Com. v. Smith, F.

J-A20019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

FEROCK SMITH

Appellant No. 188 EDA 2013

Appeal from the Judgment of Sentence December 17, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006875-2009

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 23, 2014

Appellant, Ferock Smith, appeals from the December 17, 2012

aggregate judgment of sentence of 50 years to life imprisonment after a jury

found him and his co-defendants, Mikechel Brooker and Alonzo Ellison1,

guilty of first-degree murder, criminal conspiracy, firearms not to be

possessed without a license, and possession of an instrument of a crime

(PIC).2 After careful review, we affirm.3

____________________________________________
1

2
18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively.
3
On July 17, 2014, Appellant filed an application for post-submission
communication pursuant to Pennsylvania Rule of Appellate Procedure. 2501.
Said application is hereby granted.
J-A20019-14

urt summarized

the relevant facts and procedural history of this case as follows.

was shot and killed on the 8700 Block of Glenoch
Place in Philadelphia, by [Alfonso Ellison (Ellison)],
[Appellant] and [Mikec
apparent dispute over drug territory after Antoniette

[Ellison]. When Gray[,] shortly thereafter[,]
purchased drugs from Jacobs, [Ellison], [Appellant],
and Brooker shot Jacobs multiple times. At trial,
Gray testified that she did not remember the
shooting and her July 20, 2008[] statement to police
was admitted. In her statement, Gray identified
[Ellison], [Appellant], and Brooker as the three
people who shot Jacobs. Gray also saw [Ellison],
[Appellant], and Brooker the next day and heard
them laughing about shooting Jacob[s]. Another

saw someone standing over Jacobs and shoot him in
the head. Gould had identified that person as
[Ellison] in a July 18, 2008 statement to police,
which was introduced at trial.

testified that she did not remember the events after
the shooting and her July 19, 2008 statement to
police was admitted. In her statement, Sampson
stated that [Ellison], [Appellant], and Brooker came
to her apartment on the night of July 18, 2008.
Sampson stated that she let [Ellison], [Appellant],
and Brooker use her apartment because they gave
her drugs. [Ellison], [Appellant] and Brooker had a

during which she heard [Appellant] say he shot
Jacobs. [Appellant] and Brooker had handguns with

Sampson asked [Ellison] to remove the guns from
her apartment and [Ellison] took a 9 millimeter
handgun from [Appellant]. Brooker and [Appellant]

which time, [Ellison] gave the 9 millimeter handgun

-2-
J-A20019-14

back to [Appellant]. [Ellison] stayed and slept at

the rear of the apartment when the police were
knocking at the front door. A .32 caliber handgun

Trial Court Opinion, 2564 EDA 2012, 12/26/12, at 2-3.

On June 1, 2009, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses, as well as one count each of

possession of a firearm by a minor and carrying firearms in public in

Philadelphia.4 On July 10, 2012, Appellant proceeded to a jury trial. At the

conclusion of said trial, on July 16, 2012, the jury found Appellant guilty of

first-degree murder, criminal conspiracy, firearms not to be possessed

without a license, and PIC. The Commonwealth nolle prossed the remaining

two charges. On December 17, 2012, the trial court imposed an aggregate

sentence of 50 years to life imprisonment.5 Appellant did not file a post-

sentence motion. On January 15, 2013, Appellant filed a timely notice of

appeal.6

____________________________________________
4
18 Pa.C.S.A. §§ 6110.1(c) and 6108, respectively.
5
The trial court imposed 50 years to life imprisonment for first-degree

concurrently to the murder sentence. The trial court imposed no further
penalty for the PIC and firearm charges.
6
On January 17, 2013, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely filed said statement on February 27,
(Footnote Continued Next Page)

-3-
J-A20019-14

On appeal, Appellant raises seven issues for our review.

I. Whether the evidence was so contradictory and
unreliable that the verdicts must be set aside
because they are based on surmise or
conjecture?

II. Whether a conviction based on unreliable,
unsworn statements not given in open court
violates the Fourteenth Amendment to the
Constitution of the United States?

III. Whether the [trial court] erred when it
admitted evidence that Appellant was found in
possession of a 9 mm. handgun when expert
testimony conclusively established based on
analysis of the cartridge casings that the
murder weapon was a .380 caliber pistol, and
definitely not a 9 mm. pistol?

IV. Whether the [trial] court erred when it failed to
grant a mistrial arising from the

without factual support that Appellant was a
drug dealer?

V. Whether the jury instructions on first[-]degree
murder which blur the elements of
premeditation and deliberation relieved the
[Commonwealth] of the burden of proving
each element of the crime beyond a reasonable
doubt in violation of the Due Process Clause of
the Fourteenth Amendment?

VI. Whether the [trial court] erred and denied due
process when it sent prior unsworn ambiguous
statements back with the jury leading the jury

_______________________
(Footnote Continued)

2013 after successfully seeking an extension. The trial court did not file a
Rule 1925(a) opinion, as the trial judge who presided over the trial retired
from the bench in the interim.

-4-
J-A20019-14

to infer that the statements were accurate and
had heightened importance?

VII. Whether the fifty[-]year sentence imposed on
a juvenile was imposed without consideration
of age[-]related factors including prospects for
rehabilitation and without a record suitable for
appellate review?

-4.

In his first issue, Appellant argues the Commonwealth failed to present

sufficient evidence to sustain his conviction for first-degree murder.

Specifically, Appellant avers the Commonwealth did not provide sufficient

conjecture because the evidence was in hopeless conflict, and some of the

information in the prior statements was ambiguous

Id. at 17.

Our standard of review regarding challenges to the sufficiency of the

In reviewing the sufficiency of the

evidence, we consider whether the evidence presented at trial, and all

reasonable inferences drawn therefrom, viewed in a light most favorable to

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

to be resolved by the fact finder unless the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

-5-
J-A20019-14

Commonwealth v. Watley, 81 A.3d

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). As an

Id.

credibility of witnesses and the weight of the evidence produced is free to

Commonwealth v. Kearney, 92

sufficiency is a question of law, our standard of review is de novo and our

scope of revi Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted).

this issue by not including it in his concise statement of errors complained of

on appeal pursuant to Rule 1925(b). See

its plain text, Rule 1925(b) identify each ruling or

error that the appellant intends to challenge with sufficient detail to identify

include every subsidiary issue contained therein which was raised in the trial

Id. at 1925(b)(4)(v). Finally, any issues not raised in accordance

-6-
J-A20019-14

with Rule 1925(b)(4) will be deemed waived. Id. at 1925(b)(4)(vii). Our

Supreme Court has held that Rule 1925(b) is a bright-line rule.

Our jurisprudence is clear and well-settled, and
firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant
to file and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack
the authority to countenance deviations from the

ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for
le 1925
violations may be raised by the appellate court sua
sponte, and the Rule applies notwithstanding an

1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the
appellant aimed at compliance may satisfy the Rule.
We yet again repeat the principle first stated in
[Commonwealth v.] Lord, [719 A.2d 306 (Pa.
1998)]
preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court
orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b)
Id.] at 309.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

brief, Appellant argues that nevertheless, his sufficiency argument should

that such a claim must be considered by the Superior Court whether it is

-7-
J-A20019-14

Appellant also claims that since the trial judge has retired and did not file an

Id.

Finally, Appellant avers that the sufficiency arguments are embedded in

Id.

As noted above, our Supreme Court has held Rule 1925(b) is a bright-

statement are waived for the purposes of appeal. See Hill, supra;

Pa.R.A.P. 1925(b)(4)(

Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007),

does not mandate that this Court review all sufficiency claims, even when

not raised in the Rule 1925(b) statement. In Laboy, our Supreme Court

considered whether this Court correctly determined that the defendant, who

adequately develop his claim of insufficient

Id. at 1058. Laboy held that this Court should have reviewed the merits of

Id. at 1060. The instant matter is distinguishable from Laboy as

Appellant did not include his sufficiency issue at all in his Rule 1925(b)

statement.7

ad hoc
____________________________________________
7
Moreover, Laboy predates Hill by approximately four years, before our
-line rule.

-8-
J-A20019-14

we are powerless to grant. Hill, supra. Therefore, for all of these reasons,

Hill

issue on appeal waived for failure to list it in his Rule 1925(b) statement.

In his second issue, Appellant argues that his due process rights were

erroneously admitted the prior statements of Gray, Gould, and Sampson.

Id. at 20-21.

At its core, the Due Process Clause of the Fourteenth Amendment

entitles a criminal defendant to a fair trial. United States v. Gonzalez-

Lopez, 548 U.S. 140, 146 (2006) (citations omitted). Our Supreme Court

has held that convictions based on prior inconsistent statements can amount

to a due process violation, but only in extremely rare circumstances. See

generally Commonwealth v. Brown, 52 A.3d 1139, 1170-1171 (Pa.

2012). Prior inconsistent statements are admissible as substantive

evidence, if any of the following apply.

[O]nly those prior inconsistent statements

evidence. Commonwealth v. Lively, [] 610
A.2d 7, 10 ([Pa.] 1992). To this end, the
Lively Court required as a requisite to
admissibility, that the prior statement be:

(1) given under oath at a formal legal
hearing;

-9-
J-A20019-14

(2) reduced to a writing which was
signed or adopted by the witness; or

(3) a contemporaneous verbatim

Id.; see also Commonwealth v. Johnson,
[] 638 A.2d 940 ([Pa.] 1994) (holding that, to
be admissible, a prior inconsistent statement
must have been uttered under highly reliable
circumstances which would render inferences
to be drawn from it more probable than not).

Commonwealth v. Grimes, [] 648 A.2d 538, 544
([Pa. Super.] 1994)[, appeal denied, 670 A.2d 642
(Pa. 1995)].

Commonwealth v. Bibbs, 970 A.2d 440, 447-448 (Pa. Super. 2009)

(internal parallel citations omitted), appeal denied, 982 A.2d 1227 (Pa.

2009).

Instantly, the statements admitted at trial satisfy Lively as each of the

Bibbs, supra. In fact, Appellant concedes in his

brief that all of the statemen Lively

statements was ambiguous and unreliable based on the misuse of the

Our Supreme Court has rejected the argument that convictions based

of law.

- 10 -
J-A20019-14

United States Supreme Court and our Court, as well
as our consideration of jurisprudence from other
states which reject a per se rule, coupled with our
over quarter-century of experience with the use of
prior inconsistent statements as substantive
evidence by the courts of this Commonwealth,
convinces us that criminal convictions which rest
only on prior inconsistent statements of witnesses
who testify at trial do not constitute a deprivation of

the prior inconsistent statements, taken as a whole,
establish every element of the offense charged
beyond a reasonable doubt, and the finder-of-fact
could reasonably have relied upon them in arriving at
its decision. Prior inconsistent statements, which
meet the requirements for admissibility under
Pennsylvania law, must, therefore, be considered by
a reviewing court in the same manner as any other
type of validly admitted evidence when determining
if sufficient evidence exists to sustain a criminal
conviction.

Brown, supra (footnote omitted).

Appellant does not identify or explain how any of the prior statements

fails to meet Brown establish every element of the offense

See id. Instead Appellant argues

that some of the statements were ambiguous, based on the misuse of the

[d]iscrepancies concerning the evidence affect the weight of the evidence

given by the trier of fact but do not affect the admissibility of such

evidence Commonwealth v. Edmiston, 634 A.2d 1078, 1089 (Pa.

1993), overruled on other grounds, Commonwealth v. Freeman, 827 A.2d

385 (Pa. 2003). Additionally, it was for the jury to resolve any ambiguity in

- 11 -
J-A20019-14

the statements. See Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa.

witnesses and the weight of the evidence produced, is free to believe all,

appeal denied, 79 A.3d

1095 (Pa.

as to Lively

not violated in this case. See Brown, supra; Bibbs, supra.

In his third issue, Appellant avers that the trial court erred when it

testimony should have been inadmissible. Id. We begin by noting our well-

settled standard of review regarding evidentiary matters.

The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

A.3d 167 (Pa. 2013).

- 12 -
J-A20019-14

not preserved this issue for

our review. The Commonwealth argues that Appellant never objected to the

admission of this evidence below and therefore cannot raise the issue on

-16.

ssues not raised in the lower court are waived

preserve a claim of error for appellate review, a party must make a specific

objection to the alleged error before the trial court in a timely fashion and at

the appropriate stage of the proceedings; failure to raise such objection

Commonwealth v.

Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citation omitted).

Furthermore, with regard to eviden

appeal, of the admission of evidence in the court below will be confined to

Commonwealth v. Bedford, 50 A.3d

707, 713 (Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 57

other unspecified grounds are waived and cannot be raised for the first time

Id. (citation omitted).

In the case sub judice, Appellant argues the trial court abused its

discretion in permitting Detective Michael Walter to testify regarding a gun

that was recovered from his person. Detective Walter testified that when

- 13 -
J-A20019-14

at 144. Detective Walter went on to testify that

- Id. Detective Walter was then shown

waistband when he was arrested. Id. at 145. At no point in time during or

a result, Appellant has waived any issue regarding this testimony for failure

to object at trial.8 See Bedford, supra, Akbar, supra.

In his fourth issue, Appellant avers that the trial court erred in failing

to declare a mistrial when the Commonwealth labeled Appellant and his co-

Specifically, Appellant highlights three instances where the Commonwealth

referred to Appellant as a drug dealer. Id. The first instance was during its

opening statement, the second was during its redirect examination of

____________________________________________
8
We note that the 9 mm handgun was mentioned during discussion of the
in limine on July 9, 2012. Appellant did not raise
any objection to that motion or the gun in any way during those
proceedings. See N.T., 7/9/12, at 4-9. At oral argument on July 15, 2014,
Appellant argued that under Pennsylvania Rule of Criminal Procedure 603,
in limine,
preserved the issue for all three defendants because all three defendants are
adversely affected by it. However, Rule 603 does not stand for this
[a]ny ruling of the judge on an objection
or motion made during the trial of any action or proceeding shall have the
effect of a sealed exception in favor of the party adversely affected

Id. As a result, Rule 603 does not alter our conclusion.

- 14 -
J-A20019-14

Id.

A review of the transcript reveals that Appellant did not lodge an

objection to anything said by the Commonwealth in its opening statement.

immediately sustained. See N.T., 7/12/12, at 131. Finally, Appellant

that could be interpreted to imply that Appellant dealt drugs to Sampson,

which the trial court overruled. See N.T., 7/13/12, at 98. Appellant never

requested a mistrial from the trial court in any of these instances.

request a remedy such as a mistrial or curative instruction is sufficient to

Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa.

Super. 2013) (citation omitted), appeal denied, --- A.3d ---, 835 MAL 2013

(Pa. 2014). However, where the trial court d[oes] not sustain [a

defendan

Commonwealth v. Hogentogler, 53 A.3d 866, 877 (Pa. Super. 2012)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

As noted, Appellant did not request a mistrial during the

C

Detective Gaul. Therefore, Appellant has waived any argument as to a

- 15 -
J-A20019-14

mistrial regarding those incidents.9 See Sandusky, supra. However, as

summation, he was not required to request a mistrial to preserve the issue

for our review. See Hogentogler, supra. Accordingly, we confine our

discussion to that occurrence.

We begin by stating our standard of review.

It is well-
denial of a motion for a mistrial is limited to
determining whether the trial court abused its
discretion. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-
abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is
of such a nature that its unavoidable effect is to
deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict. A
mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation

omitted).

With specific reference to a claim of
prosecutorial misconduct in a closing statement, it is

remarks to determine their prejudicial quality,
comments cannot be viewed in isolation but, rather,
____________________________________________
9

not alter our conclusion even though Brooker and Ellison did object to the
See Pa.R.Crim.P.
603(A); N.T., 7/12/12, at 134.

- 16 -
J-A20019-14

must be considered in the context in which they
Commonwealth v. Sampson, 900
A.2d 887, 890 (Pa. Super. 2006) (citation omitted)[,
appeal denied, 907 A.2d 1102 (Pa. 2006)]. Our
review of prosecutorial remarks and an allegation of
prosecutorial misconduct requires us to evaluate
whether a defendant received a fair trial, not a
perfect trial.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009).

During its closing argument, the Commonwealth made the following

reference to the defendants and Sampson.

[Commonwealth]: Why would [Sampson] point

you exactly what she saw and what she heard? Why
would she try and ruin any relationship with these
three individuals, her free drugs, by providing a
statement to Homicide that assists them in trying to
figure out who killed [the victim], by specifically
saying Worm told me and made a comment that he
shot [the victim]?

sel]: Objection.

[Trial Court]: Overruled.

N.T., 7/13/12, at 98 (emphasis added). Appellant argues this statement by

the Commonwealth implied to the jury that Appellant and his co-defendants

were providing Sampson with drugs on a regular basis. Appella

29.

Assuming arguendo

error may be considered harmless only when the Commonwealth proves

beyond a reasonable doubt that the error could not have contributed to the

- 17 -
J-A20019-14

Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super.

2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013).

The Commonwealth bears the burden of establishing
the harmlessness of the error. This burden is
satisfied when the Commonwealth is able to show
that: (1) the error did not prejudice the defendant or
the prejudice was de minimis; or (2) the erroneously
admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial
[e]ffect of the error so insignificant by comparison
that the error could not have contributed to the
verdict.

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation

omitted; italics added), appeal denied, 87 A.3d 318 (Pa. 2014).

In this case, the Commonwealth argues that any error was harmless

lant did not

-23. The Commonwealth highlights the

Commonwealth.

[Commonwealth]: Do you see Butter in the
courtroom today?

[Sampson]: sure which

is Butter I think.

[Commonwealth]: Okay. Your Honor, for the
record identifying Alonzo Ellison by point of finger
and also by location in relation to the other
u know Butter?

- 18 -
J-A20019-14

[Sampson]: Through drug activity.

[Commonwealth]: What do you mean?

[Sampson]: I would get drugs from him.

[Commonwealth]: And would you also get drugs
from him inside the projects?

[Sampson]: No. Mostly I would have him come
to my house.

[Commonwealth]: Did you know someone by
the name of AI or Doughnut?

[Sampson]: Yes.

[Commonwealth]: Do you see that person in the
courtroom today?

[Sampson]: I think this one on the end in the
blue shirt.

[Commonwealth]: Your Honor, for the record,

do you know Doughnut or AI?

[Sampson]: For the same thing, for the same
reasons, drugs.

[Commonwealth]: You would get drugs from
Doughnut?

[Sampson]: Yes.

[Commonwealth]: Do you also know somebody
by the name or that you called Worm?

[Sampson]: Yes.

[Commonwealth]: Do you see Worm in the
courtroom today?

[Sampson]: Yes, the one with purple.

- 19 -
J-A20019-14

[Commonwealth]: Your Honor, identifying
[Appellant], by point of finger and description of
And how did you know Worm?

[Sampson]: Through the same reasons. For the
same reasons.

N.T., 7/11/12, at 213-215.

Based on this exchange, at a minimum, we agree that any error was

obtained drugs from all three defendants. Appellant did not object to this

testimony. As a result, any statement by the Commonwealth as to Appellant

giving Sampson free drugs was harmless as it was de minimis

merely cumulative of other untainte Green, supra. As a

result, Appellant is not entitled to relief on this issue.

In his fifth issue, Appellant avers that the trial court erroneously

instructed the jury on first-degree murder because the instruction, as given,

fine the element of premeditation or deliberation with any

-settled

standard of review pertaining to jury instructions.

[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole,
and not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately,
and accurately presented to the jury for its
consideration. Only where there is an abuse of

- 20 -
J-A20019-14

discretion or an inaccurate statement of the law is
there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citation omitted), appeal denied, --- A.3d ---, 126 MAL 2014 (Pa. 2014).

at Appellant has failed to

preserve this issue for our review. The Commonwealth argues Appellant has

waived this issue by not objecting to any of the jury instructions below.

ssues not raised in the lower court are waived

to preserve a challenge to a particular jury instruction. Failure to do so

result Commonwealth v. Olsen, 82 A.3d 1041, 1050 (Pa.

challenges to the propriety of the jury charge on appeal if he responds in the

negative when the court asks whether additions or corrections to a jury

Commonwealth v. Charleston, 16 A.3d 505, 527-

528 (Pa. Super. 2011) (citation omitted), appeal denied, 30 A.3d 486 (Pa.

2011).

In support of this argument, Appellant cites to two federal cases that

define premeditation and deliberation.

- 21 -
J-A20019-14

Chambers v.
McDaniel, 549 F[.]3d 1191, 1[200] (9th Cir. 2008).

process and consideration of consequences before
Id. D]eliberation means
considering and reflecting on the preconceived
design to kill, turning it over in the mind, giving it a
premeditation

necessary that there be an appreciable time elapse
between formation of the design, the decision, and
the fatal act within which there is deliberation
United States v. Orleans-Lindsay, 572 F. Supp.
2d 144, 16[0] (D. [D.C.] 2008).
10
Appellan Instantly, Appellant argues

Id. at 31. Appellant compares the instruction the

trial court gave to an instruction th

Id.

In this case, the trial court instructed the jury as follows.

A specific intent to kill exists if the defendant
has fully formed intent to kill and is conscious of that
intent.

A killing by a person with the specific intent to
kill is a killing with malice.

A killing is with the specific intent to kill if it is
willful, deliberate, and premeditated.
____________________________________________
10
this Court is not bound by decisions of federal courts inferior
to the United States Supreme Court, even though we may look to them for
Commonwealth v. Huggins, 68 A.3d 962, 968 (Pa. Super.
2013) (citation omitted), appeal denied, 80 A.3d 775 (Pa. 2013).

- 22 -
J-A20019-14

The specific intent to kill, including the
premeditation needed for first-degree murder, does
not require planning or previous thought or any
particular length of time. It can occur quickly.

N.T., 7/13/12, at 144-145. We have reviewed the entire jury instruction and

portion of the transcript immediately preceding and following the trial cou

with regard to the charge. Id. at 154. Based on these considerations, we

waived for failure to object below.11 See Olsen, supra; Charleston,

supra.

In his sixth issue, Appellant argues the trial court erred when it sent

____________________________________________
11

constitutionally ineffective for failing to request an instruction on each and
every element of the offense of first[-
Brief at 21. As this claim pertains to ineffective assistance of counsel, we
decline to address it at this juncture. Appellant is free to raise this claim on
collateral attack pursuant to the parameters of the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546. See generally Commonwealth v.
Holmes claims of ineffective
assistance of counsel are to be deferred to PCRA review; trial courts should
not entertain claims of ineffectiveness upon post-verdict motions; and such

- 23 -
J-A20019-14

should not have been sent to the jury because it gave them a heightened
12
level of impo Id.

Whether an exhibit should be allowed to go out
with the jury during its deliberation is within the

Commonwealth v. Merbah, [] 411 A.2d 244, 247
([Pa. Super.] 1979) (citing Commonwealth v.
Pitts, [] 301 A.2d 646 ([Pa.] 1973)); Pa.R.Crim.P.
1114 (renumbered 646, effective April 1, 2001).

The underlying reason for excluding certain
s to
prevent placing undue emphasis or credibility
on the material, and de-emphasizing or
discrediting other items not in the room with
the jury. If there is a likelihood the importance
of the evidence will be skewed, prejudice may
be found; if not, there is no prejudice per se
and the error is harmless.

Commonwealth v. Dupre, 866 A.2d 1089, 1103
(Pa. Super. 2005) (quoting Commonwealth v.
Strong, [] 836 A.2d 884, 888 ([Pa.] 2003)).
____________________________________________
12
The Commonwealth requests that we find this issu
argument devoted to this issue only takes up one full page of the brief, and

While it is true that this Court will typically not hesitate to find waiver where
an argument is not developed, we decline to exercise such discretion in this
instance. Cf. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
cert. denied,
Johnson v. Pennsylvania, 131 S. Ct. 250 (2010). However, we do agree
with the Commonwealth that to the extent Appellant argues Sam
statement should have been redacted further, this argument is waived as
Appellant only objected at trial on the grounds of its alleged heightened
importance. See -167.

- 24 -
J-A20019-14

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012) (internal

parallel citations omitted), appeal denied, 63 A.3d 772 (Pa. 2013).

Furthermore, Pennsylvania Rule of Criminal Procedure 646 permits the jury

to have certain items with it during deliberations.

Rule 646. Material Permitted in Possession of
the Jury

(A) Upon retiring, the jury may take with it such
exhibits as the trial judge deems proper, except as
provided in paragraph (C).

(C) During deliberations, the jury shall not be
permitted to have:

(1) a transcript of any trial testimony;

(2) a copy of any written or otherwise recorded
confession by the defendant;

(3) a copy of the information or indictment;
and

(4) except as provided in paragraph (B),
written jury instructions.

(D) The jurors shall be permitted to have their notes
for use during deliberations.

Pa.R.Crim.P. 646.

After careful review, we conclude Appellant is not entitled to relief on

this issue. Under Pennsylvania law, the jury is generally permitted to have

witness statements with it during deliberations. See Commonwealth v.

Hall, 565 A.2d 144, 148 (Pa. 1989) (concluding that the trial court did not

- 25 -
J-A20019-14

abuse its discretion in permitting the jury to have previously written and

recorded witness statements with it during deliberations). Furthermore,

Rule 646 does exclude the trial transcrip

prior witness statements entered into evidence as exhibits. See, e.g.,

Pa.R.Crim.P. 646(A); 646(C)(1). Additionally, we agree with the

heightened importance to certain statements by having them in the jury

room. See -27. Rather, the record shows here

This Court has previously held that

this is the policy reason behind allowing the jurors to use such exhibits. See

Commonwealth v. Bango, 685 A.2d 564, 566 (Pa. Super. 1996) (stating,

where materials inform a jury and aid it in the difficult task of determining

facts, the jury should be permitted to study those materials during its

affirmed, 742 A.2d 1070 (Pa. 1999). Based on these

considerations, we conclude that the trial court did not abuse its discretion in

permitting the jury to have the witness statements during deliberations.

See Barnett, supra.

In his seventh issue, Appellant avers that the trial court erred in

imposing an aggregate sentence of 50 years to life imprisonment.

- 26 -
J-A20019-14

further avers that the trial court imposed such a sentence without

considering any of the age related factors listed in 18 Pa.C.S.A. § 1102.1(d).

Id. at 35-

years to life imprisonment is the equivalent of a life sentence. Id. at 38.

Id. at 35.

sentence pertain to the discretionary aspects of his sentence.13 It is

Commonwealth

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an

appellant forwards an argument pertaining to the discretionary aspects of

the sentence, this Court considers such an argument to be a petition for

permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014) (en banc

permitted only after this Court determines that there is a substantial
____________________________________________
13
We assume, without deciding, that a failure to take into account the

sentence, even though Appellant mentions the Eighth Amendment. See
sue did present a non-waivable
challenge to the legality of the sentence, Appellant would not be entitled to

imprisonment without the possibility of parole. See 18 Pa.C.S.A. §
1102.1
without parole under subsection (a), the court shall consider and make

- 27 -
J-A20019-14

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc) (internal quotation marks and citation omitted).

Prior to reaching the merits of a discretionary sentencing issue, this

Court is required to conduct a four-part analysis to determine whether a

petition for permission to appeal should be granted.

(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).

Commonwealth v. Trinidad, 90 A.3d 721, 729 (Pa. Super. 2014) (citation

omitted).

In the case sub judice, we note that Appellant has failed to include in

his brief the required Rule 2119(f) statement. We further note that the

Commonwealth has objected in its brief to the omission of the same.

rief at 29. This Court has repeatedly held that when a

defendant fails to include a Rule 2119(f) statement and the Commonwealth

objects, we are precluded from addressing the claim on the merits.

Commonwealth v. Karns, 50 A.3d 158, 168 (Pa. Super. 2012), appeal

denied, 65 A.3d 413 (Pa. 2013). As the Commonwealth has done so here,

- 28 -
J-A20019-14

aspect of his sentence.14 See Buterbaugh, supra; Tobin, supra;

Trinidad, supra.

Based on the foregoing, w

2012 judgment of sentence is affirmed.

Judgment of sentence affirmed. Application for post-submission

communication granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014

____________________________________________
14
In his reply brief, Appellant attempts to add to this issue by
-

incorporation by refe Id.; but see Commonwealth v. Briggs, 12
incorporation by reference is an
unacceptable manner of appellate advocacy for the proper presentation of a
tted), cert.
denied, Briggs v. Pennsylvania, 132 S. Ct. 267 (2011); Commonwealth
v. Colavita
We therefore
decline to address

opening brief.

- 29 -