J-S13018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
XAVIER ANDERSON HOLLAMON
Appellant No. 827 WDA 2014
Appeal from the Judgment of Sentence April 7, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003153-2013
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 11, 2015
Appellant, Xavier Anderson Hollamon, appeals from the April 7, 2014
aggregate judgment of sentence of 12½ to 25 years’ imprisonment, imposed
after he was found guilty of one count each of attempted murder, recklessly
endangering another person (REAP), possession of a weapon, carrying a
firearm without a license, and aggravated assault.1 After careful review, we
affirm in part and vacate in part.
The trial court briefly summarized the relevant factual history of this
case as follows.
The evidence at [Appellant]’s trial revealed
that [on August 24, 2013, Appellant] pulled out a
gun and shot the victim[, Dayquan Robison,] at
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1
18 Pa.C.S.A. §§ 901(a), 2705, 907(b), 6106(a)(2), and 2702(a)(1),
respectively.
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almost point-blank-range upon confronting him on
the street. [Dayquan]’s mother was between the
two at the time trying to get [Appellant] to leave her
son alone. She testified as to what occurred, and
more significantly, the shooting was captured in its
entirety on video via a security camera at the
location. The jury saw the actual event as it
occurred.
Trial Court Opinion, 6/20/14, at 1.
On November 23, 2013, the Commonwealth filed an information,
charging Appellant with the above-mentioned offenses, as well as one
additional count of REAP. On February 13, 2014, Appellant proceeded to a
two-day jury trial, at the conclusion of which the jury found Appellant guilty
of one count each of attempted murder, REAP, possession of a weapon,
carrying a firearm without a license, and aggravated assault. As to the
second REAP count, the trial court entered a judgment of acquittal. On April
7, 2014, the trial court sentenced Appellant to an aggregate term of 12½ to
25 years’ imprisonment.2 On April 17, 2014, Appellant filed a timely post-
sentence motion, in which Appellant argued, among other things, that the
jury’s verdict was against the weight of the evidence. See generally
Pa.R.Crim.P. 607(A)(3). The trial court denied Appellant’s post-sentence
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2
Specifically, the trial court imposed 12½ to 25 years’ imprisonment for
attempted murder, three to 60 months’ imprisonment for possession of a
weapon, three to 60 months’ imprisonment for carrying a firearm without a
license, six to 12 years’ imprisonment for aggravated assault, and no further
penalty for REAP. All sentences were to run concurrently to each other.
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motion that same day. On May 15, 2014, Appellant filed a timely notice of
appeal.3
On appeal, Appellant raises the following three issues for our review.
I. Whether Appellant’s conviction associated with
a shooting was against the weight of the
evidence in light of the fact the Commonwealth
did not disapprove [sic] [] Appellant’s theory of
[j]ustification[?]
II. Whether the [trial c]ourt erred in its instruction
relative to the use of deadly force in its jury
instruction of self-defense/justification cases[?]
III. Whether the issue of mandatory minimum
incarceration for possession of a firearm during
the commission of a [sic] the offense should
have been submitted to the jury pursuant to
Commonwealth v. Newman, [99 A.3d 86
(Pa. Super. 2014) (en banc)],
Commonwealth v. Munday[, 78 A.3d 661
(Pa. Super. 2013)]; pursuant to the United
States Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013)[?]
Appellant’s Brief at 3.
In his first issue, Appellant avers that the jury’s verdict was against
the weight of the evidence. Id. at 6. We begin by noting our well-settled
standard of review. “A claim alleging the verdict was against the weight of
the evidence is addressed to the discretion of the trial court.”
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
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3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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omitted). An argument that the jury’s verdict was against the weight of the
evidence concedes that the evidence was sufficient to sustain the
convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),
cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our
Supreme Court has admonished that “[a] new trial should not be granted
because of a mere conflict in the testimony or because the judge on the
same facts would have arrived at a different conclusion.” Commonwealth
v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). Instead, “the
trial judge is to determine that notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.” Id. (internal quotation marks and
citation omitted). “[A] new trial should be awarded when the jury’s verdict
is so contrary to the evidence as to shock one’s sense of justice ….” Id.
As an appellate court, it “is not [our role] to consider the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
An argument that the jury’s verdict was against the weight of the evidence
remains “[o]ne of the least assailable reasons for granting … a new trial ….”
Id. (citation omitted). “Thus, only where the facts and inferences disclose a
palpable abuse of discretion will the denial of a motion for a new trial based
on the weight of the evidence be upset on appeal.” Id. (citation omitted;
emphasis in original).
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In this case, Appellant avers the jury’s verdict was against the weight
of the evidence based on the following.
The review of the transcript in this matter, in
particular the testimony of [] Appellant, indicated
that the victim of the shooting in this matter was in
possession of a firearm at the time [] Appellant took
the necessary step of shooting the victim to protect
himself from serious bodily injury or death.
Furthermore, it was established by additional
evidence that the victims’ [sic] girlfriend hid the
weapon in her house. It should be noted “victim”
[sic] in this case never testified at trial. Therefore, it
is clear the verdict presented in this case was against
the weight of the evidence presented at trial. Thus
Appellants [sic] conviction [sic] should be
overturned.
Appellant’s Brief at 6 (emphasis in original).
To summarize the evidence, the jury heard testimony from Tabitha
Robison, Dayquan’s mother, who was present at the time of the shooting.
Tabitha testified that she received a phone call from Dayquan stating that
“guys [were] following him and he thought they were going to jump him.”
N.T., 2/13/14, at 20. Tabitha drove to JJ’s Pub, and Dayquan came out of
the bar once she arrived via a side door with his girlfriend. Id. at 21.
Robison noticed two other gentlemen on the other side of the street. Id. at
22. When Dayquan and his girlfriend came out of the bar, these other two
men began to walk towards him. Id. According to Tabitha, one of the men,
in a red shirt, told Dayquan not to disrespect his mother. Id. at 23. Tabitha
identified Appellant as the man in the red shirt. Id. at 24-25. Tabitha got
out of her car and told Appellant that she had spoken with his mother and no
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one disrespected her. Id. at 23. Tabitha got in between Dayquan and
Appellant. Id. As Tabitha put her arms up between them, Appellant pulled
out a gun and began shooting. Id. at 24. Dayquan was shot twice. Id.
Tabitha testified that her son was not armed, nor did he insinuate that he
was. Id. at 26. The Commonwealth then played security camera footage of
the incident for the jury.4 Tabitha identified herself and Dayquan in the
video. Id. at 34. On redirect examination, Tabitha also identified the
person depicted in the video shooting Dayquan as Appellant. Id. at 40.
Appellant testified in his own defense. Appellant told the jury that he
approached Dayquan outside the bar to discuss an issue with Appellant’s
mother owing Dayquan money, and the victim “got aggressive with [him].”
Id. at 90. Appellant next stated that he saw Dayquan “reach in his pocket
and … saw a handle of a gun come out.” Id. at 91. Specifically, the gun
was a .380. Id. Appellant further testified that he was in fear for his life
and protected himself as a result. Id. at 97.
It is axiomatic that the jury is the ultimate finder of fact at trial.
[T]he veracity of a particular witness is a
question which must be answered in reliance on the
ordinary experiences of life, common knowledge of
the natural tendencies of human nature, and
observations of the character and demeanor of the
witness. As the phenomenon of lying is within the
ordinary capacity of jurors to assess, the question of
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4
Appellant stipulated to the video’s authenticity. N.T., 2/13/14, at 30.
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a witness’s credibility is reserved exclusively for the
jury.
Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).
Likewise, “[t]he trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none
of the evidence.” Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.
Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).
In this case, the jury was free to find Tabitha’s trial testimony credible,
find Appellant’s testimony not credible, and resolve any inconsistencies in
the Commonwealth’s favor. See generally Commonwealth v. Horne, 89
A.3d 277, 286 (Pa. Super. 2014) (concluding the weight of the evidence
claim could not prevail as “the jury resolved the inconsistencies among the
testimonies as it saw fit and reached a verdict[]”). The jury was presented
with Tabitha’s testimony and Appellant’s. They weighed both and ultimately
concluded that Tabitha’s testimony was credible and Appellant’s was not
credible. As an appellate court, we will not reweigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on
these considerations, we conclude the trial court did not commit a palpable
abuse of discretion in deciding the jury’s verdict was not against the weight
of the evidence. See Morales, supra.
In his second issue, Appellant avers that the trial court abused its
discretion when it failed to give an instruction to the jury based on
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Pennsylvania’s “Stand Your Ground” law. Appellant’s Brief at 7; see also
generally 18 Pa.C.S.A. § 505(b)(2.3). Generally, appellate briefs are
required to conform to the Rules of Appellate Procedure. Pa.R.A.P. 2101.
Pennsylvania Rule of Appellate Procedure 2119(a) requires that the
argument section of an appellate brief include “citation of authorities as are
deemed pertinent.” Id. at 2119(a). This Court will not consider an
argument where an appellant fails to cite to any legal authority or otherwise
develop the issue. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see
also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012)
(stating, “[f]ailure to cite relevant legal authority constitutes waiver of the
claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d 603 (Pa.
2013).
In this case, Appellant’s entire “Stand Your Ground” argument consists
of one double-spaced paragraph, consisting of 16 lines spanning less than
one page. See Appellant’s Brief at 7. More importantly, Appellant’s brief is
devoid of any substantive discussion of our cases involving self-defense, jury
instructions, or the “Stand Your Ground” statute. Id. Based on these
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considerations, we deem this issue waived on appeal.5 See Johnson,
supra; Whitley, supra.
In his third issue, Appellant avers that he received an illegal
mandatory minimum sentence based on the United States Supreme Court’s
decision in Alleyne and this Court’s en banc decision in Newman.
Appellant’s Brief at 8. Specifically, Appellant avers that the trial court
imposed a mandatory minimum sentence of five years’ imprisonment
pursuant to Section 9712(a) of the Sentencing Code which resulted in an
illegal sentence. Id. The Commonwealth acknowledges that Section 9712
has been declared facially unconstitutional. Commonwealth’s Brief at 3.
However, the Commonwealth argues that the trial court did not impose an
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5
The trial court and the Commonwealth both argue that Appellant waived
this issue for failure to preserve it in the trial court. Commonwealth’s Brief
at 2-3; Trial Court Opinion, 6/20/14, at 2. However, this contention is belied
by the record as defense counsel specifically requested the “Stand Your
Ground” instruction after the end of the first day of trial on the record in
chambers. N.T., 2/13/14, at 112-117. Defense counsel even read the
statute to the Commonwealth and the trial court. Id. at 113-114.
However, Section 505(b)(2.3) requires, as a prerequisite to the “Stand
Your Ground” instruction, that the defendant show some evidence, even
through his own testimony, that he was “not in illegal possession of a
firearm[.]” 18 Pa.C.S.A. § 505(b)(2.3). At the time defense counsel
requested the instruction, defense counsel acknowledged that Appellant was
never asked whether he was legally permitted to have the firearm he used.
N.T., 2/13/14, at 114. As no other defense evidence exists supporting even
a prima facie showing that Appellant was not in illegal possession of a
firearm, even if this issue were not waived, Appellant would not be entitled
to relief.
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illegal sentence because the trial court did not rely on any mandatory
minimum sentencing statute in sentencing Appellant. Id.
We note that Section 9712 has been declared facially unconstitutional
by this Court under the theory of Newman. See generally
Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014).
Additionally, the Commonwealth filed its notice of intent to seek the
mandatory minimum at Section 9712 on February 18, 2014. It is true that
the sentence Appellant actually received for attempted murder and
aggravated assault was above the five-year mandatory minimum sentence
prescribed by Section 9712. However, in order for Appellant’s sentence to
be illegal for an unconstitutional application of Section 9712, the trial court
must have first actually applied Section 9712 in sentencing Appellant. We
have reviewed the entire sentencing transcript, and at no point in time did
any party during the sentencing hearing discuss or advocate for or against
the imposition of any mandatory minimum sentence. As a result, Appellant is
not entitled to relief on his third issue.
We note however, that our review of the record has revealed an
additional issue pertaining to the legality of Appellant’s sentence, specifically
concerning the doctrine of merger. A claim that crimes should have merged
for sentencing purposes raises a challenge to the legality of the sentence.
Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009), appeal
denied, 990 A.2d 730 (Pa. 2010). We begin by noting that a challenge to
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the legality of the sentence can never be waived and may be raised by this
Court sua sponte. Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa.
Super. 2014) (citation omitted); see also Commonwealth v. Borovichka,
18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) (stating, “[a] challenge to the
legality of a sentence … may be entertained as long as the reviewing court
has jurisdiction[]”). It is also well established that “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.
Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id.
“Issues relating to the legality of a sentence are questions of law[.] … Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)
(citations omitted).
In examining whether Appellant’s offenses should have merged, we
consider the following.
The preliminary consideration [in determining
merger for sentencing purposes] is whether the facts
on which both offenses are charged constitute one
solitary criminal act. If the offenses stem from two
different criminal acts, merger analysis is not
required. If, however, the event constitutes a single
criminal act, a court must then determine whether or
not the two convictions should merge.
Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008)
(brackets in original), appeal denied, 991 A.2d 313 (Pa. 2010).
Furthermore, in order for two convictions to merge, the elements of the
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lesser-included offense must be subsumed by the elements of the greater
offense. Specifically, Section 9765 of the Sentencing Code provides as
follows.
No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and
all of the statutory elements of one offense are
included in the statutory elements of the other
offense. Where crimes merge for sentencing
purposes, the court may sentence the [Appellant]
only on the higher graded offense.
42 Pa.C.S.A. § 9765.
Instantly, as noted above, Appellant received a sentence of 12½ to 25
years’ imprisonment for attempted murder, and six to 12 years’
imprisonment for aggravated assault, all stemming from the one incident in
this case. Our Supreme Court has held that these crimes merge for
sentencing purposes.
It is clear that the offense of aggravated assault is
necessarily included within the offense of attempted
murder; every element of aggravated assault is
subsumed in the elements of attempted murder.
The act necessary to establish the offense of
attempted murder-a substantial step towards an
intentional killing-includes, indeed, coincides with,
the same act which was necessary to establish the
offense of aggravated assault, namely, the infliction
of serious bodily injury. Likewise, the intent
necessary to establish the offense of attempted
murder-specific intent to kill-is greater than and
necessarily includes the intentional, knowing, or
reckless infliction of serious bodily injury, the intent
required for aggravated assault. It is tautologous
that one cannot kill without inflicting serious bodily
injury. 18 Pa.C.S. § 2301. Inasmuch as aggravated
assault, the lesser offense, contains some, but not all
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the elements of the greater offense, attempted
murder, the two offenses merge for purposes of
sentencing. The sentence for aggravated assault
must therefore be vacated.
Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).
In this case, the trial court acknowledged at sentencing that attempted
murder and aggravated assault merge for sentencing purposes. N.T.,
4/7/14, at 6. The Commonwealth agreed with the trial court’s assessment.
Id. Nevertheless, the trial court still imposed a sentence for both attempted
murder and aggravated assault, albeit a concurrent sentence. However, it is
axiomatic that the merger doctrine prohibits any type of sentence being
imposed. See Anderson, supra. As a result, Appellant’s six to 12 year
concurrent sentence for aggravated assault is illegal, and subject to vacatur.
See id.; Rivera, supra; Walls, supra. However, as Appellant’s sentence
for aggravated assault was a concurrent sentence, our decision does not
upset the trial court’s sentencing scheme, as Appellant’s aggregate sentence
remains 12½ to 25 years’ imprisonment. Therefore, we need not remand
for resentencing. See Commonwealth v. Lomax, 8 A.3d 1264, 1268 (Pa.
Super. 2010) (stating, “[b]ecause we can vacate the [illegal portion of the]
sentence without disturbing the overall sentencing scheme, we need not
remand [for resentencing]”).
Based on the foregoing, we conclude Appellant’s issues on appeal are
either waived or devoid of merit. However, we also conclude that the trial
court imposed a partial illegal sentence when it sentenced Appellant for both
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attempted murder and aggravated assault. Accordingly, the trial court’s
April 7, 2014 judgment of sentence is affirmed in part and vacated in part.
Judgment of sentence affirmed in part and vacated in part.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
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