed to fulfill the requirements of

Pa.R.Crim.P. 720(B)(4), which provides:

           An order denying a post-sentence motion … shall
           include notice to the defendant of the following:

           (a)   the right to appeal and the time limits within
                 which the appeal must be filed;

           (b)   the right to assistance of counsel in the
                 preparation of the appeal;

           (c)   the rights, if the defendant is indigent, to
                 appeal in forma pauperis and to proceed with
                 assigned counsel as provided in Rule 122; and

           (d) the qualified right to bail under Rule 521(B).

Pa.R.Crim.P. 720(B)(4) (emphasis added).         The comment to this Rule

explains the reasoning behind the mandatory inclusion of this information:

           Paragraph (B)(4) protects the defendant’s right to
           appeal by requiring that the judge’s order denying
           the motion, the clerk of courts’ order denying the
           motion by operation of law, or the order entered
           memorializing a defendant’s withdrawal of a post-
           sentence motion, contain written notice of the



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            defendant’s appeal rights. This requirement ensures
            adequate notice to the defendant, which is important
            given the potential time lapse between the notice
            provided at sentencing and the resolution of the
            post-sentence motion. See Rule 704(C)(3). See
            also Commonwealth v. Miller, 715 A.2d 1203 (Pa.
            Super. 1998), concerning the contents of the order
            memorializing the withdrawal of a post-sentence
            motion.

Pa.R.Crim.P. 720, Comment.

      The order entered here by the trial court denying Young’s untimely

post-sentence motion did not contain any of the information required by

Rule 720(B)(4); most crucially, it did not inform Young of the time in which

he had left to file a timely appeal.   We addressed the same situation in

Patterson, as the trial court’s order denying an untimely post-sentence

motion did not inform the defendant “that, due to the late filing of his post-

sentence motion, he had to file an appeal within thirty days of the imposition

of sentence.” Patterson, 940 A.2d at 499. We found that the trial court’s

failure to comply with Rule 720(B) constituted a breakdown in the court’s

process that would excuse the untimely filing:

            In our view, the trial court’s failure to comply with
            Rule 720 constitutes a breakdown that excuses the
            untimely filing of Appellant's notice of appeal. While
            Appellant did receive proper notification of his post-
            sentence and appellate rights at the time of
            sentencing, we will not deem partial compliance with
            the rules sufficient. Foremost, the use of the word
            “shall” in Rule 720(B)(4)(a) evinces the mandatory
            nature of the notification. See Commonwealth v.
            Pleger, 934 A.2d 715, 720 (Pa. Super. 2007)
            (stating “shall” evinces a mandatory obligation).



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           Second, the Comment to the Rule clearly states that
           Rule 720(B)(4) serves a distinct purpose from Rule
           704, namely, to ensure adequate notice to the
           defendant given the routine delay between the
           sentencing and the disposition of the post-sentence
           motion. Finally, in the instant case, the trial court’s
           compliance with this rule likely would have obviated
           the untimely filing of the appeal as Appellant had
           over two weeks remaining in the appeal period after
           the trial court entered the order.

           In so holding, we do not find that our Court’s
           decision in Dreves, supra, compels us to quash the
           appeal. In Dreves, [] the trial court properly advised
           the appellant of his post-sentence and appellate
           rights at sentencing, the appellant filed a post-
           sentence motion twenty days after the imposition of
           sentence, the trial court denied the motion three
           months later, and the appellant filed a notice of
           appeal within thirty days of the entry of the order
           denying the post-sentence motion. Our Court
           concluded that Appellant filed an untimely post-
           sentence motion, should have filed his notice of
           appeal within thirty days of the imposition of
           sentence, and quashed the appeal. Importantly, the
           Dreves court did not encounter a situation where
           the trial court’s compliance or non-compliance with
           Rule 720 would have impacted upon the timeliness
           of the appeal. In Dreves, the trial court did not
           resolve the untimely post-sentence motion prior to
           the expiration of the appeal period. As such, we find
           Dreves factually distinguishable.      Finding that a
           court breakdown occurred, we will entertain the
           merits of the instant appeal.

Id. at 499-500.

     In this case, as in Patterson, the trial court failed to comply with Rule

720(B)(4) and advise Young of the relevant deadlines for appeal purposes

following the disposition of his untimely post-sentence motion.      Also as in




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Patterson, Young still had approximately two weeks in which to file a timely

appeal   following   the   denial   of   his   untimely    post-sentence   motion.

Accordingly, we find that the trial court’s failure to comply with Rule

720(B)(4) constitutes a breakdown so as to excuse Young’s untimely filing of

his notice of appeal.

      Young has raised two issues on appeal.              First, he challenges the

sufficiency of the evidence to support his convictions of third-degree murder,

possessing instruments of crime and carrying a firearm without a license.

Young’s Brief at 15-22.

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we note
            that the facts and circumstances established by the
            Commonwealth need not preclude every possibility
            of innocence. Any doubts regarding a defendant’s
            guilt may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a
            matter of law no probability of fact may be drawn
            from     the      combined      circumstances.     The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the trier of fact
            while passing upon the credibility of witnesses and
            the weight of the evidence produced, is free to
            believe all, part or none of the evidence.




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Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008).

      Young’s argument with regard to his third-degree murder conviction

does not challenge the presence of evidence that would support his

convictions, but only the credibility of that evidence. See Young’s Brief at

17 (“Thus, the DNA evidence against [] Young … was extremely weak.”), 18

(characterizing    the        conclusion    that    Young    restrained    Victim    as

“preposterous”).   An argument challenging credibility determinations is an

argument addressed to the weight, rather that the sufficiency, of the

evidence supporting a conviction.           Commonwealth v. Gibbs, 981 A.2d

274, 281-82 (Pa. Super. 2009).             As such, it is irrelevant to a sufficiency

claim and cannot form the basis for relief.

      With   regard      to    the   remaining     two   convictions,   possessing   an

instrument of crime and firearms not to be carried without a license, Young

argues that the evidence was insufficient to support a finding that he

possessed the firearm that Pryor used to shoot Victim.2 Young’s Brief at 19-

22. He argues, in sum, that the evidence “established nothing more than

[Young’s] mere presence in a vehicle in which a weapon had been located,



2
   Both of these offenses require establishing that the accused possessed a
firearm. 18 Pa.C.S.A. 907(a) (“A person commits a misdemeanor of the first
degree if he possesses any instrument of crime with intent to employ it
criminally.”); 18 Pa.C.S.A. § 6106(a)(1) (“[A]ny person who carries a
firearm in any vehicle or any person who carries a firearm concealed on or
about his person, except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this chapter commits a
felony of the third degree.”).


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and there was no evidence to demonstrate that he even know [sic] of the

weapon before [Pryor] went to the car and retrieved it.”        Id. at 22.   We

disagree. The Commonwealth presented evidence that Young’s DNA was on

the grip and trigger of the firearm. N.T., 12/3/14, at 221-241. Considering

this evidence in the light most favorable to the Commonwealth, we conclude

that it is sufficient to establish that young possessed the firearm.3

      In his second issue, Young argues that his convictions are against the

weight of the evidence. Young’s Brief at 22.

            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.

            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 the limits of a
            trial court's discretion, we have explained[,] [t]he
            term ‘discretion’ imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is


3
  Tellingly, Young does not mention this evidence in his argument as to the
sufficiency of the evidence to support these offenses. See Young’s Brief at
19-22.


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             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 of 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) (emphasis in the

original) (citations omitted).

      Accordingly, we are mindful that as we review Young’s claim, we are

not passing on the underlying question of whether the verdicts were against

the weight of the evidence, but rather we are considering whether the trial

court abused its discretion in denying his motion based upon his claim that

the verdict was against the weight of the evidence.               We are focused,

therefore,   on   evidence    that   the   trial   court’s   ruling   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.” Id.

      Young, however, fails to appreciate the scope and standard of our

review. He does not present any argument as to how the trial court abused

its discretion in denying his post-trial motion.         He argues only that the

evidence supports his version of events and assails the jury’s credibility

determinations and fact finding. Young’s Brief at 22-25. Thus, his argument

is directed to the underlying question of whether his convictions are against




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the weight of the evidence. As stated above, this is not the question before

us for review. He does not allege how the trial court’s denial of his claim 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.” Clay, 64 A.3d at 1055.

      Young has not provided us with appropriate argument relative to our

standard of review, and this Court will not develop an argument on his

behalf.   See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.

2006).    In addition, however, we note that our independent review of the

record provides us with ample support for the conclusion that the trial court

did not abuse its discretion in deciding that the verdicts in this case were not

against the weight of the evidence. We therefore find no merit to Young’s

claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2015




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