Com. v. Lyons, G.

• Court: Superior Court of Pennsylvania
• Decided: December 20, 2019
• Docket: 1790 WDA 2018
• Status: Unpublished

Opinion

J-S58004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GROVER HERMON LYONS : : Appellant : No. 1790 WDA 2018

Appeal from the Judgment of Sentence Entered July 24, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001200-2017

BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 20, 2019

Grover Hermon Lyons appeals from the judgment of sentence entered

in the Erie County Court of Common Pleas on July 24, 2018, following his

conviction of one count of voluntary manslaughter, two counts of aggravated

assault, one count of possession of a weapon, one count of recklessly

endangering another person (“REAP”), one count of tampering with or

fabricating physical evidence, and one count of flight to avoid apprehension.1

For these offenses, Lyons received an aggregate sentence of 90 to 180 months

of incarceration.2 On appeal, Lyons challenges sufficiency of the evidence, ____________________________________________

1See 18 Pa.C.S.A. § 2503(a)(1); 18 Pa.C.S.A. §§ 2502(a)(1), 2502(a)(4); 18 Pa.C.S.A. § 907(b); 18 Pa.C.S.A. § 2705; 18 Pa.C.S.A. 4910(1); and 18 Pa.C.S.A. § 5126(a), respectively.

2 The one REAP and two aggravated assault charges merged with voluntary manslaughter. Moreover, the sentences for possession of a weapon and tampering with or fabricating physical evidence were made concurrent with the voluntary manslaughter and flight to avoid apprehension offenses. J-S58004-19

weight of the evidence, the discretionary aspects of his sentence, and the

demographic composition of the jury that adjudicated his guilt. In finding none

of his issues to be meritorious, we affirm the judgment of sentence.

In the early morning hours of December 31, 2016, Lyons, supported by

another individual, Darrel Johnson, and the victim engaged in some sort of

physical altercation inside of a bar in Erie, Pennsylvania. That establishment

checked people for weapons upon entrance, and there is no evidence that any

of the combatants brandished any weapons during the altercation.

After the fight, the victim left the building. Sometime later, Lyons and

Johnson left the building from another exit together. However, this quarrel

reignited when Lyons and Johnson walked down the street in the direction of

both Johnson’s vehicle as well as the victim and his vehicle. Eventually, both

Lyons and the victim fired guns at one another.3

In the melee, Johnson was hit by a bullet fired by the same model of

gun as the victim’s gun. After police officers arrived at the scene, the victim

was found dead beside a vehicle with a gunshot wound to the chest.

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3 The record is unclear as to when Lyons acquired the weapon used to kill the victim. At trial, Johnson did not recall if Lyons had a weapon on him that night. See N.T., 5/16/18, at 89-90. In contrast, Lyons indicated that it was Johnson’s weapon that he picked up after Johnson dropped it during the firefight. See N.T., 5/17/18, at 166. The Commonwealth argued, circumstantially through a timeline established via a video, that Lyons obtained the weapon from the vehicle he arrived in, which was being driven by Lyons’s sister and then had it on his person while walking toward the victim. In any event, it is undisputed that Lyons fired the shot that killed the victim.

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Immediately following this incident, Lyons traveled to Detroit, Michigan, which

is where he was apprehended.

At trial, Lyons was found guilty of seven offenses and sentenced to 90

to 180 months of incarceration. Lyons filed a timely post-sentence motion,

which was denied by operation of law pursuant to Pa.R.Crim.P. 720(A)(3)(a)

after 120 days elapsed from the motion’s filing date. Lyons then filed a timely

notice of appeal, and both Lyons and the trial court have complied with the

dictates of Pa.R.A.P. 1925.

In his appeal, Lyons presents four issues for our review:

1) Did the Commonwealth present insufficient evidence to sustain each of Lyons’s convictions and the testimony on the essential issue of justification (self-defense and defense of others) was so overwhelming that the findings of guilt were based on mere conjecture and speculation?

2) Did the trial court commit reversible error when it denied Lyons’s post-sentence request for relief on weight of the evidence grounds?

3) Did the trial court commit reversible error in that the sentence imposed was manifestly extreme and clearly unreasonable and not individualized as required by law?

4) Did the fact that the age of the jury panel during the voir dire process consisted of individual who were so much older than Lyons constitute a violation of Lyons’ right to a jury trial?

See Appellant’s Brief, at 2.

Lyons’s first argument is based on his belief that he shot the victim in

justifiable self-defense or in defense of others. Therefore, according to Lyons,

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the evidence proffered by the Commonwealth at trial was insufficient to

sustain each of his convictions. See id., at 6.

In reviewing a challenge to the sufficiency of the evidence, we:

must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the Commonwealth as verdict winner, and we must determine if the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. This Court may not substitute its judgment for that of the factfinder. If the record contains support for the verdict, it may not be disturbed. Moreover, a jury may believe all, some or none of a party's testimony.

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000) (citations

omitted). “The evidence established at trial need not preclude every possibility

of innocence[.]” Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super.

2012). “Any doubts regarding a defendant’s guilt may be resolved by the fact-

finder unless the evidence is so weak and inconclusive that as a matter of law

no probability of fact may be drawn from the combined circumstances.”

Commonwealth v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc).

Moreover, it is not within our purview to reweigh the evidence or substitute

our own judgment for that of the factfinder. See Commonwealth v. Koch,

39 A.3d 996, 1001 (Pa. Super. 2011). Further, to find one guilty of a crime,

the evidence may be entirely circumstantial so long as such evidence connects

that individual to the crime beyond a reasonable doubt. See id.

As our Supreme Court has explained:

To prevail on a justification defense, there must be evidence that the defendant (a) ... reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary

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to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the [defendant] did not violate any duty to retreat.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (citations

and internal quotation marks omitted). “A defendant's subjective state of mind

does not establish the objective factor of the reasonableness of his belief.” Id.

at 1125. Further, it is for the trier of fact to determine whether an individual’s

belief was reasonable, whether he was free of provocation, and whether he

had no duty to retreat. See Commonwealth v. McClendon, 874 A.2d 1223,

1229-30 (Pa. Super. 2005).

When an individual claims self-defense or defense of others, both of

which are subsumed under the justification defense, the Commonwealth has

the burden to prove beyond a reasonable doubt that the killing was not

committed in self-defense or in defense of others.

In order to disprove self-defense [or defense of others], the Commonwealth must prove beyond a reasonable doubt one of the following elements: (1) that the defendant did not reasonably believe it was necessary to kill in order to protect himself [or others] against death or serious bodily harm, or that the defendant used more force than was necessary to save himself [or others] from death, great bodily harm, or the commission of a felony; (2) that the defendant provoked the use of force; or (3) that the defendant had a duty to retreat and that retreat was possible with complete safety. See 18 Pa.C.S.A. § 505(b)(2). If the Commonwealth establishes any one of these three elements beyond a reasonable doubt, then the conviction is insulated from a defense challenge to the sufficiency of the evidence where self- protection [or protection of others] is at issue.

Burns, 765 A.2d at 1149 (some citations omitted).

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Lyons maintains that even viewing the evidence and all reasonable

inferences drawn therefrom in a favorable light to the Commonwealth as the

verdict winner, such evidence is “equally consistent with [Lyons’s] innocence

as it is with guilt.” Appellant’s Brief, at 7. Lyons presents a series of assertions,

which he frames as uncontradicted, in his attempt to demonstrate the validity

of his justification defense:

1) The victim instigated the fight via a physical altercation inside of the bar;

2) Lyons, having arrived earlier and also having left later than the victim, had no way of knowing where the victim would be after leaving the bar;

3) The victim, upon leaving the bar, ran to his vehicle to obtain a firearm;

4) Lyons left the bar and walked normally toward Johnson’s vehicle;

5) The initial shot came from the victim, where the intended target was likely Johnson given some dispute between Johnson and the victim over a girlfriend;

6) A bullet fired by the victim hit Johnson;

7) Lyons attempted to retreat as best he could.

See Appellant’s Brief, at 9-12.

Although the record is replete with conflicting and unclear testimony,

we assume without actually deciding that the first six of Lyons’s assertions are

true. However, based on the testimony elucidated at trial, Lyons’s contention

that he attempted to retreat as best as he could is directly refuted by

Johnson’s testimony:

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[The bar] ended up letting [the victim] out. Prior to letting [the victim] out, like five to seven minutes later, they ended up letting [Lyons and me] out on Buffalo Road. And as [Lyons and I were] walking up the street[], we see - - we didn’t know exactly where [the victim] had parked or anything. You know, I was just walking to my car. And we see [the victim], he’s in the car. . . . [H]e’s scrambling around for [his gun], we just kept walking, you hear what I’m saying[?]

So when he turned, he had the gun. And I grabbed [Lyons] by his arm, like, whoa, he [has] a gun. So he was still on the other side [of the street]. So I’m like, we can just walk up the street, you know what I’m saying, and get to our car. As we were walking up, that’s when [the victim], he turned around[,] and he fired at us. So I grabbed [Lyons] and we ducked.

N.T., 5/16/18, at 34 (emphasis added). Accordingly, the jury could have found

beyond a reasonable doubt that Lyons violated his duty to retreat, which would

therefore eliminate Lyons’s self-defense or defense of others claim. See 18

Pa.C.S.A. § 505(b)(2).

Based on this testimony, the jury could have concluded that, after

seeing the victim brandish a weapon, the reasonable course of action for Lyons

and Johnson was to turn around and walk back toward the bar in order to find

safety. Other evidence supported this inference circumstantially: 1) Lyons and

Johnson were aware of the prior hostility between them and the victim, as it

had only happened a few minutes prior, therefore establishing a higher

likelihood that some sort of weaponized confrontation would occur; and 2) the

vehicle Lyons came in, the vehicle his sister was driving, still remained in the

parking lot of the bar, and the sister remained in or around the bar prior to

and during the gunfire, see N.T., 5/17/18, at 134, 143-44, 148-49 (indicating

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that Lyons arrived in his sister’s vehicle, could not find his sister once he left

the bar, and eventually found his sister after the firefight, using her vehicle to

leave the scene). Instead of turning around, Lyons and Johnson continued

towards the victim, cognizant of the victim’s weapon and accordingly placed

themselves directly in danger.

As the only element Lyons is claiming to be insufficient was the

Commonwealth’s burden to demonstrate beyond a reasonable doubt that

Lyons was not justified in his shooting of the victim, we find that his

insufficiency argument does not warrant any relief. To reiterate, we may not

reweigh the evidence or substitute our judgment for that of the factfinder even

if we would have come to a different conclusion. However, Johnson’s

testimony, which the factfinder was free to believe or disbelieve, augmented

by other circumstantial evidence highlighted above, supports a finding that

Lyons breached his duty to retreat beyond a reasonable doubt.

Lyons’s second argument is a claim the trial court abused its discretion

when it failed to grant him a new trial based on his challenge to the weight of

the evidence at trial. He suggests that it was against the weight of the

evidence for the jury to not find his justification defense valid.

A true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but contends that the verdict was against the weight of the evidence. An appellate court may review the trial court's decision to determine whether there was an abuse of discretion, but it may not substitute its judgment for that of the lower court. Credibility issues are decided by the jury and appellate courts rarely overturn jury factual findings that are based on credibility determinations. Indeed, an appellate court

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should not entertain challenges to the weight of the evidence since our examination is confined to the “cold record.” Our Court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice. Thus, we are confined to review if the trial court abused its discretion.

Burns, 765 A.2d at 1149-50 (citations and some quotation marks omitted).

Moreover, when evaluating a trial court's ruling, we keep in mind that an abuse of discretion is not merely an error in judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest unreasonableness or a misapplication of the law. By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (citation

omitted).

Here, Lyons merely quotes our standard of review for a weight of the

evidence challenge and then summarily and erroneously concludes that “the

Commonwealth’s case was clearly insufficient.” Appellant’s Brief, at 15

(emphasis added). Essentially, Lyons, as a second bite at the apple, is

challenging that the evidence was insufficient for the Commonwealth to have

demonstrated the invalidity of Lyons’s justification defense beyond a

reasonable doubt. Therefore, given the lack of legal authority to support his

weight of the evidence contention and dearth of any kind of factual or

argumentative development of this issue, we conclude he has waived his

weight of the evidence challenge. See Commonwealth v. Williams, 959

A.2d 1252, 1258 (Pa. Super. 2008); see also Commonwealth v. Birdseye,

637 A.2d 1036, 1039-40 (Pa. Super. 1994) (“Because [appellants] failed to

distinguish between their sufficiency and weight of the evidence claims and

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presented no argument regarding the weight of the evidence, we deem their

weight of the evidence issue waived.”); Pa.R.A.P. 2119(a) (identifying that an

argument must be “followed by such discussion and citation of authorities as

are deemed pertinent”).

Additionally, Appellant’s Pa.R.A.P. 1925(b) statement does not include

a challenge to the weight of the evidence. See Defendant’s Statement of

Matters Complained of on Appeal as per Rule 1925(b); see also Pa.R.A.P.

1925(b)(3)(iv) (“[A]ny issue not properly included in the Statement timely

filed and served pursuant to subdivision (b) shall be deemed waived.).

However, even if we were not to find this issue waived, there is simply no

basis to conclude that the verdict here, predicated on multiple sources and an

evidentiary record that establishes the elements of Lyons’s crimes, shocks

one’s sense of justice or is somehow the byproduct of bias, partiality,

prejudice, ill-will, manifest unreasonableness, or a misapplication of the law.

Accordingly, Lyons’s second issue is due no relief.

Next, Lyons suggests that his sentence was manifestly excessive, clearly

unreasonable, and not individualized. See Appellant’s Brief, at 15. “A

challenge to the discretionary aspects of sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super.

2012) (en banc) (citation omitted). Thus, before we may consider the merits

of Lyons’s sentencing issue, he “must invoke this Court's jurisdiction by

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satisfying a four-part test.” Commonwealth v. Moury, 992 A.2d 162, 170

(Pa. Super. 2010). The test is:

the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

“A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citation

and internal quotation marks omitted). “Only if the appeal satisfies these

requirements may we proceed to decide the substantive merits of Appellant's

claim.” Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super.

2017) (citation omitted).

Here, Lyons filed both a post-sentence motion challenging the

discretionary aspects of his sentence and, thereafter, a timely appeal with this

Court. In addition, Lyons has included a 2119(f) statement in his brief. See

Appellant’s Brief, at 3-4. Therefore, we proceed to our analysis of whether he

has raised a substantial question for our review.

The existence of a substantial question must be determined on a case-

by-case basis. See Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545

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(Pa. Super. 1995). “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

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)

(citations and internal quotation marks omitted).

In his 2119(f) statement, Lyons asserts that “his sentence was

manifestly excessive and clearly unreasonable because it was not

individualized to meet his needs[,] and he was not given proper credit for time

served prior to sentencing.” Appellant’s Brief, at 4. “A claim that a sentencing

court … sentenced a defendant without taking into account his or her character

and background therefore raises a substantial question that the sentence is

inappropriate under the Sentencing Code.” Luketic, 162 A.3d at 1162.

Therefore, Lyons’s argument raises a substantial question, which we will now

review on the merits.4

“Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super.

2012) (citation omitted). “In order to establish that the sentencing court

4 After mentioning it in his 2119(f) statement, Lyons does not make any further reference to the argument that he was not given proper credit for time served prior to sentencing. Therefore, we consider that assertion waived.

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abused its discretion, [the defendant] must establish, by reference to the

record, that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision.” Commonwealth v. Williams, 69 A.3d

735, 741 (Pa. Super. 2013) (internal quotation marks and citation omitted).

“The rationale behind such broad discretion and the concomitantly deferential

standard of appellate review is that the sentencing court is in the best position

to determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.” Id., at 740 (internal

quotation marks and citation omitted). To determine whether the trial court

made the proper considerations during sentencing, “an appellate court must,

of necessity, review all of the judge's comments.” Commonwealth v.

Bethea, 379 A.2d 102, 106 (Pa. 1977); see also Commonwealth v.

Ritchey, 779 A.2d 1183, 1187 (Pa. Super. 2001) (“As this Court has stated,

the judge's statement must clearly show that he has given individualized

consideration to the character of the defendant.”) (quotation marks and

citation omitted).

Lyons concedes that he was sentenced, as to all of his offenses, within

the standard range of the sentencing guidelines. See Appellant’s Brief, at 16.

However, Lyons also suggests that the sentencing court should have

considered several mitigating factors: 1) Lyons’s remorse for his actions; 2)

the victim was the individual who shot first; 3) Lyons’s juvenile conviction

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from over ten years ago skewed his sentencing; and 4) Lyons has never faced

analogous criminal charges in his past. See id., at 16-17.

“When imposing a sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,

the court should refer to the defendant's prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Id. Where the

sentencing court had the benefit of a presentence investigation report (“PSI”),

we can assume the sentencing court “was aware of relevant information

regarding the defendant's character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988).

Here, the sentencing court, on the record, stated that it had

considered the statements of defense counsel, the defendant, the attorney for the Commonwealth, the other people who gave statements, as well as the several letters received on behalf of the defendant and his letter himself. The court has considered the defendant’s age, background, and criminal record, character, and rehabilitative needs, the nature and circumstances and seriousness of the offense, and the protection of the community, as well as the sentencing guidelines in the [PSI], and obviously, the impact upon the victim and his family.

Sentencing Transcript, 7/24/18, at 18-19. The court further noted:

This was a serious crime. The streets of Erie are not the wild west. Disputes like this can not be settled by gunfire, and that’s what happened here. Mr. Lyons chose to settle this with a gun, and so he must be sentenced accordingly.

Id., at 19.

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In accordance with the sentencing court’s statements, we cannot say

that the court ignored or misapplied the law, exercised its judgment for

reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly

unreasonable decision. The sentencing court clearly referenced its review of

the PSI and considered all facets necessary for a sentencing determination

including, most importantly, the individualized attributes associated with

Lyons, himself. Therefore, Lyons’s challenge to the discretionary aspects of

his sentence is without merit.

Finally, Lyons contests the composition of the jury panel during the voir

dire process, as it was, according to him, older and not racially proportionate

to the general population of Erie County. Lyons does not allege that the

Commonwealth was discriminatory in any way through use of a preemptory

challenge, but instead suggests that the administratively-selected jury pool

somehow violated his Sixth Amendment right to an impartial jury. See Taylor

v. Louisiana, 419 U.S. 522, 528 (1975) (“The selection of a [trial] jury from

a representative cross section to the community is an essential component of

the Sixth Amendment right to a jury trial.”). As to the racial composition

question, Lyons seems to suggest that instead of there having been only one

African American that went through the jury selection process, there should

have been at least three, given the demographic make-up of Erie County. See

Appellant’s Brief, at 19-20.

The United States Supreme Court has held that

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in order to establish a prima facie violation of [the fair-cross- section] requirement [espoused in Taylor, a defendant] must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to the systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

Other than a cursory citation to the demographic composition of Erie

County vis-à-vis the purported pool of potential jurors in this case, Lyons has

failed to establish at least two of the three prongs enumerated in Duren. More

specifically, while Lyons has facially attacked the racial composition of the

potential jury pool through the use of statistics, he does not even so much as

suggest that the selection process, itself, was somehow unfair or that there

has been some sort of systematic exclusion of African Americans in the jury-

selection process. Instead, Lyons employs a post-hoc analysis of the

composition specific to his jury pool and tersely concludes that there should

have been at least two more African Americans selected into the pool. Because

he has failed to meet at least two of the three Duren prongs, his argument

fails.

As to Lyons’s argument related to age-based concerns associated with

the jury pool, other than a seemingly speculative assertion that “a very large

percentage of the jury panel at the top of the list were in excess of 60 or 50

years of age,” Appellant’s Brief, at 18, he does not corroborate this statement

with any kind of evidence nor does he cite to any authority indicating that the

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jury pool was somehow unconstitutional. As he merely proclaims, without

more, that the jury pool featured potential jurors that were several decades

older than him, we are not at liberty to develop his argument any further. See

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (noting that

this Court will not act as an advocate and develop arguments for an

appellant); see also Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super.

2006) (“Arguments which are not appropriately developed are waived.

Arguments not appropriately developed include those where the party has

failed to cite any authority in support of a contention.”). Therefore, we find his

age-based challenge to the jury pool to be waived. However, even if we

applied the dictates of Duren to an age-related challenge, Lyons has still failed

to meet at least two of its prongs, given his complete lack of analysis on the

issue.

Accordingly, as we find none of Lyons’s issues to be meritorious, we

affirm his judgment of sentence.

Judgement of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/20/2019

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