J-S28037-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DURWIN GODWIN

                        Appellant                   No. 2925 EDA 2014


          Appeal from the Judgment of Sentence August 28, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011960-2013


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

CONCURRING STATEMENT BY BOWES, J.:                     FILED MAY 10, 2016

      In my view, Appellant’s arguments on appeal are not waived.

Pa.R.A.P. 1925(b)(4)(ii) provides, “The Statement shall concisely identify

each ruling or error that the appellant intends to challenge with sufficient

detail to identify all pertinent issues for the judge.”     The comment to

Pa.R.A.P. 1925(b)(4) reports that this directive is designed to clarify that

“the Statement should be sufficiently specific to allow the judge to draft the

opinion required under 1925(b).” The statement at issue in this appeal sets

forth this position: “Appellant’s VUFA convictions were not supported by

sufficient evidence because the evidence offered to support the convictions

(Officer Momme’s testimony) was in contradiction to the physical facts and

in contravention of human experience and the laws of nature.” Appellant’s


* Retired Senior Judge assigned to the Superior Court.
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Rule 1925 Statement, 3/4/15, at 1. Appellant also averred that Officer

Momme’s testimony that a gun was present in Appellant’s car was unreliable

and that his convictions were against the weight of the evidence.

         Given the evidence at trial, which was that police never recovered the

weapon viewed by Officer Momme, Appellant’s contentions are readily

identifiable    from   his   Pa.R.A.P.   1925(b)   statement.     The    trial   court

understood the issues being raised in the document and authored a

memorandum disposing of them.            The Commonwealth likewise recognized

the substance of Appellant’s arguments, preparing an appropriate responsive

brief.

         In light of the evidence presented at trial, it is evident that Appellant’s

allegations were that all of his Uniform Firearm’s Act convictions were infirm,

as contradictory to the physical facts, because the gun observed by the

officer was not recovered and that the officer’s testimony, due to the lack of

confirming physical evidence, should not have been credited.            A finding of

waiver based upon the contents of Appellant’s Pa.R.A.P. 1925(b) statement

is unnecessary, as evidenced by the fact that the Majority addressed this

very issue in its alternative analysis. Commonwealth v. Laboy, 936 A.2d

1058, 1060 (Pa. 2007) (reversing this Court finding of waiver and ruling

that, despite unartfully drafted Pa.R.A.P. 1925(b) statement, defendant was

entitled to appellate review of merits of sufficiency-of-the-evidence claim

since thrust of his position was apparent based upon record and since trial

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court addressed it). Similarly, I do not believe that Appellant’s claims are

insufficiently developed in his brief such as to warrant a finding of waiver on

that ground.

      However, I concur that Appellant’s positions lack merit. I would affirm

on the basis of the August 12, 2015 opinion of the Honorable Diana Anhalt.




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