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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MARQUIS JACKSON

                            Appellant                No. 1292 EDA 2013


             Appeal from the Judgment of Sentence April 11, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007141-2011


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                               FILED MAY 29, 2015

        Appellant, Marquis Jackson, appeals from the April 11, 2013 aggregate

judgment of sentence of 18 to 36 years’ imprisonment, imposed after being

found guilty by a jury of attempted murder, aggravated assault, possessing

an instrument of crime, carrying a firearm on public streets in Philadelphia,

simple assault, and recklessly endangering another person.1      After careful

review, we affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

                    The Commonwealth presented evidence that
              Appellant shot the complainant, Mr. Donzel Murril,
              multiple times at close range.   The complainant
____________________________________________


1
    18 Pa.C.S.A. §§ 901, 2702, 907, 6108, 2701, and 2705, respectively.
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          testified that on May 31, 2011, at approximately
          9:40 p.m., he was sitting in a parked vehicle with his
          girlfriend near the 7400 block of Edmund Street,
          Philadelphia. The complainant was sitting in the
          driver’s seat and his girlfriend, Verdell Goodman,
          was positioned in the passenger seat.             The
          complainant observed Appellant emerge from an
          alleyway and walk to a nearby corner. Street lights
          illuminated the area and Appellant was not wearing
          clothing around his head or face. Appellant then
          walked to the driver’s side of the complainant’s
          vehicle, holding a firearm in his hand.           The
          complainant verbally greeted the Appellant, whom
          he knew for five or six years.        Appellant then
          discharged his firearm multiple times, striking the
          complainant in the leg, back and elbow.           The
          complainant then started his vehicle and drove
          briefly before stopping to permit Ms. Goodman to
          assume control.     Ms. Goodman transported the
          complainant to the hospital for medical treatment.
          When presented with a photo-array at the hospital,
          the complainant immediately identified Appellant.

                 Ms.    Goodman       also   testified    to   the
          circumstances surrounding the shooting, providing a
          substantially similar account as the complainant.
          Ms. Goodman initially observed the shooter, whom
          she identified in court as Appellant, emerge from a
          nearby driveway and walk to a street corner. After
          peeping around the corner, Appellant walked back in
          the direction of their vehicle. A street light activated
          at that point in time and Ms. Goodman observed
          Appellant holding a gun, his arm extended
          downward. Appellant approached the driver’s side of
          the vehicle prompting the complainant to greet him
          and identify himself. Appellant responded to the
          verbal identification by raising the gun and
          discharging it toward the vehicle from a distance of
          approximately twenty-five to thirty feet.            The
          complainant then complied with Ms. Goodman’s
          demand to drive away.          Ms. Goodman assumed
          control of the vehicle shortly thereafter.           Ms.
          Goodman       subsequently     made     a    photo-array
          identification of Appellant. Before viewing the photo-

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              array, Ms. Goodman initially misidentified an
              individual shown to her approximately forty-five
              minutes after the shooting as looking like the
              shooter.

                     The Commonwealth also presented evidence
              relating to the intimidation of witnesses.       The
              complainant’s mother, Ms. Dolly Evans testified that
              she was approached by two individuals on June 30,
              2011 at a store located at Loring and Torresdale
              Avenue, Philadelphia. Ms. Evans recognized one of
              the individuals and knew him as “Rob.” After a brief
              verbal exchange, the second individual struck Ms.
              Evans on the jaw, stating “take this message to your
              son.” The two individuals immediately entered their
              vehicle and left the area. The complainant testified
              that he was also approached by Rob on the same
              date at the same location. The complainant knew
              Rob as a local resident and frequently observed him
              in Appellant’s company. The complainant further
              characterized Rob as Appellant’s “right-hand man.”
              Rob inquired “why you go to court on my young
              boy?” and followed up, stating “suppose I come and
              shoot your house up.”

Trial Court Opinion, 12/18/13, at 1-3 (citations to notes of testimony

omitted).

       On June 1, 2011, Appellant was charged with the aforementioned

offenses.2    Appellant was arrested the following day. On March 29, 2012,

the Commonwealth filed a motion to consolidate Appellant’s trial with that of

Demaris Robinson, who was charged with witness intimidation against the

complainant      in   the    instant    matter.   Commonwealth’s     Motion   for
____________________________________________


2
  Appellant was also charged with one count of firearms not to be carried
without a license which was nolle prossed. See generally 18 Pa.C.S.A.
§ 6106(a)(1).



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Consolidation, 3/29/12, at 2 (unnumbered).                On May 2, 2012, the

Commonwealth’s motion was granted.

       Following a four-day trial commencing on January 14, 2013, Appellant

was found guilty on January 17, 2013 of the aforementioned crimes.              On

April 11, 2013, Appellant was sentenced to an aggregate term of 18 to 36

years’ imprisonment. Thereafter, on April 16, 2013, Appellant filed a timely

post-sentence motion, asserting the verdict was against the weight of the

evidence and that the trial court imposed an excessive sentence. Appellant’s

Post-Sentence Motion, 4/16/13, at 1-3.           On April 29, 2013, the trial court

denied Appellant’s motion without a hearing. That same day, Appellant filed

a timely notice of appeal.

       On August 16, 2013, the trial court ordered Appellant to file, within 21

days, a concise statement of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). On September 7, 2013,

Appellant complied, albeit, untimely.3 On December 18, 2013, the trial court

filed its Rule 1925(a) opinion.

____________________________________________


3
   We note that September 7, 2013 was a Saturday.               Curiously, said
document is stamped “Filed 09/07/2013 09:35:29 PM Post Trial Unit.”
Nevertheless, Appellant’s Rule 1925(b) statement was due the prior day on
September 6, 2013, therefore, Appellant’s Rule 1925(b) statement was filed
one day late. We note that the untimely filing of a concise statement on
direct appeal is the equivalent of a complete failure to file, which constitutes
per se ineffective assistance of counsel. Commonwealth v. Burton, 973
A.2d 428, 432-433 (Pa. Super. 2009) (en banc). Generally, such failure
would compel remand. See Pa.R.A.P. 1925(c)(3) (requiring remand for
(Footnote Continued Next Page)


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

             1. Whether the trial court committed error first by
             granting a motion for consolidation, and second by
             proceeding to admit evidence against Appellant of
             [the] Commonwealth’s motion to consolidate an
             unrelated victim intimidation case initially creating a
             co-defendant matter with Appellant’s current case
             when the case involved a totally different defendant,
             victim, incident and facts, and where the co-
             defendant was no longer facing trial because he
             entered a guilty plea before trial?

             2. Whether the evidence at trial was sufficient to
             sustain   the   charges   of   Attempted   Murder,
             Aggravated Assault, Simple Assault, VUFA § 6108,
             Possessing an Instrument of Crime, and REAP?

Appellant’s Brief at 5.

      In his first issue, Appellant argues the trial court erred by granting a

motion to consolidate his trial with that of Robinson, and further by ruling to

admit evidence that Robinson approached the complainant for the purpose

of intimidating him to not attend Appellant’s preliminary hearing. Id. at 10-

12.

      We first address Appellant’s contention that the trial court erred in

granting the Commonwealth’s motion to consolidate his trial with Robinson’s.

In his brief, Appellant concedes that Robinson pled guilty before trial;

                       _______________________
(Footnote Continued)

filing of a concise statement nunc pro tunc in instances of counsel’s per se
ineffectiveness). However where, as here, the late filing did not prevent the
trial court from addressing the merits of Appellant’s issues in its 1925(a)
opinion, this Court may decide the appeal on the merits. Commonwealth
v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing Burton, supra.



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therefore there was no joint trial. Id. at 11. The trial court concluded that

Appellant’s issue is moot based on Robinson’s decision to plead guilty. We

agree.

            Appellant claims that the trial court erroneously
            granted [the] Commonwealth’s motion to consolidate
            a victim intimidation case with his. The legality of
            the    [trial]  court’s   decision   to   consolidate
            notwithstanding, Appellant’s challenge is moot as the
            co-defendant entered into a negotiated guilty plea
            prior to trial and Appellant was tried alone.
            Furthermore, the fact of co-defendant’s entrance into
            a guilty plea was not presented to the jury at
            Appellant’s trial. Appellant’s claim therefore does
            not warrant relief.

Trial Court Opinion, 12/18/13, at 10-11 (footnote omitted).

      Accordingly, we only need to address Appellant’s claim that the trial

court erred in denying Appellant’s pretrial motion to exclude the intimidation

testimony attributed to Robinson.     Appellant’s Brief at 11.      Specifically,

Appellant argues the trial court erred in ruling that even after Robinson pled

guilty “it would still admit testimony regarding the intimidation of the

[c]omplainant.” Id. Additionally, Appellant argues that critical to this case

is the fact that he was in custody at the time of Robinson’s arrest, and there

was no evidence connecting him to the intimidation offense. Id. at 11-12.

      In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference. Commonwealth v. Selenski, 18

A.3d 1229, 1232 (Pa. Super. 2011), vacated in part on other grounds, 92

A.3d 766 (Pa. 2014). Questions concerning the admissibility of evidence are


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within “the sound discretion of the trial court, and its discretion will not be

reversed absent a clear abuse of discretion.”      Id. (citation omitted).    “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Commonwealth v. Harris, 884 A.2d

920, 924 (Pa. Super. 2005) (internal citations and quotation marks omitted),

appeal denied, 928 A.2d 1289 (Pa. 2007).         Furthermore, “if in reaching a

conclusion the trial court over-rides [sic] or misapplies the law, discretion is

then abused and it is the duty of the appellate court to correct the error.”

Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)

(citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).

      Instantly, Appellant does not point to a specific place in the trial where

the evidence of Robinson’s intimidation of the complainant was admitted into

evidence.   At no point in Appellant’s brief does he direct this Court to the

specific evidence he claims was admitted in error.        Rather, his argument

generally alleges that the trial court’s determination that the intimidation

evidence was admissible was in error. Absent specific citations to the record

we cannot review Appellant’s claim.      See Pa.R.A.P. 2119(c) (stating, “[i]f

reference is made to the pleadings, evidence, charge, opinion or order, or

any other matter appearing in the record, the argument must set forth, in

immediate connection therewith, or in a footnote thereto, a reference to the


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place in the record where the matter referred to appears[]”). Accordingly,

Appellant’s first issue is waived.

      In Appellant’s second issue, he avers the evidence at trial was

insufficient to sustain all six charges. Appellant’s Brief at 15-17. However,

before addressing the merits of Appellant’s claim, we must determine

whether Appellant has preserved his issues for appellate review.

      By its text, Rule 1925(b) requires that concise statements “identify

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

detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii);

see also Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006)

(stating “[w]hen a court has to guess what issues an appellant is appealing,

that is not enough for meaningful review[]”), appeal denied, 919 A.2d 956

(Pa. 2007). Any issues not raised in accordance with Rule 1925(b)(4) will be

deemed waived. Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has made

clear that Rule 1925(b) is a bright-line rule.    Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011). Additionally, with regard to claims pertaining to

the sufficiency of the Commonwealth’s evidence, we have stated as follows.

            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.

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Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

quotation marks and citations omitted; emphasis added).

      Appellant’s Rule 1925(b) statement baldy asserts, “whether the

evidence at trial was sufficient to sustain the charges of attempted murder,

aggravated assault, simple assault, VUFA § 6106, possessing an instrument

of a crime, and REAP?” Appellant’s Rule 1925(b) Statement, 9/7/13, at 1

(capitalization corrected). Appellant fails to specify which elements of which

crimes he is challenging.   Accordingly, we agree with the trial court that

Appellant’s issue is waived for failure to sufficiently raise it in his Rule

1925(b) statement. See Trial Court Opinion, 12/18/13, at 3 (finding waiver

on the basis that “Appellant completely failed to indicate which element(s)

he is challenging[]”); see Garland, supra.

      Based on the foregoing, we conclude that both of Appellant’s issues

are devoid of merit or waived. Accordingly, the trial court’s April 11, 2013

judgment of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015


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