J-S43012-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAROD BENSON
Appellant No. 1910 EDA 2013
Appeal from the Judgment of Sentence May 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003974-2011
CP-51-CR-0007687-2011
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 04, 2014
Appellant, Sharod Benson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for attempted murder, aggravated assault, carrying firearms
on public streets in Philadelphia, and possessing instruments of crime. 1 We
affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
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1
18 Pa.C.S.A. §§ 901(a) (section 2502 related); 2702; 6108; and 907(a),
respectively.
_____________________________
*Former Justice specially assigned to the Superior Court.
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Appellant raises five issues for our review:
WAS THE VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE?
DID THE TRIAL COURT ERR [IN] ALLOWING A WITNESS,
CORVEL ODD, TO TESTIFY ABOUT SPECTATORS [AND]
THEIR POSSIBLE AFFILIATION WITH APPELLANT,
WITHOUT ANY EVIDENCE THEREOF?
DID THE TRIAL COURT ERR IN ALLOWING THE WITNESS,
[MR. ODD], TO TESTIFY THAT HE WAS AFRAID TO APPEAR
AND TESTIFY?
DID THE TRIAL COURT ERR IN ALLOWING THE
COMMONWEALTH TO CALL A WITNESS, [ANTHONY
WILLIAMS],[2] TO TESTIFY IN VIOLAT
SEQUESTRATION ORDER?
DID THE TRIAL COURT ERR IN DENYING APPEL
MOTION FOR A MISTRIAL WHEN THE PROSECUTOR
TESTIFIED AND CREATED EVIDENCE DURING CLOSING
ARGUMENT, AS WELL AS MAKE [AN] UNFAIR COMMENT
AND MIS-CHARACTERIZATION OF
CLOSING ARGUMENT?
Preliminarily, we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-
2119 (addressing specific requirements of each subsection of brief on
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2
In his statement of questions presented, Appellant incorrectly identifies
record makes clear Anthony Williams was the witness who violated the
order.
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appeal). Regarding the argument section of an appellate brief, Rule 2119(a)
provides:
Rule 2119. Argument
(a) General rule. The argument shall be divided
into as many parts as there are questions to be argued;
and shall have at the head of each part in distinctive type
or in type distinctively displayed the particular point
treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations
omitted).
on behalf of an Id. If
to address any issue on review, we shall consider the issue waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding
appellant waived issue on appeal where he failed to support claim with
relevant citations to case law and record). See also In re R.D., 44 A.3d
657 (Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012)
(holding appellant-juvenile waived ineffective assistance of counsel claim
or citation to, relevant legal authority regarding ineffectiveness claims
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analysis precluded meaningful appellate review).
Instantly, Appellant provides no argument section in his appellate
brief. Instead, Appellant merely supplies a summary of the argument (less
than two pages), which is not divided into separate sections for each of the
five questions Appellant purports to raise on appeal. See Pa.R.A.P. 2119(a).
sufficiency of the evidence (an issue Appellant does not even raise in his
statement of questions presented) and fails to mention some of the issues
Appellant actually asserts in his statement of questions presented.
resent any cogent arguments and
cites no legal authority whatsoever. See id.; Hardy, supra
failure to develop his claims on appeal precludes meaningful review and
constitutes waiver of his issues. See In re R.D., supra; Gould, supra.
Moreov challenge to the weight of the evidence must be
preserved by a motion for new trial: (1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion. Pa.R.Crim
comment to Rule 607, the purpose of this rule is to make it clear that a
challenge to the weight of the evidence must be raised with the trial judge or
Commonwealth v. Gillard, 850 A.2d 1273, 1277
(Pa.Super. 2004), appeal denied, 581 Pa. 672, 863 A.2d 1143 (2004). An
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presenting a weight of the evidence issue to the trial court constitutes
waiver of that claim. Commonwealth v. Burkett, 830 A.2d 1034
(Pa.Super. 2003). Here, Appellant failed to challenge the weight of the
evidence before the trial court in a motion for new trial. See Pa.R.Crim.P.
607(A). Consequently, even if Appellant had properly developed this claim
on appeal, his first issue would be waived on this basis.3 See Burkett,
supra.
after a thorough review of the record, the briefs of the parties, the applicable
law, and the well-reasoned opinion of the Honorable Steven R. Geroff, we
conclude that even if Appellant had properly developed these claims in his
appellate brief, those issues would still afford Appellant no relief. The trial
court opinion comprehensively discusses and properly disposes o
second, third, fourth, and fifth issues on appeal. (See Trial Court Opinion,
filed December 24, 2013, at 7-14; 20-27) (finding: (issues 2 and 3) at
trial, Mr. Odd recanted earlier statements he made to police implicating
Appellant and other frequent patrons of Eagle Bar in crimes charged;4
prosecutor elicited testimony from Mr. Odd regarding identity of spectators
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3
Appellant also did not raise a challenge to the weight of the evidence in his
court-ordered Rule 1925(b) statement. See Commonwealth v. Castillo,
585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (holding issues not raised in
Rule 1925(b) statement will be deemed waived on appeal).
4
The shooting took place outside of the Eagle Bar.
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in courtroom, whom Mr. Odd identified as familiar from Eagle Bar, to counter
ecutor also elicited
testimony from Mr. Odd that he had been physically intimidated outside of
Eagle Bar just four months prior to testifying and was adverse to appearing
in court for fear of his safety;
infor
(issue 4)
present in courtroom during portion -examination;5 Mr.
Odd and Mr. Williams viewed shooting from different vantage points and
their pre-trial identifications of shooters differed;6 at trial, Mr. Williams
denied ever seeing Appellant, whereas Mr. Odd confirmed his prior
violation of sequestration order was de minimis and did not impact outcome
of trial, wher
testimony; violation of sequestration order constituted harmless error;
(issue 5)
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5
The record confirms Mr. Williams was present for only a short time during
detained him for questioning.
6
Specifically, Mr. Odd witnessed the shooting from the front of the Eagle Bar
-defendant and another man as the shooters.
Mr. Williams observed the shooting from the back of the Eagle Bar and
identified Appellant as a shooter.
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of potential unidentified shooter(s); prosecut
with evidence presented and represented fair comments countering defense
surveillance video depicted third shooter (Mr. Haines) was proper and fair
interpretation of evidence; moreover, court instructed jury that opening and
closing arguments do not constitute evidence).7
issues are waived for failure to develop them in his appellate brief. Even if
Appellant had properly developed his claims, his first issue would be waived
for failure to comply with Rule 607 and Rule 1925(b); we would also have
remaining appellate issues.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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7
The correct citation for Commonwealth v. Cook is 597 Pa. 572, 952 A.2d
594 (2008).
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