J. S45018/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COUR T OF : PENNSYLVANIA : v. : : DAVON JONES, : Appellant : : No. 1467 WDA 2015

Appeal from the Judgment of Sentence September 2, 2 015 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000530-2015

BEFORE: OLSON, DUBOW AND PLATT, JJ. *

MEMORANDUM BY DUBOW, J.: FILED AUGUST 30, 2016 Appellant, Davon Jones, appeals from the Judgment o f Sentence entered in the Erie County Court of Common Pleas on September 2, 2015, following his convictions for Aggravated Assault an d Recklessly Endangering Another Person. Appellant challenges the sufficien cy of the evidence for each of these offenses. After careful review, we c onclude that Appellant waived this argument by failing to properly develop it in his Brief to this Court. A detailed factual and procedural history is unnece ssary to our disposition. For purposes of this Memorandum, we s ummarize the facts and

* Retired Senior Judge Assigned to the Superior Cour t.J.S45018/16

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procedural history as follows. During the early mo rning hours of Christmas Day, 2015, security footage from Juliet’s—a strip cl ub—captured Appellant and the victim, D’Angelo Troop (“Troop”), engage in a verbal dispute over a woman. The argument continued in the parking lot o ut front, where additional security cameras captured Troop leaving the scene in his vehicle, followed closely behind by Appellant. Troop drove a few blocks before his car was overtaken by Appellant’s vehicle. Troop wa s shot five times in the chest, face, and neck. While still in the hospital recovering from his inj uries, Troop gave multiple statements identifying Appellant as the sh ooter, including a recorded statement to investigators in which Troop stated that he saw Appellant reach his hand out of the other vehicle a nd fire the shots that hit him. Troop also identified Appellant as the shoote r in a photo array. As trial approached, Troop became increasingly unco operative with the prosecution. At trial, Troop denied seeing Appella nt shoot him and claimed not to know who the shooter was. The Commonwealth introduced Troop’s prior statements identifying Appellant as the shoot er as substantive evidence in its case-in-chief. On July 24, 2015, a jury found Appellant guilty of Aggravated Assault and Recklessly Endangering Another Person. 1 On September 2, 2015, the

1 Appellant was charged with various additional offe nses including, inter alia , Attempted Murder, Conspiracy, and firearms charges. The jury acquittedJ.S45018/16

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trial court sentenced Appellant to a term of ten to twenty years of
incarceration. Appellant timely appealed. Both Appellant and the trial court satisfied the requirements of Pa.R.A.P. 1925. Appellant raises the following issue on appeal: The evidence in this case was insufficient to prove that [Appellant] had the mens rea to commit the crimes or that he actually committed the crimes. Appellant’s Brief at 2. Before we reach the merits of the issue raised on a ppeal, we determine whether the issue was properly preserved and developed for
review. Our Pennsylvania Rules of Appellate Procedure and o ur case law lay out the well-established requirements for preservin g a claim for appellate review. This Court will address only those issues properly presented and developed in an appellant’s brief as required by ou r rules of appellate procedure, Pa.R.A.P. 2101-2119. “Appellate argumen ts which fail to adhere to these rules may be considered waived, and argume nts which are not appropriately developed are waived.” Karn v. Quick & Reilly Inc , 912 A.2d 329, 336 (Pa. Super. 2006)

. Thus, issues raised in a Brief’s Statement of Questions Involved but not developed in the Brie f’s argument section will

Appellant on some of these charges and was unable t o reach a verdict on the remaining charges.J.S45018/16

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be deemed waived. Harkins v. Calumet Realty Co. , 614 A.2d 699, 703 (Pa. Super. 1992). To properly develop an issue for our review, Appell ant bears the burden of ensuring that his argument section includ es citations to pertinent authorities as well as discussion and analysis of t he authorities. See Pa.R.A.P. 2119(a); Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to prese nt arguments that are sufficiently developed for our review. The brief m ust support the claims with pertinent discussion, with references to the record and with citations to legal authorities.” (citation omitted)). Where an Appell ant’s argument rests on evidence in the record, he must make appropriate ci tations to the record in his argument. Commonwealth v. Franklin , 823 A.2d 906, 910 (Pa. Super. 2003). As this Court has made clear, we “will not act as c ounsel and will not develop arguments on behalf of an appellant.” Hardy , 918 A.2d at 771. Where defects in a brief “impede our ability to con duct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.” Id. In the instant case, Appellant seemingly attempts t o challenge both his identity as the shooter and, assuming he was the sh ooter, his mental state at the time of the offense. Questions of identity and mental state are distinct issues that Appellant should have properly divided into separateJ.S45018/16

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argument sections. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are questions to be arg ued”). Instead, the argument section of Appellant’s Brief to this Court is a wholly confusing amalgamation of de minimis boilerplate case law regarding mens rea and cursory discussion and analysis of the identity evi dence presented at trial. Appellant failed to develop his assertion that he l acked the necessary

mens rea to commit the offense. At best, Appellant’s brief makes a bald assertion that he lacked the mens rea to commit Aggravated Assault and Recklessly Endangering Another Person. While Appel lant’s Brief does lay out the elements of each offense, and cites case law re garding the necessary

mens rea , Appellant does not in any way discuss the case la w, apply the facts of his case to the case law cited, or discuss how those facts fail to make out the required mental states. Instead, Appellant summarily avers that he lacked t he required mens

rea because he was not in any way involved in these cr imes. This is an issue of identity, not mental state, and as such, A ppellant was required to provide this Court with relevant authority and anal ysis regarding identity. And while Appellant does discuss the facts of his c ase in challenging his identity as the shooter, he does so without a singl e citation to relevant authority. Appellant’s failure to adhere to the rules of appel late procedure and to develop either claim prevents this Court from condu cting a meaningfulJ.S45018/16

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appellate review. Therefore, we conclude Appellant has waived his issues. Accordingly, we affirm. Judgment of Sentence affirmed. Jurisdiction relinq uished. Judges Olson and Platt both Concur in Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/30/2016