Commonwealth v. Holley

945 A.2d 241, 2008 Pa. Super. 44, 2008 Pa. Super. LEXIS 186, 2008 WL 726085
CourtSuperior Court of Pennsylvania
DecidedMarch 19, 2008
Docket3520 EDA 2005
StatusPublished
Cited by160 cases

This text of 945 A.2d 241 (Commonwealth v. Holley) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Holley, 945 A.2d 241, 2008 Pa. Super. 44, 2008 Pa. Super. LEXIS 186, 2008 WL 726085 (Pa. Ct. App. 2008).

Opinion

OPINION BY

PANELLA, J.:

¶ 1 Appellant, Eric Holley, appeals from the judgment of sentence entered on November 17, 2005, by the Honorable Anthony J. DeFino, Court of Common Pleas of Philadelphia County. After a thorough review of the record, we affirm.

¶ 2 This Court’s memorandum of March 22, 2007, set forth the relevant facts of this case as follows:

The facts underlying the instant case concern an incident occurring on April 22, 2004 at approximately 9 a.m. at Frankford Hospital in the City and County of Philadelphia. The complainant, Aice Govozdean, was working as a correctional officer at the Philadelphia prison. The complainant and her partner, Maurice Kennedy, were assigned to Frankford Hospital to secure [Holley], an admitted inmate at the hospital. A few hours after their arrival, Officer Kennedy took a break, leaving the complainant to watch over [Holley] by herself. A few minutes later, [Holley] informed the complainant that he needed to use the bathroom. The complainant, granting the request, unshackled [Holley]’s right ankle from the bed. As the complainant moved to re-shackle his right ankle to his left ankle, [Holley] suddenly struck her on the side of her head, knocking her to the wall. The complainant then punched [Holley] twice, threw a chair in front of him, and ran out to the hallway. [Holley] chased after her and wrestled her to the floor. The complainant testified that as they were struggling on the floor, she felt [Holley] reach for her gun.
The complainant attempted to protect her weapon by laying on her side while simultaneously kicking and punching [Holley], however, [Holley] eventually gained control of the gun. Testimony from both the complainant and a witness, Gabriella Campbell, revealed that [Holley], who was inches away, then pointed the gun at the complainant and fired once. Additionally, another witness, Jennifer DiPasquale, testified that she saw [Holley] point the gun towards the complainant’s head saying, “you’re going to die, bitch.”
From down the hall, Brian Mort, an employee at the hospital, heard the commotion and decided to investigate the matter. He discovered the complainant and [Holley] wrestling on the ground, with [Holley] holding the gun and the complainant struggling to take it. Mr. *245 Mort then lunged at [Holley], tackled him around the waist, and attempted to subdue him. Amidst the struggle, [Holley] discharged the weapon two more times. [Holley] was subsequently restrained and the gun taken from him. Around 9:50 a.m., detectives arrived at the scene to investigate the shooting. [Holley] gave a formal statement admitting that he tried to shoot the complainant adding, “And, damn, I missed.” [Holley] read and signed his statement upon its completion.
On the second day of deliberations following a jury trial held on September 20-21, 2005, [Holley] was convicted of one count each of attempted murder 1 and aggravated assault. 2 On November 17, 2005, he was sentenced to six and a half to fifteen years’ imprisonment. No post-sentence motions were filed. After a timely appeal was filed with this Court, the trial court ordered the filing of a statement of matters complained of on appeal pursuant to Pa.R.A.P. § 1925(b). Appellant complied. 11

Superior Court Memorandum Decision, 3/22/07, at 1-2 (internal citations omitted).

¶ 3 On March 22, 2007, a panel of this Court affirmed, finding that all of Holley’s issues were waived based upon his failure to file a copy of the certified transcript on appeal. Holley filed a timely petition for allowance of appeal with the Supreme Court of Pennsylvania. On September 4, 2007, the Supreme Court granted said application, vacated the March 22, 2007 decision, and remanded the matter back for either an evidentiary hearing to determine the responsibility for the absence of trial transcripts and/or a decision on the merits of those issues that were preserved for appeal. On November 29, 2007, the Commonwealth filed a motion to correct omission in the record by submitting a copy of the trial transcript. 3 We granted that motion on December 4, 2007.

¶ 4 On appeal, Holley raises three issues for our review:

Whether the jury’s verdict, finding [Holley] guilty of Attempted Murder (FI) and Aggravated Assault (FI), was against the weight of the evidence?
Whether there was insufficient evidence to support the jury’s verdict, finding Appellant guilty of Attempted Murder (FI) and Aggravated Assault (F2)?
Whether the trial court erred in denying Appellant’s motion for a mistrial, where Commonwealth [sic] engaged in prosecutorial misconduct, by calling Appellant’s expert witness “arrogant and clueless,” and Appellant’s trial counsel “insane,” thereby creating a fixed bias in minds [sic] of jurors, which prejudiced [Holley]’s right to a fair trial?

Appellant’s Brief, at 12.

¶ 5 Holley argues that the verdict was against the weight of the evidence. However, Holley has failed to preserve this argument for our review. It is well settled that this Court cannot entertain, in the first instance, a request for a new trial based upon a claim that the *246 verdict is against the weight of the evidence. Commonwealth v. Mack, 850 A.2d 690, 694 (Pa.Super.2004) (failure to raise a challenge to the weight of the evidence in compliance with Pa.R.Crim.P., Rule 607, 42 Pa. Cons.Stat. Ann, constitutes a waiver of the weight claim, even if the trial court addresses the claim on the merits). Here, Appellant failed to make an oral motion on the record prior to sentencing and also failed to file a post-sentence motion raising this issue. See Pa.R.Crim.P., Rule 607, 42 Pa. Cons.Stat. Ann.; Commonwealth v. O’Black, 897 A.2d 1234, 1239 (Pa.Super.2006). Thus, the issue is not preserved for our review.

¶ 6 We note that Appellant has attached to his brief what purports to be a copy of a motion for reconsideration, and an order denying it, which raised the weight of the evidence claim. However, neither the motion nor the order are listed in the docket, nor are they a part of the certified record. It is well settled that, “[f]or purposes of appellate review, what is not of record does not exist.” Rosselli v. Rosselli 750 A.2d 355, 359 (Pa.Super.2000), appeal denied, 564 Pa. 696, 764 A.2d 50 (2000) (Table); see Pa.R.A.P., Rule 302, 42 Pa. Cons.Stat. Ann. Further, this Court has regularly stated that copying material and attaching it to a brief does not make it a part of the certified record. See, e.g., Lundy v. Manchel, 865 A.2d 850, 855 (Pa.Super.2004); First Union Nat. Bank v. F.A. Realty Investors Corp.,

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Bluebook (online)
945 A.2d 241, 2008 Pa. Super. 44, 2008 Pa. Super. LEXIS 186, 2008 WL 726085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-holley-pasuperct-2008.