Com. v. Baideme, D.

• Court: Superior Court of Pennsylvania
• Decided: September 13, 2019
• Docket: 411 WDA 2019
• Status: Unpublished

Opinion

J-S50036-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DARRYL A. BAIDEME : : Appellant : No. 411 WDA 2019

Appeal from the Judgment of Sentence Entered October 3, 2017 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000458-2017

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 13, 2019

Appellant, Darryl A. Baideme, appeals from the aggregate judgment of

sentence of 16 to 32 months of confinement, which was imposed after his jury

trial convictions for deceptive business practices, theft by unlawful taking,

theft by deception, making a false statement to induce an agreement for home

improvement services, and receiving advance payment for services and failing

to perform such services.1 Appellant has failed to preserve any issues for our

review. Accordingly, we affirm.

During Appellant’s trial --

One jury member was dismissed prior to deliberations[.] . . . On August 15, 2017, one of the jurors informed the Tipstaff that he ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 4107(a)(2), 3921(a), and 3922(a)(1) and 73 P.S. § 517.8(a)(1) and (2), respectively. J-S50036-19

had seen a story about the Appellant’s other pending charges on television. . . . The juror was excused without issue and replaced with an alternate juror.

Trial Court Opinion, filed April 18, 2019, at 1-2 (citing N.T., 8/15/2017, at 6).

Appellant never challenged the weight of the evidence orally or by

written motion prior to sentencing and did not file any post-sentence motions.

Subsequent to the trial court reinstating Appellant’s direct appeal rights nunc

pro tunc, Appellant filed this timely direct appeal.2

Appellant now presents the following issues for our review:

1. Whether the [trial c]ourt erred in failing to summarily direct a sequestration of the jury or a change of venue or venire given the pervasive publicity arising from the instant criminal charges and ensuing trial, specifically the contention that there was extensive and pervasive news coverage of his trial and charges and that there was a Facebook page denominated “Stop Baideme Construction” to which the jury panel was likely exposed?

2. Whether one of the jury members was tainted and displayed some connection with one of the alleged victims and actually waved at one of the victims during the course of the trial?

3. Whether the [trial] court erred in accepting a challenge to [t]he sufficiency of the evidence given the questions arising from the basic credibility of the alleged victim based upon her self- admitted deception and lack of veracity and candor on the stand?

4. Whether the sentence imposed was patently excessive and failed to comport with [Appellant]’s past history resulting in the severity of the sentence being disproportionate to the rehabilitative needs of [Appellant] and the protection of society?

____________________________________________

2Appellant filed his statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on April 2, 2019. The trial court entered its opinion on April 18, 2019. The Commonwealth’s brief to this Court was due July 31, 2019, but the Commonwealth has not filed a brief nor contacted this Court’s Prothonotary to inform us that it was electing not to submit one.

-2- J-S50036-19

Appellant’s Brief at 2.

In the “Argument” section of his brief to this Court, Appellant has failed

to include any citations to the record or to case or statutory law. Appellant’s

Brief at 4-6. All of Appellant’s issues are thereby waived. See, e.g.,

Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (without a

“developed, reasoned, supported, or even intelligible argument[, t]he matter

is waived for lack of development”); In re Estate of Whitley, 50 A.3d 203,

209 (Pa. Super. 2012) (“The argument portion of an appellate brief must

include a pertinent discussion of the particular point raised along with

discussion and citation of pertinent authorities[; t]his Court will not consider

the merits of an argument which fails to cite relevant case or statutory

authority” (internal citations and quotation marks omitted));

Commonwealth v. Sullivan, 864 A.2d 1246, 1248-49 (Pa. Super. 2004)

(citing Commonwealth v. Mercado, 649 A.2d 946, 954 (Pa. Super. 1994)

(failure to provide support for an issue may result in waiver of the claim)).

Assuming Appellant’s first issue had been properly developed and

supported, see Appellant’s Brief at 5, it would still be meritless, because the

only evidence of “publicity” relating to Appellant’s trial concerned one juror

who was dismissed prior to deliberations. Trial Court Opinion, filed April 18,

2019, at 1-2 (citing N.T., 8/15/2017, at 6).

Assuming arguendo that Appellant had discussed and supported his

second challenge on appeal, i.e., that a juror’s alleged “affiliation with a

-3- J-S50036-19

victim/witness” somehow “tainted” the “voir dire process”, Appellant’s Brief at

5, he has failed to indicate where he preserved this claim before the trial court,

and neither we nor the trial court can find any indication that Appellant raised

this issue prior to his concise statement of errors complained of on appeal.

Trial Court Opinion, filed April 18, 2019, at 1. “Issues not raised in the lower

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

302(a). Accordingly, Appellant has also waived his second claim for this

reason.

Additionally, despite Appellant’s attempt to label his third issue disputing

the credibility of a Commonwealth witness as a challenge to the “sufficiency”

of the evidence, Appellant’s Brief at 2, 6, “[a] sufficiency of the evidence

review . . . does not include an assessment of the credibility of the testimony

offered by the Commonwealth. Such a claim is more properly characterized

as a weight of the evidence challenge.” Commonwealth v. Wilson, 825

A.2d 710, 713-14 (Pa. Super. 2003) (citation omitted). A challenge to the

weight of the evidence must be preserved by a motion for a new trial.

Pa.R.Crim.P. 607(A)(1)-(3) provides:

(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

-4- J-S50036-19

A claim challenging the weight of the evidence generally cannot be raised for

the first time in a Rule 1925(b) statement. Commonwealth v. Sherwood,

982 A.2d 483, 494 (Pa. 2009) (“The fact that Appellant included an issue

challenging the verdict on weight of the evidence grounds in his 1925(b)

statement and the trial court addressed Appellant’s weight claim in its

Pa.R.A.P. 1925(a) opinion did not preserve his weight of the evidence claim

for appellate review in the absence of an earlier motion.”). “An appellant’s

failure to avail himself of any of the prescribed methods for presenting a

weight of the evidence issue to the trial court constitutes waiver of that claim.”

Commonwealth v. Weir, 201 A.3d 163, 167 (Pa. Super. 2018); see also

Comment to Pa.R.Crim.P. 607 (“The purpose of this rule is to make it clear

that a challenge to the weight of the evidence must be raised with the trial

judge or it will be waived.”). Instantly, Appellant failed to challenge the weight

of the evidence orally, on the record, at the conclusion of his trial or at any

time during his sentencing hearing. See Pa.R.Crim.P. 607(A)(1). He also

failed to file any written motions challenging the weight of the evidence. See

Pa.R.Crim.P. 607(A)(2)-(3). Rather, Appellant impermissibly raised his

weight claim for the first time in his Rule 1925(b) Statement. See Sherwood,

982 A.2d at 494. Thus, his challenge to the weight of the evidence is waived

for this reason as well. See Pa.R.Crim.P. 607(A); Sherwood, 982 A.2d at

494; Weir, 201 A.3d at 167.

Appellant’s final issue is a challenge to the discretionary aspects of

sentencing. Appellant’s Brief at 2, 6.

-5- J-S50036-19

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e conduct a four- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018). Although Appellant filed a timely notice of appeal and included a

statement in his brief pursuant to Pa.R.A.P. 2119(f), Appellant’s Brief at 4,

Appellant failed to preserve this issue at sentencing and filed no post-sentence

motions. Consequently, Appellant has failed to preserve this final issue for

this reason as well.

Assuming, for argument’s sake, that Appellant had properly preserved

his challenge to the discretionary aspects of sentencing pursuant to

Pa.R.Crim.P. 720 and had provided a supported discussion of this issue in the

“Argument” portion of his brief, his brief’s statement pursuant to Pa.R.A.P.

2119(f) still fails to raise a substantial question meriting our discretionary

review. “A substantial question exists only when the appellant advances a

colorable argument that the sentencing judge’s actions were either:

(1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

-6- J-S50036-19

process.” Manivannan, 186 A.3d at 489 (quotation marks and some citations

omitted). “[W]e cannot look beyond the statement of questions presented

and the prefatory [Rule] 2119(f) statement to determine whether a

substantial question exists. It is settled that this Court does not accept bald

assertions of sentencing errors.” Commonwealth v. Radecki, 180 A.3d 441,

468 (Pa. Super. 2018) (citation omitted). The argument in Appellant’s

Pa.R.A.P. 2119(f) statement as to why his challenge merits our discretionary

review consists of one sentence:

As to the instant case, and sentence at issue, the fundamental norm violated was that the sentencing scheme was compromised in that the sentencing court imposed a patently disproportionate sentence based upon [Appellant]’s history and the policy objective of serving the rehabilitative needs and the protection of society in tandem.

Appellant’s Brief at 4. Although claims that a sentence is inconsistent with an

appellant’s rehabilitative needs and with the protection of the public can raise

a substantial question, Commonwealth v. Hill, 66 A.3d 365, 369 (Pa. Super.

2013), the appellant must still “advance[] a colorable argument” as to how

these concepts apply to his individual circumstances. Manivannan, 186 A.3d

at 489. Appellant’s Pa.R.A.P. 2119(f) statement fails to address how his

sentence is inconsistent with the protection of the public or what his particular

rehabilitative needs even are. See Appellant’s Brief at 4. We cannot accept

Appellant’s “bald assertions of sentencing errors.” Radecki, 180 A.3d at 468.

Ergo, even if Appellant’s challenge to the discretionary aspects of sentencing

had been properly argued and preserved elsewhere, we would still find his

-7- J-S50036-19

claim waived for failure to raise a substantial question in his Pa.R.A.P. 2119(f)

statement.

As Appellant has failed to preserve any issues for our review, we affirm

the judgment of sentence. In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007)

(where issues are waived on appeal, we should affirm rather than quash).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/13/2019

-8-