J-A06005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RICHARD DENNIS
Appellant No. 3122 EDA 2015
Appeal from the Judgment of Sentence April 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003567-2012
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED MAY 22, 2017
Appellant, Richard Dennis, appeals from the judgment of sentence
entered April 30, 2015, in the Philadelphia County Court of Common Pleas.
Appellant raises multiple challenges to his convictions, including an
argument that the trial court erred by allowing testimony related to a
bulletproof vest. After careful review, we affirm.
On November 8, 2011, Appellant was arrested and charged with
possession of a firearm by a person prohibited,1 firearms not to be carried
without a license,2 and carrying firearms on public streets or public property
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1
18 Pa.C.S.A. § 6105(a)(1).
2
18 Pa.C.S.A. § 6106.
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in Philadelphia.3 Appellant proceeded to a bifurcated4 jury trial. The trial
court summarized the relevant evidence presented at trial as follows.
Philadelphia Police Officer Anthony Washington testified
that on the evening of November 7, 2011, at approximately 8:30
p.m., he was on patrol as the passenger with his partner, Officer
Carter, in plain clothes, when they immediately responded to a
radio call “for a person with a gun” in the vicinity of 5500 block
Walton Ave. in the City of Philadelphia. As they approached the
area, Officer Washington saw [Appellant] and a second man,
tucking a gun into his waist band [sic], running in their direction
towards a “minivan,” which was running, parked on the corner of
56th Street and Walton Ave. As [Appellant] entered the rear
passenger door and the second man entered the from passenger
seat, the minivan sped off.
[Officer Washington] described [Appellant] as wearing a
black leather jacket and a bullet proof [sic] vest under it. He also
identified the second man as Chargomir Abdur-Rasheed.
On seeing this[,] they made a U-turn[,] giving chase and
calling for backup. Officer Washington testified that the minivan
pulled to the curb when they activated their lights and siren. He
immediately ran to the passenger door calling out[] “[s]how me
your hands” several times. He then opened the passenger door
and pulled Mr. Abdur-Rasheed out of the minivan as he was
attempted to hide his gun under the seat. He placed Mr. Abdur-
Rasheed under arrest after recovering his gun from the front
passenger seat.
Philadelphia Police Officer William Thrasher [] testified that
on [the] evening of November 7, 2011, at approximately 8:30
p.m., he was in uniform on routine patrol as the passenger in a
marked police vehicle with his partner when they responded to a
call that Officers Washington and Carter were attempting to stop
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3
18 Pa.C.S.A. § 6108.
4
Appellant elected to proceed without a jury on the charge of possession of
a firearm by a person prohibited.
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a fleeing vehicle in the area of the 5500 block of Walton Avenue.
Being in the vicinity[,] they arrived as the fleeing minivan was
pulled over.
When his car pulled up alongside the driver’s side of the
minivan, Officer Thrasher exited and was looking inside just as
Officer Washington opened the passenger door. When the
interior light came on[,] he saw [Appellant] “stuffing a handgun
in between the seats.” He immediately ran around the minivan
to the rear passenger door and removed [Appellant]. After
placing him in “cuffs[]” he recovered [Appellant’s] gun which
was clearly visible in a large leather jacket found between the
seats. He identified the gun he recovered as “black in color
Smith and Wesson .45 caliber revolver, with a brown wooden
handle, loaded with six live rounds, serial number 17017.”
On recovering [Appellant’s] gun, [Officer Thrasher] also
observed a “blue bullet proof [sic] Safariland vest” immediately
next to where [Appellant] was sitting. He testified that he did not
recover the bulletproof vest because it did not present a safety
issue leaving it in place pending the securing of a warrant to
search the vehicle.
Trial Court Opinion, 4/18/16, at 5-7. After the close of evidence, the jury
and the trial court convicted Appellant of all charges.
On April 30, 2015, the trial court sentenced Appellant to five to ten
years’ imprisonment for possession of a firearm by a person prohibited,
three to seven years’ imprisonment for firearms not to be carried without a
license, and one to three years’ imprisonment for carrying firearms on public
streets or public property in Philadelphia. The trial court imposed all of
Appellant’s sentences consecutively for a total aggregate sentence of nine to
twenty years’ imprisonment.
Appellant filed post-sentence motions challenging the sufficiency and
weight of the evidence supporting his convictions, as well as challenging the
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trial court’s discretion related to a jury question, and the admission of
evidence relating to a second gun and a bulletproof vest. These motions
were denied by operation of law. Appellant timely filed a notice of appeal
and the court-ordered Rule 1925(b) statement.
On appeal, Appellant raises these issues:
1. HAS AN ISSUE BEEN PRESERVED FOR APPEAL AND NOT WAIVED
WHERE TRIAL COUNSEL FAILS TO FILE A TIMELY OBJECTION
AND THE ISSUE IS RAISED IN A POST-TRIAL MOTION?
2. WAS THERE INSUFFICIENT EVIDENCE TO CONVICT APPELLANT
AND WAS THE VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE?
3. DID THE COURT ERR IN ALLOWING TESTIMONY REGARDING A
BULLET PROOF VEST [sic] AND WAS THAT IRRELEVANT
TESTIMONY SO HARMFUL TO REQUIRE A NEW TRIAL?
4. DID THE COURT ABUSE ITS DISCRETION IN DENYING A POST-
TRIAL MOTION FOR A NEW TRIAL ON THE BASIS OF
INADMISSIBLE AND IRRELEVANT TESTIMONY REGARDING A
FIREARM THAT WAS NOT THE FIREARM IN THE SUBJECT CRIME
WAS PRESENTED THAT WAS SO HARMFUL TO REQUIRE A NEW
TRIAL?
5. DID THE COURT ABUSE ITS DISCRETION IN DENYING A POST-
TRIAL MOTION FOR A NEW TRIAL ON THE BASIS OF AN
IMPROPER COMMENT MADE TO THE JURY BY THE TRIAL JUDGE
THAT WAS SO HARMFUL TO REQUIRE A NEW TRIAL?
Appellant’s Brief, at 8.
As a preliminary matter, we must determine whether Appellant has
preserved his issues for our review. After careful review of the record, we
have determined that Appellant’s failure to object to the trial court’s alleged
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errors at trial coupled with an insufficient Rule 1925(b) statement has
resulted in the waiver of all of Appellant’s issues on appeal.
Through his first issue, Appellant contends that he has preserved the
challenges raised in his third, fourth, and fifth issue on appeal, despite failing
to object to these issues at trial, because he raised them in his post-
sentence motion. See id., at 8, 12, 14-15. These challenges relate to the
trial court’s admission of testimony related to a bulletproof vest5 and a
second firearm, as well as the trial court’s answer to a jury question. See
Appellant’s Brief, at 15, 17-25. Because he believes including these
challenges in his post-sentence motion preserves these claims for appellate
purposes, Appellant avers that the trial court abused its discretion by
dismissing these claims. See id., at 12-25. We disagree.
Pennsylvania Rule of Evidence 103(a) provides that a party may claim
error in the admission of evidence only if he makes a timely objection on the
record and states the specific ground for the objection, unless it was
apparent from the context. See Pa.R.E. 103(a)(1)(A)-(B). “We have long
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5
The transcript reveals that trial counsel did object to the admission of the
bulletproof vest. However, this objection was based solely upon an alleged
break in the chain of custody. See N.T., 2/18/15, 31-32. In his appellate
brief, Appellant concedes that his objection based upon an alleged break in
the chain of custody was meritless, but contends the testimony and
admission of evidence related to the bulletproof vest was unduly prejudicial
and irrelevant. See Appellant’s Brief, at 18-19. As Appellant did not raise
objections on these grounds at the time of trial, we decline to consider his
objection to the vest’s chain of custody as preserving his current challenge
to the bulletproof vest.
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held that ‘[f]ailure to raise a contemporaneous objection to the evidence at
trial waives that claim on appeal.’” Commonwealth v. Tha, 64 A.3d 704,
713 (Pa. Super. 2013) (citation omitted). See also Pa.R.A.P. 302 (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”) Similarly, to preserve a claim that a jury instruction was
erroneous, a defendant must object to the charge at trial. See
Commonwealth v. Spotz, 84 A.3d 294, 318 n.18 (Pa. 2014). See also
Pa.R.A.P. 302(b) (“A general exception to the charge to the jury will not
preserve an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”)
Here, all parties agree that Appellant failed to object to the evidence
related to the bulletproof vest, the second gun, and the trial court’s answer
to the jury question at trial. Contrary to Appellant’s belief, the filing of a
post-sentence motion cannot retroactively preserve claims that an Appellant
has already waived. See Pa.R.A.P. 302. Therefore, these claims are waived.
Finally, Appellant challenges the weight and sufficiency of the evidence
presented at trial. See id., at 8. However, both the trial court and the
Commonwealth contend that Appellant has waived these claims by failing to
properly preserve the issues in his court-ordered Rule 1925(b) statement.
See Trial Court Order, 4/18/16, at 7-8; Commonwealth’s Brief, at 10-11.
We agree.
As this Court has recently observed:
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The Pennsylvania Supreme Court has explained that Rule 1925 is
a crucial component of the appellate process, which is “intended
to aid trial judges in identifying and focusing upon those issues
which the parties plan to raise on appeal.” Commonwealth v.
Lord, 553 Pa. 415, 719 A.2d 306, 308 (1998). “When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues.” In re Estate of Daubert, 757 A.2d 962, 963 (Pa.
Super. 2000). “In other words, a Concise Statement which is too
vague to allow the court to identify the issues raised on appeal is
the functional equivalent of no Concise Statement at all.”
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super.
2001).
“In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient.”
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009)). “Such specificity is of particular importance in
cases where, as here, the appellant was convicted of multiple
crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.” Gibbs,
981 A.2d at 281.
Commonwealth v. Freeman, 128 A.3d 1231, 1247 (Pa. Super. 2015).
Similarly, an appellant can waive a challenge to the weight of the
evidence if his Rule 1925(b) statement contains only a boilerplate challenge
to the weight of the evidence. See Commonwealth v. Seibert, 799 A.2d
54, 62 (Pa. Super. 2002) (holding that appellant waived his challenge to the
weight of the evidence where his 1925(b) statement merely asserted that
“[t]he verdict of the jury was against the weight of the credible evidence as
to all of the charges”).
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Here, Appellant’s Rule 1925(b) statement simply stated that “the
verdict was against the weight of the evidence” and that “the evidence was
insufficient to support the guilty verdict.” Appellant’s 1925(b) Statement,
11/6/15, at 1 (unnumbered).
At trial, Appellant was convicted of possession of a firearm by a person
prohibited, firearms not to be carried without a license, and carrying
firearms on public streets or public property in Philadelphia. Each of the
aforementioned charges involves multiple elements. It is clear that Appellant
completely failed to identify the element or elements that he alleges the
Commonwealth failed to sufficiently prove or that were against the weight of
the evidence. See Garland, 63 A.3d at 344; Seibert, 799 A.2d at 62. Thus,
Appellant’s failure to properly identify his challenge in his Rule 1925(b)
statement has resulted in a waiver of both his sufficiency and weight of the
evidence argument.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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