Com. v. Holmes, T.

J-S34038-24

2024 PA Super 269

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TOMMIE HOLMES :

:

Appellant : No. 489 WDA 2024

Appeal from the Judgment of Sentence Entered October 12, 2022

In the Court of Common Pleas of Washington County Criminal Division at

No(s): CP-63-CR-0001921-2020

BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: November 13, 2024

Appellant, Tommie Holmes, appeals from the judgment of sentence

entered in the Court of Common Pleas of Washington County after a jury found

him guilty of numerous drug offenses, enumerated infra. Sentenced to an

aggregate sentence of not less than 10 years nor more than 20 years’

imprisonment, Appellant raises challenges to the sufficiency of the evidence,

to an evidentiary ruling, and to the Commonwealth’s use of a peremptory

strike on an African American juror. After careful consideration, we affirm.

The trial court opinion sets forth the pertinent procedural history of the

case, as follows:

On September 23, 2020, Detectives Jason Fichter and Ryan

McWreath of the Washington County Drug Task Force filed a

criminal complaint against Appellant, through which Appellant was

charged with the [firearm offenses and drug offenses, see infra].

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* Former Justice specially assigned to the Superior Court.

J-S34038-24

Appellant was arrested that same day and was unable to post bail.

Thereafter, Appellant’s preliminary hearing was held on October

26, 2020, before Magisterial District Juge Robert Redlinger and all

charges were held for court.

On November 13, 2020, the Commonwealth filed a Bill of

Information against Appellant which contained the following

charges: Count 1, Possession of a Firearm Prohibited, 18 Pa.C.S.

§ 6105(a)(1), a Felony of the Second Degree; Count 2, Possession

with Intent to Deliver a Controlled Substance, Marijuana, 35 P.S.

§ 780-113(a)(30), an ungraded Felony; Count 3, Criminal

Conspiracy – Possession with Intent to Deliver a Controlled

Substance, Marijuana, 18 Pa.C.S. § 903(a)(1)/35 P.S. § 780-

113(a)(30), an ungraded Felony; Count 4, Possession with Intent

to Deliver a Controlled Substance, Cocaine, 35 P.S. §780-

113(a)(30), an ungraded Felony; Count 5, Criminal Conspiracy –

Possession with Intent to Deliver a Controlled Substance, Cocaine,

18 Pa.C.S. § 903(a)(1)/35 P.S. § 780-113(a)(30), an ungraded

Felony; Count 6, Possession of a Controlled Substance,

Marijuana, 35 P.S. § 780-113(a)(16), an ungraded Misdemeanor;

Count 7, Possession of a Controlled Substance, Cocaine, 35 P.S.

§ 780-113(a)(16), an ungraded Misdemeanor; and Count 8,

Possession of Drug Paraphernalia, Plastic Baggies and/or Digital

Scales, 35 P.S. § 780-113(a)(32), an ungraded Misdemeanor.

....

Appellant’s jury trial commenced on July 12, 2022, and lasted two

days. [Appellant was represented by counsel throughout.] On

July 14, 2022, at the conclusion of trial, the jury found Appellant

guilty at [Counts 2, 3, 4, 5, 6, 7, and 8]. Appellant was found not

guilty at Count 1, Possession of a Firearm Prohibited. The [trial

court] deferred sentencing to October 12, 2022, [to afford time

for the completion of a presentence investigation report].

On October 12, 2022, the [trial court imposed an aggregate

sentence of no less than 10 years to no more than 20 years’

incarceration], to be followed by 12 months of reentry

supervision. Appellant was given time served as calculated by the

Department of Corrections.

On October 24, 2022, Appellant filed a post-sentence motion,

through which Appellant raised a Motion for Judgment of Acquittal,

a Motion for a New Trial, and a Motion to Modify Sentence. A

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hearing on Appellant’s post-sentence motion was held on

November 28, 2022. Following the hearing, [the trial court], in

an order dated February 17, 2023, denied Appellant’s post-

sentence motion in its entirety.

[Appellant filed a timely counseled appeal. Counsel failed to file

both a court-ordered Pa.R.A.P. 1925(b) concise statement and an

appellate brief, with the latter omission prompting this Court to

dismiss Appellant’s initial appeal. Subsequently, Appellant filed a

pro se motion with the trial court seeking removal of counsel and

reinstatement of direct appeal rights, which the trial court/PCRA

court granted nunc pro tunc.]

Thereafter, [present counsel] entered his appearance on behalf of

Appellant and filed the instant appeal on April 22, 2024. [The trial

court] directed Appellant to file and serve upon [it] a Concise

Statement of Matters Complained of on Appeal in accordance with

Pa.R.A.P. 1925(b). Appellant filed his Concise Statement on May

14, 2024.

[Appellant’s counseled Rule 1925(b) statement raised the

following enumerated issues:]

1. Was the evidence at trial sufficient to convict

[Appellant on possession with intent to deliver,

criminal conspiracy, and possession of a controlled

substance?

2. Whether the trial court [erred] by admitting

contraband found in the residence that the

[Appellant] had no legal ties to as the facts

[showed]?

3. Whether [Appellant] was granted a fair jury

selection and trial when the jury was [comprised]

of all Caucasian individuals?

4. Whether criminal conspiracy merges with

possession with intent to deliver?

5. Whether the trial court abused its discretion in

sentencing [Appellant] to ten (10) to twenty (20)

years based on Appellant’s prior record score, etc.

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Appellant’s Concise Statement of Matters Complained of on

Appeal, 5/14/2024.

Trial Court Opinion, 6/5/24, at 1-2, 3-4, 5.

The counseled Brief of Appellant presents three questions for this Court’s

consideration:

1. Was the evidence at trial sufficient to convict [Appellant] on

possession with intent to deliver, criminal conspiracy and

possession of a controlled substance?

2. Whether the trial court erred by admitting contraband found in

the residence that [Appellant] had no legal ties to as the facts

were given at trial?

3. Whether [Appellant] was granted a fair jury selection at trial

when the jury was comprised of all Caucasian individuals?

Brief of Appellant, at 7.

In Appellant’s first issue, he argues that the Commonwealth failed to

present evidence sufficient to convict him on PWID, criminal conspiracy, and

possession of a controlled substance.

When reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

A claim challenging the sufficiency of the evidence is a question of

law. Evidence will be deemed sufficient to support the verdict

when it establishes each material element of the crime charged

and the commission thereof by the accused, beyond a reasonable

doubt. Where the evidence offered to support the verdict is in

contradiction to the physical facts, in contravention to human

experience and the laws of nature, then the evidence is insufficient

as a matter of law. When reviewing a sufficiency claim, the court

is required to view the evidence in the light most favorable to the

verdict winner giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence.

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J-S34038-24

In applying the above test, we may not [re]weigh the evidence

and substitute our judgment for the fact-finder.

Commonwealth v. James, 297 A.3d 755, 764 (Pa. Super. 2023) (citations

omitted and formatting altered), appeal denied, 309 A.3d 691 (Pa. 2023).

Our review of Appellant’s argument in support of his sufficiency issue

shows it to lack any discussion of the evidence relating to each material

element of the crimes charged. Instead, his argument offers only a conclusory

assertion disagreeing with the trial court’s determination that Appellant’s Rule

1925(b) statement on the issue was inadequate. From that unsupported

position, Appellant pivots to offering generic, boilerplate law pertaining to the

weight of the evidence, an issue that he has not raised and developed in this

appeal. See Brief of Appellant, 11-13.

Because Appellant has not developed his sufficiency claim in any

meaningful way and otherwise conflates the distinct concepts of the sufficiency

of the evidence and weight of the evidence,1 his first issue affords him no

relief. See Pa.R.A.P. 2119(a) (providing that an appellant's argument shall

include “such discussion and citation of authorities as are deemed

pertinent.”); Commonwealth v. Paddy, 14 A.3d 431, 443 (Pa. 2011)

(providing that boilerplate allegations and bald assertions cannot satisfy one’s

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1 See Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)

(sufficiency of evidence claims are distinct from weight of evidence claims;

explaining differences between sufficiency and weight challenges).

Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa. Super. 2019) (appellant

waived challenge to weight of the evidence where appellant's brief conflated

weight and sufficiency claims and did not otherwise develop weight claim).

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briefing requirements). See also Commonwealth v. Ritchey, 266 A.3d 615

(non-precedential decision)2 (Pa. Super. Ct. 2021) (citing Commonwealth v.

Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating 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.”)).

In Appellant’s second issue, he asks “[w]hether the trial court erred by

admitting contraband found in the residence that he had no legal ties to as

the facts shown [sic] at trial?” Brief of Appellant, at 14. Like the deficiencies

inherent in his first issue, Appellant’s second issue fails to develop an

argument with citation to and discussion of pertinent decisional law, which

substantially impairs our ability to conduct meaningful review of this claim.

See Brief of Appellant at 14-15. Accordingly, his second issue fails.

Finally, Appellant contends that the trial court denied him a fair trial

when it denied his Batson challenge during voir dire after the Commonwealth

used one of its peremptory challenges to remove the only African American

individual, Juror 39, in the jury pool. This Court has recently outlined the

governing standard of review of a Batson challenge:

The scope of voir dire rests in the sound discretion of

the trial court, whose decision will not be reversed on

____________________________________________

2 See Pa.R.A.P. 126(b) (stating we may rely on non-precedential decisions

from this Court filed after May 1, 2019, for persuasive value).

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appeal absent palpable error. The purpose of voir dire

is to ensure the empaneling of a competent, fair,

impartial, and unprejudiced jury. The scope of voir

dire should therefore be limited to questions that

attempt to disclose a potential juror's lack of

qualification or fixed opinion regarding the

defendant's guilt or innocence. A prospective juror's

personal views are of no moment absent a showing

that these opinions are so deeply embedded as to

render that person incapable of accepting and

applying the law as given by the court.

Commonwealth v. Scott, 212 A.3d 1094, 1103 (Pa. Super.

2019) (citation omitted).

“[A] prosecutor's challenge to potential jurors solely

on the basis of race violates the Equal Protection

Clause of the United States Constitution” pursuant to

the Supreme Court of the United States decision in

Batson v. Kentucky, 476 U.S. 79 (1986). Id. at

1105. “A Batson claim presents mixed questions of

law and fact. Therefore, our standard of review is

whether the trial court's legal conclusions are correct

and whether its factual findings are clearly

erroneous.” Id. (citation omitted). When a defendant

makes a Batson challenge during jury selection:

First, the defendant must make a prima

facie showing that the circumstances give

rise to an inference that the prosecutor

struck one or more prospective jurors on

account of race; second, if the prima facie

showing is made, the burden shifts to the

prosecutor to articulate a race-neutral

explanation for striking the juror(s) at

issue; and third, the trial court must then

make the ultimate determination of

whether the defense has carried its

burden of proving purposeful

discrimination.

The trial court should consider the totality of

circumstances when determining whether the

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prosecutor acted with discriminatory intent or

engaged in purposeful discrimination. This Court must

give great deference to a trial court's determination

that peremptory challenges were free of

discriminatory intent, and we will not overturn the

determination unless it was clearly erroneous.

Id. at 1105–1106 (internal citations and quotations omitted).

Moreover,

[t]he defendant does not satisfy Batson’s first step of

prima facie evidence merely by showing that the

prosecutor used a number of strikes against

venirepersons of one race. Nor is it sufficient to merely

point out the fact that the prosecutor rejected a higher

percentage of African–American potential jurors than

non-African-American potential jurors. Instead, the

defendant must preserve a full and complete record

of the asserted Batson violation, as it would

otherwise be impossible to conduct meaningful

appellate review of the motivations of prosecutors in

individual cases without such a record.

Within the prima facie case wherein a defendant must

establish on the record the circumstances

demonstrating purposeful discrimination,

Pennsylvania law also requires that a defendant must

make a record specifically identifying (1) the race or

gender of all venirepersons in the jury pools, (2) the

race or gender of all venirepersons remaining after

challenges for cause, (3) the race or gender of those

removed by the prosecutor, and (4) the race or

gender of the jurors who served and the race or

gender of jurors acceptable to the Commonwealth

who were stricken by the defense.

In other words, for a Batson claim to be in a posture

for the trial court to make a proper ruling, the

following must happen. First, a defendant must make

out a prima facie case on the record to the trial court.

The prima facie case requires more than just noting

on the record the race of excluded jurors and the

numerical composition of the prosecution's strikes.

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The prima facie case must be detailed enough for the

trial court eventually to assess whether there has

been purposeful discrimination to establish a Batson

violation. The prima facie case must identify the

circumstances a defendant believes establishes

purposeful discrimination, including those record

items required under Pennsylvania law. Second, once

a defendant qualifies the record with a sufficient prima

facie case, the prosecution is then obligated to provide

race-neutral explanations for the strikes being

questioned. Finally, once the record is complete with

a defendant's prima facie case and the prosecution's

race neutral explanations, the trial court has a proper

foundation to proceed to the third step, in which it

assesses the totality of the circumstances surrounding

juror selection and determines whether the defendant

has made out a case of purposeful discrimination.

Commonwealth v. Murray, 248 A.3d 557, 568 (Pa. Super.

2021) (internal quotations and citations omitted).

Commonwealth v. Miller, 321 A.3d 938, at **3-4 (non-precedential

decision) (Pa. Super. Ct. 2024).

Appellant argues that a prima facie case of purposeful discrimination

was made because the record establishes that the juror in question was the

only African American juror in the jury pool. See Brief for Appellant, at 17.

This argument fails under the governing standard of review expressed above.

Even assuming arguendo that Appellant had presented a prima facie case, the

record reveals the trial court required the Commonwealth to state a race-

neutral explanation for striking Juror 39.

The transcript of voir dire reveals that questioning of Juror 39 first

addressed her ability to serve impartially even though her father is a police

officer for a nearby municipal police department not involved with the present

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matter. N.T. 7/11/2022, at 202-203. The discussion shifted, however, to

whether her impartiality may be affected by the view she expressed in her

questionnaire, namely, that she would be less likely to believe the testimony

of a police officer or other law enforcement officer because of their

employment. N.T. at 202. Specifically, she shared her opinion that law

enforcement has acted with what she referred to as “racial prejudice against

African Americans.” N.T. at 204. This viewpoint, she conceded, can cause

her to doubt whether an officer is telling the truth. Id. She then qualified her

answer by stating, “I don’t think that’s fair to judge every officer. I don’t know

if that was, like, a generalized question or if that was just, like, one specific

officer. Like, I don’t think every – I don’t think that applies to every officer,

no. But I’ve seen it before, so, yeah, I guess that would change my judgment.

Yes.” N.T. at 205.

In response, the Commonwealth asked Juror 39, “Would you be less

likely to believe the officers who get on the stand in this case and testify?

Would you be less likely to believe their testimony because they are officers

than if anyone else got on the stand?” Juror 39 answered, “I mean, yeah. I

would say yes. In my opinion, yeah, I think I would . . . .” N.T. at 205. When

the Commonwealth repeated the question just for the sake of clarity, Juror 39

again replied, “Then yes. Yes.” N.T. at 206

In its Rule 1925(a) opinion, the trial court discerned the above exchange

as providing a credible, race-neutral explanation for the Commonwealth’s

peremptory strike of Juror 39. Trial Court Opinion, at 17-20. We agree.

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Accordingly, we conclude there is no basis to support Appellant’s appellate

claim that purposeful discrimination attended the Commonwealth’s decision

to use its peremptory strike on Juror 39.

For the foregoing reasons, we affirm.

Affirmed.

DATE: 11/13/2024

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