J-S19012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHNNIE O. KELLY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1421 EDA 2021

Appeal from the Judgment of Sentence Entered July 1, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008582-2018

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JULY 25, 2022

Johnnie O. Kelly appeals from the judgment of sentence of life 

imprisonment without parole entered in the Philadelphia Court of Common 

Pleas on July 1, 2021, after a jury found him guilty of first-degree murder and 

related charges. In his sole issue on appeal, Kelly argues the evidence 

presented at trial was insufficient to support his conviction for first-degree 

murder. We are constrained to conclude that Kelly’s sufficiency claim is 

waived, as his Rule 1925(b) statement did not adequately identify the errors 

that he intended to challenge on appeal. 

It is well-established that any issue not raised in a Rule 1925(b) 

statement will be deemed waived for appellate review. See Commonwealth 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S19012-22

- 2 -

v. Lord, 719 A.2d 306, 309 (Pa. 1998). Further, an appellant’s concise 

statement must identify the errors with sufficient specificity for the trial court 

to identify and address the issues the appellant wishes to raise on appeal. See

Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely 

identify each error that the appellant intends to assert with sufficient detail to 

identify the issue to be raised for the judge”). A Rule 1925(b) concise 

statement that is too vague can result in waiver of issues on appeal. See 

Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001) (“a 

[c]oncise [s]tatement which is too vague to allow the court to identify the 

issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement 

at all”).

If [an appellant] wants to preserve a claim that the evidence was 

insufficient, then the 1925(b) statement needs to specify the 

element or elements upon which the evidence was insufficient. 

This Court can then analyze the element or elements on appeal. 

[Where a] 1925(b) statement [ ] does not specify the allegedly 

unproven elements[,] ... the sufficiency issue is waived [on 

appeal].

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation 

omitted). Further, waiver applies even where the trial court addresses the 

issue in its Rule 1925(a) opinion and where the Commonwealth does not 

object to the defective Rule 1925(b) statement. See Commonwealth v. 

Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (“The Commonwealth's 

failure and the presence of a trial court opinion are of no moment to our 

analysis because we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, 
J-S19012-22

- 3 -

not in a selective manner dependent on an appellee's argument or a trial 

court's choice to address an unpreserved claim.”) (citations omitted); see 

also Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017). 

Here, Kelly's Rule 1925(b) statement simply includes multiple blanket 

statements, declaring the evidence was insufficient to convict him of each 

charge. See Appellant's 1925(b) Statement, 8/6/2021. While Kelly asserted 

six claims of error in his 1925(b) statement, he only pursues one on appeal, 

regarding the sufficiency of his first-degree murder conviction. In his Rule 

1925(b) statement, Kelly simply asserts “[t]he evidence introduced at trial 

and all reasonable inferences derived from the evidentiary record, viewed in 

the light most favorable to the Commonwealth as verdict winner, is insufficient 

to establish all elements of 1st degree murder beyond a reasonable doubt, as 

to this Defendant.” Id. The statement fails to “specify the element or elements 

upon which the evidence was insufficient” to support Kelly’s convictions. As a 

result, we must conclude Kelly’s sufficiency of the evidence claim is waived on 

appeal. See Williams, 959 A.2d at 1257-1258.

Even if Kelly had properly preserved this issue in his 1925(b) Statement, 

it would merit no relief.1 Kelly highlights the testimony of one eyewitness who 

____________________________________________

1 Our standard of review for a challenge to the sufficiency of the evidence is 

to determine whether, when viewed in a light most favorable to the verdict 

winner, the evidence at trial and all reasonable inferences therefrom are 

sufficient for the trier of fact to find that each element of the crimes charged 

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836 

(Footnote Continued Next Page)
J-S19012-22

- 4 -

testified that the shooting stemmed from a heated argument. Kelly asserts 

that the existence of this testimony demonstrates that the evidence was 

insufficient to prove that he acted with the specific intent to kill. See 

Appellant’s Brief, at 9. However, Kelly’s argument fails to acknowledge that a 

fact-finder can infer specific intent to kill where the accused used a deadly 

weapon on a vital part of the victim’s body. See Commonwealth v. Smith, 

985 A.2d 886, 896 (Pa. 2009) (finding evidence that victim suffered gunshot 

wounds to the torso was sufficient evidence for fact-finder to infer specific 

intent to kill). Here, the Commonwealth presented evidence that the victim 

suffered a fatal gunshot wound to the back of his torso. See Commonwealth’s 

Exhibit 45. 

As Kelly’s sole issue raised on appeal is waived, we affirm the judgment 

of sentence. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

____________________________________________

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden 

of proving every element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 

661 (Pa. Super. 2007) (citation omitted). 

“[T]he facts and circumstances established by the Commonwealth need not 

preclude every possibility of innocence.” Id. (citation omitted). “As an 

appellate court, we do not assess credibility nor do we assign weight to any 

of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584 

(Pa. Super. 2004) (citation omitted). Thus, we will not disturb the verdict 

“unless the evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined circumstances.” Bruce, 

916 A.2d at 661 (citation omitted). 
J-S19012-22

- 5 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2022