J-A03044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY T. GOODEN,

                             Appellant                No. 3506 EDA 2016


           Appeal from the Judgment of Sentence September 9, 2016
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0003686-2014


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED APRIL 18, 2018

        Appellant, Timothy T. Gooden, appeals from the judgment of sentence

imposed following his jury conviction of attempted murder, aggravated

assault, robbery, kidnapping, carrying a firearm without a license, carrying a

firearm on a public street in Philadelphia without a license, possession of an

instrument of a crime, and four counts of criminal conspiracy.1 We affirm.

        This case arises from the brutal robbery of Kevin Slaughter by Appellant

and his four co-defendants, Christopher Cooley, Kylieff Brown, Shaheed

Smith, and Kareem Cooley, after a chance meeting between Slaughter and

Brown at the SugarHouse Casino. We take the following facts and procedural
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901, 2702, 3701, 2901, 6106, 6108, 907, and 903,
respectively.
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history from the trial court’s March 10, 2017 opinion and our independent

review of the certified record.

      On December 8, 2013, at approximately 8:00 p.m., Slaughter ran into

Brown, whom he knew from prison, at the casino. Brown told Slaughter that

he wanted to purchase cocaine and a handgun, and Slaughter responded that

he was able to sell both. Slaughter cashed out with $3,600.00 to $4,200.00,

and left the casino alone to drop off the money at his home in Northeast

Philadelphia.

      Slaughter then returned to the casino to meet Brown and they drove to

South Philadelphia and picked up the drugs and gun. While they were driving,

Brown was on the phone, telling the person he was speaking with their exact

location. When Slaughter pulled over to stop at a store, a van drove by and

then quickly returned, veering out of its lane towards his vehicle. Slaughter

then looked in his rear-view mirror and saw Appellant slumped down on the

right side of his vehicle, creeping towards him with a gun.           Slaughter

attempted to flee in the car, but Appellant fired bullets at it. The car crashed

into a telephone poll, and Slaughter exited it and started running.

      Slaughter was shot in his lower back and two or three men threw him

into the van and tied him up with duct tape. The van fled the scene. Police

quickly responded to a 911 call of gunshots and arrested Brown and Kareem

Cooley, who had remained at the scene.

      As the van traveled in the direction of center city, Appellant and

Christopher Cooley rode in the back with Slaughter.       Appellant repeatedly

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asked Slaughter where his money and drugs were, and threatened to kill and

burn him. Cooley pistol-whipped Slaughter numerous times, and put a gun in

his face. Appellant punched Slaughter in the face several times and knocked

out his front tooth.   The men put a bag over his head at various points.

Slaughter gave Appellant his address and the cell phone number of his wife,

Samirah Savage, and told him to obtain the money he won at the casino from

her. The men drove to his home.

     Samirah Savage received several phone calls from a blocked phone

number, which she did not answer.         She then received a call from an

unblocked number, which she did not answer, and heard a knock on the front

door. She went to the door, and a man with a cellphone told her that her

husband was on the phone. She cracked the door open, took the phone, and

spoke with Slaughter. He told her that he was being followed, that the person

at the door was his friend, and to give the friend the money from the casino.

When she questioned Slaughter, he told her to do what he said, or they would

kill him. She gave the money and the phone to the man.

     Once the conspirators had Slaughter’s money, they drove behind a high

school and threw him out of the van. Appellant or Cooley shot at him six

times, with a bullet passing through his face and neck.    A resident of the

neighborhood heard gunshots, found Slaughter, and called 911.            The

conspirators drove the van to another location, doused it with an accelerant,

and lit it on fire as a neighbor watched. Meanwhile, police responded to the




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scene where Slaughter was shot, and he was airlifted to the hospital.       He

underwent multiple surgeries and survived his injuries.

       During the ensuing investigation, police obtained search warrants for

the defendants’ cellphone records, which showed frequent contact between

them immediately before, during, and after the crime. The Federal Bureau of

Investigation (FBI) was able to reconstruct the conspirators’ approximate

locations throughout the crime using historical cell site data.2    Appellant’s

cellphone was at the approximate site of each stage of the crime.

       Arrest warrants were issued for those defendants not immediately

apprehended at the scene of the first shooting. Appellant was arrested on

February 25, 2014.

       On June 13, 2016, a jury found Appellant guilty of the above-listed

offenses.    On September 9, 2016, the trial court sentenced him to an

aggregate term of not less than twenty nor more than forty years’

incarceration, followed by ten years of probation. On October 25, 2016, the




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2 Special Agent William B. Shute of the FBI testified that historical cell site
analysis is when investigators take the information contained in a suspect’s
call detail records, which are generated as a result of the suspect’s phone
calls, and analyze the calls and depict them onto a map. (See N.T. Trial,
6/01/16, at 40). The phone number of the phone attributable to Appellant
was (267) 670-6898. (See id. at 63).




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court denied Appellant’s timely post-sentence motion without a hearing. This

timely appeal followed.3

       Appellant raises the following questions for our review:

       1. Whether the trial court erred in admitting into evidence the
       identifying information of the names of individuals saved in
       cellular phone address books on two occasions[?]

       2. Whether the trial court erred in admitting into evidence hearsay
       as to the identity of Christine Moore as the owner of a specific cell
       phone number and her relationship with Appellant[?]

       3. Should Appellant be awarded an arrest of judgment on all
       charges as there is insufficient evidence to sustain the verdict[?]

       4. In the alternative, should Appellant be awarded a new trial as
       the greater weight of the evidence does not support the verdict[?]

(Appellant’s Brief, at 4) (commentary omitted).

       At the outset, we note that Appellant’s first two issues challenge the trial

court’s admission of certain evidence.           (See id.).   Our standard of review

relative to the admission of evidence is for an abuse of discretion.            See

Commonwealth v. Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013), appeal

denied, 114 A.3d 416 (Pa. 2015).

       Appellant first argues that the trial court erred in admitting hearsay

evidence, in the form of cellphone address-book contact entries of his alleged

nickname “Shooter” or “Da Shoota,” in the cellphones of Kareem Cooley and

Christopher Cooley.       (See Appellant’s Brief, at 8-10; see also N.T. Trial,
____________________________________________


3 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on December 4, 2016. The trial court entered an
opinion on March 10, 2017. See Pa.R.A.P. 1925.


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5/23/16, at 185-86, 258, 262-63 (Kareem and Christopher Cooley’s contact

entries listing the phone number of “Shooter/Da Shoota” as (267) 670-6898)).

This issue is waived.

      It is well-settled:

             Rule 1925 is intended to aid trial judges in identifying and
      focusing upon those issues which the parties plan to raise on
      appeal. Rule 1925 is thus a crucial component of the appellate
      process. When a court has to guess what issues an appellant is
      appealing, that is not enough for meaningful review. When an
      appellant fails adequately to identify in a concise manner the
      issues sought to be pursued on appeal, the trial court is impeded
      in its preparation of a legal analysis which is pertinent to those
      issues. In other words, 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. While
      [Commonwealth v.] Lord[,] [719 A.2d 306 (Pa. 1998) ] and its
      progeny have generally involved situations where an appellant
      completely fails to mention an issue in his Concise Statement, . .
      . Lord . . . also appl[ies] to Concise Statements which are so
      vague as to prevent the court from identifying the issue to be
      raised on appeal.

Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (one

citation omitted).

      Here, the issue Appellant listed in his Rule 1925(b) statement regarding

the cellphone contact entries failed to identify for the trial court the hearsay

issue he sought to pursue on appeal.         (See Rule 1925(b) Statement,

12/04/16, at unnumbered pages 1-2 ¶ 3).           The trial court found that:

“[Appellant] fails to state with specificity how the court erred.” (Trial Court




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Opinion, 3/10/17, at 39).4 The court assumed that Appellant challenged its

admission of the cellphone contact entries on the basis of improper

authentication. It proceeded to analyze the authentication issue in the body

of its opinion, relegating its rejection of any potential hearsay claim to a brief

footnote. (See id. at 39-42). Therefore, because the trial court had to guess

what issue Appellant was appealing, he failed to preserve his claim properly.

See Ray, supra at 1114. Accordingly, Appellant’s first issue is waived.5

____________________________________________


4  Appellant’s Rule 1925(b) statement provides:         “The [c]ourt erred in
admitting into evidence the identifying information of the names of individuals
saved in cellular phone address books on two occasions. The first was the
names and associated phone numbers found in the cellular phone found on
and attributed to Kareem Cooley. (See N.T. Trial, 5/24/16, at 3). The second
was the names and associated phone numbers found in the cellular phone
found on and attributed to Christopher Cooley. (See N.T. Trial, 5/23/16, at
151).” (Rule 1925(b) Statement, at unnumbered pages 1-2 ¶ 3) (record
citation formatting provided). The record reflects discussions among the
attorneys and the trial court regarding several legal issues concerning the
cellphone contact entries, including authentication, hearsay, and relevance.
(See N.T. Trial, 5/23/16, at 151-54; N.T. Trial, 5/24/16, at 3-7, 12).

5Moreover, we agree with the Commonwealth’s assessment that the cellphone
contact entries were not hearsay. (See Commonwealth’s Brief, at 12, 15).
“Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted in the statement.” Kuder, supra at 1055 (citation omitted); see
also Pa.R.E. 801(c).

      Here, the contact entries were not offered to prove the truth of the
matter asserted, i.e., that the listed phone number in the entries ((267) 670-
6898) belonged to Appellant. (See Commonwealth’s Brief, at 12 (explaining
that evidence was offered to show relationships among parties involved in
crime)); see also Kuder, supra at 1055 (extrajudicial statement is not
hearsay where it is not offered to prove truth of its contents). In fact,
Appellant himself gave (267) 670-6898 as his phone number to the police one
month after the incident involving Slaughter, when he was the victim of a



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        Appellant next argues that the trial court erred in admitting hearsay

evidence regarding his alleged relationship with a woman named Christine

Moore, which he argues was used to connect him to phone number (267) 670-

6898.     (See Appellant’s Brief, at 11-13).     Appellant directs this Court to

Detective Robert Daly’s testimony describing Moore as his girlfriend. (See id.

at 12). This claim is waived.

        As the Commonwealth points out, Appellant’s argument on this issue is

underdeveloped, and does not contain a single case citation to support his

assertion that the detective’s testimony constituted impermissible hearsay.

(See id. at 11-13; Commonwealth’s Brief, at 20-21). It includes no discussion

of legal authority, save a bare passing reference to Pennsylvania Rule of

Evidence 802 and the Sixth Amendment to the United States Constitution.

Appellant therefore waived his second issue.        See Pa.R.A.P. 2119(a)-(b);

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014) (en

banc), appeal denied, 104 A.3d 1 (Pa. 2014) (“The Pennsylvania Rules of

Appellate Procedure require that each question an appellant raises be

supported by discussion and analysis of pertinent authority, and failure to do

so constitutes waiver of the claim.”) (citation omitted).

        Moreover, it would not merit relief. As previously noted, “[h]earsay is

an out-of-court statement offered to prove the truth of the matter asserted in

____________________________________________


shooting. (See Trial Ct. Op., at 19, 39 n. 20; see also N.T. Trial, 5/20/16, at
142-44; N.T. Trial, 5/24/16, at 65-66, 69). Therefore, Appellant’s first issue
would not merit relief, even if it were not waived.

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the statement.” Kuder, supra at 1055 (citation omitted). “[A] ‘Statement’

means a person’s oral assertion, written assertion, or nonverbal conduct, if

the person intended it as an assertion.” Pa.R.E. 801(a). “As a general rule,

hearsay is inadmissible, because such evidence lacks guarantees of

trustworthiness fundamental to our system of jurisprudence.” Kuder, supra

at 1055 (citation omitted); see also Pa.R.E. 802.

      Here, the following exchange took place between the Commonwealth

and Detective Daly on redirect examination:

      Q. Counsel [for Christopher Cooley] asked you who Christine
      Moore is.

      A. That’s correct.

      Q. Who is Christine Moore?

      [Counsel for Appellant:] Objection, hearsay. . . .

      THE COURT: Overruled.

      Q. Who is Christine Moore?

      A. [Appellant’s] girlfriend.

(N.T. Trial, 5/26/16, at 114).

      Upon review, we conclude that the challenged testimony did not

constitute hearsay because Detective Daly did not relay “an out-of-court

statement” made by anyone. Kuder, supra at 1055 (citation omitted). The

detective merely stated his own conclusion regarding the status of Moore’s

relationship with Appellant, based on his investigation. Therefore, the trial




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court did not abuse its discretion in allowing the testimony. See id. at 1053.

Appellant’s second issue would merit no relief, even if it were not waived.

      In his third issue, Appellant challenges the sufficiency of the evidence

supporting his conviction. (See Appellant’s Brief, at 13-15). This issue is also

waived.

            In order to preserve a challenge to the sufficiency of the
      evidence on appeal, an appellant’s Rule 1925(b) statement must
      state with specificity the element or elements upon which the
      appellant alleges that the evidence was insufficient.          Such
      specificity is of particular importance in cases where, as here, the
      appellant was convicted of multiple crimes each of which contains
      numerous elements that the Commonwealth must prove beyond
      a reasonable doubt.

Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015)

(citations and quotation marks omitted) (finding sufficiency claim waived and

declining to address issue where Rule 1925(b) statement failed to identify

relevant elements or crimes).

      Here, the trial court found that Appellant waived his sufficiency claim by

failing to set forth with particularity in his Rule 1925(b) statement the

elements of each crime the Commonwealth allegedly did not prove beyond a

reasonable doubt. (See Trial Ct. Op., at 29). We agree. Specifically, in his

Rule 1925(b) statement, Appellant generically argued: “That [he] should be

awarded an arrest of judgment on all charges as there is insufficient evidence

to sustain the verdict.   The Commonwealth did not prove that [he] was a

principal, an accomplice or a conspirator to any of the events in question.”

(Rule 1925(b) Statement, at unnumbered page 1 ¶ 1). Appellant’s concise


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statement does not specify which element or elements of the relevant crimes

the Commonwealth failed to establish beyond a reasonable doubt.6            This

vague assertion is inadequate to preserve his sufficiency claim for appellate

review. See Freeman, supra at 1248. Therefore, Appellant has waived his

third issue.7

       In his final issue, Appellant challenges the weight of the evidence

supporting his conviction, arguing that the jury’s verdict shocks the conscience

because Slaughter initially identified another man, Raheem Turner, in a photo

spread as the man who shot him. (See Appellant’s Brief, at 16-18).8 This

issue is also waived.
____________________________________________


6 We recognize that, in every criminal prosecution, the Commonwealth must
prove beyond a reasonable doubt that the defendant was the perpetrator of
the offense, and that identity is an implicit element of each crime. See
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973);
Commonwealth v. Broadwater, 90 A.2d 284, 285 (Pa. Super. 1952). Here,
the Commonwealth presented substantial evidence of Appellant’s involvement
in the incident, and viewing all the evidence admitted at trial in the light most
favorable to the Commonwealth, as we must under the relevant standard of
review, there was sufficient evidence to establish Appellant’s identity beyond
a reasonable doubt. See Commonwealth v. Duck, 171 A.3d 830, 835 (Pa.
Super. 2017).

7Appellant has also waived this issue by failing to develop it adequately in his
brief. (See Appellant’s Brief, at 13-15); see also Pa.R.A.P. 2101, 2119(a)-
(b). Although the jury convicted him of numerous crimes, ranging from
attempted murder to firearms violations, he does not set forth the elements
of the crimes he is challenging, or otherwise identify the specific elements he
disputes. (See Appellant’s Brief, at 13-15).

8Appellant neglected to provide this Court with any citations to the record to
support his claim. See Pa.R.A.P. 2119(c) (mandating that an appellant
provide references to record). Our review reveals that Slaughter identified



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       Specifically, Appellant waived his weight claim premised on Slaughter’s

identification of Raheem Turner by failing to raise it in his post-sentence

motion.      See Pa.R.Crim.P. 607(A)(3); see also Commonwealth v.

Petteway, 847 A.2d 713, 717 (Pa. Super. 2004) (concluding appellant waived

weight claim by failing to raise it with trial judge). In the motion, Appellant

challenged the weight of the evidence only on the basis that the parties

presented     unspecified    “conflicting      statements   and   conflicting   physical

evidence[.]” (Post-Sentence Motion, 9/12/16, at unnumbered page 2 ¶ 4).

Appellant did not refer to Slaughter’s photo array identifications or to Raheem

Turner at all.

       Likewise, in his Rule 1925(b) statement, Appellant only vaguely argued

that: “[he] must be awarded a new trial as the greater weight of the evidence

does not support the verdict.           The greater weight did not support any

proposition finding [Appellant] guilty as a principal, an accomplice or a

conspirator. The verdict was based on speculation, conjecture and surmise.”

(Rule 1925(b) Statement, at unnumbered page 1 ¶ 2). This statement did

not identify Appellant’s specific claim centered on Slaughter’s initial

identification of Raheem Turner; consequently, the trial court did not discuss

this claim in its opinion. (See Trial Ct. Op., at 38-39) (addressing and finding
____________________________________________


Appellant as the perpetrator from a photo array, and that he repeatedly
identified Appellant as the principal offender of the episode during trial. (See
N.T. Trial, 5/18/16, at 83-84, 88, 90, 96-97, 100, 112, 114, 120). Slaughter
also testified that he initially mistakenly identified Raheem Turner as the
shooter in a photo array, and that he informed law enforcement of this error.
(See id. at 118-121, 206, 213-215, 218-22).

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meritless only vague assertion raised in Rule 1925(b) statement). Therefore,

Appellant’s final issue is waived for this reason as well.      See Pa.R.A.P.

1925(b)(vii); see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(claims not raised in Rule 1925(b) statement are waived).9 Accordingly, we

affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/18




____________________________________________


9 Moreover, Appellant’s weight claim would not merit relief. The jury heard
Slaughter’s numerous in-court identifications of Appellant as the perpetrator,
and also heard testimony regarding his initial identification of Turner. (See
supra, at *11-12 n.8). The jury, as fact-finder, was free to believe all, part,
or none of the evidence, and to assess Slaughter’s credibility.            See
Commonwealth v. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal
denied, 168 A.3d 1287 (Pa. 2017). After review of the record, we discern no
abuse of discretion regarding the trial court’s denial of Appellant’s weight
claim. See id. (noting this Court’s extremely limited standard of review
concerning weight claims, confined to whether trial court abused its discretion
in finding jury’s verdict did not shock its conscience).


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