J-S50016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JAMES DAVIS                           :
                                       :
                   Appellant           :   No. 1770 WDA 2018

      Appeal from the Judgment of Sentence Entered August 8, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0013163-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JAMES DAVIS                           :
                                       :
                   Appellant           :   No. 1771 WDA 2018

      Appeal from the Judgment of Sentence Entered August 8, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0012603-2017

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JAMES DAVIS                           :
                                       :
                   Appellant           :   No. 1772 WDA 2018

      Appeal from the Judgment of Sentence Entered August 8, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0014499-2016
J-S50016-19


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                             FILED OCTOBER 11, 2019

        James Davis (Appellant) appeals from the judgment of sentence

imposed at three related trial court dockets: CP-02-CR-0013163-2016 (No.

2016-13163) (jury trial) (1770 WDA 2018); CP-02-CR-0012603-2017 (No.

12603-2017) (guilty plea) (1771 WDA 2018); and CP-02-CR-0014499-2016

(No. 14499-2016) (guilty plea) (1772 WDA 2018).1             On appeal, Appellant

claims that his conviction of voluntary manslaughter2 is against the weight of

the evidence, the Commonwealth failed to present sufficient evidence to

disprove his claim of self-defense, his sentence is excessive, and his guilty

pleas were induced by ineffective counsel. Upon review, we affirm.

        Preliminarily, we note the deficiencies in Appellant’s brief. First, the sole

issue in Appellant’s statement of question involved is improperly broad and

vague: “Did the trial court err in denying Appellant’s post-trial motions?” See




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Appellant filed an appeal at each trial court docket, and each appeal was
separately docketed in this Court. Thus, the Supreme Court’s decision in
Commonwealth v. Walker is not implicated. See Walker, 185 A.3d 969,
977 (Pa. 2018) (where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case).

2   18 Pa.C.S.A. § 2503(b).




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Appellant’s Brief at 6;3 Pa.R.A.P. 2116(a) (“The statement of the questions

involved must state concisely the issues to be resolved, expressed in the terms

and circumstances of the case but without unnecessary detail. . . .           No

question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby.”). Additionally, Appellant’s brief lacks

a statement of the case, and fails to specify whether he raised his claims

before the trial court. See Pa.R.A.P. 2117(a)(4), (b), (c)(1) (“The statement

of the case shall contain . . . [a] closely condensed chronological statement,

in narrative form, of all the facts which are necessary . . . to determine the

points in controversy, with an appropriate reference . . . to the [pertinent]

place in the record,” “a balanced presentation of the history of the

proceedings,” and the place in the record where “the questions sought to be

reviewed were raised.”).         Finally, the “argument” section is a verbatim

reproduction of the second amended post-sentence motion filed by trial

counsel Brandon M. Herring, Esquire.4 Compare Appellant’s Brief at 8-22 and


____________________________________________


3 The copy of the brief filed electronically has two identical cover pages. These
two pages, along with the next six pages, are all designated page “i.” The
first numbered page, which begins with the heading “Argument,” is designated
page “8.” For ease of reference and to maintain the chronology of the
numbered pages, we designate the front cover of Appellant’s brief to be page
1, the next page (the identical copy of the cover) as page 2, etc.

4 The only variations from the post-sentence motion are the numbering of
some paragraphs, the addition of cites to Pennsylvania decisional authority
that were not included in the post-trial motion, and the deletion of Attorney
Herring’s request, in the post-trial motion, to withdraw from representation.
See Appellant’s Brief at 12-16, 18-19, 21.

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Appellant’s Second Amended Post-Sentence Motion, 11/6/18, at 2-15. While

the argument includes five cites to legal authority, there is no discussion of

any legal principles or their application to this case. See Pa.R.A.P. 2119(a)

(“The argument shall be divided into as many parts as there are questions to

be argued; and shall have at the head of each part — in distinctive type or in

type distinctively displayed — the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent.”);

Appellant’s Brief at 16, 18, 19, 21, 22. Appellant’s argument fails to address

the findings and reasoning set forth in the trial court’s opinion, and does not

articulate how the trial court allegedly erred. We remind appellate counsel

that failure to develop an appellate argument, with citation to supporting

authority and the record, may result in waiver.      See Commonwealth v.

Perez, 93 A.3d 829, 838 (Pa. 2014); Commonwealth v. Miller, 721 A.2d

1121 (Pa. Super. 1998) (“When issues are not properly raised and developed

in briefs, when briefs are wholly inadequate to present specific issues for

review, a court will not consider the merits thereof.”). Nonetheless, in this

case, where the brief includes some legal authority and we are able to discern

Appellant’s arguments, we do not find waiver.

                                    Facts

      The record reveals that Appellant fatally shot 19-year old Antonio

Troutman (the victim), when the victim attempted to enter a car occupied by

Appellant.   At trial, Appellant claimed self-defense on the theory that two


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armed individuals, including the victim, attempted to enter the car, after which

a struggle ensued and Appellant shot the victim. N.T. Trial, 5/14/18, at 429,

439, 440 (Appellant’s closing statement).

      Appellant’s cousin, Paul Sanders, was with Appellant on the day of the

shooting, and testified for the Commonwealth. The trial court summarized

Mr. Sanders’ testimony as follows:

            On the morning of the [August 22, 2016] shooting, Sanders
      was driving his car, with his brother Naseem Rose in the front
      passenger seat and Appellant in the seat behind his brother.
      Sanders drove to his house at 123 Peebles Street in Wilkinsburg,
      and parked his car across the street from his house. Sanders
      exited the vehicle, with the engine on, and went inside his house.

Trial Court Opinion, 4/10/19, at 5-6.

      Meanwhile, the victim, along with Keishon Martin, Drayvawn Smith, and

Avion Hayden, “were across the street from Mr. Sanders’ home doing

construction work at 128 Peebles Street.”         Id. at 6.    The trial court

summarized the testimony of Mr. Martin, who also appeared as a

Commonwealth witness, as follows:

      [The four men] were taking a lunch break outside on the porch
      when they observed Mr. Sanders’ vehicle park in front of 126
      Peebles Street. The car was parked on the same side of the street
      as the house where the men were working, with the passenger
      side of the vehicle closest to the curb. . . . Keishon Martin saw
      the driver exit the vehicle and enter a house across the street from
      them. He did not see anyone else in the car, but he noticed that
      the vehicle’s engine was still running and that the car’s windows
      were rolled up.

          At that point, Mr. Martin re-entered the house with Avion
      Hayden to continue working, while [the victim] and Mr. Smith
      remained outside.    Mr. Martin heard the sound of multiple

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      gunshots once he was back inside of the home. He testified that,
      after the gunshots ceased, he heard a car horn beeping. . . . Mr.
      Martin did not see [the victim] or Mr. Smith with a firearm or
      weapon that morning. Mr. Martin had known [the victim] and Mr.
      Smith for approximately a year, and he did not know either of
      them to carry firearms.

Trial Court Opinion, 4/10/19, at 6-7, citing N.T. Trial, 5/14/18, at 147-150,

153-154. However,

          Mr. Martin was interviewed by police on the same day as the
      shooting, and he told police that [the victim] and Mr. Smith stated
      that they “were going to do a dip on that car,” referring to Mr.
      Sanders’ vehicle. According to Mr. Martin, a “dip” is a slang term
      meaning “gotta go” or “leave.”

Trial Court Opinion, 4/10/19, at 7, citing N.T. Trial, 5/14/18, at 156-157. Mr.

Martin’s statement was memorialized in a police report,            which the

Commonwealth presented to Mr. Martin at trial. N.T. Trial, 5/14/18, at 156-

157. However, Mr. Martin denied telling the police that the victim and Mr.

Smith said they would “do a dip on [the] car.” Id. at 157 (“I don’t remember

saying this.”), 161 (“The police officer must have misheard.”).     Mr. Martin

acknowledged that he did not want to testify, and that he was previously

arrested on a material witness warrant for not cooperating in this case. Id.

at 154, 162.

      The Commonwealth also called Mr. Smith, who had been the victim’s

close friend.   N.T. Trial, 5/14/18, at 254.   The trial court summarized Mr.

Smith’s testimony:

      Mr. Smith had been friends with [the victim] for a few years, and
      he considered them to be close. On the morning of the shooting,
      Mr. Smith was called over to “a work site” at 128 Peebles Street

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      where [the victim] was working with Keishon Martin and Avion
      Hayden. Mr. Smith was on the porch taking a lunch break when
      he observed a car park in front of the house. Like Mr. Martin, the
      only person [Mr. Smith] saw exit the vehicle was the driver, who
      crossed the street and entered a house. Mr. Smith also noticed
      that the car was left running with the windows rolled up. Due to
      the dark window tint, he did not see anyone else in the vehicle.

           [The victim] then informed the group that he had to leave.
      [Smith walked toward the grassy area between 126 and 128
      Pebbles Street.] Mr. Smith watched [the victim] walk towards the
      running vehicle, open the door, and get into the driver’s seat.
      Within “two seconds” of [the victim] being inside of the car, Mr.
      Smith saw him quickly open the door and exit the vehicle,
      “touching his body” and saying “oh shit.” As [the victim] was
      getting out of the car, Mr. Smith heard what he thought were
      fireworks, but then realized that the sound was actually gunshots.

           . . . Mr. Smith walked towards the [victim to check on him.
      As he did so, Mr. Smith] saw the barrel of a gun being placed
      through a crack in the window, which prompted him to flee. Mr.
      Smith heard [5] or [6] gunshots that were spaced out, and he
      believed some of the shots were being fired in his direction. He
      saw [the victim] jogging away from the car before he himself fled.
      Mr. Smith testified that he did not possess a firearm that day and
      that he did not see [the victim] with a firearm that morning or
      when he got out of the car. Mr. Smith never knew [the victim] to
      carry a firearm.

Trial Court Opinion, 4/10/19, at 7-9 (footnote omitted), citing N.T. Trial,

5/14/18, at 255-258, 260-268, 274, 281-283, 285, 287, 288, 290, 295.

      “Smith testified at trial pursuant to a ‘Queen for a Day’ letter, which

promised him immunity for any criminal conduct related to the shooting in

exchange for his testimony.” Trial Court Opinion, 4/10/19, at 7 n.1; N.T. Trial,

5/14/18, 215-216. Mr. Smith also acknowledged that the Commonwealth had

obtained two material witness warrants against him for his refusal to

cooperate with the prosecution. N.T. Trial, 5/14/18, at 253. Mr. Smith was

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incarcerated at the time of trial on one warrant, as well as unrelated pending

charges. Id. at 254.

      “After he was shot, [the victim] was able to travel approximately 141

feet away from Mr. Sanders’ vehicle before collapsing in the parking lot of” a

medical office. Trial Court Opinion, 4/10/19, at 10. Responding paramedics

did not observe any weapons on or around the victim. The victim, who had

suffered two gunshot wounds, was transported to the hospital, where he was

pronounced dead. Id. at 10-11.

      At trial, Appellant based his claim of self-defense on the testimony of

his cousin, Mr. Sanders. The trial court explained:

      Mr. Sanders heard at least one (1) gun shot while he was inside
      of his house, and then he heard the sound of a car horn blaring.
      Mr. Sanders opened the door to the house and [yelled to
      Appellant] why he was beeping the horn. [Appellant] cracked the
      window and told him that they had to leave. Mr. Sanders re-
      entered his vehicle . . . and began driving [Appellant] to his
      mother’s house[.] He estimated that only five (5) to ten (10)
      minutes had passed from the time he parked his car to the time
      that he returned to the vehicle. [Appellant] was still seated in the
      same position when Mr. Sanders returned.

           After driving for a couple of blocks, Mr. Sanders recognized a
      bullet hole in the driver’s side door, which had not been present
      before that morning. He asked [Appellant] about the bullet hole,
      and [Appellant] told him that two (2) people tried to steal the car.
      [Appellant] stated that two (2) men approached the car from both
      the driver and passenger sides, and he shot the man trying to
      enter the vehicle from the driver’s side of the car. [Later that day,
      Appellant] admitted to Mr. Sanders that he “got rid of the gun”
      after the shooting, but he did not specify how he disposed of it.
      [Appellant] did not call the police in his cousin’s presence, nor did
      he ask him to call the police on his behalf.

          Realizing that his vehicle was implicated in a crime, Mr.

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      Sanders dropped [Appellant] off at his mother’s house then drove
      directly to the Braddock police station to report that his vehicle
      had been involved in a shooting. Mr. Sanders first spoke with
      homicide detectives approximately two (2) hours after the
      shooting occurred. Mr. Sanders initially was hesitant to implicate
      [Appellant] because he was trying to protect his cousin, but he
      ultimately informed the police of [Appellant’s] involvement within
      days of the shooting.

Trial Court Opinion, 4/10/19, at 11-12, citing N.T. Trial, 5/14/18, at 221-223,

307-309, 311-317, 319, 324, 326, 329.

      Finally, the trial court summarized the police investigation:

          Law enforcement conducted a thorough search of the crime
      scene area [and] did not locate a firearm or any other weapon on
      [the victim’s] person or anywhere in the vicinity[.] Aside from a
      blood trail, no physical evidence was recovered from the outdoor
      crime scene area.

                                  *    *    *

           Although it was impossible to detect which shot was fired first,
      the location of the gunshot wounds to [the victim] . . . was
      consistent with the scenario where [the victim] was shot as he
      attempted to enter and then exit the driver’s side of the vehicle.
      The wounds were inconsistent with a scenario that entailed [the
      victim] reaching towards the backseat of the vehicle as part of a
      struggle. In rejecting the scenario where [the victim] was shot
      during a struggle, the [medical examiner] explained that it would
      not be possible to “turn and expose the right side of my back to
      the shooter if I’m going to throw a punch.” In contrast, [the
      medical examiner] agreed that any movement of the arm toward
      the driver’s side door area would have left the back exposed.

Trial Court Opinion, 4/10/19, at 12, 14, citing N.T. Trial, 5/14/18, at 76-78,

85, 94-95, 97-99, 206-207, 209-210, 342.

                             Procedural History

      Appellant was charged at No. 2016-13163 with criminal homicide,


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tampering with or fabricating evidence, and carrying a firearm without a

license. A charge of persons not to possess firearms was severed and re-

charged at No. 2017-12603. Additionally, Appellant was charged at No. 2016-

14499 with receiving stolen property and possession with intent to deliver a

controlled substance. These charges arose from Appellant’s arrest inside his

girlfriend’s apartment on the day of the shooting; during a search of the

apartment, police found heroin and a stolen gun.

      The case at No. 2016-13163 proceeded to a jury trial on May 14, 2018.

The Commonwealth called 19 witnesses, including Mr. Sanders, Mr. Smith,

Mr. Martin, police detectives, the medical examiner, and experts in the fields

of firearms, crime scene processing, and DNA analysis.      Appellant did not

testify or present any witnesses, but introduced one exhibit — Mr. Smith’s

“Queen for a Day” letter. N.T. Trial, 5/14/18, at 420.

      At No. 2016-13163, the jury found Appellant guilty of voluntary

manslaughter, tampering with evidence, and carrying a firearm without a

license. Prior to sentencing on August 8, 2018, Appellant pled guilty to all

charges at both No. 2017-12603 and No. 2016-14499.            The trial court

sentenced Appellant, at all three dockets, to an aggregate 15 to 30 years of

imprisonment.

      Appellant, represented by Attorney Herring, filed a timely post-sentence




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motion on August 20, 2018,5 challenging both the sufficiency and weight of

the evidence as to his voluntary manslaughter conviction, as well as the length

of his sentence. Appellant’s motion further sought additional time to file an

amended motion once he reviewed transcripts.          The trial court granted

Appellant an extension to September 28, 2018.           Order, 8/22/18.     On

September 28th, Appellant filed a timely counseled amended motion. Although

Appellant did not seek another extension, his counsel filed a second amended

motion on November 6, 2018, adding a claim that counsel was ineffective, and

in which counsel requested leave to withdraw from representation. The court

granted counsel’s request to withdraw and appointed current counsel.6 Order,



____________________________________________


5 The tenth day after sentencing was Saturday, August 18, 2018. See
Pa.R.Crim.P. 720(A)(1) (generally, post-sentence motion shall be filed no later
than 10 days after imposition of sentence). Appellant thus had until Monday,
August 20th to file a timely post-sentence motion. See 1 Pa.C.S.A. § 1908
(when last day of any period of time referred to in any statute falls on
Saturday, Sunday, or legal holiday, such day shall be omitted from
computation); In re Nomination Papers of Lahr, 842 A.2d 327, 333 n.6
(Pa. 2004) (courts have generally employed § 1908 when applying Rules of
Criminal Procedure).

6 The trial court did not have jurisdiction to rule on any post-sentence motion
that was filed after the extended deadline of September 28, 2018. See
Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc) (in
the context of whether a notice of appeal was timely filed, “[t]he trial court’s
resolution of the merits of the late post-sentence motion is no substitute for
an order expressly granting nunc pro tunc relief”). Nevertheless, where
Appellant had initially filed a timely post-sentence motion, the trial court had
not ruled on it, and the Commonwealth did not object, we do not disturb the
trial court’s November 8, 2018 order permitting Attorney Herring to withdraw
or its November 14th order denying Appellant’s second amended motion.


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11/8/18. The court then denied the second amended post-sentence motion

on November 14th.      Appellant filed notices of appeal at each docket on

December 14, 2018. Although the trial court did not require one, Appellant

filed a Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors

complained of on appeal. The trial court issued an opinion on April 10, 2019.

                                     Issues

      In his statement of question involved, Appellant simply asserts that the

trial court erred in denying his post-trial motions. Appellant’s Brief at 6. Thus,

we consider the more specific claims Appellant presents in his summary of the

argument:

      1. The verdict is against the weight and sufficiency of the
      evidence, is unsupported by law, or otherwise should have been
      set aside.

      2. [Appellant] received an excessive sentence.

      3. [Appellant’s] counsel was ineffective as a matter of law by
      unlawfully inducing [Appellant’s] guilty pleas and/or related
      waivers.

Id. at 7.

      Appellant challenges both the sufficiency and weight of the evidence

with regard to his voluntary manslaughter conviction, arguing that he

presented a viable claim of self-defense. Appellant cites Mr. Sanders’ trial

testimony that Appellant told Mr. Sanders that two men tried to steal the car.

Appellant contends that even if, as the Commonwealth argued, the victim was

not armed, that fact was not relevant to whether Appellant acted reasonably.


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Appellant’s Brief at 12, 18. Appellant maintains that it is “reasonable for a

person sitting in the backseat of a running car awaiting the return of the driver

to believe that he was in danger of kidnapping, serious bodily injury or even

death when a stranger climbed into the driver’s seat.” Id. at 11. Appellant

also claims that Commonwealth witnesses Mr. Martin and Mr. Smith were not

credible, where the Commonwealth had to obtain material witness warrants

against both, and “the Defense impeached [Mr. Martin] with the prior

[inconsistent] statement” about the “dip.” Id. at 15, 17.

      At its essence, Appellant’s argument is (1) the evidence was insufficient

to establish that the Commonwealth disproved Appellant’s self-defense claim

beyond a reasonable doubt; and (2) Appellant’s conviction for voluntary

manslaughter was against the weight of the evidence.           We first examine

Appellant’s sufficiency claim. We have stated:

            When reviewing a sufficiency of the evidence claim, this
            Court must view the evidence and all reasonable
            inferences to be drawn from the evidence in the light
            most favorable to the Commonwealth as verdict winner,
            and we must determine if the evidence, thus viewed, is
            sufficient to prove guilt beyond a reasonable doubt. This
            Court may not substitute its judgment for that of the
            factfinder. If the record contains support for the verdict,
            it may not be disturbed.

      Moreover, a jury may believe all, some or none of a party’s
      testimony.

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000) (citations

omitted).

      Our Supreme Court has explained:

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            To prevail on a justification defense, there must be evidence
      that the defendant “(a) . . . reasonably believed that he was in
      imminent danger of death or serious bodily injury and that it was
      necessary to use deadly force against the victim to prevent such
      harm; (b) that the defendant was free from fault in provoking the
      difficulty which culminated in the slaying; and (c) that the
      [defendant] did not violate any duty to retreat.”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (citations

omitted). “[A] defendant’s subjective state of mind does not establish the

objective factor of the reasonableness of his belief.” Id. at 1125.

           Where there is a claim of self-defense, the Commonwealth
      has the burden to prove beyond a reasonable doubt that the killing
      was not committed in self-defense. In order to disprove self-
      defense, the Commonwealth must prove beyond a reasonable
      doubt one of the following elements: . . . that the defendant did
      not reasonably believe it was necessary to kill in order to protect
      himself against death or serious bodily harm, or that the
      defendant used more force than was necessary to save himself
      from death, great bodily harm, or the commission of a felony . . . .
      See 18 Pa.C.S.A. § 505(b)(2). If the Commonwealth establishes
      any one of these three elements beyond a reasonable doubt, then
      the conviction is insulated from a defense challenge to the
      sufficiency of the evidence where self-protection is at issue.

Burns, 765 A.2d at 1149-1150 (some citations omitted). Further, a claim of

self-defense may be refuted by evidence of a defendant’s consciousness of

guilt. Commonwealth v. Spotz, 84 A.3d 294, 316 (Pa. 2014).

      In rejecting Appellant’s claim that the Commonwealth failed to disprove

self-defense, the trial court cited evidence that although the victim was “a

stranger” who attempted to enter the car occupied by Appellant, “the police

investigation did not indicate that [the victim] ever actually occupied the

driver’s seat,” the victim “did not possess a weapon,” and the only witness


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who placed the victim inside the vehicle was Mr. Smith, who “testified

repeatedly that [the victim] was only in the car for ‘two seconds’ before he

was shot.” Trial Court Opinion, 4/10/19, at 17-18. The court further reasoned

that the evidence:

      evinced a strong consciousness of guilt. In the aftermath of the
      shooting, [Appellant] did not call 911 or otherwise attempt to
      report the shooting to authorities even though he claimed his life
      was in danger. [Appellant] did not even disclose the incident to
      Mr. Sanders until . . . Mr. Sanders questioned him about the bullet
      hole in his door. Even after Mr. Sanders informed [Appellant] that
      he had reported the shooting to the authorities, [Appellant] did
      not come forward to explain why he believed that the shooting
      was justified. Instead, [Appellant] discarded the weapon in an
      attempt to hide evidence from the police. [When Appellant was
      apprehended at his girlfriend’s apartment] on the night of the
      shooting, [Appellant] was found trying to hide behind a television,
      and police had to force entry into the apartment in order to
      effectuate the arrest.

Id. at 18-19. The court concluded that when viewing the evidence in the light

most favorable to the Commonwealth, “[t]he jury likely concluded that the

mere act of opening a door and sitting inside of a vehicle without permission

did not create a life-threatening situation” for Appellant. Id. at 22. The court

also noted that while Appellant “may have held a sincere and bona-fide belief

that deadly force was required,” there was sufficient evidence for the jury to

find that Appellant’s subjective belief that he was in danger of death or serious

bodily injury was “not objectively reasonable under the circumstances.” Id.

at 17, 24. Upon review, we find that the trial court’s conclusions are supported

by the record. Accordingly, we are not persuaded that the Commonwealth

presented insufficient evidence to disprove Appellant’s theory of self-defense.

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See Spotz, 84 A.3d at 316; Burns, 765 A.2d at 1148-1150.

      Appellant also claims that his conviction of voluntary manslaughter was

against the weight of the evidence.

      “[A] true weight of the evidence challenge ‘concedes that
      sufficient evidence exists to sustain the verdict’ but contends that
      the verdict was against the weight of the evidence.” An appellate
      court may review the trial court’s decision to determine whether
      there was an abuse of discretion, but it may not substitute its
      judgment for that of the lower court. Credibility issues are decided
      by the jury and appellate courts rarely overturn jury factual
      findings that are based on credibility determinations. Indeed, an
      appellate court should not entertain challenges to the weight of
      the evidence since our examination is confined to the “cold
      record.” Our Court may not reverse a verdict unless it is so
      contrary to the evidence as to shock one’s sense of justice. Thus,
      we are confined to review if the trial court abused its discretion.

Burns, 765 A.2d at 1149-1150 (citations omitted). A jury is “free to believe

all, part or none of the evidence presented and to assess the credibility of the

witnesses.” Id. at 1150.

      The crime of Voluntary Manslaughter occurs when a person kills
      an individual without lawful justification and at the time of the
      killing: 1) he is acting under a sudden and intense passion
      resulting from serious provocation by the individual killed, or 2)
      he intentionally or knowingly killed an individual under an
      unreasonable mistaken belief that the killing was justifiable. See
      18 Pa.C.S.A. § 2503(a)(1).

Id. at 1150.

      Appellant’s assertion that Commonwealth witnesses Mr. Smith and Mr.

Martin were not credible is meritless because the jury was free to believe all,

part, or none of their testimony.     See Burns, 765 A.2d at 1150.           Thus,

Appellant’s suggestion that this Court supplant the jury’s credibility findings


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with our own is misplaced. Further, and as discussed above, the jury was free

to conclude that Appellant’s asserted belief that killing the victim was

justifiable self-defense was not objectively reasonable. See id. at 1149-50.

Accordingly, the trial court properly denied Appellant’s weight claim.

      Appellant’s next claim is that his sentence is manifestly excessive.

Appellant states that the trial court failed to consider his “particularized

rehabilitative needs” — which Appellant does not articulate — and failed to

consider that he “was not seeking a conflict in this matter,” where he believed

he was under threat of death or serious bodily injury. Appellant’s Brief at 20.

Appellant also cites “mitigation evidence” that his mother suffered from a

chemical dependence while pregnant with him, he has a severe learning

disability and is unable to work, he nevertheless “has independently made

efforts to learn on his own throughout his life,” and he and his mother were

“raising a child that he originally believed to be his biological child.” Id. at

20-21. This issue is waived.

      A claim that a trial court failed to consider a defendant’s rehabilitative

needs or mitigating factors in fashioning a sentence is a challenge to the

discretionary aspects of sentencing. Commonwealth v. Swope, 123 A.3d

333, 337 (Pa. Super. 2015).       To preserve a discretionary challenge, an

appellant must include “a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence,”

pursuant to Pa.R.A.P. 2119(f). Id. “If a defendant fails to include an issue in


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his Rule 2119(f) statement, and the Commonwealth objects, then the issue is

waived and this Court may not review the claim.”          Commonwealth v.

Robinson, 931 A.2d 15, 19 (Pa. Super. 2007).

      Here, Appellant’s brief does not contain a Rule 2119(f) statement, and

the Commonwealth has objected.            See Commonwealth Brief at 25.

Accordingly, we are compelled to find waiver. See Robinson, 931 A.2d at

19.

      In his fourth and final issue, Appellant avers that trial counsel was

“generally ineffective in his preparation and defense.” Appellant’s Brief at 21.

Appellant claims that but for “counsel’s alleged ineffective advice, [Appellant]

would have taken” the cases at No. 2017-12603 and No. 2016-14499 to trial,

and that counsel promised Appellant he would receive concurrent sentences

at each case and an overall sentence of 4 to 8 years of incarceration. Id. at

22.

      It is well-settled that “ineffectiveness claims are generally not

reviewable on direct appeal.” See Commonwealth v. Baker, 72 A.3d 652,

665 (Pa. Super. 2013). Furthermore, “[p]rolix collateral claims should not be

reviewed on post-verdict motions unless the defendant waives his right to

PCRA review, because the PCRA does not afford the right to two collateral

attacks.” Id.

      Here, the trial court did not address Appellant’s ineffectiveness claims,

and Appellant makes no claim that he has knowingly and voluntarily waived


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review under the PCRA.      Thus, as the Commonwealth argues, Appellant’s

claims of ineffective assistance of counsel are not properly before this Court

on direct appeal. See Baker, 72 A.3d at 664-665; Commonwealth Brief at

27.

      In sum, there is no merit to any of Appellant’s claims, where the record

supports the findings of the jury and the trial court, Appellant waived his

sentencing claim, and his ineffective assistance of counsel claim is not properly

before us. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2019




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