J-S59038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOHN W. CLAYBURNE

                               Appellant               No. 2414 EDA 2015


              Appeal from the Judgment of Sentence July 13, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0004125-2014

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 31, 2016

        Appellant, John W. Clayburne, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and his convictions for first-degree murder1, firearms not to be carried

without a license,2 and two counts of robbery.3        Appellant challenges the

sufficiency and the weight of the evidence. We affirm.

        In its opinion, the trial court summarized the relevant facts as follows:

              Around midnight on March 8, 2013, Michael King
           (“King”) also known as “Poogie” was killed by gunfire while
           driving a van near the Cobbs Creek Inn in the City and
           County of Philadelphia. Earlier that night, King had gone

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 6106(a)(1).
3
    18 Pa.C.S. § 3701(a)(1)(i).
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       to the home of his friend Lamonte Butts (“Butts”) also
       known as “Mont” and said he wanted to get high on pills.
       Butts told King that he did not feel like going out, but that
       King could take his minivan and go to make the purchase.
       King was gone for about an hour then returned to Butts
       saying that he could not find anyone from whom to
       purchase drugs. Butts joined King in the van to continue
       the search for drugs, and the pair ended up at the Cobbs
       Creek Inn located at Cobbs Creek Parkway and Catharine
       Street. Upon arrival at the Inn, Butts went inside where
       he came into contact with Peter Hutton (“Hutton”) also
       known as “Petey”, who was known to him. Butts had
       $700-$800 on his person when he went into the bathroom
       with Hutton to discuss the exchange of drugs for cash.
       Appellant also entered the bathroom. Hutton said that he
       could provide the drugs, but that the drugs were are [sic]
       at the home of his girlfriend. Butts and Hutton then left
       the Inn and walked toward the minivan where King was
       waiting in the driver’s seat. As they approached the van,
       Butts noticed that they were being followed by a male
       wearing a hoodie who was later identified by Butts as . . .
       Appellant. Butts jumped into the front passenger seat of
       the van and Hutton entered the minivan through the
       sliding rear door. Appellant approached Butts’ door with a
       handgun drawn. Butts told King to drive off. As King
       began to drive, there were gunshots, one (1) of which
       struck King in the head and caused the van to crash into
       cars parked across the street from the Inn. . . . Appellant
       came over to the crashed van and pointed the gun at
       Butts’ head. Butts immediately threw the cash onto the
       ground and ran away.

          Jumar Smith (“Smith”) also known as “Gator Boots” or
       “Gator”, who was at the door of the Inn at the time of the
       shooting, witnessed Butts and Hutton get into the van and
       saw a third person whom he did not recognize attempt to
       get into the minivan. Smith heard shots fired, saw the van
       crash, and watched Butts and Hutton run toward 63rd and
       Webster Streets. From his vantage point Smith observed
       the third male bend down to pick up cash from the ground
       then run toward 63rd Street and Cedar Avenue. Smith
       went into the Inn and called the police.




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            Dr. Edwin Lieberman of the Philadelphia Medical
         Examiner’s Office performed the autopsy of King. The
         cause of death was determined to be one (1) gunshot
         wound to the head. The bullet entered near the left
         eyebrow and exited behind the left ear. The manner of
         death was found to be homicide. . . . Appellant was
         apprehended by United States Marshalls [sic] in North
         Carolina on April 22, 2013. . . . Appellant did not have a
         valid license to carry a firearm.

             Hutton made a statement to the police which he
         consented to have videotaped. In his statement, Hutton
         detailed events of the attempted drug sale and Robbery
         which were consistent with the account of Butts. Hutton
         saw Appellant fire two to three (2-3) shots. After giving
         his statement, Hutton failed to appear to six (6) court
         listings to testify for the Commonwealth in the instant
         matter. A bench warrant was issued, and once in custody
         for Contempt of Court, Hutton refused to be sworn in to
         testify at two (2) subsequent listings, which caused the
         case to be dropped for lack of prosecution. A material
         witness petition was filed by the Commonwealth for Butts
         and Hutton and charges were once again brought against
         Appellant. Hutton refused to testify at a ninth listing of
         this case and at trial, disavowed his statement and claimed
         the statement was the result of him being beaten up by
         Philadelphia police.     A series of recorded phone calls
         between Hutton and various family members revealed that
         Hutton intended not to cooperate with the Commonwealth
         against . . . Appellant, and evidenced that he and
         Appellant had been in communication while both were in
         custody at Curran-Fromhold Correctional Facility (CFCF).

Trial Ct. Op., 2/1/16, at 2-4 (footnotes omitted).

      A jury convicted Appellant of first-degree murder, firearms not to be

carried without a license, and two counts of robbery on July 13, 2015.4 That


4
  The trial court issued a progression charge with respect to homicide, and
the jury, having found Appellant guilty of first-degree murder, did not render
a verdict on the lesser charges of second or third-degree murder. See N.T.,



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same day, the court sentenced Appellant to life imprisonment without the

possibility of parole, with no further penalty on the remaining charges. On

August 4, 2015, Appellant timely filed a notice of appeal. The court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).      Appellant complied and subsequently filed

an amended Rule 1925(b) statement.

        Appellant raises the following issues for our review:

           I. Is [Appellant] entitled to an Arrest of Judgment on the
           charge of Murder in the First Degree, Two Counts of
           Robbery and One Count of [firearms not to be carried
           without a license], where the evidence is insufficient to
           sustain the verdict and with special regard to the charge of
           Murder in the First Degree where the Commonwealth did
           not present sufficient evidence to establish malice, a
           specific intent to kill or premeditation?

           II. Is [Appellant] entitled to a new trial on all charges
           where the greater weight of the evidence does not support
           the Commonwealth’s verdict and would not establish that
           [Appellant] was a principal, a criminal conspirator or an
           accomplice and where the verdict was based on
           speculation, conjecture and surmise?

Appellant’s Brief at 3.

        Preliminarily, we note that Appellant’s Rule 1925(b) statement5 and his

statement of the question on appeal suggest sufficiency of the evidence



7/10/15, at 94-95; N.T., 7/13/15, at 4. Additionally, the trial court charged
the jury with robbery involving the infliction of serious bodily injury or the
threat of inflicting serious bodily injury. N.T., 7/10/15, at 73-74. See 18
Pa.C.S. § 3701(a)(1)(i), (ii).
5
    Appellant’s Rule 1925(b) statement provides, in relevant part:



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challenges to his convictions for robbery and firearms not to be carried

without a license.   See id.; Appellant’s Am. Pa.R.A.P. 1925(b) Statement,

12/22/15, at 1.

           [W]hen challenging the sufficiency of the evidence
           on appeal, the [a]ppellant’s 1925 statement must
           specify the element or elements upon which the
           evidence was insufficient in order to preserve the
           issue for appeal. Such specificity is of particular
           importance in cases where, as here, the [a]ppellant
           was convicted of multiple crimes each of which
           contains numerous elements that the Commonwealth
           must prove beyond a reasonable doubt.

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations

omitted). Moreover, an appellate brief must provide substantive argument

and citation to relevant authority in support of a sufficiency claim.   See

Pa.R.A.P. 2119(b), (c); Commonwealth v. Janda, 14 A.3d 147, 164 (Pa.

Super. 2011) (stating a failure to cite law or evidence in support of an

argument in a brief constitutes waiver).




        That [Appellant] is entitled to an arrest of judgment on all
        charges, including, murder in the first degree, robbery and
        [firearms not to be carried without a license].          The
        evidence is insufficient to sustain the verdict.         The
        evidence did not establish that [Appellant] was a principal,
        conspirator or an accomplice to any of the charges.
        Moreover, and with regard to the charge of murder in the
        first degree, the evidence did not establish that [Appellant]
        acted with a specific intent to kill or with premeditation or
        malice. An arrest of judgment is required.

Appellant’s Am. Pa.R.A.P. 1925(b) Statement, 12/22/15, at 1.




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      Instantly, Appellant’s Rule 1925(b) statement fails to identify any

element of robbery or firearms not to be carried without a license.

Additionally, as noted below, Appellant’s brief concedes there was sufficient

evidence to find that he was engaged in a robbery and discharged a firearm

during the incident.          Appellant’s Brief at 10.     Accordingly, Appellant’s

sufficiency claims for robbery and firearms not to be carried without a

license are waived.      See Pa.R.A.P. 2119(b), (c); Janda, 14 A.3d at 164.

However, Appellant has preserved and appropriately argued a challenge to

the sufficiency of the evidence regarding his conviction of first-degree

murder, and we will address that claim.

      Appellant    argues      the   evidence   was   insufficient   to   support   his

conviction for first-degree murder because the Commonwealth failed to

prove he acted with a specific intent to kill when he discharged the firearm.

Appellant’s Brief at 9-11. Appellant concedes the Commonwealth produced

evidence that established he participated in the robbery and discharged a

firearm.    Id. at 10.       Appellant claims that his actions during the chaotic

encounter and his decision not to shoot Butts are inconsistent with

premeditation or a specific intent to kill. Id. at 11. We conclude Appellant

is not entitled to relief.

      Our review of sufficiency of the evidence is governed by the following

principles:

           As this case involves a question of law, our scope of review
           is plenary. Our standard of review is de novo.


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                                *    *     *

        [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict.      [A]ll of the evidence and any
        inferences drawn therefrom must be viewed in the light
        most favorable to the Commonwealth as the verdict
        winner.

                                *    *     *

        In applying this standard, [the reviewing court must] bear
        in mind that: the Commonwealth may sustain its burden
        by means of wholly circumstantial evidence; the entire trial
        record should be evaluated and all evidence received
        considered, whether or not the trial court’s ruling thereon
        were correct; and the trier of fact, while passing upon the
        credibility of witnesses and the weight of the proof, is free
        to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(quotation marks and citations omitted).

     The Pennsylvania Consolidated Statutes define first-degree murder as:

        § 2502. Murder

        (a) Murder of the first degree.—A criminal homicide
        constitutes murder of the first degree when it is committed
        by an intentional killing.

18 Pa.C.S. § 2502(a).

     This Court has held:

        In order for a jury to find a defendant guilty of murder of
        the first degree, the Commonwealth must prove, beyond a
        reasonable doubt, that a human being was [un]lawfully


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         killed, that the accused was responsible for the killing, and
         that the accused acted with a specific intent to kill.

            [A] specific intent to kill may be inferred from the
            use of a deadly weapon to inflict injury on a vital
            part of the body. A deadly weapon is defined as
            [a]ny firearm, whether loaded or unloaded, or any
            devise designed as a weapon and capable of
            producing death or serious bodily injury, or any
            other device or instrumentality which, in the manner
            in which it is used or is intended to be used, is
            calculated or likely to produce death or serious bodily
            injury.

Commonwealth v. Talbert, 129 A.3d 536, 543 (Pa. Super. 2015)

(citations and quotation marks omitted). “An intentional killing is a killing by

means of poison, or by lying in wait, or any other kind of willful, deliberate

and premeditated killing.”   Commonwealth v. Mollett, 5 A.3d 291, 313

(Pa. Super. 2010) (citation and quotation marks omitted).         Furthermore,

“specific intent may be formed in an instant.” Id. (citation omitted).

      Instantly, Butts testified that he saw Appellant pull a gun out of his

pocket as he and Hutton were going to King’s van.        N.T. Trial, 7/7/15, at

203. Butts “jumped in the van,” told King to “pull off,” and then heard a

gunshot. Id. Butts looked over at King and saw he was “shot in the face

dead.”   Id.   The Commonwealth also read Butts’s statement to police

immediately following the shooting.    Id. at 209. In that statement, Butts

described the shooting as follows:

         I walked out of the bar and went back to the minivan,
         which was parked outside with [King], and that’s when
         [Hutton] got right in the back seat on my side of the
         minivan. I looked out the window and that is when I saw


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         the guy that was with [Hutton] in the bar was walking
         right towards the van, right towards me in the passenger
         side.

                                    *    *    *

         He was walking with a gun in his hand. He was taking it
         out of his jacket pocket. It was silver .38 revolver. He
         was pointing the gun right at me. Then this guy starts
         saying stuff like, stop, hold up, get out of the car.

         As he was pulling on the door handle, I started to tell
         [King] to pull off, that this guy has a gun, [King] was
         asking what was I talking about, he was asking, what’s
         wrong like? I said, this guy’s got a gun, pull off, pull off.

                                    *    *    *

         This guy got the door opened as I was trying to get the
         door locked. That’s when I heard the gun go off.

Id. at 215-17.

      Additionally, Dr. Lieberman, the Commonwealth’s expert in forensic

pathology, testified that the gunshot entered King’s head in his left eyebrow,

a quarter-inch from the center of his body. N.T., 7/9/15, at 22. He opined

King was looking directly at the gun when Appellant fired it. Id. at 26.

      As noted above, Appellant did not need an extended period of time to

form the specific intent to kill.   See Mollett, 5 A.3d at 313.    Rather, the

requisite intent could reasonably be inferred from the totality of the

circumstances, namely that Appellant at a relatively close range, while

attempting to stop the vehicle, and after opening the front passenger door

shot King, the driver. See Talbert, 129 A.3d at 543. The jury was free to

weigh the evidence that Appellant discharged the firearm as King was


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looking directly at the weapon.         See Ratsamy, 934 A.2d at 1236.

Therefore, mindful of our standard of review, we discern no basis to disturb

the jury’s finding that Appellant acted with the specific intent to kill, and

affirm the conviction for first-degree murder. See id.

      In his second issue, Appellant argues the weight of the evidence did

not support a conviction for first-degree murder.      Appellant’s Brief at 12.

Specifically, Appellant claims the weight of the evidence reflects that he

discharged the firearm in a moment of chaos, and not because he engaged

in premeditation and consciously formed a specific intent to kill. Id. at 12-

13. Appellant alleges the jury employed speculation as to Appellant’s mental

state at the time of the crime.     Id. at 13.   We conclude Appellant is not

entitled to relief.

      Rule 607 of the Pennsylvania Rules of Criminal Procedure states:

          Rule 607. Challenges to the Weight of the Evidence

          (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). Thus, a weight of the evidence claim is not preserved

if Appellant raises the claim for the first time in his Rule 1925(b) statement,

and we may not address the merits of the claim even if the trial court



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addresses the issue in its Rule 1925(a) opinion.         Commonwealth v.

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

93 A.3d 478, 490 (Pa. Super. 2014).

      Instantly, Appellant did not raise his weight of the evidence issue

either before or after sentencing in a post-sentence motion.              See

Pa.R.Crim.P. 607(A). Rather, Appellant raised this issue for the first time in

his Rule 1925(b) statement, which did not properly preserve the issue,

although the trial court elected to consider it in its Rule 1925(a) opinion.

See Sherwood, 982 A.2d at 494.          Therefore, Appellant’s weight of the

evidence issue is waived. See id.

      In any event, Appellant’s weight of the evidence challenge would merit

no relief, as our review reveals no basis upon which to conclude that the trial

court abused its discretion when suggesting Appellant was not entitled to a

new trial. See Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super.

2009) (reiterating that “[a]ppellate 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”).       Therefore, Appellant’s

weight of the evidence claim would merit no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




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