J-S13018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

XAVIER ANDERSON HOLLAMON

Appellant No. 827 WDA 2014

Appeal from the Judgment of Sentence April 7, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0003153-2013

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.: FILED MARCH 11, 2015

Appellant, Xavier Anderson Hollamon, appeals from the April 7, 2014 

aggregate judgment of sentence of 121⁄2 to 25 years’ imprisonment, imposed 

after he was found guilty of one count each of attempted murder, recklessly 

endangering another person (REAP), possession of a weapon, carrying a 

firearm without a license, and aggravated assault.1 After careful review, we 

affirm in part and vacate in part. 

The trial court briefly summarized the relevant factual history of this 

case as follows.

The evidence at [Appellant]’s trial revealed 

that [on August 24, 2013, Appellant] pulled out a 

gun and shot the victim[, Dayquan Robison,] at 

____________________________________________

1 18 Pa.C.S.A. §§ 901(a), 2705, 907(b), 6106(a)(2), and 2702(a)(1), 

respectively.
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almost point-blank-range upon confronting him on 

the street. [Dayquan]’s mother was between the 

two at the time trying to get [Appellant] to leave her 

son alone. She testified as to what occurred, and 

more significantly, the shooting was captured in its 

entirety on video via a security camera at the 

location. The jury saw the actual event as it 

occurred.

Trial Court Opinion, 6/20/14, at 1.

On November 23, 2013, the Commonwealth filed an information, 

charging Appellant with the above-mentioned offenses, as well as one 

additional count of REAP. On February 13, 2014, Appellant proceeded to a 

two-day jury trial, at the conclusion of which the jury found Appellant guilty 

of one count each of attempted murder, REAP, possession of a weapon, 

carrying a firearm without a license, and aggravated assault. As to the 

second REAP count, the trial court entered a judgment of acquittal. On April 

7, 2014, the trial court sentenced Appellant to an aggregate term of 121⁄2 to 

25 years’ imprisonment.2 On April 17, 2014, Appellant filed a timely postsentence motion, in which Appellant argued, among other things, that the 

jury’s verdict was against the weight of the evidence. See generally

Pa.R.Crim.P. 607(A)(3). The trial court denied Appellant’s post-sentence 

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2 Specifically, the trial court imposed 121⁄2 to 25 years’ imprisonment for 

attempted murder, three to 60 months’ imprisonment for possession of a 

weapon, three to 60 months’ imprisonment for carrying a firearm without a 

license, six to 12 years’ imprisonment for aggravated assault, and no further 

penalty for REAP. All sentences were to run concurrently to each other.
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motion that same day. On May 15, 2014, Appellant filed a timely notice of 

appeal.3

On appeal, Appellant raises the following three issues for our review.

I. Whether Appellant’s conviction associated with 

a shooting was against the weight of the 

evidence in light of the fact the Commonwealth 

did not disapprove [sic] [] Appellant’s theory of 

[j]ustification[?]

II. Whether the [trial c]ourt erred in its instruction 

relative to the use of deadly force in its jury 

instruction of self-defense/justification cases[?]

III. Whether the issue of mandatory minimum 

incarceration for possession of a firearm during 

the commission of a [sic] the offense should 

have been submitted to the jury pursuant to 

Commonwealth v. Newman, [99 A.3d 86 

(Pa. Super. 2014) (en banc)], 

Commonwealth v. Munday[, 78 A.3d 661 

(Pa. Super. 2013)]; pursuant to the United 

States Supreme Court’s decision in Alleyne v. 

United States, 133 S. Ct. 2151 (2013)[?]

Appellant’s Brief at 3.

In his first issue, Appellant avers that the jury’s verdict was against 

the weight of the evidence. Id. at 6. We begin by noting our well-settled 

standard of review. “A claim alleging the verdict was against the weight of 

the evidence is addressed to the discretion of the trial court.” 

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation 

____________________________________________

3 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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omitted). An argument that the jury’s verdict was against the weight of the 

evidence concedes that the evidence was sufficient to sustain the 

convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), 

cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our 

Supreme Court has admonished that “[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.” Commonwealth 

v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). Instead, “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. (internal quotation marks and 

citation omitted). “[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 ....” Id. 

As an appellate court, it “is not [our role] to consider the underlying 

question of whether the verdict is against the weight of the evidence.” 

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted). 

An argument that the jury’s verdict was against the weight of the evidence 

remains “[o]ne of the least assailable reasons for granting ... a new trial ....” 

Id. (citation omitted). “Thus, only where the facts and inferences disclose a 

palpable abuse of discretion will the denial of a motion for a new trial based 

on the weight of the evidence be upset on appeal.” Id. (citation omitted; 

emphasis in original).
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In this case, Appellant avers the jury’s verdict was against the weight 

of the evidence based on the following.

The review of the transcript in this matter, in 

particular the testimony of [] Appellant, indicated 

that the victim of the shooting in this matter was in 

possession of a firearm at the time [] Appellant took 

the necessary step of shooting the victim to protect 

himself from serious bodily injury or death. 

Furthermore, it was established by additional 

evidence that the victims’ [sic] girlfriend hid the 

weapon in her house. It should be noted “victim” 

[sic] in this case never testified at trial. Therefore, it 

is clear the verdict presented in this case was against 

the weight of the evidence presented at trial. Thus 

Appellants [sic] conviction [sic] should be 

overturned.

Appellant’s Brief at 6 (emphasis in original).

To summarize the evidence, the jury heard testimony from Tabitha 

Robison, Dayquan’s mother, who was present at the time of the shooting. 

Tabitha testified that she received a phone call from Dayquan stating that 

“guys [were] following him and he thought they were going to jump him.” 

N.T., 2/13/14, at 20. Tabitha drove to JJ’s Pub, and Dayquan came out of 

the bar once she arrived via a side door with his girlfriend. Id. at 21. 

Robison noticed two other gentlemen on the other side of the street. Id. at 

22. When Dayquan and his girlfriend came out of the bar, these other two 

men began to walk towards him. Id. According to Tabitha, one of the men, 

in a red shirt, told Dayquan not to disrespect his mother. Id. at 23. Tabitha 

identified Appellant as the man in the red shirt. Id. at 24-25. Tabitha got 

out of her car and told Appellant that she had spoken with his mother and no 
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one disrespected her. Id. at 23. Tabitha got in between Dayquan and 

Appellant. Id. As Tabitha put her arms up between them, Appellant pulled 

out a gun and began shooting. Id. at 24. Dayquan was shot twice. Id. 

Tabitha testified that her son was not armed, nor did he insinuate that he 

was. Id. at 26. The Commonwealth then played security camera footage of 

the incident for the jury.4 Tabitha identified herself and Dayquan in the 

video. Id. at 34. On redirect examination, Tabitha also identified the 

person depicted in the video shooting Dayquan as Appellant. Id. at 40.

Appellant testified in his own defense. Appellant told the jury that he 

approached Dayquan outside the bar to discuss an issue with Appellant’s 

mother owing Dayquan money, and the victim “got aggressive with [him].” 

Id. at 90. Appellant next stated that he saw Dayquan “reach in his pocket 

and ... saw a handle of a gun come out.” Id. at 91. Specifically, the gun 

was a .380. Id. Appellant further testified that he was in fear for his life 

and protected himself as a result. Id. at 97.

It is axiomatic that the jury is the ultimate finder of fact at trial. 

[T]he veracity of a particular witness is a 

question which must be answered in reliance on the 

ordinary experiences of life, common knowledge of 

the natural tendencies of human nature, and 

observations of the character and demeanor of the 

witness. As the phenomenon of lying is within the 

ordinary capacity of jurors to assess, the question of 

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4 Appellant stipulated to the video’s authenticity. N.T., 2/13/14, at 30.
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a witness’s credibility is reserved exclusively for the 

jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted). 

Likewise, “[t]he trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe all, part or none 

of the evidence.” Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa. 

Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).

In this case, the jury was free to find Tabitha’s trial testimony credible, 

find Appellant’s testimony not credible, and resolve any inconsistencies in 

the Commonwealth’s favor. See generally Commonwealth v. Horne, 89 

A.3d 277, 286 (Pa. Super. 2014) (concluding the weight of the evidence 

claim could not prevail as “the jury resolved the inconsistencies among the 

testimonies as it saw fit and reached a verdict[]”). The jury was presented 

with Tabitha’s testimony and Appellant’s. They weighed both and ultimately 

concluded that Tabitha’s testimony was credible and Appellant’s was not 

credible. As an appellate court, we will not reweigh the evidence and 

substitute our judgment for that of the fact-finder. Commonwealth v. 

Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on 

these considerations, we conclude the trial court did not commit a palpable 

abuse of discretion in deciding the jury’s verdict was not against the weight 

of the evidence. See Morales, supra.

In his second issue, Appellant avers that the trial court abused its 

discretion when it failed to give an instruction to the jury based on 
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Pennsylvania’s “Stand Your Ground” law. Appellant’s Brief at 7; see also 

generally 18 Pa.C.S.A. § 505(b)(2.3). Generally, appellate briefs are 

required to conform to the Rules of Appellate Procedure. Pa.R.A.P. 2101. 

Pennsylvania Rule of Appellate Procedure 2119(a) requires that the 

argument section of an appellate brief include “citation of authorities as are 

deemed pertinent.” Id. at 2119(a). This Court will not consider an 

argument where an appellant fails to cite to any legal authority or otherwise 

develop the issue. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 

2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see 

also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) 

(stating, “[f]ailure to cite relevant legal authority constitutes waiver of the 

claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d 603 (Pa. 

2013).

In this case, Appellant’s entire “Stand Your Ground” argument consists 

of one double-spaced paragraph, consisting of 16 lines spanning less than 

one page. See Appellant’s Brief at 7. More importantly, Appellant’s brief is 

devoid of any substantive discussion of our cases involving self-defense, jury 

instructions, or the “Stand Your Ground” statute. Id. Based on these 
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considerations, we deem this issue waived on appeal.5 See Johnson, 

supra; Whitley, supra.

In his third issue, Appellant avers that he received an illegal 

mandatory minimum sentence based on the United States Supreme Court’s 

decision in Alleyne and this Court’s en banc decision in Newman. 

Appellant’s Brief at 8. Specifically, Appellant avers that the trial court 

imposed a mandatory minimum sentence of five years’ imprisonment 

pursuant to Section 9712(a) of the Sentencing Code which resulted in an 

illegal sentence. Id. The Commonwealth acknowledges that Section 9712 

has been declared facially unconstitutional. Commonwealth’s Brief at 3. 

However, the Commonwealth argues that the trial court did not impose an 

____________________________________________

5 The trial court and the Commonwealth both argue that Appellant waived 

this issue for failure to preserve it in the trial court. Commonwealth’s Brief 

at 2-3; Trial Court Opinion, 6/20/14, at 2. However, this contention is belied 

by the record as defense counsel specifically requested the “Stand Your 

Ground” instruction after the end of the first day of trial on the record in 

chambers. N.T., 2/13/14, at 112-117. Defense counsel even read the 

statute to the Commonwealth and the trial court. Id. at 113-114.

However, Section 505(b)(2.3) requires, as a prerequisite to the “Stand 

Your Ground” instruction, that the defendant show some evidence, even 

through his own testimony, that he was “not in illegal possession of a 

firearm[.]” 18 Pa.C.S.A. § 505(b)(2.3). At the time defense counsel 

requested the instruction, defense counsel acknowledged that Appellant was 

never asked whether he was legally permitted to have the firearm he used. 

N.T., 2/13/14, at 114. As no other defense evidence exists supporting even 

a prima facie showing that Appellant was not in illegal possession of a 

firearm, even if this issue were not waived, Appellant would not be entitled 

to relief.
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illegal sentence because the trial court did not rely on any mandatory 

minimum sentencing statute in sentencing Appellant. Id.

We note that Section 9712 has been declared facially unconstitutional 

by this Court under the theory of Newman. See generally 

Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014). 

Additionally, the Commonwealth filed its notice of intent to seek the 

mandatory minimum at Section 9712 on February 18, 2014. It is true that 

the sentence Appellant actually received for attempted murder and 

aggravated assault was above the five-year mandatory minimum sentence 

prescribed by Section 9712. However, in order for Appellant’s sentence to 

be illegal for an unconstitutional application of Section 9712, the trial court 

must have first actually applied Section 9712 in sentencing Appellant. We 

have reviewed the entire sentencing transcript, and at no point in time did 

any party during the sentencing hearing discuss or advocate for or against 

the imposition of any mandatory minimum sentence. As a result, Appellant is 

not entitled to relief on his third issue.

We note however, that our review of the record has revealed an 

additional issue pertaining to the legality of Appellant’s sentence, specifically 

concerning the doctrine of merger. A claim that crimes should have merged 

for sentencing purposes raises a challenge to the legality of the sentence. 

Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009), appeal 

denied, 990 A.2d 730 (Pa. 2010). We begin by noting that a challenge to 
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the legality of the sentence can never be waived and may be raised by this 

Court sua sponte. Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. 

Super. 2014) (citation omitted); see also Commonwealth v. Borovichka, 

18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) (stating, “[a] challenge to the 

legality of a sentence ... may be entertained as long as the reviewing court 

has jurisdiction[]”). It is also well established that “[i]f no statutory 

authorization exists for a particular sentence, that sentence is illegal and 

subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. 

Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id. 

“Issues relating to the legality of a sentence are questions of law[.] ... Our 

standard of review over such questions is de novo and our scope of review is 

plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) 

(citations omitted).

In examining whether Appellant’s offenses should have merged, we 

consider the following. 

The preliminary consideration [in determining 

merger for sentencing purposes] is whether the facts 

on which both offenses are charged constitute one 

solitary criminal act. If the offenses stem from two 

different criminal acts, merger analysis is not 

required. If, however, the event constitutes a single 

criminal act, a court must then determine whether or 

not the two convictions should merge. 

Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008) 

(brackets in original), appeal denied, 991 A.2d 313 (Pa. 2010). 

Furthermore, in order for two convictions to merge, the elements of the 
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lesser-included offense must be subsumed by the elements of the greater 

offense. Specifically, Section 9765 of the Sentencing Code provides as 

follows.

No crimes shall merge for sentencing purposes 

unless the crimes arise from a single criminal act and 

all of the statutory elements of one offense are 

included in the statutory elements of the other 

offense. Where crimes merge for sentencing 

purposes, the court may sentence the [Appellant] 

only on the higher graded offense.

42 Pa.C.S.A. § 9765.

Instantly, as noted above, Appellant received a sentence of 121⁄2 to 25 

years’ imprisonment for attempted murder, and six to 12 years’ 

imprisonment for aggravated assault, all stemming from the one incident in 

this case. Our Supreme Court has held that these crimes merge for 

sentencing purposes.

It is clear that the offense of aggravated assault is 

necessarily included within the offense of attempted 

murder; every element of aggravated assault is 

subsumed in the elements of attempted murder. 

The act necessary to establish the offense of 

attempted murder-a substantial step towards an 

intentional killing-includes, indeed, coincides with, 

the same act which was necessary to establish the 

offense of aggravated assault, namely, the infliction 

of serious bodily injury. Likewise, the intent 

necessary to establish the offense of attempted 

murder-specific intent to kill-is greater than and 

necessarily includes the intentional, knowing, or 

reckless infliction of serious bodily injury, the intent 

required for aggravated assault. It is tautologous 

that one cannot kill without inflicting serious bodily 

injury. 18 Pa.C.S. § 2301. Inasmuch as aggravated 

assault, the lesser offense, contains some, but not all 
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the elements of the greater offense, attempted 

murder, the two offenses merge for purposes of 

sentencing. The sentence for aggravated assault 

must therefore be vacated.

Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).

In this case, the trial court acknowledged at sentencing that attempted 

murder and aggravated assault merge for sentencing purposes. N.T., 

4/7/14, at 6. The Commonwealth agreed with the trial court’s assessment. 

Id. Nevertheless, the trial court still imposed a sentence for both attempted 

murder and aggravated assault, albeit a concurrent sentence. However, it is 

axiomatic that the merger doctrine prohibits any type of sentence being 

imposed. See Anderson, supra. As a result, Appellant’s six to 12 year 

concurrent sentence for aggravated assault is illegal, and subject to vacatur. 

See id.; Rivera, supra; Walls, supra. However, as Appellant’s sentence 

for aggravated assault was a concurrent sentence, our decision does not 

upset the trial court’s sentencing scheme, as Appellant’s aggregate sentence 

remains 121⁄2 to 25 years’ imprisonment. Therefore, we need not remand 

for resentencing. See Commonwealth v. Lomax, 8 A.3d 1264, 1268 (Pa. 

Super. 2010) (stating, “[b]ecause we can vacate the [illegal portion of the] 

sentence without disturbing the overall sentencing scheme, we need not 

remand [for resentencing]”).

Based on the foregoing, we conclude Appellant’s issues on appeal are 

either waived or devoid of merit. However, we also conclude that the trial 

court imposed a partial illegal sentence when it sentenced Appellant for both 
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attempted murder and aggravated assault. Accordingly, the trial court’s 

April 7, 2014 judgment of sentence is affirmed in part and vacated in part.

Judgment of sentence affirmed in part and vacated in part. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/11/2015