Com. v. Powers, D.

• Court: Superior Court of Pennsylvania
• Decided: October 8, 2021
• Docket: 1999 EDA 2020
• Status: Unpublished

Opinion

J-S28026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAQUAN POWERS : : Appellant : No. 1999 EDA 2020

Appeal from the Judgment of Sentence Entered November 12, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004878-2017

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 8, 2021

Appellant, Daquan Powers, appeals from the November 12, 2019

Judgment of Sentence entered in the Philadelphia County Court of Common

Pleas following his jury conviction of First-Degree Murder, Firearms Not to Be

Carried Without a License, Carrying Firearms in Public in Philadelphia, and

Possession of an Instrument of Crime.1 Appellant challenges the denial of his

pretrial Motion in Limine, the sufficiency and weight of the evidence, and the

discretionary aspects of his sentence. After careful review, we affirm.

The relevant facts and procedural history are as follows. On the

afternoon of May 10, 2016, surveillance video recorded Appellant’s girlfriend,

Sikeera Adams, drive a gold-colored car with a distinct sunroof and noticeable

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(a), 6106(a)(1), 6108, and 907, respectively. J-S28026-21

damage and arrive at the corner of 30th and Oxford Streets in North

Philadelphia. At 2:34 PM, a man wearing a gray hoodie sweatshirt and tan or

khaki pants, alighted from the vehicle. Shortly thereafter, at approximately

2:37 PM, the victim,2 who was standing on the same street corner, was shot

approximately twenty times and died from his injuries.3

As the shots rang out, people from the neighborhood appeared on the

scene. Relevantly, cousins Timothy and Amin Budd, who lived approximately

four houses from the corner, were inside when they heard the shots. Amin

Budd stepped outside of the house and saw a man wearing a gray hoodie and

blue jeans running from the scene, but he did not recognize the shooter.

When Amin Budd reached the corner, he saw a gold-colored car quickly pulling

away.

John Linder, the victim’s friend and a neighbor, was also nearby during

the shooting. Initially, Linder ran from the sound of gunshots, but returned

to the scene when the shots stopped to find the victim dead. Less than two

minutes later, Timothy Budd told Linder that “Quanny”4 had shot and killed

the victim.

2 The victim was known in the neighborhood as “Ills,” “Nah-Nah,” and

“Nana.”

3 Approximately five days earlier, Appellant had attempted to kill the victim

and another man by firing numerous gunshots at them. When those men fled in separate directions, Appellant pursued the victim and continued to shoot at him. 4 Appellant was known in the neighborhood as “Quanny.”

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On the night of the shooting, Appellant boasted to his girlfriend and two

friends, Tiffanie McCall and Nashawn Jones,5 that Appellant had killed the

victim.

Three days later, Philadelphia police officers saw the gold-colored

vehicle in the neighborhood. The officers spoke with its driver, Sikeera

Adams, and determined that the car was likely the one from the surveillance

video. Police arrested Adams on an active warrant and obtained a warrant to

search her car. Upon conducting the search, police found, inter alia, one

unused 9mm bullet and a letter addressed to “Quanny.”

Relevant to the instant appeal, following the shooting, Linder gave police

a written statement that he had been with the victim immediately prior to

hearing gunshots. Linder explained that the victim had walked away from

Linder toward the corner or 30th and Oxford Streets to speak privately on his

cell phone with his girlfriend. Linder stated that when he heard the gunshots,

he ran away from the victim. When the shots stopped, Linder ran back and

saw the victim wounded on the ground. Linder stated that he did not see who

had shot the victim, but within a few minutes of the shooting, Timothy Budd

told Linder that from his porch, he saw Appellant, wearing a gray hoodie and

“dark blue jeans” shoot the victim.6

5 Nashawn Jones was shot and killed in August 2016.

6 On May 12, 2016, Mr. Budd also gave a written statement to police identifying Appellant as the shooter, but Mr. Budd was not available to testify as he died of natural causes in before trial.

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On June 6, 2016, police officers arrested Appellant on an outstanding

warrant. Officers seized Appellant’s cell phone at the time of his arrest. Cell

phone location data established that Appellant’s cell phone was in the area of

the crime at the time of the shooting and that Appellant left that area shortly

after the shooting.

The Commonwealth charged Appellant with the above crimes.7 On

January 26, 2019, Appellant filed a counselled pretrial Motion in Limine to

exclude as hearsay the statement Timothy Budd made to Linder identifying

Appellant as the shooter. On April 3, 2019, the Commonwealth filed a Motion

in Limine to admit Timothy Budd’s statement to Linder at trial. On April 12,

2019, following a hearing, the trial court denied Appellant’s Motion, finding

the statement admissible under as a present sense impression.

On June 26, 2019, while still represented by counsel, Appellant pro se

filed a “Motion of Limine,” where he asked the court to preclude the

Commonwealth from offering Timothy Budd’s “excited utterance” statement

as evidence at trial. On October 2, 2019, the trial court denied Appellant’s

pro se Motion.

Appellant’s jury trial commenced on November 6, 2019. The

Commonwealth presented the testimony of numerous witnesses to establish

the facts set forth above. Relevant to the issues raised in this appeal, Amin

Budd testified that at the time of the victim’s murder, he was visiting his ____________________________________________

7 The Commonwealth also charged Appellant with one count of Third-Degree

Murder. The jury acquitted Appellant of that charge.

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mother who lived half a block west of the corner of 30th and Oxford Streets.

He testified that, after hearing gunshots ring out, he went to the corner to see

what happened and he saw a man in a hoodie running up Corlies Street.8 He

testified that, after he realized that the victim had been killed, he ran to Corlies

Street where he saw a “little gold car pull off the block.” N.T., 11/6/19, at

100. Amin Budd testified that, on May 18, 2016, he gave the police a

statement indicating that, after hearing approximately ten gunshots, he went

outside, looked towards Corlies Street, and saw a man in a blue jeans and a

gray hoodie with the hood up running. Id. at 118.

Tiffanie McCall testified that, on March 30, 2017, she gave a statement

to Philadelphia Police detectives. In her statement, McCall indicated that, on

the night of the victim’s murder, Appellant admitted to killing the victim,

stating: “I ran up on him. He was on his phone. I shot him. Ills never seen

it coming. When he went down, I stood over him and I just kept shooting.”

N.T., 11/7/19, at 62-63. McCall also admitted on cross-examination that, to

obtain a protection from abuse order against Nashawn Jones, she had reported

to police that Jones and Appellant had killed the victim. Id. at 77-80.

On November 12, 2019, the jury convicted Appellant of First-Degree

Murder, Firearms Not to Be Carried Without a License, Carrying Firearms in

Public in Philadelphia, and Possession of an Instrument of Crime. That same

day, the trial court imposed a mandatory sentence of life imprisonment for ____________________________________________

8 Corlies Street runs in a northbound direction perpendicular to Oxford Street,

just west of 30th Street.

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Appellant’s conviction of First-Degree Murder and consecutive sentences of

three to six years’, one to two years’, and one to two years’ incarceration

respectively for Appellant’s Firearms Not to Be Carried Without a License,

Carrying Firearms in Public in Philadelphia, and Possession of an Instrument

of Crime convictions.

Appellant filed a Motion for Reconsideration of Sentence and a separate

Post-Sentence Motion challenging the weight and sufficiency of the evidence,

as well as the discretionary aspects of sentence. On December 2, 2019, the

trial court denied Appellant’s Motion for Reconsideration of Sentence. On

October 16, 2020, the trial court denied Appellant’s Post-Sentence Motion.9

This appeal followed. Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

[1.] Whether the trial court abused its discretion when it denied [A]ppellant’s [M]otion in [L]imine to exclude from admissible evidence the hearsay statement from deceased Commonwealth witness Timothy Budd[?]

[2.] Whether the verdict was against the sufficiency of the evidence when the pants [A]ppellant was wearing clearly scene

9 Pursuant to Pa.R.Crim.P. 720(B)(3)(a), a post-sentence motion is deemed

denied by operation of law if the trial court fails to rule on it within 120 days. Accordingly, pursuant to Rule 720(B)(3)(c), the Philadelphia County Clerk of Courts should have entered an order on March 20, 2020, denying Appellant’s November 21, 2019 Post-Sentence Motion by operation of law. However, a breakdown in the operation of the occurred and the Philadelphia County Clerk of Courts failed to enter such an order. Because Appellant filed a timely appeal from the trial court’s October 16, 2020, we treat Appellant’s Notice of Appeal as timely filed and proceed to address his issues on appeal.

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[sic] in the relevant video, was a different color than the pants attributable to the killer[?]

[3.] Whether the verdict was against the weight of the evidence when it was clear from the relevant video that [A]ppellant had on tan pants and the killer, according to eyewitnesses, had on blue jeans[?]

[4.] Whether the discretionary sentence was harsh and unfair since [A]ppellant was sentenced to the mandatory [l]ife [w]ithout the [p]ossibility of [p]arole for Murder [o]f [t]he First Degree[?]

Appellant’s Brief at 5.

In his first issue, Appellant challenges the trial court’s denial of his

Motion in Limine seeking to preclude Linder from testifying that Timothy Budd

identified Appellant as the victim’s killer.10 Id. at 12.

Before we reach the merits of Appellant’s claim, we consider whether he

has preserved it. “The Rules of Appellate Procedure state unequivocally that

each question an appellant raises is to be supported by discussion and analysis

of pertinent authority.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa.

Super. 2020) (citation and bracketed language omitted). See Pa.R.A.P. 2111

and Pa.R.A.P. 2119 (listing argument requirements for appellate briefs).

Instantly, although the argument section of Appellant’s Brief contains

citation to boilerplate case law explaining the concept of hearsay and the ____________________________________________

10 Appellant has not specified whether he challenges the trial court’s denial of

his counselled Motion in Limine or his pro se “Motion of Limine.” However, given that Appellant has cited the Pennsylvania Rule of Evidence relevant to the “excited utterance” exception to the hearsay rule and included boilerplate case law explaining that exception, see Appellant’s Brief at 11, we infer that he has intended to challenge the denial of his pro se “Motion of Limine.” Appellant has not discussed, let alone mentioned, the trial court’s denial of his earlier Motion in Limine, where the court concluded that Timothy Budd’s statement was admissible pursuant to the “present sense exception.”

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excited utterance exception to the rule excluding the admission of hearsay

evidence, Appellant has failed to apply the facts of this case to the cited

authority, explain in what way Timothy Budd’s statement did not satisfy the

excited utterance exception to the hearsay rule, or set forth any articulable

claim of trial court error. Instead, in his two-paragraph argument, he merely

highlights the inconsistencies between Timothy Budd’s statement and the

statements of the other Commonwealth witnesses, and calls into question

Budd’s credibility.11

When issues are not properly raised and developed in briefs with

arguments that are sufficiently developed for our review, we may dismiss the

appeal or find certain issues waived. Commonwealth v. Hardy, 918 A.2d

766, 771 (Pa. Super. 2007) See Pa.R.A.P. 2101 (explaining that substantial

briefing defects may result in dismissal of appeal). It is not the role of this

Court to develop an appellant’s argument where the brief provides mere

cursory legal discussion. Commonwealth v. Johnson, 985 A.2d 915, 925

(Pa. 2009). See also In re C.R., 113 A.3d 328, 336 (Pa. Super. 2015) (“This

Court will not consider an argument where an appellant fails to cite to any

legal authority or otherwise develop the issue.”). Furthermore, we will find

an appellant’s issue waived where the argument portion of his brief lacks

meaningful discussion of relevant legal authority, if this lack of analysis

11 To the extent that this issue, therefore, is essentially a challenge to the weight the jury gave to the evidence, we address Appellant’s weight of the evidence claim, infra.

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precludes us from conducting meaningful appellate review. In re R.D., 44

A.3d 657, 674 (Pa. Super. 2012).

Appellant’s failure to develop his argument in support of this claim has

precluded meaningful appellate review. Thus, we find it waived.

In his second issue, Appellant challenges the sufficiency of the

Commonwealth’s evidence in support of his First-Degree Murder conviction.

Appellant’s Brief at 13. After citing one case setting forth boilerplate case law

regarding our standard of review relevant to sufficiency challenges, Appellant

argues that the evidence identifying him as the shooter was insufficient

because he “was wearing khaki/tan pants during the relevant time period” and

“the assailant was wearing dark blue jeans or blue jeans.” Id. Thus, he baldly

asserts that “[i]t was not [Appellant] that killed [the victim.]” Id. He also

asserts that the Commonwealth’s identification evidence was insufficient

because Tiffanie McCall testified that her boyfriend, Nashawn Jones, admitted

that he killed the victim. Id.

Our review indicates that Appellant’s argument is essentially a challenge

to the credibility of the Commonwealth’s witnesses Tiffanie McCall and Amin

Budd. Appellant’s assertions do not raise a proper sufficiency challenge. See

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (explaining that

this Court will not review a sufficiency claim where the argument in support

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goes only to the weight of the evidence). Thus, this issue garners Appellant

no relief.12

In his third issue, Appellant challenges the weight of the evidence. Id.

at 13-15. In particular, Appellant highlights the discrepancy between the

video surveillance recording of him exiting his girlfriend’s car at 2:34 PM

wearing khaki or tan pants and Timothy and Amin Budd’s statements that the

victim’s killer wore dark blue jeans or blue jeans. Id. at 14. Appellant also

notes that Tiffanie McCall testified that Nashawn Jones admitted to killing the

victim and that there was no forensic evidence implicating Appellant in the

crime. Id.at 15.

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). Resolving

contradictory testimony and questions of credibility are matters for the finder

of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).

It is well-settled that we cannot substitute our judgment for that of the trier

of fact. Talbert, supra at 546.

12 Moreover, Appellant cites one boilerplate case pertaining to sufficiency challenges, but he has not provided any analysis of the facts of the instant case in light of this, or any other, authority. Accordingly, even if he had provided an argument in support of a sufficiency challenge, our review would be fatally hampered by his lack of development.

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Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546. “One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict was or was

not against the weight of the evidence and that a new trial should be granted

in the interest of justice.” Id.

Furthermore, “in order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (citation omitted).

As our Supreme Court has made clear, reversal is only appropriate “where the

facts and inferences disclose a palpable abuse of discretion[.]”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citations omitted,

emphasis in original).

“[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014) (citation omitted). For that reason, the trial court need not view the

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evidence in the light most favorable to the verdict winner, and may instead

use its discretion in concluding whether the verdict was against the weight of

the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa.

2000).

In this issue, Appellant essentially asks us to reassess the credibility of

the witnesses, in particular that of Amin Budd and Tiffanie McCall, and reweigh

the testimony and evidence presented at trial. We cannot and will not do so.

Our review of the record shows that the evidence is not so tenuous, vague, or

uncertain, and the verdict was not so contrary to the evidence as to shock the

court’s conscience. Accordingly, we discern no abuse of discretion in the trial

court’s denial of Appellant’s weight claim. Appellant is, thus, not entitled to

relief.

In his final issue, Appellant purports to challenge the discretionary

aspects of his sentence. Appellant’s Brief at 15.

Challenges to the discretionary aspects of sentencing are not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief sufficiently addresses the challenge in a statement included

pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question

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that the sentence appealed from is not appropriate under the Sentencing

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

Appellant failed to include a Rule 2119(f) Statement in his Brief and the

Commonwealth objected to its omission.13 Commonwealth’s Brief at 17.

Appellant has, thus, waived his challenge to the discretionary aspects of his

sentence. Pa.R.A.P. 2119(f); Commonwealth v. Sanchez, 848 A.2d 977,

986 (Pa. Super. 2004). See also Commonwealth v. Kiesel, 854 A.2d 530,

533 (Pa. Super. 2004) (holding that this Court is precluded from reviewing

the merits of the claim when the Commonwealth objects to the omission of a

Pa.R.A.P. 2119(f) Statement).

For the foregoing reasons, we affirm Appellant’s Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/8/2021

13 Appellant’s entire argument in support of this claim consists of a citation to

Pa.R.A.P. 2119(f) followed by:

The appellant recognizes that the consecutive sentence was a legal sentence. But what is the point. The appellant cannot serve more than life. But it is to give the appellant hope.

Appellant’s Brief at 15.

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