J-S74016-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
ROBERT JOHNSON,                           :
                                          :
                  Appellant               : No. 35 EDA 2014

          Appeal from the Judgment of Sentence December 11, 2013,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0011137-2012

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 23, 2014

     Robert Johnson (“Johnson”) appeals from the December 11, 2013

judgment of sentence entered by the Philadelphia County Court of Common

Pleas. Upon finding that Johnson waived the issues raised, we dismiss the

appeal.

     The trial court summarized the factual history of the case as follows:

                    [Johnson] was arrested July 11, 2012 after
             police officers recovered a firearm from a vehicle in
             which [Johnson] was the front seat passenger. The
             record from trial shows that Police Officers James
             Battista and Joseph lnnamorato pulled over a vehicle
             for a Motor Vehicle Code violation. The driver and
             [Johnson] showed their hands as police approached
             the stopped car and then provided the police with
             their identification[s]. After running the vehicle
             occupants’ names through the computer system in
             the police car and discovering there was an
             outstanding warrant for [Johnson]’s arrest,[FN]1 the
             police officers returned to the stopped vehicle. Both
             officers noticed the driver and [Johnson] reaching



*Retired Senior Judge assigned to the Superior Court.
J-S74016-14


          towards the floor area of the car. Officer Battista
          asked [Johnson] to put up his hands and exit the
          vehicle. Officer Battista then observed that the floor
          mat below where [Johnson] had been sitting was
          raised and there appeared to be an object
          underneath it. After placing [Johnson] under arrest
          based upon his outstanding warrant, Officer Battista
          looked under the floor mat and recovered a black .45
          caliber handgun loaded with nine live rounds of
          ammunition. The driver of the vehicle was also
          placed under arrest and police recovered narcotics
          from his person. (N.T. 7/17/13, p. 51-85, 130).

                 On July 17-18, 2013, [Johnson] appeared
          before this [c]ourt for a trial by jury. Although
          [Johnson] initially was charged with three violations
          of the Uniform Firearms Act: Carrying a Firearm
          Without a License (18 Pa.C.S. § 6106), Carrying
          Firearms on Public Streets or Public Property in
          Philadelphia (18 Pa.C.S. § 6108); and Persons Not to
          Possess, Use, Manufacture, Control, Sell or Transfer
          Firearms (18 Pa.C.S. § 6105), the Commonwealth
          chose to proceed on only the § 6105 charge.
          [Johnson] stipulated at trial that he belonged to a
          class of persons not permitted to carry firearms.
          (N.T. 7/7/13, p. 162). The jury found [Johnson]
          guilty.

                On December 11, 2013, this [c]ourt sentenced
          [Johnson] to 5 to 10 years [of] state incarceration,
          to be served consecutively to any other sentence. As
          conditions of his sentence, he was ordered to
          undergo random urinalysis, obtain his GED, complete
          a job training program, attend drug treatment, seek
          and maintain employment, stay out of trouble with
          the law, and pay mandatory court costs. (N.T.
          12/11/13, p. 19).
          __________________________________
          [FN]1
                 This fact was not made known to the jury.
          Instead, Officer Battista simply testified that he
          returned to the car “[b]ased on information that [he]
          received after running [Johnson]’s name through the
          computer.” (N.T. 7/17/13, p. 59).



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Trial Court Opinion, 5/30/14, at 1-2 (footnote in the original).

      Johnson filed a timely notice of appeal, followed by a court-ordered

concise statement of errors complained of on appeal. He raises the following

issues for our review:

         A. Did the [trial c]ourt err in allowing a jury trial to
            proceed with only the VUFA 6105 charge, when
            [Johnson] was also charged with VUFA 6106 and
            6108, and stipulated that he was in a class of
            citizens barred from ever legally possessing a firearm
            due to a prior conviction[?] Under the particular
            circumstances of this case, the VUFA 6105 charge
            should have been severed and decided separately
            from the other two charges to avoid undue
            prejudice. The case was a constructive possession
            case[;] therefore, if the jury would have found
            [Johnson] guilty of VUFA 6106, then the severed
            part of the case would have been very easy to
            stipulate to the former conviction and have the jury
            deliberate (probably for 2 minutes) that [Johnson]
            was also guilty of VUFA 6105.           There was a
            stipulation that the firearm was operable, so that
            added element to VUFA 6106 as opposed to VUFA
            6105 would not have resulted in any confusion for
            the jury.

         B. Did the [trial c]ourt err by not giving a curative
            instruction at any point during the trial or at the
            opening and closing statement of the Assistant
            District Attorney, where that attorney inappropriately
            referred to [Johnson] legally not being able to
            possess a firearm, and referring to the State
            Legislature putting [Johnson] in a category of people
            who cannot possess a firearm[?]

Johnson’s Brief at 3.




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     Johnson’s lengthy first issue boils down to a simple claim – that the

Commonwealth should not have been permitted to withdraw the charge of

carrying a firearm without a license1 and proceed solely on the charge of

possession of a firearm by a prohibited person.2        Rather, according to



1
   The Uniform Firearms Act defines carrying a firearm without a license as
follows:

           (1) Except as provided in paragraph (2), any 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.

           (2) A person who is otherwise eligible to possess a
           valid license under this chapter but 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 and has not committed
           any other criminal violation commits a misdemeanor
           of the first degree.

18 Pa.C.S.A. § 6106(a) (footnote omitted).
2
    Section 6105(a) of the Uniform Firearms Act defines possession of a
firearm by a prohibited person as follows:

           (1) A person who has been convicted of an offense
           enumerated in subsection (b), within or without this
           Commonwealth, regardless of the length of sentence
           or whose conduct meets the criteria in subsection (c)
           shall not possess, use, control, sell, transfer or
           manufacture or obtain a license to possess, use,
           control, sell, transfer or manufacture a firearm in this
           Commonwealth.



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Johnson, the trial court should have required the Commonwealth to try him

on both charges and bifurcated the verdict so that the jury was required to

determine whether he carried a firearm without a license, and only then

consider whether he was a person prohibited from carrying a firearm.

Johnson’s Brief at 8, 12-13. The Commonwealth contends that this claim is

waived, as Johnson failed to object at the time the Commonwealth informed

the trial court that it was proceeding solely on the prohibited person charge.

Commonwealth’s Brief at 6-7.

      “[T]o preserve a claim of error for appellate review, a party must

make a specific objection to the alleged error before the trial court in a

timely fashion and at the appropriate stage of the proceedings; failure to

raise such objection results in waiver of the underlying issue on appeal.”

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citations

omitted). In violation of our Rules of Appellate Procedure, Johnson fails to

identify in his appellate brief where in the record he preserved the issue

raised. See Pa.R.A.P. 2117(c), 2119(e). Indeed, Johnson does not claim to


            (2)(i) A person who is prohibited from possessing,
            using,    controlling,    selling,  transferring    or
            manufacturing a firearm under paragraph (1) or
            subsection (b) or (c) shall have a reasonable period
            of time, not to exceed 60 days from the date of the
            imposition of the disability under this subsection, in
            which to sell or transfer that person's firearms to
            another eligible person who is not a member of the
            prohibited person's household.

18 Pa.C.S.A. § 6105(a).


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have raised the issue before the trial court. See generally Johnson’s Brief

at 7-13. The law is well settled that issues not raised before the trial court

are waived and cannot be raised for the first time on appeal.            Pa.R.A.P.

302(a); see also Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.

Super. 2009) (finding an argument raised on appeal waived based upon the

appellant’s failure to identify where in the record he raised the argument

before the trial court).

      Although not the duty of this Court when conducting appellate review,

we nonetheless scoured the record in an attempt to discern where, if at all,

Johnson preserved this issue for our review. Our search proved fruitless, as

the certified record on appeal does not include a transcription of the

Commonwealth withdrawing the charge of carrying a firearm without a

license.

            It is black letter law in this jurisdiction that an
            appellate court cannot consider anything which is not
            part of the record in the case. It is also well[]settled
            in this jurisdiction that it is Appellant’s responsibility
            to supply this Court with a complete record for
            purposes of review. A failure by Appellant to insure
            that the original record certified for appeal contains
            sufficient information to conduct a proper review
            constitutes waiver of the issue sought to be
            examined.

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007)

(internal citations omitted). Therefore, we find this issue waived.

      As his second issue on appeal, Johnson asserts that the trial court

erred by failing to provide a curative instruction to the jury regarding the


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Commonwealth’s opening statement, during which the Commonwealth said:

“This defendant, Robert Johnson, can never own, possess, control[, or] carry

a firearm, a gun, a handgun, a rifle, any kind of gun, ever, never [sic].”

N.T. 7/17/13, at 36. He baldly states that this amounted to “prosecutorial

misconduct” and that the trial court’s failure to address this with the jury

“was gross error,” depriving Johnson of “his right to a fair and impartial trial

guaranteed under the laws of the Commonwealth of Pennsylvania and the

United States of America.” Johnson’s Brief at 14. He does not develop any

argument in support of these claims, nor does he cite to any legal authority.

The Commonwealth again asserts that this issue is waived for a number of

reasons, one of which is Johnson’s failure to cite to a single legal authority in

support     of   his   argument   or   engage   in   any    meaningful   analysis.

Commonwealth’s Brief at 9.

      Rule of Appellate Procedure 2119(a), governing the argument section

of an appellate brief, requires: “The argument … 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.”         Pa.R.A.P. 2119(a).       “This Court is neither

obliged, nor even particularly equipped, to develop an argument for a party.

To do so places the Court in the conflicting roles of advocate and neutral

arbiter.”   Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super.

2008) (en banc) (internal citations omitted). Thus, where an appellant cites



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no legal authorities and fails to develop meaningful analysis of the argument

raised, the issue is waived for lack of development.    Commonwealth v.

Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal denied, 95 A.3d

275 (Pa. 2014).

     Johnson’s violations of the Rules of Appellate Procedure leave us with

no issues to review on appeal.

           Briefs and reproduced records shall conform in all
           material respects with the requirements of these
           rules as nearly as the circumstances of the particular
           case will admit, otherwise they may be suppressed,
           and, if the defects are in the brief or reproduced
           record of the appellant and are substantial, the
           appeal or other matter may be quashed or
           dismissed.

Pa.R.A.P. 2101. We therefore dismiss his appeal.

     Appeal dismissed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2014




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