J-A25021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEFON THOMAS LANDING,
Appellant No. 2101 MDA 2015
Appeal from the Judgment of Sentence November 20, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000854-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 23, 2016
Appellant, Stefon Thomas Landing, appeals from the judgment of
sentence entered November 20, 2015, in the Court of Common Pleas of
Lancaster County. We affirm.
The trial court summarized the facts of this case as follows:
On January 4, 2015, the decedent, Devonte Gantt, requested his
friend, Amos Clay III, to accompany him during a narcotics
(Marijuana) transaction. Gantt gave Clay a firearm to carry
during the transaction. Gantt and Clay then left Gantt’s
residence and met [Appellant], who was purchasing the
Marijuana. After walking into a nearby corner store to get
change, [Appellant] walked down the block with Gantt and Clay
to a breezeway directly adjacent to 711 High Street. Next, Clay
alleged that after Gantt removed the marijuana, [Appellant] tried
to grab the bag, and then pulled out a firearm and shot Gantt
when he resisted. From there, [Appellant] and Clay exchanged
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*
Former Justice specially assigned to the Superior Court.
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gunfire as [Appellant] ran away and both [Appellant] and Clay
were struck. Gantt ran through the breezeway and into a
backyard, where he ultimately passed away. [Appellant], on the
contrary, asserted that Clay shot him first when Gantt handed
him the Marijuana and, thus, was entitled to a claim of self-
defense.
Trial Court Opinion, 3/30/16, at 2 (internal citations omitted).
As a result, Appellant was charged with several criminal counts. On
October 23, 2015, following a jury trial, Appellant was convicted of one
count each of murder of the third degree, aggravated assault, and firearms
not to be carried without a license. A pre-sentence investigation report was
ordered, and on November 20, 2015, Appellant was sentenced to an
aggregate term of twenty-two and one-half to forty-five years of
incarceration and restitution. N.T., 11/20/15, at 20-21; Sentencing Order,
11/20/15, at 1.
On November 24, 2015, the Commonwealth filed a motion to modify
sentence. By order entered November 25, 2015, the trial court granted the
motion and thereby amended Appellant’s restitution sentence. Order,
11/25/15, at 1. Appellant timely appealed. The trial court and Appellant
complied with the requirements of Pa.R.A.P. 1925.
On appeal, Appellant presents the following issue for our review:
Did the Trial Court abuse its discretion when it failed to find that
the verdict was against the weight of the evidence because the
Commonwealth failed to disprove, beyond a reasonable doubt,
Appellant’s claim of self-defense where the testimony of the
Commonwealth’s star and sole eye-witness Amos Clay was so
contrary to the incontrovertible physical facts as to render
reliance thereupon shocking to one’s sense of justice?
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Appellant’s Brief at 4 (footnote omitted).
We examine a challenge to the weight of the evidence under the
following standards:
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. 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.
Rather, the role of 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. It has often been stated that
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 and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (emphasis
in original) (internal citations and quotation marks omitted).
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Before we can address the merits of Appellant’s claim, however, we
first must determine whether it has been waived. Rule 607 of the
Pennsylvania Rules of Criminal Procedure requires, inter alia, that:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
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.P. 607(A); see also Commonwealth v. Priest, 18 A.3d 1235,
1239 (Pa. Super. 2011). As noted in the comment to this rule, “[t]he
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 it will be waived.”
Pa.R.Crim.P. 607 cmt. Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in its opinion.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).
Following our thorough review of the transcripts of record, we are
unable to identify where Appellant orally raised the weight of the evidence
claim prior to sentencing. Specifically, Appellant did not raise it at the time
the verdict was rendered, N.T., 1/23/15, at 714-717, nor did he challenge it
at the sentencing hearing. N.T., 11/20/15, at 1-22. Moreover, Appellant
fails to direct our attention to any place in the record where he raised the
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issue prior to sentencing. See Commonwealth v. Samuel, 102 A.3d 1001,
1005 (Pa. Super. 2014) (“The Rules of Appellate Procedure require that
appellants adequately develop each issue raised with discussion of pertinent
facts and pertinent authority. It is not this Court’s responsibility to comb
through the record seeking the factual underpinnings of an appellant’s
claim.”).
Additionally, there is no evidence of record that a written motion
challenging the weight of the evidence was filed prior to sentencing. There
is no entry in the docket reflecting such a filing nor has our thorough review
of the record revealed such. Moreover, Appellant does not cite to any such
written motion.
Finally, the only post-sentence motion filed in this matter was a
motion to modify sentence filed by the Commonwealth. Commonwealth’s
Motion to Modify Sentence, 11/24/15, at 1-3. In that motion, the
Commonwealth sought to amend the amount of restitution Appellant was
ordered to pay. Id. The record reflects no post-sentence motion filed by
Appellant. Again, Appellant fails to identify for this Court any such filing.
We note that Appellant did raise this issue in his Pa.R.A.P. 1925(b)
statement. This is insufficient, however, to preserve the claim.
Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008)
(Appellant’s inclusion of the issue in his Pa.R.A.P. 1925(b) statement will not
save it from being waived where he failed to raise it in the court below);
see also Sherwood, 982 A.2d at 494 (where the appellant failed to
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preserve a weight of the evidence claim before the trial court, the fact that
the appellant included the issue in his Pa.R.A.P. 1925(b) statement and the
trial court addressed it in its Pa.R.A.P. 1925(a) opinion did not preserve his
claim for appellate review); Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal”);
Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278, 1288 (Pa.
Super. 2004) (en banc) (the fact that an issue is included in a Pa.R.A.P.
1925(b) statement does not obviate its waiver under Pa.R.A.P. 302(a)).
Our review of the record reveals that Appellant did not present a
weight of the evidence claim orally or in writing before sentencing or in a
post-sentence motion. Thus, his claim is waived on this basis.1
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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1
Assuming arguendo that Appellant had not waived his weight of the
evidence claim, we would have affirmed on the basis of the trial court’s
discussion. Trial Court Opinion, 3/30/16, at 2-5.
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