J-S59034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANDRE EDWARD
Appellant No. 1326 EDA 2016
Appeal from the Judgment of Sentence April 6, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008857-2014, CP-51-CR-0008859-2014
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2017
Appellant, Andre Edward, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial convictions of attempted murder,1 aggravated assault,2 firearms
not to be carried without a license,3 carrying firearms in public in
Philadelphia,4 recklessly endangering another person,5 and criminal
mischief.6 Appellant challenges the sufficiency of the evidence. We affirm.
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 901, 2502.
2 18 Pa.C.S. § 2702(a).
3 18 Pa.C.S. § 6106.
4 18 Pa.C.S. § 6108. J-S59034-17
In its opinion, the trial court summarized the relevant facts as follows:
On May 4, 2014, Mr. Byram Rogers went to the Gulf Gas Station to get food before work when he encountered Appellant. At that time, Appellant was dating Mr. Rogers’ daughter. Mr. Rogers never had any issue in the past with Appellant except on one particular occasion where Mr. Rogers and his wife were scolding their daughter. Appellant then intervened in their attempt to discipline their daughter and was very disrespectful toward Mr. Rogers. As Mr. Rogers was walking into the gas station, he noticed Appellant talking to a guy in a Chevrolet Suburban. Appellant then said to Mr. Rogers, “[d]idn’t I tell you I didn’t want to see you around here no more.” Appellant immediately came toward Mr. Rogers so he pushed Appellant back and they got into a slight physical altercation. Appellant then said, “I am going to get my gun, going to my trunk . . . .” Appellant opened his trunk, closed it, hopped into his car and pulled away. Mr. Rogers then got into his car and began to drive home.
On the drive home, Mr. Rogers noticed the same Suburban from the gas station following his vehicle. Mr. Rogers got out of his car and asked the man in the Suburban why he was following his vehicle. As Mr. Rogers approached the Suburban, the man in the Suburban drove off. Mr. Rogers got back into his car and backed up in the direction where the Suburban drove off. The Suburban began to drive very fast so Mr. Rogers turned off, drove up Lowber Street, and parked in the back of his house on the 1700 block of Mohican Street. As Mr. Rogers tried to get into his back door he heard an engine revving and saw Appellant hanging out of the car window and “just letting loose. Pow. Pow. Pow. Pow.” Mr. Rogers then ran off to his neighbor’s house. He ran behind and then under his neighbor’s deck. He continued running down the driveway and saw glass bust out in the car in front of him. When Mr. Rogers got to the end of the driveway, he saw the car in reverse coming back down the driveway. Mr. Rogers
5 18 Pa.C.S. § 2705.
6 18 Pa.C.S. § 3304(a)(2).
-2- J-S59034-17
dropped his hoagie and ran all the way around to the front of his house. He then saw Appellant cutting the corner shooting again. Mr. Rogers then dove between a van and a car and saw Appellant shoot through the van. Appellant then said “[y]ou bitch ass old head,” he jumped in the car and spun off down the block.
During the shooting, Mr. Albert Rutty’s car was struck by a few bullets. The bullets struck and shattered Mr. Rutty’s back windshield and back door windows as he sat in the driver’s seat. Fortunately, Mr. Rutty was not injured. After the incident, 14 [fired cartridge casings (FCCs)] were recovered from different locations on Mohican and the adjacent streets. Ballistics concluded that all 14 FCCs were fired from the same weapon. The Commonwealth provided a certificate of non-licensure corresponding to Appellant carrying a firearm on May 4, 2014.
Trial Ct. Op., 1/11/17, at 2-3 (record citations omitted).
Following a bench trial, Appellant was convicted on September 10,
2015, of the above-mentioned offenses. Thereafter, on April 6, 2016, the
court sentenced Appellant to an aggregate sentence of eight to nineteen
years’ imprisonment and five years’ probation.7 Appellant timely filed a
notice of appeal on April 26, 2016. The court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Appellant complied.
7 Although the parties and the trial court state Appellant was sentenced to a consecutive five years’ probation, a review of the written sentencing order indicates Appellant’s probation was ordered to run concurrent to his confinement. See Sentencing Order, 4/6/16, at 1-2. Without further indication that this was a clerical error, the written sentencing order controls. See Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013) (opinion announcing judgment of Court).
-3- J-S59034-17
Appellant raises the following issue for our review: “Evidence
presented at trial was insufficient as a matter of law to find [Appellant] guilty
beyond a reasonable doubt.” Appellant’s Brief at 7.
Appellant argues there was insufficient evidence to convict him of all
the aforementioned offenses because there was no physical evidence
connecting him to the alleged shooting. Appellant specifically contends no
firearm was recovered in his home or vehicle that matched the shell casings
or bullet fragments found at the scene, the shooting was not captured on
video, and 911 calls were inconsistent regarding the description of the
vehicle Appellant was allegedly driving and his physical appearance.
Appellant alleges the only identification evidence presented by the
Commonwealth was the victim’s testimony, which Appellant claims was not
credible based on the victim’s multiple crimen falsi convictions and the fact
that he waited eleven hours to report the shooting because he was afraid it
was a potential violation of his probation.
Additionally, Appellant argues the Commonwealth failed to prove
beyond a reasonable doubt that he had a specific intent to kill or cause
serious bodily injury for the offenses of attempted murder and aggravated
assault, respectively. Appellant maintains that the evidence indicated the
shooter was merely attempting to scare the victim and not kill him, as
shown from the fact that none of the shots were fired at close range and
-4- J-S59034-17
some were fired through a vehicle window. Appellant concludes this Court
should reverse his judgment of sentence. We disagree.
Preliminarily, we note that Appellant’s Rule 1925(b) statement alleges
that the “[e]vidence presented at trial was insufficient as a matter of law to
find [Appellant] guilty beyond a reasonable doubt.” Appellant’s Pa.R.A.P.
1925(b) Statement, 12/6/16, at 1. Such a general sufficiency of the
evidence challenge to all of his convictions may constitute waiver.
[W]hen challenging the sufficiency of the evidence on appeal, the [a]ppellant’s 1925 statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. Such specificity is of particular importance in cases where, as here, the [a]ppellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.
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J-S59034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANDRE EDWARD
Appellant No. 1326 EDA 2016
Appeal from the Judgment of Sentence April 6, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008857-2014, CP-51-CR-0008859-2014
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2017
Appellant, Andre Edward, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial convictions of attempted murder,1 aggravated assault,2 firearms
not to be carried without a license,3 carrying firearms in public in
Philadelphia,4 recklessly endangering another person,5 and criminal
mischief.6 Appellant challenges the sufficiency of the evidence. We affirm.
* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 901, 2502.
2 18 Pa.C.S. § 2702(a).
3 18 Pa.C.S. § 6106.
4 18 Pa.C.S. § 6108. J-S59034-17
In its opinion, the trial court summarized the relevant facts as follows:
On May 4, 2014, Mr. Byram Rogers went to the Gulf Gas Station to get food before work when he encountered Appellant. At that time, Appellant was dating Mr. Rogers’ daughter. Mr. Rogers never had any issue in the past with Appellant except on one particular occasion where Mr. Rogers and his wife were scolding their daughter. Appellant then intervened in their attempt to discipline their daughter and was very disrespectful toward Mr. Rogers. As Mr. Rogers was walking into the gas station, he noticed Appellant talking to a guy in a Chevrolet Suburban. Appellant then said to Mr. Rogers, “[d]idn’t I tell you I didn’t want to see you around here no more.” Appellant immediately came toward Mr. Rogers so he pushed Appellant back and they got into a slight physical altercation. Appellant then said, “I am going to get my gun, going to my trunk . . . .” Appellant opened his trunk, closed it, hopped into his car and pulled away. Mr. Rogers then got into his car and began to drive home.
On the drive home, Mr. Rogers noticed the same Suburban from the gas station following his vehicle. Mr. Rogers got out of his car and asked the man in the Suburban why he was following his vehicle. As Mr. Rogers approached the Suburban, the man in the Suburban drove off. Mr. Rogers got back into his car and backed up in the direction where the Suburban drove off. The Suburban began to drive very fast so Mr. Rogers turned off, drove up Lowber Street, and parked in the back of his house on the 1700 block of Mohican Street. As Mr. Rogers tried to get into his back door he heard an engine revving and saw Appellant hanging out of the car window and “just letting loose. Pow. Pow. Pow. Pow.” Mr. Rogers then ran off to his neighbor’s house. He ran behind and then under his neighbor’s deck. He continued running down the driveway and saw glass bust out in the car in front of him. When Mr. Rogers got to the end of the driveway, he saw the car in reverse coming back down the driveway. Mr. Rogers
5 18 Pa.C.S. § 2705.
6 18 Pa.C.S. § 3304(a)(2).
-2- J-S59034-17
dropped his hoagie and ran all the way around to the front of his house. He then saw Appellant cutting the corner shooting again. Mr. Rogers then dove between a van and a car and saw Appellant shoot through the van. Appellant then said “[y]ou bitch ass old head,” he jumped in the car and spun off down the block.
During the shooting, Mr. Albert Rutty’s car was struck by a few bullets. The bullets struck and shattered Mr. Rutty’s back windshield and back door windows as he sat in the driver’s seat. Fortunately, Mr. Rutty was not injured. After the incident, 14 [fired cartridge casings (FCCs)] were recovered from different locations on Mohican and the adjacent streets. Ballistics concluded that all 14 FCCs were fired from the same weapon. The Commonwealth provided a certificate of non-licensure corresponding to Appellant carrying a firearm on May 4, 2014.
Trial Ct. Op., 1/11/17, at 2-3 (record citations omitted).
Following a bench trial, Appellant was convicted on September 10,
2015, of the above-mentioned offenses. Thereafter, on April 6, 2016, the
court sentenced Appellant to an aggregate sentence of eight to nineteen
years’ imprisonment and five years’ probation.7 Appellant timely filed a
notice of appeal on April 26, 2016. The court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Appellant complied.
7 Although the parties and the trial court state Appellant was sentenced to a consecutive five years’ probation, a review of the written sentencing order indicates Appellant’s probation was ordered to run concurrent to his confinement. See Sentencing Order, 4/6/16, at 1-2. Without further indication that this was a clerical error, the written sentencing order controls. See Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013) (opinion announcing judgment of Court).
-3- J-S59034-17
Appellant raises the following issue for our review: “Evidence
presented at trial was insufficient as a matter of law to find [Appellant] guilty
beyond a reasonable doubt.” Appellant’s Brief at 7.
Appellant argues there was insufficient evidence to convict him of all
the aforementioned offenses because there was no physical evidence
connecting him to the alleged shooting. Appellant specifically contends no
firearm was recovered in his home or vehicle that matched the shell casings
or bullet fragments found at the scene, the shooting was not captured on
video, and 911 calls were inconsistent regarding the description of the
vehicle Appellant was allegedly driving and his physical appearance.
Appellant alleges the only identification evidence presented by the
Commonwealth was the victim’s testimony, which Appellant claims was not
credible based on the victim’s multiple crimen falsi convictions and the fact
that he waited eleven hours to report the shooting because he was afraid it
was a potential violation of his probation.
Additionally, Appellant argues the Commonwealth failed to prove
beyond a reasonable doubt that he had a specific intent to kill or cause
serious bodily injury for the offenses of attempted murder and aggravated
assault, respectively. Appellant maintains that the evidence indicated the
shooter was merely attempting to scare the victim and not kill him, as
shown from the fact that none of the shots were fired at close range and
-4- J-S59034-17
some were fired through a vehicle window. Appellant concludes this Court
should reverse his judgment of sentence. We disagree.
Preliminarily, we note that Appellant’s Rule 1925(b) statement alleges
that the “[e]vidence presented at trial was insufficient as a matter of law to
find [Appellant] guilty beyond a reasonable doubt.” Appellant’s Pa.R.A.P.
1925(b) Statement, 12/6/16, at 1. Such a general sufficiency of the
evidence challenge to all of his convictions may constitute waiver.
[W]hen challenging the sufficiency of the evidence on appeal, the [a]ppellant’s 1925 statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. Such specificity is of particular importance in cases where, as here, the [a]ppellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations
omitted); see also Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.
Super. 2001) (“When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” (citation and quotation
marks omitted)).
Instantly, Appellant’s Rule 1925(b) statement does not fairly suggest
his challenge to the evidence identifying him as the shooter and fails to
identify any elements for any of the offenses of which he was convicted.8
8 Although the trial court authored a responsive opinion, it did not expressly discuss Appellant’s present contention that the identification evidence was
-5- J-S59034-17
Therefore, Appellant’s sufficiency claim for all convicted offenses is waived.
See Pa.R.A.P. 1925(b)(4)(vii); Garang, 9 A.3d at 244.
In any event, even if properly preserved, Appellant’s claim that he was
not the perpetrator would merit no relief, as the victim’s eyewitness
testimony is sufficient to support Appellant’s convictions. See
Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (en banc)
(“it is settled that a positive identification by one witness is sufficient for
conviction”). Moreover, to the extent the trial court addresses and disposes
of the merits of Appellant’s sufficiency claim, including his arguments that
there was insufficient evidence of a specific intent to kill or cause serious
bodily injury, we affirm on the basis of the trial court’s opinion. See Trial Ct.
Op. at 4-12. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
insufficient. Moreover, we note that an appellate brief must provide a substantive argument and citation to relevant authority in support of a sufficiency claim. See Pa.R.A.P. 2119(b), (c); Commonwealth v. Janda, 14 A.3d 147, 164 (Pa. Super. 2011) (stating a failure to cite law or evidence in support of an argument in a brief constitutes waiver). Here, Appellant’s brief fails to provide any relevant statutes and authority to support his sufficiency claim for the various convictions.
-6- J-S59034-17
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/12/2017
-7- Circulated 09/29/2017 01:23 PM