J-S39030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    ANDREW WHITING

                             Appellant                    No. 1226 EDA 2018


         Appeal from the Judgment of Sentence Entered March 23, 2018
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0005264-2017


BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS, P.J.E.*

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

        Appellant, Andrew Whiting, appeals from the March 23, 2018 judgment

of sentence imposing an aggregate four to eight years of imprisonment

followed by two years of probation for two counts of unlawful possession of a

firearm, simple assault, recklessly endangering another person (“REAP”), and

possession of an instrument of crime.1 We affirm.

        The trial court summarized the pertinent facts:

              On June 4th, 2017, [Appellant] and the complainant,
        [Appellant’s] former girlfriend, had a verbal altercation in the first-
        level apartment at 5861 Cedar Avenue in the City and County of
        Philadelphia, Pennsylvania.       As the complainant exited the
        property onto the sidewalk, [Appellant] went to the second-level
        apartment that he inhabited, and took possession of a firearm.

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*   Former Justice specially assigned to the Superior Court.

1    18 Pa.C.S.A. §§ 6105, 6108, 2701, 2705, and 907, respectively.
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            The complainant left the apartment and [Appellant] followed
      the complainant onto the sidewalk and shoved her. [Appellant]
      retrieved a firearm from his pocket and pointed it at the
      complainant’s temple, one to two inches from her head. The
      complainant stated, “I’ll be back. You’re not getting away with it.”
      [Appellant] replied, “You want to know what happened to the last
      M-effer that said he’ll be back?”          The complainant then
      immediately called police and described the incident.

           Officer Robinson encountered [Appellant]—who matched
      the description given by the complainant—on the 5900 block of
      Cedar Avenue. When Officer Robinson and his partner, Officer
      Raymond, attempted to stop [Appellant], [Appellant] fled.
      [Appellant] entered 5861 Cedar Avenue after pursuit.

             Officer Johnson, while on patrol, was notified by an unknown
      witness, that a firearm was located underneath a vehicle on the
      street in front of 5921 Cedar Avenue. The complainant positively
      identified that firearm as the one that [Appellant] pointed at her
      head. The complainant also showed police a photo of that same
      firearm, taken by the complainant on a prior occasion.

            [Appellant] is prohibited from possessing a firearm based on
      [a prior conviction].

Trial Court Opinion, 7/17/18, at 1-2 (pagination ours) (record citations

omitted).

      On January 19, 2018, the trial court, sitting as factfinder, found

Appellant guilty of the aforementioned offenses. On March 23, 2018, the court

imposed sentence as set forth above. This timely appeal followed. Appellant

raises one issue:

            Was not the evidence insufficient for guilt on all charges,
      insofar as the evidence of guilt was so unreliable and contradictory
      as to make any verdict based upon it a matter of conjecture, and
      as such was insufficient to support a conviction as a matter of law?

Appellant’s Brief at 3.



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      The phrasing of the issue in Appellant’s Pa.R.A.P. 1925(b) was, in

substance, identical. From Appellant’s brief, it is clear that he is challenges

the sufficiency of the evidence in accord with In re J.B., 189 A.3d 390 (Pa.

2018), wherein our Supreme Court explained that the evidence is insufficient

as a matter of law if the inferences to be drawn from it are equally consistent

with the defendant’s guilt or innocence. Rule 1925 was not at issue in J.B.,

but it is clear that the sole issue was the defendant’s identity as the

perpetrator.   Instantly, however, Appellant was convicted of five different

crimes arising out of his assault of the victim and possession of a firearm. The

evidence against him includes the victim’s eyewitness account, a gun found

under a car near the scene of the crime, the victim’s identification of the gun,

a photograph of the gun taken at an earlier time, and Appellant’s flight from

police. Despite this, Appellant’s Pa.R.A.P. 1925(b) statement fails to specify

any element of any offense for which the evidence is insufficient as a matter

of law.

      “[A] Concise Statement which is too vague to allow the court to identify

the issues raised on appeal is the functional equivalent of no Concise

Statement at all.” Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super.

2006), appeal denied, 919 A.2d 956 (Pa. 2007).            A Pa.R.A.P. 1925(b)

statement raising a sufficiency of the evidence challenge must specify the

element or elements of the offense(s) for which the evidence is insufficient.

Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017), appeal


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denied, 169 A.3d 599 (Pa. 2017).                This is so even where, as here, the

Commonwealth does not object and the trial court prepares an opinion. Id.

We do not believe that the Supreme Court’s analysis in J.B. relieves an

appellant of the responsibility of filing a sufficiently specific 1925(b)

statement, especially in a case where the evidence includes an eyewitness

account and physical and photographic evidence, and where the defendant

has been convicted of both assault and possessory offenses. We therefore

conclude that Appellant has failed to preserve his only argument on appeal.2

       Regardless     of   the   waiver,       Appellant’s   reliance   upon   J.B.   and

Commonwealth v. Kakaria, 625 A.2d 1167 (Pa. 1993), is misplaced. In

J.B., our Supreme Court wrote, “the Commonwealth, as verdict winner, is

entitled to the benefit of all reasonable inferences which could be drawn from

the evidence it presented at trial.” J.B., 189 A.3d at 408. “We regard this

deferential manner of appellate review as according appropriate respect to the

role of the jury or a trial judge sitting without a jury to make credibility

determinations and factual findings based on their weighing of the evidence

which they hear firsthand.”          Id. at 408-09.          The J.B. Court cautioned,



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2  We further observe that Appellant’s brief is largely an attack on the
credibility of the victim’s eyewitness account. An argument as to the
credibility of the Commonwealth’s chief witness is a challenge to the weight,
not the sufficiency, of the evidence. Commonwealth v. Griffin, 65 A.3d
932, 939 (Pa. Super. 2013) (quoting Commonwealth v. Palo, 24 A.3d 1050,
1055 (Pa. Super. 2011) appeal denied, 34 A.3d 828 (Pa. 2011)), appeal
denied, 76 A.3d 538 (Pa. 2013).

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however, “in some cases, the entire body of evidence introduced at trial which

furnished the basis for an appellant’s conviction is so deficient that it does not

reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 409.

In this “atypical” situation, “we are not bound by the factual findings and

credibility determinations rendered by the finder of fact, and we are compelled

in such circumstances to reverse a legally erroneous conviction.” Id.

            [I]f the trial evidence of record viewed in the light most
      favorable to the Commonwealth and all reasonable inferences
      drawn from that evidence is only, at most, equally consistent with
      a defendant’s innocence as it is with his guilt, the Commonwealth
      has not sustained its burden of proving the defendant’s guilt
      beyond a reasonable doubt.

Id. at 415.

      There was no eyewitness account of the murder at issue in J.B. The

Supreme Court explained that the physical evidence, such as gunshot residue

on the defendant’s clothing, the lack of blood or DNA on the victim’s clothing

or the purported murder weapon, among other items, was in equipoise as to

the defendant’s guilt or innocence. Thus, the evidence was insufficient as a

matter of law.

      Similarly, in Kakaria, the alleged rape victim was unable to provide the

date of any alleged assault, and in her initial report to police, she was unable

to recall the defendant ever penetrating her. Kakaria, 625 A.2d at 1171.

Other witnesses testified that the defendant, the victim’s stepbrother, was

rarely in the home during the charged time. Id. For these reasons, among

others, our Supreme Court held that the evidence, “carefully reviewed in its

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entirety, is so unreliable and contradictory that it is incapable of supporting a

verdict of guilty, and thus, is insufficient as a matter of law.” Id. at 1172.

       Instantly, in contrast, the victim contacted police immediately after the

alleged assault and provided an eyewitness account.              She identified

Appellant’s handgun, which police found concealed underneath a parked car

near the scene of the assault. She also showed police a cell phone picture of

the Appellant’s gun that she had taken at some earlier time. The picture in

the complainant’s cell phone matched the weapon police recovered near the

scene. Furthermore, the record reflects that Appellant fled from police. This

body of evidence is vastly different from the evidence at issue in J.B. and

Kakaria. Viewed in a light most favorable to the Commonwealth as verdict

winner, it plainly supports a finding beyond a reasonable doubt that Appellant

possessed a firearm and assaulted the victim.

       Appellant also complains that the variance between the victim’s signed

police statement and her subsequent trial testimony3 does not require a

different conclusion. As noted above, her credibility was for the fact finder to

resolve, and any question of credibility relates to the weight, not sufficiency,

of the evidence.      Additionally, the variance in the victim’s account of the

assault does not bring this case within the purview of Kakaria.                  In

Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), our Supreme Court


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3 The signed statement, among other things, indicated that the assault took
place indoors rather than outdoors.

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held that out-of-court statements from witnesses who recanted at trial were

sufficient to sustain a conviction. The Supreme Court refused to apply the

Kakaria rationale in that scenario.    Id. at 1157-71. Given the holding in

Brown, we cannot conclude that the variance between the victim’s statement

to police and her eventual trial testimony renders the evidence insufficient as

a matter of law. Even were we to conclude that Appellant’s concise statement

was sufficient to preserve his argument under J.B. and Kakaria, he would not

obtain relief.

      For all of the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




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