Opinion
J-A19006-17 No. 289 EDA 2016
10-03-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. BRAHEEM A. OWENS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008144-2014 BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Braheem A. Owens, appeals from the judgment of sentence of an aggregate term of 28½ - 57 years' incarceration, imposed following his conviction for third-degree murder and related offenses. Appellant contends that the evidence was insufficient to disprove his claim of self-defense, and that the trial court erred by permitting the prosecutor to cross-examine him in violation of his right to remain silent. After careful review, we affirm.
Appellant was arrested following the shooting death of Aaron Johnson in West Philadelphia on May 24, 2014. The circumstances of the shooting, Appellant's subsequent flight from the scene, his apprehension by authorities soon thereafter, as well as other evidence presented at trial, are described in detail in the trial court's Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (TCO), 4/14/16, at 3-12. Following his arrest, the Commonwealth charged Appellant with third-degree murder, 18 Pa.C.S. § 2502(c); carrying a firearm without a license, 18 Pa.C.S. § 6106; carrying a firearm in public in Philadelphia, 18 Pa.C.S. § 6108; possession of an instrument of crime, 18 Pa.C.S. § 907; and fleeing or attempting to elude a police officer, 75 Pa.C.S. § 3733. Appellant and a co-defendant were tried before a jury from May 19-27, 2015. The jury convicted Appellant on all counts.
Appellant filed a timely appeal, as well as a timely, court-ordered Rule 1925(b) statement. The trial court issued its Rule 1925(a) opinion on April 14, 2016. Appellant now presents the follow questions for our review:
I. Did the trial court err by permitting the prosecutor, over defense counsel's objection, to question [Appellant] ... regarding his post-arrest silence in violation of [his] rights under the Fifth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution?Appellant's Brief at 4.
II. Was the evidence insufficient as a matter of law to support [Appellant]'s conviction for third[-]degree murder because the Commonwealth failed to present sufficient evidence to disprove that [he] acted in self-defense beyond a reasonable doubt or that he otherwise acted with malice?
After careful consideration of the record, the parties' briefs, and the thorough and well-reasoned decision of the Honorable Genece E. Brinkley, we affirm on the basis of the trial court's decision, and adopt that opinion as our own. See TCO at 12-17 (Issue I); 18-23 (Issue II). We specifically note that we agree with the trial court that Appellant's framing of his first issue is misleading, as the record supports the court's determination that Appellant was cross-examined about his pre-arrest, not post-arrest silence, because he was only subjected to an investigative detention at the relevant time.
In Appellant's 1925(b) statement, he also challenged the sufficiency of the evidence supporting his conviction for fleeing or attempting to elude a police officer, 75 Pa.C.S. § 3733. In its opinion, the trial court indicates that it agrees that the Commonwealth's evidence was insufficient to support that conviction, and suggests it is willing to vacate Appellant's conviction for that offense if or when it has jurisdiction to do so. See TCO at 2 n.1. Shockingly, Appellant has effectively abandoned the issue in his brief, as he did not list this issue in his "Statement of the Questions Presented," nor did he address the matter in the "Argument" portion of his brief. He only mentions the matter twice in his brief, but without any significant development of the claim.
First, in his "Statement of the Case," he states:
In its opinion, the trial court conceded that the evidence was insufficient to support [Appellant]'s conviction for fleeing or attempting to elude police. The trial court, however, claimed that it was without authority to vacate this particular conviction because the case is now on appeal.
Based on the trial court's position, [Appellant] will not brief the issue regarding the insufficiency of the evidence to support his fleeing or attempting to elude police conviction. However, he will ask this Court on appeal to reverse his conviction for this offense based on the reasons set forth in the trial court's opinion.
Judgment of Sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/3/2017
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Appellant's Brief at 14. Second, under the "Conclusion" section of his brief, Appellant requests that his Section 3733 conviction be reversed by this Court on sufficiency grounds. Id. at 35. Nowhere in Appellant's brief does he provide any development of this claim, nor citation to pertinent authorities.
"Arguments that are not appropriately developed are waived." Nimick v. Shuty , 655 A.2d 132, 138 (Pa. Super. 1995). Moreover, "[t]he argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with citation to pertinent authorities." Commonwealth v. Rodgers , 605 A.2d 1228, 1239 (Pa. Super. 1992) (citing Pa.R.A.P. 2119(a)).
Unfortunately, we are compelled to conclude that Appellant's Section 3733 sufficiency claim has been waived on this basis. Appellant's only remedy for counsel's error is now through the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.