Com. v. Manley
| Decision Date | 30 November 2009 |
| Docket Number | No. 3187 EDA 2007,3187 EDA 2007 |
| Citation | 985 A.2d 256,2009 PA Super 227 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Levon MANLEY, Appellant. |
| Court | Pennsylvania Superior Court |
Leanne L. Litwin, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
¶ 1 Appellant, Levon Manley, appeals from the October 26, 2007 judgment of sentence entered in the Court of Common Pleas of Philadelphia County. Appellant was sentenced to concurrent terms of incarceration of eighteen to thirty-six years for attempted murder,1 seven to twenty years for aggravated assault,2 three and one-half to seven years for carrying firearms without a license,3 and one and one-half to five years for possessing instruments of crime.4 After careful review, we affirm.
¶ 2 The trial court summarized the factual and procedural history of this case as follows:5
On February 3, 2006 Complainant Taaqi Brown resided with his father and step-mother at 159 Wyneva Street, Philadelphia, PA and was returning home when he observed Appellant approach him with a gun. N.T.,1 7/27/2007, [at] 48-49, 52-54. Appellant fired one shot at Complainant which did not hit its mark and Complainant began to run. Id. [at] 54. Appellant fired several more shots at the fleeing Complainant, hitting him in the leg and thigh, left groin, shoulder, left hand, middle finger and thumb. Id. 54; See also, N.T. 7/30/2007 [at] 165-170. In all Complainant was shot five times. N.T. 7/27/2007 [at] 59. Complainant testified that he was able to get to his house and was transported to Temple Hospital where he was admitted to surgery and remained for a week. He suffers permanent disability as a result of the shooting. Id. [at] 60-61, N.T. 7/30/2007 [at] 165-170. Complainant also testified that he does not know Appellant well, but that he had previously seen him in his neighborhood. Appellant's nickname is Levi. Id. [at] 58.
1 N.T. refers to the Notes of Testimony taken at the hearing on the Motion to Suppress Identification Evidence and the jury trial before the Honorable Gwendolyn N. Bright on July 24-August 2, 2007, and the Sentencing on October 26, 2007. The specific date to which reference is made follows "N.T.".
Philadelphia Police Officer Daniel Richardson arrived at Complainant's home shortly after the shooting where he observed that Complainant, who was in an emotional and panicked state, had multiple gunshot wounds. Complainant described his assailants as two black males; one six foot one to two inches with a Sunni beard who Complainant knew as Levi and who frequented the nearby corner of Wayne and Seymour, and the other male he described as dressed in black. N.T. 7/27/2007 [at] 101. Ultimately, Complainant positively identified Appellant from a photo array. Id. [at] 109.
At trial Shieed Brown testified that while he and Appellant were cellmates in federal custody on an unrelated matter, Appellant confessed to him that he shot a guy four times with a .45 caliber hand gun in retaliation for the killing of Appellant's friend Spinach, a rapper who resided in the neighborhood. N.T. 7/27/2007 [at] 121-123. Appellant further related to Brown that he knew Complainant was a friend of Spinach's killer and therefore when Appellant saw Complainant he shot him. Id. [at] 122-123.
Alibi evidence was offered through the testimony of Isa Williams that the day before Appellant's arrest, he and his cousin attended a tattoo party at the home of a person he identified as Kia, the mother of Spinach's child, which was a short distance from the location where Complainant was shot. [N.T.] 7/31/2007 [at] 45-50. Williams stated that he arrived at the party at approximately 8:30 PM and that he observed Appellant there at the time Williams arrived. Williams further testified that he left the party at approximately 10:00 PM and that Appellant left the party at the same time. Id. [at] 47, 50.
Trial Court Opinion, 4/17/08, at 3-4 (internal footnotes renumbered).
On February 4, 2006 Appellant was arrested and charged with Aggravated Assault, Attempted Murder, Violation of Section 6106 of the Uniform Firearms Act, Possessing Instruments of Crime, and related offenses, and on August 2, 2007 after a jury trial before this Court he was found guilty of those crimes. On October 26, 2007 Appellant was sentenced to a lengthy term of incarceration. Post Sentence Motions were filed and on November 15, 2007 they were denied. This timely Appeal followed on December 5, 2007.
Trial Court Opinion, 4/17/08, at 1.
¶ 3 Appellant presents the following issues for our review:
1. Whether the verdict was against the evidence.6
2. Whether the verdict was against the weight of the evidence.
3. Whether the Court erred in failing to grant [Appellant's] Motion to Supress [sic] Identification evidence, where it was clear that the [Appellant's] image on the photo array was unduly suggestive so as to violate [Appellant's] constitutional rights.
4. Whether the Court erred [in] refusing to permit the [Appellant] to question the prospective jurors as to their bias/prejudice toward an eyewitness to a crime if they themselves had been an eyewitness to a crime.
5. Whether the Court erred in admitting hearsay which included the victim's statement contained in the 75-48 [Philadelphia Police Report] as an excited utterance where there was an indication that the utterance was a result of questioning as well as the use of the name "Levi".
6. Whether the Court erred in failing to grant a mistrial where evidence was adduced, that the Appellant sold and smoked marijuana and where the Commonwealth referred to the prior bad act in her closing statement.
7. Whether the Court erred in failing to grant a mistrial where evidence was adduced, despite a Court Order, that the [Appellant] was in federal custody.
8. Whether the Court erred in failing to take judicial notice of the Federal Sentencing Guidelines, which prohibited full and fair cross-examination of Shyheed [sic] Brown.
9. Whether the Court erred in failing to grant [Appellant's] Motion for Directed Verdict on the charge of Attempted Murder where the Commonwealth failed to make out the elements of attempted murder and where there was no evidence that the alleged weapon had been pointed at or toward a vital organ or other vital part of the victim's body.
10. Whether the Court erred in permitting the stenographer, during a jury question, to read directly from the 75-48 [Philadelphia Police Report] instead of reading back the testimony of the police officer.
¶ 4 Before we reach the merits of the aforementioned claims, we must first consider whether any of them have been waived. Appellant's first two claims arguably challenge both the sufficiency and weight of the evidence. Initially, we must note that a challenge to the weight of the evidence concedes that the evidence was sufficient to sustain the verdict. Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super.2007), appeal granted in part, denied in part, 596 Pa. 586, 947 A.2d 713 (2008) (citing Commonwealth v. Davis, 799 A.2d 860, 865 (Pa.Super.2002)). In any event, for the reasons set forth below, we find Appellant has waived any challenge to the sufficiency of the evidence raised in his first claim.
Court stated,
¶ 6 The instant 1925(b) statement language does not specify how the evidence failed to establish which element or elements of the offenses for which Appellant was convicted. As this Court stated in Williams, the 1925(b) statement is required to determine Williams, 959 A.2d at 1257. In fact, the 1925(b) statement, as well as the "Statement of Questions Involved" section of his brief, does not explicitly state that the first issue is even a challenge to the sufficiency of the evidence. Furthermore, although the argument section of Appellant's brief presents a vague, undeveloped sufficiency challenge under the first issue, it also does not specify the allegedly unproven elements. Therefore, Appellant's first claim is deemed waived.7
¶ 7 Appellant next argues that the verdict was against the weight of the evidence. Appellant argues that the testimony of the victim, Taaqi Brown, and that of Appellant's cellmate, Shieed Brown, was not credible. Appellant claims that the only unbiased credible witness to testify was Appellant's witness, Isa Williams, who testified that Appellant attended a party the night of the shooting. Appellant's Brief at 17-18.
¶ 8 An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa.Super.2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005) (citing Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa.Super.2003), appeal denied, 574 Pa. 773, 833 A.2d 143 (2003) (quoting Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000))). The Pennsylvania Supreme Court has explained that "[a]ppellate 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." Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial on the basis that the verdict is against the weight of the evidence, this Court has explained that "the evidence must be `so tenuous, vague and uncertain that the verdict shocks the conscience of the court.'" Sullivan, 820 A.2d at 806 (quoting Commonwealth v. La, 433...
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