J-S74006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WARREN MILLER

Appellant No. 657 EDA 2016

Appeal from the Judgment of Sentence January 12, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012957-2013

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 14, 2016

Appellant Warren Miller appeals from the judgment of sentence 

entered by the Court of Common Pleas of Philadelphia County after a jury 

convicted him of First-Degree Murder, Recklessly Endangering Another 

Person (REAP), Possession of an Instrument of Crime (PIC), Firearms not to 

be Carried Without a License, and Carrying Firearms in Public in 

Philadelphia.1 Appellant argues that there was insufficient evidence to 

support his convictions, contending that the Commonwealth failed to 

disprove his claim of self-defense and show he acted with malice. After 

careful review, we affirm.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(a), 2705, 907(a), 6106(a)(1), and 6108, respectively.
J-S74006-16

- 2 -

The trial court aptly summarized the factual background of this case as 

follows:

On the evening of August 14, 2012, Ramses Everett, his 

brothers Jamar and Amir Everett, and friend Keith Gant played 

basketball in Fairmount Park, 5200 Parkside Avenue, in 

Philadelphia. On the nearby benches, [Appellant] and his 

brother Jaylen smoked marijuana.

At approximately 7:30 p.m., Aara “Azza” Fisher, escorted 

her friend, the decedent Lite Belesky, to the park..., where he 

sought to purchase crack cocaine. At or about 7:45 p.m., 

Belesky called his paramour, Debra Cosenza, to come pick him 

up, as he was intoxicated on Xanax and alcohol and feared 

becoming embroiled in a dispute.

After the phone call, Belesky approached [Appellant] and 

Jaylen Miller and asked them to sell him crack cocaine. 

[Appellant] refused and pointed a black .45 caliber pistol at 

Belesky.

At approximately 8:00 p.m., Cosenza drove near 5200 

Parkside Avenue, where she saw Belesky argue with a group of 

men from 100 feet away. Niema Bray, who drove along Parkside 

Ave. prior to the shooting, saw Belesky stand in front of 

[Appellant] with his hands in the air, as if he was trying to 

surrender. Consanza attempted to call Belesky’s phone but 

suddenly heard five or six shots ring out and saw Belesky fall 

down. Ramses Everett saw [Appellant] stand over Belesky and 

fire three shots into his prone back, stopping only because the 

magazine had emptied. Bray also witnessed [Appellant] stand 

over Belesky and shoot him in the back. Ramses, Jamar, and 

Amir Everett and Gant fled the park via Aberdeen Street. Bray 

observed [Appellant] hide a weapon in his pants and flee behind 

Ramses’ group.

At 8:02 p.m., Officer Daniel Barr and Detective Matthew 

Carey independently received a radio call for shots fired. At 

8:10 p.m., law enforcement officers discovered a hysterical 

Cosenza screaming near Belesky’s unresponsive body. Law 

enforcement discovered no weapons near the body. Medics 

arrived and pronounced Belesky dead at the scene.
J-S74006-16

- 3 -

According to Philadelphia Deputy Medical Examiner Dr. 

Albert Chu, an expert in forensic pathology, Belesky sustained 

five gunshot wounds, including fatal, penetrating wounds to the 

left lateral back, the left lateral lower chest, and left lower center 

back. Belesky further suffered two perforating gunshot wounds 

to the left lateral lower back and to the right posterior proximal 

thigh. The medical examiner recovered three projectiles from 

the body and submitted them to the Police Department. The 

wounds to Belesky’s back and right thigh were consistent with 

Belesky falling face down from the leg wound and sustaining 

three gunshot wounds caused by a shooter standing above and 

behind his body. Dr. Chu concluded, to a reasonable degree of 

medical certainty, that the cause of death was homicide by 

multiple gunshot wounds.

The Philadelphia Police Crime Scene Unit discovered eleven 

fired cartridge casings (“FCCs”) at the crime scene. Officer 

Norman DeFields, a ballistics expert with the Firearms 

Identification Unit, examined each of the FCCs and concluded, to 

a reasonable degree of scientific certainty, that all were fired 

from the same .45 caliber pistol. Officer DeFields further 

determined that the recovered projectiles were .45 caliber and 

fired from the same weapon as the FCCs.

In September 2012, Saheed Hasson, [Appellant’s] friend 

who was in Upper Darby at the time of the shooting, visited 

[Appellant] at an apartment near the crime scene. During the 

ensuing conversation, [Appellant] admitted to shooting Belesky 

in the chest and leg on the evening of the murder, and firing 

three more rounds into Belesky’s back after he fell to the 

ground. On September 20, 2012, Detective Gregory Rodden 

interviewed Hasson at the Homicide Unit, where Hasson 

recounted the contents of his and [Appellant’s] conversation and 

revealed that [Appellant] possessed a black and silver .45 caliber 

pistol prior to the shooting.

On October 1, 2013, Officers James Cook and Alfred 

Hendley arrested [Appellant] and escorted him to Homicide for 

questioning. Since assigned Detectives Rodden, Gary White, and 

Crystal Williams were investigating an unrelated homicide at the 

time, they were precluded from conducting a formal interview 

until 10 a.m. on October 2, 2013. During the interview 

conducted at 11:40 a.m., [Appellant] told detectives that he 
J-S74006-16

- 4 -

fired the entire magazine of his black .45 pistol at Belesky in 

self-defense. [Appellant] further stated that Belesky wielded a 

knife during the incident and that [Appellant] abandoned his 

pistol in the park.

On October 23, 2012, police arrested Ramses Everett on 

unrelated sexual assault charges. On October 25, while Ramses 

Everett remained in custody, Detective Robert Fetters 

interviewed him about the August homicide. During the 

interview, Ramses Everett identified [Appellant] as the shooter, 

[Appellant’s] black .45 caliber pistol as the murder weapon, and 

described how [Appellant] shot the prone Belesky.

Trial Court Opinion, 4/22/16, at 2-5 (internal citations omitted).

After Appellant was charged with first-degree murder and related 

charges, he proceeded to a jury trial. On March 30, 2015, the Honorable 

Steven R. Geroff declared a mistrial when the jury could not return a verdict. 

On January 12, 2016, Appellant was again tried before a jury, who convicted 

Appellant on all the aforementioned charges. On the same day, Appellant 

was given a mandatory life sentence without parole for the first-degree 

murder conviction and concurrent sentences of one to two years 

imprisonment for the Firearms Not to be Carried Without a License 

conviction, three to twelve months for the Carrying Firearms in Public in 

Philadelphia conviction, and three to twelve months for the REAP conviction. 

On January 22, 2016, Appellant filed a timely post-sentence motion 

which the trial court denied on January 26, 2016. Appellant filed a timely 

notice of appeal on February 22, 2016. On February 24, 2016, the trial 

court ordered Appellant to file a Concise Statement of Errors Complained of 

on Appeal pursuant to Pa.R.A.P. 1925(b). On March 11, 2016, Appellant 
J-S74006-16

- 5 -

filed a pro se Concise Statement. On March 18, 2016, John Belli, Esq. 

entered his appearance as Appellant’s counsel and filed a Concise Statement 

on April 19, 2016. In its responsive opinion pursuant to Rule 1925(a), 

although the trial court asserted that Appellant had waived his claims by 

failing to file a timely 1925(b) statement, the trial court reviewed the merits 

of Appellant’s proposed sufficiency challenges.

As an initial matter, we must review the trial court’s assertion that 

Appellant has waived all his claims by failing to file a timely 1925(b) concise 

statement. From our review of the record, we note that Appellant’s trial 

counsel, Leon Goodman, Esq. seemingly abandoned Appellant after he filed 

a timely notice of appeal on Appellant’s behalf. While the docket indicates 

that the trial court’s order directing Appellant to file a 1925(b) statement 

was sent to Atty. Goodman, it is unclear why Atty. Goodman did not respond 

or seek to formally withdraw his representation. The trial court then 

appointed Appellant’s current counsel, John Belli, after the time to file a 

timely 1925(b) statement had elapsed. Atty. Belli then filed a 1925(b) 

statement, but did not expressly seek permission to do so nunc pro tunc.

However, this Court has emphasized that both the complete failure to 

file a 1925(b) statement and the untimely filing of a 1925(b) statement 

constitute per se ineffectiveness in which prejudice is legally presumed, as 

an attorney has no reasonable basis designed to effectuate the client’s 

interest for doing so and waives all issues for appeal. Commonwealth v. 

Burton, 973 A.2d 428, 432–33 (Pa.Super. 2009). As stated above, it does 
J-S74006-16

- 6 -

not appear from the record that Appellant’s trial counsel properly sought to 

withdraw his representation, leaving Appellant without counsel to file his 

1925(b) statement. We note that Atty. Belli could not have filed a timely 

1925(b) statement on Appellant’s behalf as he was appointed after the time 

limit for doing so expired. Thus, Appellant’s failure to file a timely 1925(b) 

statement was a result of his trial counsel’s per se ineffectiveness. 

Pennsylvania Rule 1925(c)(3) provides that “[i]f an appellant in a 

criminal case was ordered to file a Statement and failed to do so, such that 

the appellate court is convinced that counsel has been per se ineffective, the 

appellate court shall remand for the filing of a Statement nunc pro tunc and 

for the preparation and filing of an opinion by the judge.” Pa.R.A.P. 

1925(c)(3). Moreover, in the case of an untimely filing, this Court has 

decided the appeal on the merits when the trial court had adequate 

opportunity to prepare an opinion addressing the issues being raised on 

appeal. Burton, 973 A.2d at 433. Since the trial court in this case filed an 

opinion addressing the claims raised in Atty. Belli’s untimely 1925(b) 

statement, there is no need to remand the case and we may proceed to 

review the merits of this appeal.2

____________________________________________

2 We also note that Appellant filed a pro se concise statement within the 

applicable time period under Rule 1925(b). As a general rule, our courts 

prohibit hybrid representation and do not typically entertain pro se filings 

while an appellant is represented by counsel. See Commonwealth v. Ali,

608 Pa. 71, 89, 10 A.3d 282, 293 (2010); Commonwealth v. Ellis, 534 Pa. 

(Footnote Continued Next Page)
J-S74006-16

- 7 -

Appellant raises the following issues for our review:

A. Must Appellant’s first-degree murder conviction be reversed 

because the Commonwealth failed to present sufficient 

evidence to prove beyond a reasonable doubt that Appellant 

acted with malice and that Appellant did not kill the decedent 

in self-defense or defense of others?

B. Must Appellant’s first PIC and REAP convictions [sic] be 

reversed because the Commonwealth failed to present 

sufficient evidence to prove beyond a reasonable doubt that 

Appellant did not call the decedent in self-defense or in 

defense of others?

Appellant’s Brief, at 3.

In evaluating a challenge to the sufficiency of the evidence, our 

standard of review is as follows: 

We must determine whether the evidence admitted at trial, 

and all reasonable inferences drawn therefrom, when viewed in a 

light most favorable to the Commonwealth as verdict winner, 

support the conviction beyond a reasonable doubt. Where there 

is sufficient evidence to enable the trier of fact to find every 

element of the crime has been established beyond a reasonable 

doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe all, 

part, or none of the evidence presented. It is not within the 

province of this Court to re-weigh the evidence and substitute 

our judgment for that of the fact-finder. The Commonwealth's 

burden may be met by wholly circumstantial evidence and any 

doubt about the defendant's guilt is to be resolved by the fact[-

]finder unless the evidence is so weak and inconclusive that, as 

a matter of law, no probability of fact can be drawn from the 

combined circumstances.

(Footnote Continued) _______________________

176, 180-81, 626 A.2d 1137, 1139–40 (1993). But see Commonwealth 

v. Cooper, 611 Pa. 437, 27 A.3d 994 (2011).
J-S74006-16

- 8 -

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016) 

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

In his sufficiency claims, Appellant claims his first-degree murder 

conviction cannot stand because there was no evidence that he acted with 

malice. Our Legislature defines first-degree murder as an intentional killing, 

that is “willful, deliberate, and premeditated.” 18 Pa.C.S. § 2502(a), (d). To 

sustain a conviction of first-degree murder, the Commonwealth must prove 

beyond a reasonable doubt that: “(1) a human being was killed; (2) the 

accused caused the death; and (3) the accused acted with malice and a 

specific intent to kill.” Commonwealth v. Sanchez, 614 Pa. 1, 23-24, 36 

A.3d 24, 37 (2011). Our Supreme Court has emphasized that “the finder of 

fact may infer malice and specific intent to kill based on the defendant's use 

of a deadly weapon on a vital part of the victim's body.” Commonwealth 

v. Hitcho, ___Pa.___, 123 A.3d 731, 746 (2015) (citing Commonwealth 

v. Arrington, 624 Pa. 506, 86 A.3d 831, 840 (2014), cert. denied, ___U.S. 

___, 135 S.Ct. 479, 190 L.Ed.2d 363 (2014)). 

In this case, the Commonwealth presented evidence from several 

eyewitnesses that Appellant shot the unarmed victim in the chest and the 

thigh. Even after the victim fell to the ground, Appellant continued to fire 

shots into the victim’s back. Consistent with Hitcho, supra, it was 

reasonable for the jury to infer that Appellant acted with malice and 

intended to kill the victim as he shot the victim several times in vital parts of 
J-S74006-16

- 9 -

the victim’s body. Thus, the Commonwealth presented sufficient evidence to 

show Appellant acted with malice and intended to kill the victim.

Appellant does not specifically challenge any other elements of the 

crimes of which he was convicted, but argues that there is insufficient 

evidence to support all of his convictions as the Commonwealth failed to 

disprove that he acted in self-defense or in the defense of others. Appellant 

concedes that he did shoot the victim, but only did so after the victim 

threatened him with a knife.

Section 505 of the Crimes Code authorizes the use of force for selfprotection under the following circumstances: “[t]he use of force upon or 

toward another 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. 18 

Pa.C.S. § 505. Our Supreme Court has further clarified:

By way of background, a claim of self-defense (or 

justification, to use the term employed in the Crimes Code) 

requires evidence establishing three elements: “(a) [that the 

defendant] reasonably believed that he was in imminent danger 

of death or serious bodily injury and that it was necessary to use 

deadly force against the victim to prevent such harm; (b) that 

the defendant was free from fault in provoking the difficulty 

which culminated in the slaying; and (c) that the [defendant] did 

not violate any duty to retreat.” Commonwealth v. Samuel,

527 Pa. 298, 590 A.2d 1245, 1247–48 (1991). See also 

Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449 

(1997); 18 Pa.C.S. § 505.2 Although the defendant has no 

burden to prove self-defense, ... before the defense is properly in 

issue, “there must be some evidence, from whatever source, to 

justify such a finding.” Once the question is properly raised, “the 

burden is upon the Commonwealth to prove beyond a 
J-S74006-16

- 10 -

reasonable doubt that the defendant was not acting in selfdefense.” Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 

630 (1977). 

Commonwealth v. Mouzon, 617 Pa. 527, 531–32, 53 A.3d 738, 740 

(2012).

In this case, there is no evidence to justify a finding that Appellant 

acted in self-defense. The record reveals that three eyewitnesses testified 

that the victim did not lunge at Appellant with a knife. In fact, one witness 

testified that the victim had his hands in the air in an attempt to surrender 

when he was first shot by Appellant. Even after the victim fell face down on 

the ground, the eyewitnesses observed Appellant unloading his firearm into 

the victim’s back. The responding officers did not find a knife on the victim’s 

body or anywhere near the crime scene. From this evidence, it was rational 

for the jury to infer that Appellant’s claim that the victim was armed was 

false, find incredible Appellant’s claim that he reasonably believed it was 

necessary to use deadly force as the victim placed his life in danger. 

Accordingly, we conclude the Commonwealth presented sufficient evidence 

to prove beyond a reasonable doubt that Appellant did not act in selfdefense.

For the foregoing reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.
J-S74006-16

- 11 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2016