J. S76003/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : AZSION UPSHUR, : No. 1447 WDA 2013 : Appellant :
Appeal from the Judgment of Sentence, August 5, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0012739-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015
Azsion Upshur appeals from the judgment of sentence entered on
August 5, 2013, following his convictions of robbery and criminal conspiracy.
We affirm, finding both of appellant’s claims waived.
The facts, as aptly summarized by the trial court, are as follows.
At approximately 1:00 P.M. on November 14, 2011, Joseph Boone arrived in the 2100 block of Bentley Drive. [. . .] Several days prior, Azsion Upshur (Appellant), Anthony Jefferson, and Raymond Pendleton planned to rob Boone. They targeted Boone because they knew him to sell marijuana, and believed he would have cash on him. According to their plan, Pendleton was to lure Boone into a hallway and then call Upshur and Jefferson to complete the robbery. Pursuant to this plan, when Boone arrived in the afternoon of May 12th, Pendleton called Appellant and stayed on the phone with him as he beckoned Boone into the hallway of 2112 Bentley Drive. Once Boone was in the hallway, J. S76003/14
Appellant put on a mask and hat, and immediately headed to the site.
When Boone saw Appellant and Jefferson running towards the hallway in masks[,] he tried to escape by running up the interior steps of the building. Pendleton left the area as Appellant and Jefferson pursued Boone up the steps. Jefferson was armed with a revolver even though a gun apparently was not part of the original plan. Appellant and Jefferson fought with Boone as they tried to rob him, dragging him back down the steps and striking his head against mailboxes inside the hallway on the first floor several times. The struggle caused Boone to wriggle out of his several shirts, both shoes, and a sock in his effort to get free. Shirtless and shoeless, Boone yelled, “take it, take it, you can have it” as he tried to run away into the courtyard. As Boone ran away[,] Jefferson followed and shot him in the hip, causing him to fall in the courtyard. Jefferson caught up to Boone, stood over him, and shot him a second time. Appellant and Jefferson fled the area together.
Several neighbors moved Boone from the courtyard to the curb so that paramedics could more easily reach him. While awaiting the medics, Pendleton approached the area where Boone lay on the sidewalk. Boone pointed at him and said, “your niggas did this to me.” Boone was transported to Mercy Hospital where he underwent emergency surgeries in an attempt to save his life, but these efforts were to no avail. Boone suffered multiple blunt force injuries, head trauma, lacerations to the back of his head and face, a gunshot wound to the right abdomen and a gunshot wound to the right hip. Boone died as a result of a perforating gunshot wound of the trunk which lacerated his liver and aorta. The medical examiner was able to determine that the muzzle of the firearm was less than three feet away from Boone’s body when the fatal shot was fired.
-2- J. S76003/14
Pendleton called Appellant and Jefferson later that day about what occurred. Both Appellant and Jefferson admitted they shared approximately $200 from Boone, and Jefferson stated, “My bad bro, I didn’t mean for things to go this far.” In response Appellant stated, “You know how things go, bro. We got a couple dollars.” Based upon interviews of Pendleton and several other witnesses, charges were filed against Appellant as noted hereinabove.
Trial court opinion, 4/28/14 at 3-6 (citations and footnote omitted).
Appellant was arrested and charged with one count of criminal
homicide, two counts of criminal conspiracy, one count of violation of the
Uniform Firearms Act, and one count of robbery. A joint jury trial with
co-defendant Anthony Jefferson began on May 13, 2013, before the
Honorable Edward J. Borkowski. At the close of the Commonwealth’s case,
the trial court granted a motion for judgment of acquittal for the firearms
violation. On May 20, 2013, the jury acquitted appellant of homicide and
conspiracy to commit homicide and convicted him of robbery and criminal
conspiracy to commit robbery.
On August 5, 2013, the court sentenced appellant to an aggregate
sentence of 10 to 20 years’ imprisonment. A counseled notice of appeal was
filed on September 4, 2013. Appellant complied with the trial court’s order
to file a concise statement of errors complained of on appeal within 21 days
pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
The following issues are presented in appellant’s brief:
-3- J. S76003/14
I. Did the trial court err when it found the evidence sufficient to support the defendant’s conviction for robbery?
II. Was it error when [the] trial court permitted the jury to hear a prior recorded statement of a testifying codefendant which was inadmissible hearsay and parts of the tape were prejudicial to the defendant without being probative of the issue for which they were admitted?
Appellant’s brief at 3.1
We find both of appellant’s claims to be waived. At the outset, we
note that the issues contained in the brief are more specific than the issues
raised in the Rule 1925(b) statement. In addition to the requirement that
issues be included in a Rule 1925(b) statement, our court has strictly upheld
the specificity requirements of Rule 1925(b). In Commonwealth v.
Lemon, 804 A.2d 34, 37 (Pa.Super. 2002), we held that an appellant, who
appealed on an insufficiency of the evidence claim, did not meet the
requirements of Rule 1925(b) where the appellant’s statement merely stated
that “[t]he verdict of the jury was against the evidence” and “[t]he verdict
was against the law.”
In his Rule 1925(a) opinion, Judge Borkowski found appellant’s
sufficiency claim waived for lack of specificity as appellant failed to assert
the elements upon which he bases the claim of lack of sufficiency of
evidence. In point of fact, the argument presented in his brief does not aver
1 The body of appellant’s brief also challenges the conviction for conspiracy.
-4- J. S76003/14
that a specific element of the crimes was not satisfied. Rather, appellant
argues that while he was present at the scene of the crime, the
Commonwealth failed to prove his participation; this specific argument could
not be gleaned from appellant’s boilerplate Rule 1925(b) statement. See
Commonwealth v. Thompson, 778 A.2d 1215, 1223-1224 (Pa.Super.
2001) (holding that “a Pa.R.A.P. 1925(b) statement which is too vague to
allow the court to identify the precise issue raised on appeal is equivalent to
no statement at all,” resulting in waiver). Thus, we agree that appellant’s
sufficiency issue is waived.
Even if not deemed waived, we would find the sufficiency claim
presented in his brief meritless. Our review of the record confirms that the
Commonwealth presented more than sufficient evidence which established
appellant’s participation and complicity in the crime of robbery with his
co-conspirator. We would affirm based on the analysis provided in the trial
court’s opinion. (Trial court opinion, 4/28/14 at 7 n.6.)
Appellant’s second issue is also waived, but on different grounds.
Appellant argues that the trial court erred in admitting into evidence the
tape recorded statement provided to the police by testifying witness
Pendleton. Following review of the notes of testimony, we agree with the
Commonwealth that appellant did not object to the recorded statement
being played for the jury. Rather, co-defendant Jefferson’s counsel,
Krisha Weyandt, Esq., objected to the recorded statement and, at a sidebar,
-5- J. S76003/14
offered her reasons why. (Notes of testimony, 5/13-20/13 at 295-297.)
The record reflects appellant’s attorney remained silent; defense counsel did
not himself object nor did he join in co-defendant’s request.
We have long held that “[f]ailure to raise a contemporaneous objection
to the evidence at trial waives that claim on appeal.” Commonwealth v.
Pearson, 685 A.2d 551, 555 (Pa.Super. 1996), citing Pa.R.A.P. 302(a);
Commonwealth v. Burkholder, 595 A.2d 59 (Pa. 1991). When a
co-defendant preserves an issue by objecting, the defendant waives the
issue unless he joins the objection. Commonwealth v. Woods, 418 A.2d
1346, 1352 (Pa.Super. 2008).
Appellant cannot rely on an objection by his co-defendant to preserve
a claim for appeal, even if that objection had been -- but in this case was
not -- identical to what he raises now.2 Commonwealth v. Cannady, 590
A.2d 356, 362 (Pa.Super. 1991); Woods, supra. Thus, this issue is waived
for purposes of appeal.
Judgment of sentence affirmed.
2 In addition to appellant claiming the recorded statement is inconsistent, he also argues that the statement is more prejudicial than probative; the
-6- J. S76003/14
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/10/2015
prejudicial versus probative nature of the recording was not argued at sidebar. (Appellant’s brief at 16.)
-7- Circulated 01/21/2015 04:12 PM
TN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYL VANIA
COMMONWEALTH OF PENNSYLVANIA, CRlMINAL DIVISION
APPELLEE CC NO.: 201212739
V.
AZSION UPSHUR,
APPELLANT.
OPINION
BORKOWSKI, J.
PROCEDURAL HISTORY
Appellant, Azsion Upshur, was charged by criminal information
(201212739) with one count of criminal homicide,I one count of robbery,> one
count of carrying a firearm without a license,' and one count of criminal
conspiracy.'
Appellant proceeded to a jury trial on May 13-20, 2013, at the conclusion of
which Appellant was found not guilty of criminal homicide; he was found guilty of
robbery and criminal conspiracy.
' 18 Po. C.S. § 2501(0) . , 18 Po. C.S. §3 701 (0)( 1lei) or (ji). l 18 Po. C.S . § 6106. This count was dismissed pursuant to Appellant ' s Motion for Judgment of Acquittal . , 18 Po. C.S. § 903(0)(1 ).
2 Circulated 01/21/2015 04:12 PM
On August 5, 2013, Appellant was sentenced by the Trial Court to the
following:
Count two: robbery - five years six months to eleven years incarceration;
Count four: conspiracy - four years six months to nine years incarceration to
be served consecutive to the period of incarceration imposed at count two.
Thus, the aggregate sentence was ten to twenty years incarceration.
On Septe.mber 4, 2013, Appellant filed a notice of appeal, and this Trial
Court opinion follows .
STATEMENT OF ERRORS ON APPEAL
Appellant's claims are set forth below exactly as Appellant presented them.
a. Defendant believes, and therefore avers, that the evidence presented at trial was insufficient as a matter of law to convict him of the crimes charged. Thus, Defendant moved this Honorable Court to vacate the judgment of sentence and discharge Defendant. b. At trial, the Commonwealth moved to admit Exhibit 103 which was a recording of Co-Defendant Pendleton's confession to police. Within said recording, Co-Defendant Pendleton implicated Defendant as a co-conspirator to the above- mentioned offenses. Defendant believes and therefore avers that admission of Commonwealth's exhibit number 103 was in error and unfairlY prejudiced Defendant. Thus, Defendant moves this Honorable Court to vacate judgment of sentence and order a new trial at the above-entitled matter.
FINDINGS OF FACT
At approximately 1:00 P.M. on November 14,2011, Joseph Boone arrived
in the 2100 block of Bentley Drive, a housing project in the Hill District of the city
3 Circulated 01/21/2015 04:12 PM
of Pittsburgh, Allegheny County, and began conversing with friends. (T.T. 77, 85,
195-196)' Several days prior, Azsion Upshur (Appellant), Anthony Jefferson, and
Raymond Pendleton planned to rob Boone. They targeted Boone because they
knew him to sell marijuana, and believed he would have cash on him . (T.T. 127,
192, 257, 259, 262, 302, 463). According to their plan, Pendleton was to lure
Boone into a hallway and then call Upshur and Jefferson to complete the robbery.
Pursuant to this plan, when Boone arrived in the afternoon of May 12th, Pendleton
called Appellant and stayed on the phone with him as he beckoned Boone into the
hallway of 2112 Bentley Drive. Once Boone was in the hallway, Appellant put on
a mask and hat, and immediately headed to the site. (T.T. 141, 143, 196, 198,203,
262,264,268,303,318-319).
When Boone saw Appellant and Jefferson running towards the hallway in
masks he tried to escape by running up the interior steps orthe building. Pendleton
left the area as Appellant and Jefferson pursued Boone up the steps. Jefferson was
armed with a revolver even though a gun apparently was not part of the original
plan. (T.T. 264-269, 304-306, 322). Appellant and Jefferson fought with Boone as
they tried to rob him, dragging him back down the steps and striking his head
against mailboxes inside the hallway on the first floor several times. The struggle
caused Boone to wriggle out of his several shirts, both shoes, and a sock in his
I The desienation "T.T" followed by numerals refers to Trial Transcript, May 13-20, 2013.
4 Circulated 01/21/2015 04:12 PM
effort to get free. (TT 181-182, 225, 235, 238-339). Shirtless and shoeless, Boone
yelled, "take it, take it, you can have it" as he tried to run away into the courtyard.
(T.T. 222-223, 324-325). As Boone ran away Jefferson followed and shot him in
the hip, causing him to fall in the courtyard. Jefferson caught up to Boone, stood
over him, and shot him a second time. (T.T. 87, 223, 325-327). Appellant and
Jefferson fled the area together. (T.T. 91, 266, 307, 327).
Several neighbors moved Boone from the courtyard to the c.urb so that
paramedics could more easily reach him. (TT. 223, 239). While awaiting the
medics, Pendleton approached the area where Boone lay on the sidewalk. Boone
pointed at him and said, "your niggas did this to me." (T.T. 202,266,308). . Boone
was transported to Mercy Hospital where he underwent emergency surgeries in an
attempt to save his life, but these efforts were to no avail. (T.T. 92, 101-102).
Boone suffered mUltiple blunt force injuries, head trauma, lacerations to the back
of his head and face, a gunshot wound to the right abdomen and a gunshot wound
to the right hip. (T.T. 101-\02). Boone died as a result of a perforating gunshot
wound of the trunk which lacerated his liver and aorta. (T.T. 107, 116). The
medical examiner was able to determine that the muzzle of the firearm was less
than three feet away from Boone's body when the fatal shot was fired. (T.T. 109-
III ).
5 Circulated 01/21/2015 04:12 PM
Pendleton called Appellant and Jefferson later that day about what occurred.
Both Appellant and Jefferson admitted they shared approximately $200 from
Boone, and Jefferson stated, "My bad bro, I dido't mean for things to go this far."
(T.T. 269, 309-310). In response Appellant stated, "You know how things go, bro.
We got a couple dollars." (T.T. 269, 310). Based upon interviews of Pendleton and
several other witnesses, charges were filed against Appellant as noted hereinabove.
DISCUSSION
I.
Appellant alleges in his first claim that the evidence was insufficient to
convict him of the crimes charged. Appellant does not specify which elements of
the two charges he is challenging. Given the lack of specificity engendered by this
claim the Trial Court cannot address it. In this regard the Pennsylvania Superior
Court has stated:
If Appellant wants to preserve a claim that the evidence was insufficient, then the I 925(b) statement needs to specify the elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. The instant 1925(b) statement simply does not specify the allegedly unproven elements. Therefore, the sufficiency issue is waived.
Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa, Super. 2008) (citations and
quotations omitted).
6 Circulated 01/21/2015 04:12 PM
Appellant's claim is waived:
II.
Appellant's second claim alleges that the admission of PendletOn's recorded
statement waS in error based on the argument that it unfairly prejudiced Appellant.
This claim is without merit.
The admission of a non-testifying codefendant's statement that implicates
the defendant at a joint trial constitutes a violation of the Confrontation Clause.
However, this aspeCt of the Confrontation Clause is not implicated in A",pellant's
case. Commonwealth v. Housman, 986 A.2d 822, 835-836 (Pa. 2009) (Brotan rule
not implicated where codefendant takes the stand and is Sll bjected to full and fair
cross examination). Pendleton conspired with Appellant and Jefferson to rob
Boone, but Pendleton was tried separately and testified at Appellant's trial as a
6 Even if the Superior Court was to address Appellant's claim. it is clear that the evidence was sufficient to establish the crimes of robbery and conspiracy, and Appellant's claim is without merit. Specifically, the evidence included: (I) the testimony of co-actor Raymond Pendleton; (2) testimony of SebOOn Davis who observed Appellant preparing for the robbery and which corroborated Pendleton's testimony; (3) identification testimony of an eyewitness who saw Appellant fleeing the scene with Jefferson, both of whom were masked; and (4) testimony from an eyewitness about the fight during the robbery. (T.T. 132-145, 198.200,210,222,259-266). See Commonwealth v. Spencer, 639 A.2d 820, 822·824 (Pa. Super. 1994) (evidence sufficient to sustain convictions of robbery and criminal conspirdcy where eyewitness identified defendant as masked robber, and this identification was corroborated by the testimony of defendant's accomplice); Commonwealth v. Smith, 396 A.2d 744, 748 (Pa. Super. 1978) (evidence sufficient to sustain conviction of robbery where seven eyewimesses identified defendant, even though defendant testified otherwise). See also Commonweallh v. Brown, 52 A.3d 1139, 1171 (Pa.2012) (evidence sufficient to sustain murder conviction based on repudiated out-of-court statements).
7 -.t Circulated 01/21/2015 04:12 PM
Commonwealth witness pursuant to a plea agreement 7 However, once Pendleton
took the stand he recanted his previous account of the robbery wherein he
implicated Appellant. The prosecution requested and the Trial Court granted the
request to introduce Pendleton's recorded statement of events as a prior
inconsistent statement. (TT. 297). Additionally, the Trial Court permitted the
prosecution to treat Pendleton as a hostile witness, and he was subjected to
vigorous examination by the Commonwealth regarding his previously recorded
statement of events. (T.T. 258-274, 277-278): While neither counsel for Appellant
nor Jefferson asked Pendleton any questions, he was available for cross-
examination. (T.T. 278).
Since the co-defendant (Pendleton) actually testified, the Confrontation
Clause was not implicated, and the admission of the statement is reviewed pursuant
to Pa. R.E. 803.1(1) (inconsistent statement of witness). See also Commonwealth v.
Brady, 507 A.2d 66 (Pa. 1986) (holding that a prior inconsistent statement of a
non-party witness is admissible as substantive evidence as long as it is made under
highly reliable circumstances and the witness is available for cross-examination at
7 Pendleton was charged at criminal infonnation (CC 20 1212738). Pendleton's truthful testimony at Appellant's trial was a condition of the plea offer from the Commonwealth, scheduled for court after Appellant's trial. However, once Pendleton recanted his earlier statement the Commonwealth withdrew the original plea offer. Pendleton pled guilty on November 20,2013, to third degree murder, conspiracy, and robbery, and was sentenced to an aggregate tenn of imprisonment of twenty-two years six months to fifty years.
8 Circulated 01/21/2015 04:12 PM
trial). Here, the Trial Court considered Pendleton's tape recorded statement and the
circumstances surrounding it, and found it admissible:
The Court finds in this instance it's admissible for two purposes: One is not only its content but his demeanor given his representation that he was under duress or forced to make these statements. It rebuts that notion. Especially if accurate at the very end of the statement where he states that he hasn't been threatened or forced to do anything. Secondly, the Court believes that under the letter and spirit of the prior inconsistent statement, [hearsay exceptions] -- The prior inconsistent statement is [substantive] evidence, Brady, its progeny, as well - as the Rules of Evidence itself that the jury is entitled and should hear exactly what he said on that prior in the recorded statement. So over your objection it will be admitted.
(T.T. 297).
As such, Appellant was not unfairly prejudiced by the admission of
Pendleton '5 statement and the Trial Court did not err in admitting it as a prior
inconsistent statement. See Brown, 52 A.3d at 1171 (written statements adopted by
witnesses but recanted at trial were admissible as prior inconsistent statements
where witnesses were available for cross examination and admitted they signed the
statements); Commonwealth v. Wilson , 707 A.2d 1114, 1118 (Pa. 1998)
(contemporaneous electronic audio recording satisfies requisite level of reliability
such that it may be admitted as substantive evidence as a prior inconsistent
statement).
Appellant's claim is without merit.
9 Circulated 01/21/2015 04:12 PM
CONCLUSION
Based upon the foregoing, the judgment of sentence imposed by this Court
should be affirmed.
By the Court,
DATE:_--LI-=--J_r_ 1 i_ Edward J.
10 3'1