J-S60034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONAVIN LENDALL WILLIAMS :
MOORE :
: No. 311 WDA 2017
Appellant :
Appeal from the Judgment of Sentence January 23, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000760-2016
BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 12, 2017
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Fayette County following Appellant’s conviction in a
non-jury trial on the charges of criminal attempt-homicide, aggravated
assault, recklessly endangering another person, firearms not to be carried
without a license, possession with the intent to deliver a controlled
substance, and possession of a controlled substance.1 We affirm.
Following his arrest, Appellant, who was represented by counsel,
proceeded to a bench trial on January 6, 2017, before the Honorable Gerald
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1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2705, and 6106(a)(1); 35 P.S. §§
780-113(a)(30) and (a)(16), respectively.
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* Former Justice specially assigned to the Superior Court.
J-S60034-17
R. Solomon. Judge Solomon has aptly summarized the testimony presented
at the bench trial as follows:
In the early morning hours of March 25, 2016, Sanford
Lewis observed two men arguing on the street in Masontown.
N.T. 1/6/17 at 5. [He saw the men] enter[] a bar and, a short
time later, the taller of the two came back out and headed to his
vehicle. Id. The other man came out [of the bar] with a pool
stick in his hand and struck the taller man in the back, after
which an argument ensued. Id. After [the man swung the pool
stick] again at the taller man, the taller man started firing a
pistol. Id. at 5-6. [Mr.] Lewis recognized the [taller man, who
was the shooter,] and identified him as Appellant. Id. at 7-8.
The shorter of the two men [ ] ran away as Appellant continued
to fire at him. Id. at 6, 15.
Officer Michael Yeager of the Masontown Police
Department [testified that, as he was responding to the scene,
he] saw a black male, whom he identified as Willie Batie, running
away. Id. at 18. [Upon arrival] at the scene, [Officer] Yeager
was informed by [Mr.] Lewis that shots were fired. Id. at 19.
[Officer] Yeager then began a search for [Mr.] Batie and found
him on the porch of the home of [Mr.] Batie’s father. Id. [Mr.]
Batie’s shirt was covered with blood. Id. Cutting off [Mr.]
Batie’s shirt to render aid, [Officer] Yeager observed three
gunshot wounds, one in the stomach, one in the left shoulder[,]
and one on the back of the left arm. Id. at 19-20.
Later, [Officer] Yeager observed a surveillance video from
a local business of the incident and identified the shooter as
Appellant. Id. at 21. From the video, [Officer] Yeager
[observed] the weapon prior to [Mr.] Batie swinging the pool
stick and also observe[d] Appellant raise the weapon and fire.
Id. at 22-23.
Corporal Richard Hunter, assigned to the Forensic Services
Unit of the Pennsylvania State Police, arrived at the crime scene
at 4:43 [a.m. on] March 25, 2016. Id. at 28-29. At the scene,
[Corporal] Hunter collected nine .32 auto casings and two
deformed bullets. Id. at 30. As to [Corporal] Hunter, the
Commonwealth and Appellant stipulated that he performed a
gunshot residue test on Appellant, which revealed that Appellant
may have recently discharged a firearm. Id. at 39-40.
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[Police Officer] Alex Metros, [of] the Masontown Police
Department, arrived at the crime scene and, after becoming
aware of Appellant’s location, went with other officers to [the]
location. Id. at 44. After [Appellant] was taken into custody at
the residence, a protective sweep was made of the residence
and [Officer] Metros observed marijuana. Id. at 45. After
transporting Appellant to the police station, [Officer Metros]
returned to the residence and obtained the consent of Andrea
Buchanan, the lessee of the residence, to search the residence.
Id. at 45-46. The search of the residence revealed a large
number of baggies of marijuana, [three] scales, a loaded .32
caliber handgun, paraphernalia, cell phones, ammunition, a
weed stem, a shoulder holster, and indicia [of residence] for
Appellant. Id. at 49-58.
[At trial,] the Commonwealth...called [Sergeant] John
Brant, [of] the Brownsville Police Department[,] who rendered
assistance in apprehending Appellant. Id. at 69-70. [Sergeant]
Brant was examined and tendered as an expert in the field of
drug distribution, manufacture[,] and intent to deliver controlled
substances. Id. at 74-77. [Appellant] offered no objection to
[Sergeant] Brant testifying as an expert. Id. at 79. [Sergeant]
Brant took part in the protective sweep of the residence and
observed drug paraphernalia and two [of the] scales. Id. at 71.
He later took part in the search of the residence. Id. at 79.
[Sergeant Brant testified that, in] his opinion, as an expert, from
what was found during the search...Appellant possessed the
drugs with the intent to deliver. Id. at 82. [Sergeant] Brant
further opined that the indicia found at the residence [led] him
to believe that Appellant lived [in] or occupied the residence.
Id. at 87.
Following his apprehension, Appellant was interviewed by
Sergeant Scott Miller of the Masontown Police Department. Id.
at 89, 94. After [Sergeant] Miller advised Appellant of his
Miranda rights, Appellant signed a Miranda Rights Warning
Sheet. Id. at 95. Waiving his rights, Appellant admitted having
an altercation with Willie Batie, admitted that the .32 caliber
handgun found at the residence was his, and [admitted that] the
suspected marijuana and paraphernalia was his. Id. at 99.
Following [Sergeant] Miller’s testimony, the Commonwealth and
[Appellant] entered into a stipulation that the suspected
marijuana found at the residence was, in fact, marijuana. Id. at
103-04.
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The victim, Willie Batie, [testified] that on the night of the
incident he was shot four times, suffered injuries, and was
hospitalized. Id. at 104. He further testified that he did not
know the person who shot him. Id. at 105.
Sergeant John Thacik, a Forensic Firearm and Tool [M]ark
Examiner with the Pennsylvania State Police who was qualified to
testify as an expert in the field of firearms and tool mark
examination, [testified] without objection. Id. at 107, 109.
[Sergeant] Thacik, [who] received the firearm at issue, along
with undischarged bullets, determined that [the firearm] was
functional; [he] then test fired the firearm and recovered the
discharged bullets. Id. at 110-11, 114. He then compared the
discharged bullets with two discharged and mutilated bullets[,
which] he had received [from the] evidence[,] and determined
that all four had been discharged from the firearm at issue. Id.
at 114-16.
Following [Sergeant] Thacik’s testimony, the
Commonwealth rested. Appellant then rested without presenting
any testimony or evidence.
Trial Court Opinion, filed 5/8/17, at 2-6.
At the conclusion of the trial, Judge Solomon convicted Appellant of
the offenses indicated supra, and on January 19, 2017, Appellant,
represented by counsel, proceeded to a sentencing hearing, at the
conclusion of which the trial court sentenced Appellant to an aggregate of
ten years to twenty years in prison. On January 23, 2017, the trial court sua
sponte filed an amended sentencing order to reflect the correct charges at
each count. This timely appeal followed, and all Pa.R.A.P. 1925
requirements have been met.
On appeal, Appellant presents the following issues:
1. Whether the verdict was against the weight of the evidence
and the law since the Commonwealth did not establish that
Appellant did not act in justifiable self-defense; and whether
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the Commonwealth’s evidence was insufficient to prove
otherwise beyond a reasonable doubt?
2. Whether the verdict was against the weight of the evidence
and the law since the Commonwealth did not establish that
Appellant had the intent to deliver?
3. Did the Court err in permitting the police officer from
testifying as an expert?
Appellant’s Brief at 7.
In his first and second issues, Appellant intertwines claims that the
trial court’s verdicts were against the weight of the evidence and the
evidence was insufficient to sustain his convictions. However, it is well-
settled that weight of the evidence claims are distinct from sufficiency of the
evidence claims. See Commonwealth v. Widmer, 560 Pa. 308, 318-19,
744 A.2d 745, 751-52 (2000). With regard to the former, in order to
preserve the issue for appeal, an appellant “must present his challenge to
the weight of the evidence to the trial court for a review in the first instance
either in a post-sentence motion, by written motion before sentencing, or
orally prior to sentencing.” Commonwealth v. Richard, 150 A.3d 504, 516
(Pa.Super. 2016) (citing Pa.R.Crim.P. 607(A); Commonwealth v. Griffin,
65 A.3d 932, 938 (Pa.Super. 2013)). A claim challenging the weight of the
evidence generally cannot be raised for the first time in a Rule 1925(b)
statement. Commonwealth v. Burkett, 830 A.2d 1034 (Pa.Super. 2003).
An appellant’s failure to avail himself of any of the prescribed methods for
presenting a weight of the evidence issue to the trial court constitutes
waiver of that claim. Id.
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In the case sub judice, as the trial court aptly suggested, Appellant
failed to preserve his weight of the evidence claims. See Trial Court
Opinion, filed 5/8/17, at 6. Specifically, despite being advised of his post-
sentence rights, Appellant did not raise his weight of the evidence claims in
a post-sentence motion. See Pa.R.Crim.P. 607(A). Also, he did not raise
his weight of the evidence claims by written motion before sentencing or
orally prior to sentencing. See id. Further, although Appellant included his
weight of the evidence claims in his Rule 1925(b) statement, such efforts did
not preserve the claims for appellate review. See Burkett, supra.
With regard to Appellant’s sufficiency of the evidence claims, in his
first argument, Appellant vaguely alleges the following:
Appellant admitted that he shot the victim thereby
admitting the elements. Based on [the] victim’s reputation and
demeanor, [A]ppellant believed that Castillo[2] was going to
harm him, so [A]ppellant shot him.
Therefore, based on the evidence presented by
[A]ppellant, self-defense was applicable[.]
Appellant’s Brief at 11 (footnote added).
We conclude that Appellant’s first sufficiency argument does not
permit meaningful review. Specifically, Appellant has not identified which
convictions he is challenging, has not identified the evidence purportedly
related to “the victim’s reputation and demeanor,” and has not otherwise
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2
Willie Batie was the victim in this case. Appellant has not properly
identified or explained to whom “Castillo” refers.
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developed an argument related to self-defense. Appellant’s failure to
discuss his sufficiency claim in any substantive, meaningful way has
impeded our review. Accordingly, we find this claim to be waived. See
Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa.Super. 2013)
(holding undeveloped claims to be waived).
In his second argument, with regard to the sufficiency of the evidence,
Appellant baldly suggests the Commonwealth failed to prove he had the
“intent to deliver” a controlled substance. See Appellant’s Brief at 12.
However, as with his previous sufficiency claim, Appellant’s claim is woefully
undeveloped. Specifically, aside from setting forth this Court’s standard of
review for sufficiency claims, and citing cases generally related to this
standard of review, Appellant has not developed his claim in any meaningful
manner. Accordingly, we find Appellant’s second sufficiency claim to be
waived. See McDermitt, supra.
With regard to his final issue, whether the trial court erred in
permitting a police officer to testify as an expert at trial, Appellant has
presented no argument. Rather, he simply indicates “Appellant is
withdrawing said argument.” Accordingly, we decline to review this issue
further. See id.
For all of the foregoing reasons, we affirm Appellant’s judgment of
sentence.
Affirmed.
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J-S60034-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2017
-8-
Com. v. Williams Moore, D.
Combined Opinion