J-A25021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEFON THOMAS LANDING,

Appellant No. 2101 MDA 2015

Appeal from the Judgment of Sentence November 20, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000854-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 23, 2016

Appellant, Stefon Thomas Landing, appeals from the judgment of 

sentence entered November 20, 2015, in the Court of Common Pleas of 

Lancaster County. We affirm.

The trial court summarized the facts of this case as follows:

On January 4, 2015, the decedent, Devonte Gantt, requested his 

friend, Amos Clay III, to accompany him during a narcotics 

(Marijuana) transaction. Gantt gave Clay a firearm to carry 

during the transaction. Gantt and Clay then left Gantt’s 

residence and met [Appellant], who was purchasing the 

Marijuana. After walking into a nearby corner store to get 

change, [Appellant] walked down the block with Gantt and Clay 

to a breezeway directly adjacent to 711 High Street. Next, Clay 

alleged that after Gantt removed the marijuana, [Appellant] tried 

to grab the bag, and then pulled out a firearm and shot Gantt 

when he resisted. From there, [Appellant] and Clay exchanged 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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gunfire as [Appellant] ran away and both [Appellant] and Clay 

were struck. Gantt ran through the breezeway and into a 

backyard, where he ultimately passed away. [Appellant], on the 

contrary, asserted that Clay shot him first when Gantt handed 

him the Marijuana and, thus, was entitled to a claim of selfdefense. 

Trial Court Opinion, 3/30/16, at 2 (internal citations omitted).

As a result, Appellant was charged with several criminal counts. On 

October 23, 2015, following a jury trial, Appellant was convicted of one 

count each of murder of the third degree, aggravated assault, and firearms 

not to be carried without a license. A pre-sentence investigation report was 

ordered, and on November 20, 2015, Appellant was sentenced to an 

aggregate term of twenty-two and one-half to forty-five years of 

incarceration and restitution. N.T., 11/20/15, at 20-21; Sentencing Order, 

11/20/15, at 1.

On November 24, 2015, the Commonwealth filed a motion to modify 

sentence. By order entered November 25, 2015, the trial court granted the 

motion and thereby amended Appellant’s restitution sentence. Order, 

11/25/15, at 1. Appellant timely appealed. The trial court and Appellant 

complied with the requirements of Pa.R.A.P. 1925. 

On appeal, Appellant presents the following issue for our review:

Did the Trial Court abuse its discretion when it failed to find that 

the verdict was against the weight of the evidence because the 

Commonwealth failed to disprove, beyond a reasonable doubt, 

Appellant’s claim of self-defense where the testimony of the 

Commonwealth’s star and sole eye-witness Amos Clay was so 

contrary to the incontrovertible physical facts as to render 

reliance thereupon shocking to one’s sense of justice? 
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Appellant’s Brief at 4 (footnote omitted). 

We examine a challenge to the weight of the evidence under the 

following standards:

A motion for a new trial based on a claim that the verdict 

is against the weight of the evidence is addressed to the 

discretion of the trial court. 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. 

Rather, the role of 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. It has often been stated that 

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 and 

the award of a new trial is imperative so that right may be given 

another opportunity to prevail.

An appellate court’s standard of review when presented 

with a weight of the evidence claim is distinct from the standard 

of review applied by the trial court:

Appellate 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. Because the trial judge 

has had the opportunity to hear and see the 

evidence presented, an appellate court will give the 

gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the 

weight of the evidence. One of the least assailable 

reasons for granting or denying a new trial is the 

lower court’s conviction that the verdict was or was 

not against the weight of the evidence and that a 

new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (emphasis 

in original) (internal citations and quotation marks omitted).
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Before we can address the merits of Appellant’s claim, however, we 

first must determine whether it has been waived. Rule 607 of the 

Pennsylvania Rules of Criminal Procedure requires, inter alia, that:

(A) A claim that the verdict was against the weight of the 

evidence shall be raised with the trial judge in a motion for a 

new trial:

(1) orally, on the record, at any time before 

sentencing;

(2) by written motion at any time before sentencing; 

or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A); see also Commonwealth v. Priest, 18 A.3d 1235, 

1239 (Pa. Super. 2011). As noted in the comment to this rule, “[t]he 

purpose of this rule is to make it clear that a challenge to the weight of the 

evidence must be raised with the trial judge or it will be waived.” 

Pa.R.Crim.P. 607 cmt. Failure to properly preserve the claim will result in 

waiver, even if the trial court addresses the issue in its opinion. 

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).

Following our thorough review of the transcripts of record, we are 

unable to identify where Appellant orally raised the weight of the evidence 

claim prior to sentencing. Specifically, Appellant did not raise it at the time 

the verdict was rendered, N.T., 1/23/15, at 714-717, nor did he challenge it 

at the sentencing hearing. N.T., 11/20/15, at 1-22. Moreover, Appellant 

fails to direct our attention to any place in the record where he raised the 
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issue prior to sentencing. See Commonwealth v. Samuel, 102 A.3d 1001, 

1005 (Pa. Super. 2014) (“The Rules of Appellate Procedure require that 

appellants adequately develop each issue raised with discussion of pertinent 

facts and pertinent authority. It is not this Court’s responsibility to comb 

through the record seeking the factual underpinnings of an appellant’s 

claim.”). 

Additionally, there is no evidence of record that a written motion 

challenging the weight of the evidence was filed prior to sentencing. There 

is no entry in the docket reflecting such a filing nor has our thorough review 

of the record revealed such. Moreover, Appellant does not cite to any such 

written motion.

Finally, the only post-sentence motion filed in this matter was a 

motion to modify sentence filed by the Commonwealth. Commonwealth’s 

Motion to Modify Sentence, 11/24/15, at 1-3. In that motion, the 

Commonwealth sought to amend the amount of restitution Appellant was 

ordered to pay. Id. The record reflects no post-sentence motion filed by 

Appellant. Again, Appellant fails to identify for this Court any such filing. 

We note that Appellant did raise this issue in his Pa.R.A.P. 1925(b) 

statement. This is insufficient, however, to preserve the claim. 

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) 

(Appellant’s inclusion of the issue in his Pa.R.A.P. 1925(b) statement will not 

save it from being waived where he failed to raise it in the court below); 

see also Sherwood, 982 A.2d at 494 (where the appellant failed to 
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preserve a weight of the evidence claim before the trial court, the fact that 

the appellant included the issue in his Pa.R.A.P. 1925(b) statement and the 

trial court addressed it in its Pa.R.A.P. 1925(a) opinion did not preserve his 

claim for appellate review); Pa.R.A.P. 302(a) (“Issues not raised in the lower 

court are waived and cannot be raised for the first time on appeal”); 

Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278, 1288 (Pa. 

Super. 2004) (en banc) (the fact that an issue is included in a Pa.R.A.P. 

1925(b) statement does not obviate its waiver under Pa.R.A.P. 302(a)).

Our review of the record reveals that Appellant did not present a 

weight of the evidence claim orally or in writing before sentencing or in a 

post-sentence motion. Thus, his claim is waived on this basis.1

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016

____________________________________________

1 Assuming arguendo that Appellant had not waived his weight of the 

evidence claim, we would have affirmed on the basis of the trial court’s 

discussion. Trial Court Opinion, 3/30/16, at 2-5.