J-S13018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

XAVIER ANDERSON HOLLAMON

                            Appellant                No. 827 WDA 2014


              Appeal from the Judgment of Sentence April 7, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003153-2013


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                            FILED MARCH 11, 2015

       Appellant, Xavier Anderson Hollamon, appeals from the April 7, 2014

aggregate judgment of sentence of 12½ to 25 years’ imprisonment, imposed

after he was found guilty of one count each of attempted murder, recklessly

endangering another person (REAP), possession of a weapon, carrying a

firearm without a license, and aggravated assault.1 After careful review, we

affirm in part and vacate in part.

       The trial court briefly summarized the relevant factual history of this

case as follows.

                    The evidence at [Appellant]’s trial revealed
              that [on August 24, 2013, Appellant] pulled out a
              gun and shot the victim[, Dayquan Robison,] at
____________________________________________
1
  18 Pa.C.S.A. §§ 901(a), 2705, 907(b), 6106(a)(2), and 2702(a)(1),
respectively.
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              almost point-blank-range upon confronting him on
              the street. [Dayquan]’s mother was between the
              two at the time trying to get [Appellant] to leave her
              son alone. She testified as to what occurred, and
              more significantly, the shooting was captured in its
              entirety on video via a security camera at the
              location.   The jury saw the actual event as it
              occurred.

Trial Court Opinion, 6/20/14, at 1.

       On November 23, 2013, the Commonwealth filed an information,

charging Appellant with the above-mentioned offenses, as well as one

additional count of REAP. On February 13, 2014, Appellant proceeded to a

two-day jury trial, at the conclusion of which the jury found Appellant guilty

of one count each of attempted murder, REAP, possession of a weapon,

carrying a firearm without a license, and aggravated assault.          As to the

second REAP count, the trial court entered a judgment of acquittal. On April

7, 2014, the trial court sentenced Appellant to an aggregate term of 12½ to

25 years’ imprisonment.2 On April 17, 2014, Appellant filed a timely post-

sentence motion, in which Appellant argued, among other things, that the

jury’s verdict was against the weight of the evidence.          See generally

Pa.R.Crim.P. 607(A)(3).         The trial court denied Appellant’s post-sentence



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2
   Specifically, the trial court imposed 12½ to 25 years’ imprisonment for
attempted murder, three to 60 months’ imprisonment for possession of a
weapon, three to 60 months’ imprisonment for carrying a firearm without a
license, six to 12 years’ imprisonment for aggravated assault, and no further
penalty for REAP. All sentences were to run concurrently to each other.



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motion that same day. On May 15, 2014, Appellant filed a timely notice of

appeal.3

       On appeal, Appellant raises the following three issues for our review.

              I.      Whether Appellant’s conviction associated with
                      a shooting was against the weight of the
                      evidence in light of the fact the Commonwealth
                      did not disapprove [sic] [] Appellant’s theory of
                      [j]ustification[?]

              II.     Whether the [trial c]ourt erred in its instruction
                      relative to the use of deadly force in its jury
                      instruction of self-defense/justification cases[?]

              III.    Whether the issue of mandatory minimum
                      incarceration for possession of a firearm during
                      the commission of a [sic] the offense should
                      have been submitted to the jury pursuant to
                      Commonwealth v. Newman, [99 A.3d 86
                      (Pa.     Super.      2014)       (en     banc)],
                      Commonwealth v. Munday[, 78 A.3d 661
                      (Pa. Super. 2013)]; pursuant to the United
                      States Supreme Court’s decision in Alleyne v.
                      United States, 133 S. Ct. 2151 (2013)[?]

Appellant’s Brief at 3.

       In his first issue, Appellant avers that the jury’s verdict was against

the weight of the evidence. Id. at 6. We begin by noting our well-settled

standard of review. “A claim alleging the verdict was against the weight of

the   evidence       is   addressed    to      the   discretion   of   the   trial   court.”

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation


____________________________________________
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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omitted). An argument that the jury’s verdict was against the weight of the

evidence   concedes      that   the   evidence   was   sufficient   to    sustain   the

convictions.   Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),

cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014).                        Our

Supreme Court has admonished that “[a] new trial should not be granted

because of a mere conflict in the testimony or because the judge on the

same facts would have arrived at a different conclusion.” Commonwealth

v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).               Instead, “the

trial judge is to determine that notwithstanding all the facts, certain facts are

so clearly of greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.”       Id. (internal quotation marks and

citation omitted). “[A] new trial should be awarded when the jury’s verdict

is so contrary to the evidence as to shock one’s sense of justice ….” Id.

      As an appellate court, it “is not [our role] to consider the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).

An argument that the jury’s verdict was against the weight of the evidence

remains “[o]ne of the least assailable reasons for granting … a new trial ….”

Id. (citation omitted). “Thus, only where the facts and inferences disclose a

palpable abuse of discretion will the denial of a motion for a new trial based

on the weight of the evidence be upset on appeal.”           Id. (citation omitted;

emphasis in original).


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      In this case, Appellant avers the jury’s verdict was against the weight

of the evidence based on the following.

                   The review of the transcript in this matter, in
            particular the testimony of [] Appellant, indicated
            that the victim of the shooting in this matter was in
            possession of a firearm at the time [] Appellant took
            the necessary step of shooting the victim to protect
            himself from serious bodily injury or death.
            Furthermore, it was established by additional
            evidence that the victims’ [sic] girlfriend hid the
            weapon in her house. It should be noted “victim”
            [sic] in this case never testified at trial. Therefore, it
            is clear the verdict presented in this case was against
            the weight of the evidence presented at trial. Thus
            Appellants     [sic]   conviction    [sic]   should   be
            overturned.

Appellant’s Brief at 6 (emphasis in original).

      To summarize the evidence, the jury heard testimony from Tabitha

Robison, Dayquan’s mother, who was present at the time of the shooting.

Tabitha testified that she received a phone call from Dayquan stating that

“guys [were] following him and he thought they were going to jump him.”

N.T., 2/13/14, at 20. Tabitha drove to JJ’s Pub, and Dayquan came out of

the bar once she arrived via a side door with his girlfriend.            Id. at 21.

Robison noticed two other gentlemen on the other side of the street. Id. at

22. When Dayquan and his girlfriend came out of the bar, these other two

men began to walk towards him. Id. According to Tabitha, one of the men,

in a red shirt, told Dayquan not to disrespect his mother. Id. at 23. Tabitha

identified Appellant as the man in the red shirt. Id. at 24-25. Tabitha got

out of her car and told Appellant that she had spoken with his mother and no

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one disrespected her.         Id. at 23. Tabitha got in between Dayquan and

Appellant. Id. As Tabitha put her arms up between them, Appellant pulled

out a gun and began shooting.           Id. at 24. Dayquan was shot twice.       Id.

Tabitha testified that her son was not armed, nor did he insinuate that he

was. Id. at 26. The Commonwealth then played security camera footage of

the incident for the jury.4        Tabitha identified herself and Dayquan in the

video.     Id. at 34.     On redirect examination, Tabitha also identified the

person depicted in the video shooting Dayquan as Appellant. Id. at 40.

        Appellant testified in his own defense. Appellant told the jury that he

approached Dayquan outside the bar to discuss an issue with Appellant’s

mother owing Dayquan money, and the victim “got aggressive with [him].”

Id. at 90. Appellant next stated that he saw Dayquan “reach in his pocket

and … saw a handle of a gun come out.” Id. at 91. Specifically, the gun

was a .380. Id. Appellant further testified that he was in fear for his life

and protected himself as a result. Id. at 97.

        It is axiomatic that the jury is the ultimate finder of fact at trial.

                    [T]he veracity of a particular witness is a
              question which must be answered in reliance on the
              ordinary experiences of life, common knowledge of
              the natural tendencies of human nature, and
              observations of the character and demeanor of the
              witness. As the phenomenon of lying is within the
              ordinary capacity of jurors to assess, the question of


____________________________________________
4
    Appellant stipulated to the video’s authenticity. N.T., 2/13/14, at 30.



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            a witness’s credibility is reserved exclusively for the
            jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).

Likewise, “[t]he 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.”    Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.

Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).

      In this case, the jury was free to find Tabitha’s trial testimony credible,

find Appellant’s testimony not credible, and resolve any inconsistencies in

the Commonwealth’s favor. See generally Commonwealth v. Horne, 89

A.3d 277, 286 (Pa. Super. 2014) (concluding the weight of the evidence

claim could not prevail as “the jury resolved the inconsistencies among the

testimonies as it saw fit and reached a verdict[]”). The jury was presented

with Tabitha’s testimony and Appellant’s. They weighed both and ultimately

concluded that Tabitha’s testimony was credible and Appellant’s was not

credible.   As an appellate court, we will not reweigh the evidence and

substitute our judgment for that of the fact-finder.       Commonwealth v.

Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on

these considerations, we conclude the trial court did not commit a palpable

abuse of discretion in deciding the jury’s verdict was not against the weight

of the evidence. See Morales, supra.

      In his second issue, Appellant avers that the trial court abused its

discretion when it failed to give an instruction to the jury based on

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Pennsylvania’s “Stand Your Ground” law.      Appellant’s Brief at 7; see also

generally 18 Pa.C.S.A. § 505(b)(2.3).        Generally, appellate briefs are

required to conform to the Rules of Appellate Procedure.      Pa.R.A.P. 2101.

Pennsylvania Rule of Appellate Procedure 2119(a) requires that the

argument section of an appellate brief include “citation of authorities as are

deemed pertinent.”     Id. at 2119(a).      This Court will not consider an

argument where an appellant fails to cite to any legal authority or otherwise

develop the issue. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see

also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012)

(stating, “[f]ailure to cite relevant legal authority constitutes waiver of the

claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d 603 (Pa.

2013).

      In this case, Appellant’s entire “Stand Your Ground” argument consists

of one double-spaced paragraph, consisting of 16 lines spanning less than

one page. See Appellant’s Brief at 7. More importantly, Appellant’s brief is

devoid of any substantive discussion of our cases involving self-defense, jury

instructions, or the “Stand Your Ground” statute.       Id.   Based on these




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considerations, we deem this issue waived on appeal.5             See Johnson,

supra; Whitley, supra.

       In his third issue, Appellant avers that he received an illegal

mandatory minimum sentence based on the United States Supreme Court’s

decision in Alleyne and this Court’s en banc decision in Newman.

Appellant’s Brief at 8.        Specifically, Appellant avers that the trial court

imposed a mandatory minimum sentence of five years’ imprisonment

pursuant to Section 9712(a) of the Sentencing Code which resulted in an

illegal sentence. Id. The Commonwealth acknowledges that Section 9712

has been declared facially unconstitutional.        Commonwealth’s Brief at 3.

However, the Commonwealth argues that the trial court did not impose an



____________________________________________
5
  The trial court and the Commonwealth both argue that Appellant waived
this issue for failure to preserve it in the trial court. Commonwealth’s Brief
at 2-3; Trial Court Opinion, 6/20/14, at 2. However, this contention is belied
by the record as defense counsel specifically requested the “Stand Your
Ground” instruction after the end of the first day of trial on the record in
chambers. N.T., 2/13/14, at 112-117. Defense counsel even read the
statute to the Commonwealth and the trial court. Id. at 113-114.

       However, Section 505(b)(2.3) requires, as a prerequisite to the “Stand
Your Ground” instruction, that the defendant show some evidence, even
through his own testimony, that he was “not in illegal possession of a
firearm[.]” 18 Pa.C.S.A. § 505(b)(2.3). At the time defense counsel
requested the instruction, defense counsel acknowledged that Appellant was
never asked whether he was legally permitted to have the firearm he used.
N.T., 2/13/14, at 114. As no other defense evidence exists supporting even
a prima facie showing that Appellant was not in illegal possession of a
firearm, even if this issue were not waived, Appellant would not be entitled
to relief.



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illegal sentence because the trial court did not rely on any mandatory

minimum sentencing statute in sentencing Appellant. Id.

       We note that Section 9712 has been declared facially unconstitutional

by    this   Court   under   the   theory    of   Newman.      See    generally

Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014).

Additionally, the Commonwealth filed its notice of intent to seek the

mandatory minimum at Section 9712 on February 18, 2014. It is true that

the   sentence   Appellant actually received for      attempted murder       and

aggravated assault was above the five-year mandatory minimum sentence

prescribed by Section 9712. However, in order for Appellant’s sentence to

be illegal for an unconstitutional application of Section 9712, the trial court

must have first actually applied Section 9712 in sentencing Appellant. We

have reviewed the entire sentencing transcript, and at no point in time did

any party during the sentencing hearing discuss or advocate for or against

the imposition of any mandatory minimum sentence. As a result, Appellant is

not entitled to relief on his third issue.

       We note however, that our review of the record has revealed an

additional issue pertaining to the legality of Appellant’s sentence, specifically

concerning the doctrine of merger. A claim that crimes should have merged

for sentencing purposes raises a challenge to the legality of the sentence.

Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009), appeal

denied, 990 A.2d 730 (Pa. 2010). We begin by noting that a challenge to


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the legality of the sentence can never be waived and may be raised by this

Court sua sponte. Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa.

Super. 2014) (citation omitted); see also Commonwealth v. Borovichka,

18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) (stating, “[a] challenge to the

legality of a sentence … may be entertained as long as the reviewing court

has jurisdiction[]”).     It is also well established that “[i]f no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.

Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id.

“Issues relating to the legality of a sentence are questions of law[.] … Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)

(citations omitted).

      In examining whether Appellant’s offenses should have merged, we

consider the following.

            The preliminary consideration [in determining
            merger for sentencing purposes] is whether the facts
            on which both offenses are charged constitute one
            solitary criminal act. If the offenses stem from two
            different criminal acts, merger analysis is not
            required. If, however, the event constitutes a single
            criminal act, a court must then determine whether or
            not the two convictions should merge.

Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008)

(brackets   in   original),   appeal   denied,   991   A.2d   313   (Pa.   2010).

Furthermore, in order for two convictions to merge, the elements of the

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lesser-included offense must be subsumed by the elements of the greater

offense.     Specifically, Section 9765 of the Sentencing Code provides as

follows.

              No crimes shall merge for sentencing purposes
              unless the crimes arise from a single criminal act and
              all of the statutory elements of one offense are
              included in the statutory elements of the other
              offense.    Where crimes merge for sentencing
              purposes, the court may sentence the [Appellant]
              only on the higher graded offense.

42 Pa.C.S.A. § 9765.

      Instantly, as noted above, Appellant received a sentence of 12½ to 25

years’     imprisonment   for   attempted   murder,    and   six   to    12   years’

imprisonment for aggravated assault, all stemming from the one incident in

this case.     Our Supreme Court has held that these crimes merge for

sentencing purposes.

              It is clear that the offense of aggravated assault is
              necessarily included within the offense of attempted
              murder; every element of aggravated assault is
              subsumed in the elements of attempted murder.
              The act necessary to establish the offense of
              attempted murder-a substantial step towards an
              intentional killing-includes, indeed, coincides with,
              the same act which was necessary to establish the
              offense of aggravated assault, namely, the infliction
              of serious bodily injury.        Likewise, the intent
              necessary to establish the offense of attempted
              murder-specific intent to kill-is greater than and
              necessarily includes the intentional, knowing, or
              reckless infliction of serious bodily injury, the intent
              required for aggravated assault. It is tautologous
              that one cannot kill without inflicting serious bodily
              injury. 18 Pa.C.S. § 2301. Inasmuch as aggravated
              assault, the lesser offense, contains some, but not all

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           the elements of      the greater offense, attempted
           murder, the two      offenses merge for purposes of
           sentencing. The      sentence for aggravated assault
           must therefore be   vacated.

Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).

     In this case, the trial court acknowledged at sentencing that attempted

murder and aggravated assault merge for sentencing purposes.             N.T.,

4/7/14, at 6. The Commonwealth agreed with the trial court’s assessment.

Id. Nevertheless, the trial court still imposed a sentence for both attempted

murder and aggravated assault, albeit a concurrent sentence. However, it is

axiomatic that the merger doctrine prohibits any type of sentence being

imposed.   See Anderson, supra.      As a result, Appellant’s six to 12 year

concurrent sentence for aggravated assault is illegal, and subject to vacatur.

See id.; Rivera, supra; Walls, supra. However, as Appellant’s sentence

for aggravated assault was a concurrent sentence, our decision does not

upset the trial court’s sentencing scheme, as Appellant’s aggregate sentence

remains 12½ to 25 years’ imprisonment.       Therefore, we need not remand

for resentencing. See Commonwealth v. Lomax, 8 A.3d 1264, 1268 (Pa.

Super. 2010) (stating, “[b]ecause we can vacate the [illegal portion of the]

sentence without disturbing the overall sentencing scheme, we need not

remand [for resentencing]”).

     Based on the foregoing, we conclude Appellant’s issues on appeal are

either waived or devoid of merit. However, we also conclude that the trial

court imposed a partial illegal sentence when it sentenced Appellant for both

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attempted murder and aggravated assault.          Accordingly, the trial court’s

April 7, 2014 judgment of sentence is affirmed in part and vacated in part.

      Judgment    of   sentence   affirmed   in   part   and   vacated   in   part.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




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