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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
FREDERICK DEMON DEAN, : No. 1402 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, August 17, 2015,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0003379-2014
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 17, 2016
Frederick Demon Dean appeals from the judgment of sentence entered
in the Court of Common Pleas of Erie County on August 17, 2015, after a
jury found him guilty of one count each of persons not to possess firearms,
firearms not to be carried without a license, possession of a controlled
substance, possession of drug paraphernalia, resisting arrest, and
possessing instruments of crime.1 The trial court sentenced appellant to an
aggregate term of imprisonment of 81 to 168 months. We affirm.
The record reflects that shortly before 9:00 p.m. on August 26, 2014,
SWAT officers on a vehicle patrol detail observed appellant walking
1
18 Pa.C.S.A. § 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), 35 P.S.
§ 780-113(a)(16), 35 P.S. § 780-113(a)(32), 18 Pa.C.S.A. § 5104, and
18 Pa.C.S.A. § 907(a), respectively.
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northbound on a sidewalk in the 1100 block of Wayne Street in Erie. (Notes
of testimony, 6/16/15 at 31-34.) The sidewalk runs alongside the parking
lot of TJ’s bar. (Id.) The officers observed appellant walking toward a
house located next to that parking lot. (Id.) Immediately after the patrol
vehicle passed appellant, officers heard a gunshot coming from the direction
where they had just observed appellant. (Id. at 35.) No other individuals
were in the area. (Id. at 35-36.) The officers stopped the cruiser, exited,
and began looking for appellant. (Id. at 36.) The officers then found a gun
in the backyard of the house that they observed appellant walking toward.
(Id.) A grass strip measuring approximately 10 to 15 feet separates the
parking lot of TJ’s bar from that particular house. (Id. at 34.)
The officers then went into TJ’s bar to look for appellant. (Id. at
39-40). The bartender told the officers that appellant was in the back of the
kitchen hiding in a closet. (Id. at 41.) The officers found appellant sitting in
a utility closet. (Id. at 43.) The utility closet contained a sink. (Id.)
Appellant was completely wet. (Id.) Officers instructed appellant to show
them his hands. (Id. at 43.) Appellant refused and began kicking the
officers. (Id.) Appellant was tased and then taken into custody. (Id. at
43-44.) During this incident, appellant, without provocation, stated, “I
wasn’t shooting at you guys. If this goes away[,] I’ll give you whatever you
want. I know several drug dealers from Detroit.” (Id. at 45.)
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Surveillance footage corroborated law enforcement’s version of events.
(Notes of testimony, 6/17/15 at, 33-28; 60-74.) It also revealed that
appellant was wearing a hat when police officers initially observed him prior
to the shot being fired. When he entered TJ’s bar, however, appellant was
no longer wearing the hat. Surveillance footage established that prior to
entering TJ’s bar, appellant walked into the area where the gun was found
and made a “throwing motion” over a 6-foot stockade fence. Officers
subsequently recovered the hat on the ground on the other side of the
stockade fence from where officers observed appellant making the “throwing
motion.” A baggie of heroin was tucked inside the hat. (Id.)
Appellant raises the following issue for our review:
[WHETHER] THE EVIDENCE IN THIS CASE WAS
INSUFFICIENT TO PROVE THE CRIMES OF
POSSESSION OF AN INSTRUMENT OF CRIME AND
FIREARMS NOT TO BE CARRIED WITHOUT A
LICENSE AS THE EVIDENCE FAILED TO ESTABLISH
THAT [APPELLANT] WAS IN POSSESSION OF THE
HANDGUN THAT WAS ENTERED AS EVIDENCE IN
THIS CASE[?]
Appellant’s brief at 2.
Appellant’s brief contains no legal argument on this issue. Instead,
appellant sets forth three and a half pages of “facts” with citations to the
trial transcript. Following these “facts,” appellant baldly asserts, “It could
have been placed there by anyone. Thus, the decision of the jury on all of
the firearms counts should be vacated.” (Id. at 9.)
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Appellant waives his issue on appeal for failure to develop a legal
argument. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (reiterating that “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 meaningful fashion capable of review, that claim is
waived”); citing to Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.
2009); Commonwealth v. Steele, 961 A.2d 786, 799 n.12 (Pa. 2008);
Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa. 2008). See also
Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be
“followed by such discussion and citation of authorities as are deemed
pertinent”). Finally, our supreme court has long held that it is not the
court’s obligation to formulate an appellant’s arguments. See
Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);
Commonwealth v. Thomas, 717 A.2d 468, 482-483 (Pa. 1998).
Judgment of sentence affirmed.
Lazarus, J. joins this Memorandum.
Jenkins, J. files a Concurring Statement in which Lazarus, J. also joins.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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Com. v. Dean, F.
Combined Opinion