Com. v. Smallwood, D.

J-S14029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEJEREK BASIL SMALLWOOD,

Appellant No. 909 MDA 2016

Appeal from the Judgment of Sentence December 18, 2015

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000778-2014

BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 13, 2017

Appellant, Dejerek Basil Smallwood, appeals from the December 18,

2015 judgment of sentence entered in the Court of Common Pleas of York

County following his conviction by a jury of two counts of first-degree

murder and conspiracy to deliver heroin.1 We affirm.2

The trial court summarized the facts of the crime as follows:

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

18 Pa.C.S. § 2502, 18 Pa.C.S. § 903, and 35 P.S. § 780-113 (a)(30),

respectively.

2

The trial court docket indicates that Appellant’s post-sentence motion was

denied on May 6, 2016, and his notice of appeal was filed on May 31, 2016.

Therefore, we reject the Commonwealth’s assertion that the appeal is

untimely. Commonwealth Brief at 12–13.

J-S14029-17

On November 23, 2013, at approximately 7:00 PM police

were dispatched to an alley between South Hartley Street and

West Mason Avenue in York Township, located in York County,

Pennsylvania. Upon arrival, police found two victims lying in the

street. The responding officer used his flashlight to check on the

first victim and determined he was dead. The second victim was

still alive but not speaking. The victim pulled up his shirt to

show the officer where he had been shot. Shortly thereafter, the

second victim passed. Prior to EMS arrival[,] other officers from

the department had arrived on scene and set up a crime scene

with yellow tape to secure any evidence that might have been in

and around the area. The first victim was identified as Braydon

Aldinger; identification was made from his license in his wallet.

The wallet was not photographed nor was it marked as evidence.

The responding officer gave the wallet to Aldinger’s mother who

was on scene. The second victim was identified as Derek

Ferree; identification was made from his license in his wallet. At

that time, responding officers did not see anyone else in the

alleyway of South Hartley Street and West Mason Avenue. The

coroner arrived on scene and ruled both deaths a homicide

caused by gunshot wounds. Homicide detectives were called in

to investigate and eyewitnesses were taken to the station for

questioning.

The same night, on November 23, 2013, homicide

detectives interviewed Arianna Tavares (Tavares), who told

police she was an eyewitness to the crime. During the interview

Tavares told detectives, she was with both victim’s [sic] that

night and they had arranged to meet with Appellant and a

second man Laquan Pierrelouis (Pierrelouis), in the alley way of

South Hartley to buy heroin. Tavares told detectives that one of

the victims punched Appellant in the face and a tussle broke out.

She explained that once the tussle started, she began to run

away from the alley and that is when she heard the two shots.

On December 10, 2013, charges were filed against Appellant and

Pierrelouis based off of the police interview with Tavares.

York County Police Department’s homicide detective

George Ripley was assigned as lead detective on this case.

Detective Ripley collected a surveillance video taken by the

security system in the back of Lincoln Charter School, which is

located across from the crime scene. The surveillance video

showed a group of five people, four males, and one female

walking down the alley of South Hartley Street. The video shows

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an altercation and one male running from the crime scene with a

weapon in his hand.

Three days later, on November 26, 2013, Tavares was

interviewed by police for a second time. During this interview

she was shown the surveillance video collected from Lincoln

Charter School. After viewing the video, she identified Appellant

as the individual running down the alley with the weapon in his

hand. Tavares explained that she could identify Appellant

because of the clothes he was wearing.

Trial Court Opinion, 5/6/16, at 1–3 (internal citations omitted).

Appellant’s jury trial began on November 2, 2015, and on November 6,

2015, the jury convicted Appellant as described above. The trial court

sentenced Appellant on December 18, 2015, to concurrent terms of life

imprisonment for the two murder convictions and a consecutive term of

imprisonment of three to six years for conspiracy to deliver heroin.

Appellant filed a timely post-sentence motion, which the court denied on

May 6, 2016. Appellant filed a timely notice of appeal on May 31, 2016.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.3

Appellant raises the following issues on appeal:

Whether the evidence was insufficient to find [Appellant] guilty

of first degree murder?

Whether the verdict was against the weight of the evidence?

____________________________________________

3

The trial court referred us to its opinion denying Appellant’s post-sentence

motion in place of a separate opinion pursuant to Pa.R.A.P. 1925(a).

Pa.R.A.P. 1925(a) Opinion, 7/13/16.

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Whether the lower court abused its discretion when it refused to

grant [Appellant’s] request to have a “use of force” expert testify

at trial?

Whether the lower court abused its discretion when it sentenced

[Appellant] to a mandatory life sentence, without a hearing as to

[Appellant’s] mental functioning?

Whether the lower court abused its discretion when it refused to

allow [Appellant] to submit supplemental written voir dire

questions on race and racial bias when there were no African

Americans on the jury, and [Appellant] is Africian [sic] American

and the two victims and primary Commonwealth witness were all

white[?]

Appellant’s Brief at 4.4

We first address Appellant’s challenge to the sufficiency of the

evidence supporting his conviction of first-degree murder. Our well-settled

standard of review of the sufficiency of the evidence to support a conviction

is as follows:

In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial, and all reasonable

inferences drawn from that evidence, when viewed in the light

most favorable to the Commonwealth as verdict winner, was

sufficient to enable the fact finder to conclude that the

Commonwealth established all of the elements of the offense

beyond a reasonable doubt. The Commonwealth may sustain its

burden by means of wholly circumstantial evidence. Further, the

trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Rayner, ___ A.3d ___, ___, 2016 PA Super 310, *2

(Pa. Super. filed Dec. 29, 2016). “[T]he Commonwealth need not establish

guilt to a mathematical certainty.” Commonwealth v. Tukhi, 149 A.3d

____________________________________________

4

We have reordered the issues set forth in Appellant’s brief.

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881, 887 (Pa. Super. 2016). As “long as the evidence adduced, accepted in

the light most favorable to the Commonwealth, demonstrates the respective

elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s

convictions will be upheld.” Id.

To sustain a conviction for first-degree murder, the Commonwealth

must prove beyond a reasonable doubt that the defendant committed “an

intentional killing.” 18 Pa.C.S. § 2502(a). An intentional killing is defined as

“[k]illing by means of poison, or by lying in wait, or by any other kind of

willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). To

convict a defendant of first degree murder, our Supreme Court explained

that “the Commonwealth must prove: a human being was unlawfully killed;

the defendant was responsible for the killing; and the defendant acted with

malice and a specific intent to kill.” Commonwealth v. Houser, 18 A.3d

1128, 1133 (Pa. 2011).

Appellant has waived any argument concerning the sufficiency of the

evidence. Regarding sufficiency-of-the-evidence issues, an appellant must

specify the elements upon which the evidence was insufficient in order to

preserve the issue for appeal. See Commonwealth v. Williams, 959 A.2d

1252, 1257–1258 (Pa. Super. 2008) (finding waiver where the appellant

failed to specify the elements of particular crime not proven by the

Commonwealth). See also Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa. Super. 2009) (finding claim waived under Williams for failure to specify

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either in Rule 1925(b) statement or in argument portion of appellate brief

which elements of crimes were not proven beyond a reasonable doubt).

Appellant’s one-paragraph challenge does not cite any supporting case

law other than the standard of review. Appellant’s Brief at 22. Appellant

does not challenge any particular element of murder. He makes only a

passing allegation that he lacked the specific intent to kill the victims and

complains that there was “no eye witness testimony regarding the shooting.”

Id. Appellant summarily avers that the Commonwealth “must do more than

show there was a shooting that resulted in death to prove First Degree

Murder.” Id.

Furthermore, even if Appellant had presented the claim in his

Pa.R.A.P. 1925(b) statement or brief with the required particularity, we

would conclude the issue lacks merit. The trial court offered a complete

analysis of the evidence at trial and its relevance. The trial court stated:

To sustain a conviction for murder of the first degree, the

Commonwealth must prove that: (1) a human being was

unlawfully killed; (2) the person accused is responsible for the

killing; and (3) the accused acted with specific intent to kill. 18

Pa.C.S. § 2502(d); [Commonwealth v.] VanDivner, 962 A.2d

[1170,] 1176 [(Pa. 2009)]. “Specific intent may be inferred

from the use of a deadly weapon on a vital part of the victim’s

body.” Id., citing Commonwealth v. Rivera, 565 Pa. 289, 773

A.2d 131,135 (2001), cert. denied, 535 U.S. 955, 122 S.Ct.

1360, 152 L.Ed.2d 355 (2002).

When a defendant introduces evidence of self-defense, the

Commonwealth bears the burden of disproving such a defense

beyond a reasonable doubt. Commonwealth v.Torres, 766 A.2d

342, 345 (Pa. 2001). “The Commonwealth cannot sustain its

burden of proof solely on the fact finder’s disbelief of the

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defendant’s testimony. The ‘disbelief of a denial does not, taken

alone, afford affirmative proof that the denied fact existed so as

to satisfy a proponent’s burden of proving that fact.’” Id.

(quoting Commonwealth v. Graham, 596 A.2d 1117, 1118 (Pa.

1991)).

Also, we are mindful that the period of reflection required

for premeditation to establish the specific intent to kill “may be

very brief; in fact the design to kill can be formulated in a

fraction of a second. Premeditation and deliberation exist

whenever the assailant possesses the conscious purpose to bring

about death.” Commonwealth v. Drumheller, 808 A.2d 893, 910

(Pa. 2002). Further, the trier of fact, in passing upon the

credibility of the witnesses, is “free to believe all, part, or none

of the evidence.” Commonwealth v. Rivera, 983 A.2d 1211,

1220 (Pa. 2009); Commonwealth v. Cousar, 593 Pa. 204, 928

A.2d 1025,1033 (2007).

Here, the testimony of Tavares and Pierrelouis as to the

circumstances surrounding the death of both victims, Appellant’s

own testimony that he used a deadly weapon that night, coupled

with Dr. Roney’s testimony that the bullet[] wounds were on a

vital part of the victims’ bod[ies] enabled the Commonwealth to

establish the elements of first-degree murder. Appellant,

however, offered an affirmative defense to the charge. He

claimed that he acted in self-defense, believing that both victims

sought to kill him. To elucidate the Commonwealth’s specific

burden in disproving Appellant’s claim of self-defense, we must

analyze Section 5059 of our Crimes Code, in the light most

favorable to the Commonwealth as the verdict winner. First,

turning to subsection (a),10 we look to see if use of force by

Appellant was justified in this situation. The evidence presented

by both the Commonwealth and Appellant show[s] that the

victims initiated the fight with Appellant11 and he was not the

initial aggressor. Further, Appellant testified that he was very

scared and afraid because both men were punching him in the

face. This evidence establishes that Appellant was justified in

using a reasonable amount of force to protect himself. This

brings our analysis to Section 505, subsection (b).13

9

18 Pa.C.S. § 505. Use of force in self-protection.

10

(a) Use of force justifiable for protection of the

person.—The use of force upon or toward another

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person is justifiable when the actor believes that

such force is immediately necessary for the purpose

of protecting himself against the use of unlawful

force by such other person on the present occasion.

11

All eyewitnesses testified that Appellant did not

provoke either victim and the victim sucker punched

Appellant. See N.T. 11/2-11/6/2015 at 176–251,

244–264, 585–599.

13

(b) Limitations on justifying necessity for use of

force.—

***

(2) The use of deadly force is not justifiable under

this section unless the actor believes that such force

is necessary to protect himself against death, serious

bodily injury, kidnapping or sexual intercourse

compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing

death or serious bodily injury, provoked

the use of force against himself in the

same encounter; or

(ii) the actor knows that he can avoid the

necessity of using such force with

complete safety by retreating or by

surrendering possession of a thing to a

person asserting a claim of right thereto

or by complying with a demand that he

abstain from any action which he has no

duty to take. 18 Pa.C.S. § 505(a),

(b)(2)(i), (ii).

The use of deadly force is not justifiable unless the

Appellant believed that such force was necessary to protect him

against death or serious bodily injury.14 The Commonwealth

presented evidence that neither victim had a weapon during the

fight. Accordingly, Appellant was not justified in responding to

the punch in the face by employing deadly force. Under the

Commonwealth’s version of the facts, which the jury accepted,

one victim punched Appellant in the face and they began to

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tussle, to which Appellant reacted by fatally shooting both

people. While the jury was free to believe Appellant’s testimony

relating to self-defense, i.e., that he was being attacked and

feared they might get his gun and use it on him and does not

remember shooting the gun, the jury did not do so. See

Commonwealth v. Bracey, 662 A.2d 1062, 1066 (Pa. 1995)

(holding that “the jury was free to disbelieve the evidence

proffered by Appellant in support of claim of self-defense”);

Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990)

(providing that “although the Commonwealth is required to

disprove a claim of self-defense arising from any source beyond

a reasonable doubt, a jury is not required to believe the

testimony of the defendant who raises the claim”).

14

18 Pa.C.S. § 505 (b).

Therefore, we conclude that there was sufficient evidence

to demonstrate that Appellant unlawfully killed both victims, and

that such killing was willful, deliberate, and premeditated.

Having satisfied the elements of first-degree murder, we further

conclude, that the Commonwealth presented sufficient evidence

to disprove Appellant’s claim of self-defense beyond a

reasonable doubt.

Trial Court Opinion, 5/6/16, at 15–18 (some footnotes and internal citations

omitted).

Appellant next assails the weight of the evidence. “The weight of the

evidence is a matter exclusively for the finder of fact, who is free to believe

all, part, or none of the evidence and to determine the credibility of the

witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super.

2015), appeal denied, 125 A.3d 1198 (Pa. 2015). In Commonwealth v.

Clay, 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following

standards to be employed in addressing challenges to the weight of the

evidence:

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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. Commonwealth v. Widmer, 560

Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000);

Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,

1189 (1994). 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. Widmer, 560

A.2d at 319–[3]20, 744 A.2d at 752. 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.’” Id. at 320, 744 A.2d at 752 (citation omitted). 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.” Brown,

538 Pa. at 435, 648 A.2d at 1189.

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. Brown, 648 A.2d at 1189. 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. Commonwealth v.

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).

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.

Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis

added).

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Clay, 64 A.3d at 1054–1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

Appellant asserts that it shocks one’s sense of justice that if Appellant:

had not been a young, inner city black male engaged in a drug

transaction with a gun he was not permitted to carry, but

instead had been a young white woman attacked walking home

from work, with a gun she was licensed to carry, not only would

he not have been found guilty, not only would he not have been

charged, but he may very well have been on the front cover of

American Rifleman, the official magazine of the NRA, lauded a

hero and set as a prime example of why we all should have

guns. If we are truly honest with ourselves, we know this is the

truth, and that inherent unfairness and bias in our system is

what makes this verdict so shocking. The weight of the evidence

—the true evidence—the only evidence that should matter—is

not enough to upload [sic] a conviction.

Appellant’s Brief at 23–24.

Although Appellant raised a challenge to the weight of the evidence in

his post-sentence motion, the above-asserted basis for Appellant’s claim was

not presented to the trial court in his motion. Post-Sentence Motion, Motion

for Judgment of Acquittal, Motion for New Trial, 12/28/15, at VII. Instead,

Appellant simply reiterated that evidence presented at trial failed to support

the crime of first degree murder. Id. Further, Appellant’s Pa.R.A.P. 1925(b)

statement claimed only that “[t]he Trial Court erred in finding the weight of

the evidence supported the convictions.” Pa.R.A.P. 1925 (b) Statement,

7/5/16, at ¶ F. Thus, the trial court was never given the opportunity to

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evaluate whether the weight of the evidence supported Appellant’s

conviction for the reason now suggested.

Appellant’s attempt to raise this issue for the first time on appeal

results in waiver, as Appellant has not preserved the issue for our review.

Commonwealth v. Oliver, 128 A.3d 1275, 1284 (Pa. Super. 2015) (issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal) (citing Pa.R.A.P. 302(a)); Pa.R.A.P.1925(b)(4)(vii) (“Issues

not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).

Furthermore, it was for the jury as the finder of fact to determine the

credibility of the witnesses and believe all, part, or none of the evidence.

Gonzalez, 109 A.3d at 723. This Court does not reweigh the evidence.

Pursuant to our standard of review, the trial court did not abuse its

discretion in concluding that the verdict does not shock the conscience.

Thus, we discern no abuse of discretion by the trial court’s denial of

Appellant’s post-sentence motion for a new trial based on the weight of the

evidence.

We next address whether the trial court abused its discretion when it

refused to grant Appellant’s request to have a “use of force” expert testify at

trial.

“The admission of evidence is solely within the discretion of the

trial court, and a trial court’s evidentiary rulings will be reversed

on appeal only upon an abuse of that discretion.”

Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 470, 493

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(2014). An abuse of discretion will not be found based on a

mere error of judgment, but rather occurs where the court has

reached a conclusion that overrides or misapplies the law, or

where the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will. Commonwealth v.

Davido, 106 A.3d 611, 645 (Pa. 2014).

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), cert. denied

sub nom., Woodard v. Pennsylvania, ___ U.S. ___, 137 S.Ct. 92 (2016).

In his brief, Appellant asserts that he:

wanted Emmanuel Kapelsohn to testify as a use of force expert.

The [trial court] granted [Appellant’s] request for funds to hire

Mr. Kapelsohn to do a report, after a review of Mr. Kapelsohn’s

curriculum vitae, but ultimately the trial [c]ourt denied the

Defense’s request to testify at trial, stating his testimony was

irrelevant and inadmissible under Pennsylvania law.

Appellant’s Brief at 12. Unfortunately, Appellant wholly fails to identify

where in the record of this five-day trial Appellant allegedly requested such

testimony and where the trial court denied it. Appellant refers to jury

instructions on self defense and reproduces three pages of instructions in his

brief without identifying whether they are instructions given in this case or

where in the record they exist. Appellant’s Brief at 13–16. Appellant argues

the potential relevancy of Mr. Kapelsohn’s alleged testimony without

identifying the basis for such a claim or where in the expert report it can be

found. Id. at 16–17.

Pa.R.A.P. 2119 (c) provides, “If reference is made to . . . evidence . . .

or any other matter appearing in the record, the argument must set forth,

in immediate connection therewith, or in a footnote thereto, a reference to

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the place in the record where the matter referred to appears. . . .”

Id. (emphasis added). As we stated in Commonwealth v. Samuel, 102

A.3d 1001 (Pa. Super. 2014), “It is not this Court’s responsibility to comb

through the record seeking the factual underpinnings of an appellant’s

claim.” Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa.

1997). Further, this Court will not become counsel for an appellant . . . . It

was [the appellant’s] responsibility to provide an adequately developed

argument by identifying the factual bases of his claim . . . . Id. at 1005. In

Commonwealth v. Harris, 979 A.2d 387 (Pa. Super. 2009), we stated as

follows:

When an allegation is unsupported [by] any citation to the

record, such that this Court is prevented from assessing this

issue and determining whether error exists, the allegation is

waived for purposes of appeal. . . . Commonwealth v.

Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (“An appellate

brief must provide citations to the record . . . ). See also

Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super.

2007); Commonwealth v. Judd, 897 A.2d 1224, 1233 (Pa.

Super. 2006).

Id. at 393 (some internal citations omitted). Due to Appellant’s complete

lack of citation to the record in support of his claim, we conclude the issue is

waived.

Even if not waived, we would have relied on the trial court’s

explanation for denying the testimony, which was as follows:

Appellant argues he was denied a fair trial because the

Court erred in not permitting his expert witness to testify.

Appellant maintains that his use of force expert, Emmanuel

Kapelsohn was qualified to address both the subjective and

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objective reasonableness of Appellant’s actions relating to his

claim of self-defense. All evidence that is relevant is admissible,

including expert testimony. Pa.R.E. 402. Whether evidence has

a tendency to make a given fact more or less probable is to be

determined by the court in the light of reason, experience,

scientific principles and the other testimony offered in the case.

Id.

Expert testimony is admissible in criminal cases when it

involves explanations and inferences not within the range or

ordinary training, knowledge, intelligence and experience.

Commonwealth v. Nasuti, 123 A.2d 435, 438 (Pa. 1956). The

use of experts during trial is not meant to usurp the function of

the jury: to determine the credibility of witnesses; to judge the

case as a whole; or to make findings which the jury is equally

capable of making on its own. Commonwealth v. Dunkle, 602

A.2d 830, 838 (Pa. 1992). Expert testimony that attempts in

any way to reach the issue of credibility and usurp the function

of the jury will not be permitted. Id. As expert testimony

relates to self-defense, psychiatric testimony regarding the

objective element, as in whether the defendant’s belief that he

was in immediate danger was reasonable in light of the facts is

inadmissible. Commonwealth v. Light, 326 A.2d 288 (Pa. 1973).

However, expert testimony in the nature of the subjective

element, as in whether the defendant used deadly force because

of an “honest, bona fide belief that he was in imminent danger,”

is generally admissible.

Here, Appellant filed a Motion in Support of Expert

Testimony on October 19, 2015. In Appellant’s motion, the

proffer stated the expert would testify to: the circumstances

surrounding the attack; a comparison of the circumstances in

this case to how police officers are trained to act in similar

situations; and weapon retention issues including the training

police and others receive in weapon retention. Appellant claims

that such evidence was relevant in aiding the jury on the issue of

self-defense because the manner in which police are trained

have [sic] scientific rationales and the fact that Appellant was

not trained would make it more likely he would not be able to

overcome the stress of the situation. See generally Defendant’s

Motion in Support of Expert Testimony, 10/19/2015. The final

conclusion in Kapelsohn’s expert report was as follows,

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For the foregoing reasons, it is my opinion, to a

reasonable degree of professional certainty in my

fields of expertise, that firing a handgun at two

attackers under the circumstances and principles

taught to law enforcement or security officers, or

arm[ed] private individuals, the nature of the attack

and attempted robbery, initiated by and continued

for 20-30 seconds by both victims, was such that

Appellant could reasonably believe he was likely to

suffer death or serious bodily injury following the

next well-aimed punch or kick....

Commonwealth’s Motion to Preclude Introduction of Testimony

by Emanuel Kapelsohn, 10/19/2015, Appendix A. We also find it

important to note that Kapelsohn, although trained in police

tactics and use of force, is not a physiologist or psychiatrist. Id.

Here, Kapelsohn’s testimony is not relevant to the facts of

the case. The proffer compared the Appellant’s situation with

that of a hypothetical person trained in law and enforcement and

weapon retention. There is no evidence that Appellant has any

type of weapons or law enforcement training. Allowing the jury

to hear evidence of how an officer would have reacted to the

situation or how or why they are trained to react a certain way

would not aid the jury in deciding if it is more or less likely that

Appellant was acting under a bona fide belief that he was in

imminent danger because he had no training. Additionally, we

believe that this testimony would have confused the jury.

Assuming arguendo that Kapelsohn’s testimony is relevant,

it is inadmissible under Commonwealth v. Light, 326 A.2d 288

(Pa. 1973)[,] because his testimony went to the objective

element of self-defense. Kapelsohn’s ultimate opinion relates to

the reasonableness of Appellant’s actions under the facts present

in this case. The basis of Kapelsohn’s conclusion explained it

was reasonable for Appellant to fire a weapon at the victims

because individuals trained in law enforcement and weapons

retention would have acted in a similar way. Therefore, because

Kapelsohn’s testimony was irrelevant and went to the objective

element of self-defense is was [sic] inadmissible.

Trial Court Opinion, 5/6/16, at 5–7 (footnote omitted).

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Appellant next asserts that the trial court abused its discretion in

sentencing him to a life sentence “without a hearing as to defendant’s

mental functioning.” Appellant’s Brief at 4; Statement of Questions

Involved. This issue was never raised in Appellant’s Pa.R.A.P. 1925(b)

statement and is waived. Commonwealth v. Proctor, ___ A.3d ___, 2017

PA Super 30 (Pa. Super. filed February 9, 2017) (quoting Commonwealth

v. Perez, 103 A.3d 344, 347 n.1 (Pa. Super. 2014)).

In the argument section of his brief, however, Appellant asserts a

wholly different issue, that his sentence violates the United States and

Pennsylvania Constitutions and the rationale expressed in Miller v.

Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). Appellant’s Brief at 24.

Appellant asserted a claim based on Miller in his Pa.R.A.P. 1925(b)

statement but not in his Statement of Questions Involved. However, issues

related to the legality of sentence, as is Appellant’s purported Miller claim,

cannot be waived. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.

Super. 2013). Thus, despite Appellant’s failure to present the issue in his

Statement of Questions Involved, we will address it.

Appellant, who was born October 8, 1992,5 was twenty-one years old

on November 23, 2013, the date of the murders. The Miller decision is

applicable only to juveniles who were under the age of eighteen at the time

____________________________________________

5

Arraignment, 3/28/14; N.T., 11/5/15, at 585 (Appellant’s age at trial

noted as twenty-three).

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of their crimes. Miller, ___ U.S. at ___, 132 S.Ct. at 2460 (“We therefore

hold that mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition on

‘cruel and unusual punishments.’”) (emphasis added). Thus, we reject

Appellant’s claim.

Appellant contends in his final issue that the trial court abused its

discretion in refusing to permit Appellant to submit supplemental written voir

dire questions on race and racial bias. This issue is waived by Appellant’s

failure to develop the claim in his brief. Samuel, 102 A.3d at 1005 (“The

Rules of Appellate Procedure require that appellants adequately develop

each issue raised with discussion of pertinent facts and pertinent authority.

See Pa.R.A.P. 2119.”). Appellant’s argument consists of two paragraphs.

The first paragraph describes the trial court’s discretion relating to voir dire;

the second paragraph, consisting of three conclusory sentences that are

asserted without any supporting case the law, comprise his argument. This

is insufficient to constitute meaningful appellate review.

[I]ssues are waived for failing to present any argument in

support thereof. See Wirth v. Commonwealth, 95 A.3d [822]

837 [(Pa. 2014)] (holding that “where an appellate brief fails to

... develop an issue in any other meaningful fashion capable of

review, that claim is waived. It is not the obligation of an

appellate court to formulate appellant’s arguments for him.”)

(internal quotations omitted); see also Pa.R.A.P. 2119(a)

(providing that appellate briefs must contain “such discussion

and citation of authorities as are deemed pertinent”).

Woodard, 129 A.3d at 509.

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Appellant sets forth a conclusory claim that is a mere restatement of

the issue. He does not cite pertinent authority and provides no legal

analysis. As such, we are completely without any guidance regarding his

assertion. See Commonwealth v. Bobin, 916 A.2d 1164, 1168 (Pa.

Super. 2007) (concluding that claim is waived where argument supporting it

is “markedly insufficient, amounting to less than one-half page and

containing no analysis or case citation.”); Commonwealth v. Hakala, 900

A.2d 404, 407 (Pa. Super. 2006) (“Because Hakala fails to offer either

analysis or case citation in support of the relief he seeks, we deem all of his

questions waived.”). See also Commonwealth v. Rompilla, 983 A.2d

1207, 1210 (Pa. 2009) (“Appellant’s failure to adequately develop his

arguments or support his bald assertions with sufficient citation to legal

authority impedes meaningful judicial review of his claims.”).

Even if not waived, the trial court provided a thorough analysis of

Appellant’s claim. Thus, if we addressed the issue on the merits, we would

rely on the trial court’s explanation, as follows:

Appellant argues that he was unable to get a fair and

impartial jury because he was not allowed to fully explore the

potential racial prejudices through written or individual voir dire.

The Pennsylvania and United States Constitutions guarantee an

accused the right to a fair and impartial jury. U.S. Const.,

Amend VI; Pa. Const., Art. 1, § 9. To ensure an impartial jury,

this [c]ourt has mandated that potential jurors be subject to voir

dire to disclose fixed opinions or other reasons for

disqualification so that challenges for cause can be made and

peremptory challenges effectively exercised. Commonwealth v.

Drew, 459 A.2d 318, 320 (Pa. 1983).

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Under the Rules of Criminal Procedure, in all non-capital

cases, the defendant has no absolute right to conduct individual

voir dire, “the trial judge shall select one of two alternative

methods of voir dire.” Pa.R.Crim.P. 1106(e). The trial judge has

the discretion to conduct individual voir dire of prospective

jurors. Commonwealth v. Berrigan, 501 A.2d 226, 235 (Pa.

1985); Commonwealth v. Glaspy, 616 A.2d 1359, 1361 (Pa.

1992). Where the procedure used in effecting this examination

substantially impairs a defendant’s right to a fair and impartial

jury, due process rights are violated and a new trial is

mandated. Ham v. South Carolina, 409 U.S. 524 (1972).

When a capital defendant is accused of an interracial crime

he is entitled to have prospective jurors informed about the race

of the victim and questioned on the issue of racial bias.

Commonwealth v. Marrero, 687 A.2d 1102 (Pa. 1996);

Commonwealth v. Christ[ia]n, 389 A.2d 545 (Pa. 1978).

However, where there are not factors present to infuse the case

with an enhanced racial sensitivity and racial differences were

not a focus of evidence at trial, one voir dire question posed by a

trial court is sufficient to probe and reveal prejudices which

might have bearing upon the case. Id.; See also Commonwealth

v. Hackett, 735 A.2d 692 (Pa. 1999); Commonwealth v. Craver,

688 A.2d 691, 697 -98 (Pa. 1997).

In the instant case, the record demonstrates that the issue

of race was neither raised at trial nor emphasized by the

prosecutor. However, it is clear that circumstances were present

which would make it reasonable to inquire into racial sensitivity

of potential jurors. The fact that both victims were white and

the Appellant a black man cannot be ignored. On October 19,

2015, Appellant filed a pre-trial motion to allow written questions

concerning racial bias to be filled out by each member of the

panel prior to voir dire. On October 26, 2015, the [c]ourt denied

the motion as i[t] pertained to the written questions, but gave

the Appellant the opportunity to ask the panel supplemental

questions relating to race. The [c]ourt took numerous steps to

ensure the jury panel was vetted as to potential racial bias.

Specifically, the [c]ourt asked the Appellant how he would like to

address questions of race with the jury. N.T. 11/2-11/6/2015 at

24-25, 13-25. Next, during preliminary voir dire, the [c]ourt

specifically addressed the issue of race with the jury. Id. at 61,

1-12. Finally, the [c]ourt allowed Appellant to specifically

question potential jurors about racial bias.

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DEFENSE: So the next thing I want to talk to you

about is something nobody ever wants to talk about,

and—but I have to talk about it, and that’s race... I

want to go into this because I think that race-is

always just an issue to some degree ... So is there

anybody when they walked in, they heard the

charges, they saw my client sitting there, saw that

he was black, and they thought, “yeah that makes

sense?”

DEFENSE: So sometimes—sometimes whites make

fun of black names, of the way black people talk, and

we hold it against them, we may not realize that we

are doing it... so when Appellant gets on the stand,

I’m going to tell you, he sounds black, he grew up in

the city, and he sounds like it...is there anybody

here who thinks that they would hold that against

him?

Id. at 83-84.

It was within the [c]ourt’s discretion to prohibit the use of

written voir dire. The review of the record shows that the

[c]ourt went beyond what is required by law to ensure the

Appellant an impartial jury. The voir dire procedure used in this

case did not impair Appellant’s right to a fair and impartial jury.

Thus, his due process rights were not violated.

Trial Court Opinion, 5/6/16, at 23–25. Finding no merit in any issue raised,

we reject Appellant’s issues on appeal.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2017

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