J-S68020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DEMETRIUS YOUNG, :

:

Appellant : No. 460 EDA 2015

Appeal from the Judgment of Sentence December 5, 2014,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0015003-2012

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 16, 2015

Demetrius Young (”Young”) appeals from the judgment of sentence 

entered following is convictions of third-degree murder, carrying a firearm 

without a license, and possession of instruments of crime.1 For the following 

reasons, we affirm.

Young’s convictions stem from an altercation outside of a Philadelphia 

night club that resulted in the death of one man, Marcus Smith (“Victim”). 

The trial court summarized the facts underlying this appeal as follows:

In 2011, [Victim], Felicia Madison, [Victim’s] fiancée, 

and Cortez Pryor were living together. In May of 

2011, Pryor was stopped by the police while driving 

[Victim’s] car. Pryor ran from the police into Madison 

and [Victim’s] house. The police arrested [Victim] 

instead of Pryor. After that incident[,] Pryor and 

[Victim’s] relationship deteriorated. N.T. 12/2/2014 

at 135-39, 146.

 

1 18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 907(a). 
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On April 1, 2012, at about 3:45 a.m., Sheila Williams 

was outside waiting to enter the Wheels of Soul 

nightclub located at 61st and Market Streets in 

Philadelphia. A red car pulled up and Williams heard 

[Young], who was sitting in the passenger seat, 

comment “there go that niggah right there.” Williams 

paid attention to the men because she believed there 

was going to be a fight. The driver, later identified as 

Cortez Pryor, exited the car and met [Victim] at the 

back of the car. [Victim] punched Pryor. [Young] got 

out of the car and grabbed [Victim]. Pryor retrieved 

a firearm from the car and returned to the 

altercation. As soon as [Victim] broke free of 

[Young’s] hold, Pryor shot [Victim]. [Victim] 

immediately fell to the ground and Williams heard 

twenty to thirty shots. After the shooting, [Young] 

and Pryor drove away in the red car towards 60th 

Street. On April 2, 2012, Williams identified codefendant Pryor as the shooter from a photo array. 

On May 2, 2012, Williams identified [Young] from a 

photo array. N.T. 12/2/2014 at 150-60, 168-69, 

171, 209.

On the night of the shooting[,] Darryl Seals, 

[Victim], and James McGill were at the Wheels of 

Soul nightclub at 60th and Market Streets. At 

around 3:45 a.m., McGill and [Victim] left the 

nightclub. Seals heard gunshots and ran outside and 

saw that [Victim] had been shot. Seals got his car 

and drove [Victim] to the Hospital of the University 

of Pennsylvania. N.T. 12/3/2014 at

141 -42, 144, 146 -48.

At 3:58 a.m., [Victim] was pronounced dead at the 

Hospital of the University of Pennsylvania. According 

to Dr. Sam Gulino, the Chief Medical Examiner for 

the County of Philadelphia, Smith suffered ten 

gunshot wounds: four to the leg, three to the chest, 

two to the arm, one to the back, and one to the hip. 

[Victim] suffered injuries to the lung, heart, 

diaphragm, liver, and spine as a result of these 

gunshots. N.T. 12/3/2014 at 109, 111-118.
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Trial Court Opinion, 3/20/15, at 2-4 (footnotes omitted). 

A jury convicted Young of the offenses listed above. On December 5, 

2014, he was sentenced to an aggregate term of nineteen and a half to 

thirty-nine years in prison. On December 15, 2014, Young filed timely postsentence motions, which the trial court denied the following day. One week 

later, on December 23, 2014, Young filed another untimely post-sentence 

motion. The trial court denied this untimely motion on December 31, 2014. 

Young filed his notice of appeal on January 30, 2015. 

On April 2, 2015, this Court issued a rule directing Young to show 

cause why this appeal should not be dismissed as untimely. Young did not 

respond and on May 11, 2015, this Court referred the issue of the timeliness 

of this appeal to the panel assigned to decide the merits of this appeal. 

It is well established that a defendant must file a notice of appeal 

within thirty days of the entry of the judgment of sentence, but that where 

the defendant files timely post-sentence motions, this period is tolled until 

the entry of an order disposing of the post-sentence motion. 

Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004); see also

Pa.R.A.P. 903; Pa.R.Crim.P. 720(A)(2). It is also well established that an 

untimely post-sentence motion does not toll the period of time in which to 

file an appeal. Commonwealth v. Millisock, 873 A.2d 748, 750 (Pa. 

Super. 2005). Thus, the period of time for Young to file a timely appeal 

began to run on the date the trial court denied his post-sentence motion, 
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December 16, 2014. The filing of the second, untimely post-sentence 

motion did not extend the appeal period. Young, therefore, was required to 

file his appeal on or before January 15, 2015. 

While this Court generally cannot extend the time to file an appeal, we 

have allowed exceptions when there has been a “breakdown in the 

processes of the court.” Commonwealth v. Patterson, 940 A.2d 493, 498 

(Pa. Super. 2007). In Patterson, a panel of this Court found such a 

breakdown where the trial court had failed to fulfill the requirements of 

Pa.R.Crim.P. 720(B)(4), which provides: 

An order denying a post-sentence motion ... shall

include notice to the defendant of the following:

(a) the right to appeal and the time limits within 

which the appeal must be filed;

(b) the right to assistance of counsel in the 

preparation of the appeal;

(c) the rights, if the defendant is indigent, to 

appeal in forma pauperis and to proceed with 

assigned counsel as provided in Rule 122; and

(d) the qualified right to bail under Rule 521(B).

Pa.R.Crim.P. 720(B)(4) (emphasis added). The comment to this Rule 

explains the reasoning behind the mandatory inclusion of this information: 

Paragraph (B)(4) protects the defendant’s right to 

appeal by requiring that the judge’s order denying 

the motion, the clerk of courts’ order denying the 

motion by operation of law, or the order entered 

memorializing a defendant’s withdrawal of a postsentence motion, contain written notice of the 
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defendant’s appeal rights. This requirement ensures 

adequate notice to the defendant, which is important 

given the potential time lapse between the notice 

provided at sentencing and the resolution of the 

post-sentence motion. See Rule 704(C)(3). See 

also Commonwealth v. Miller, 715 A.2d 1203 (Pa. 

Super. 1998), concerning the contents of the order 

memorializing the withdrawal of a post-sentence 

motion.

Pa.R.Crim.P. 720, Comment. 

The order entered here by the trial court denying Young’s untimely 

post-sentence motion did not contain any of the information required by 

Rule 720(B)(4); most crucially, it did not inform Young of the time in which 

he had left to file a timely appeal. We addressed the same situation in 

Patterson, as the trial court’s order denying an untimely post-sentence 

motion did not inform the defendant “that, due to the late filing of his postsentence motion, he had to file an appeal within thirty days of the imposition 

of sentence.” Patterson, 940 A.2d at 499. We found that the trial court’s 

failure to comply with Rule 720(B) constituted a breakdown in the court’s 

process that would excuse the untimely filing: 

In our view, the trial court’s failure to comply with 

Rule 720 constitutes a breakdown that excuses the 

untimely filing of Appellant's notice of appeal. While 

Appellant did receive proper notification of his postsentence and appellate rights at the time of 

sentencing, we will not deem partial compliance with 

the rules sufficient. Foremost, the use of the word 

“shall” in Rule 720(B)(4)(a) evinces the mandatory 

nature of the notification. See Commonwealth v. 

Pleger, 934 A.2d 715, 720 (Pa. Super. 2007) 

(stating “shall” evinces a mandatory obligation). 
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Second, the Comment to the Rule clearly states that 

Rule 720(B)(4) serves a distinct purpose from Rule 

704, namely, to ensure adequate notice to the 

defendant given the routine delay between the 

sentencing and the disposition of the post-sentence 

motion. Finally, in the instant case, the trial court’s 

compliance with this rule likely would have obviated 

the untimely filing of the appeal as Appellant had 

over two weeks remaining in the appeal period after 

the trial court entered the order.

In so holding, we do not find that our Court’s 

decision in Dreves, supra, compels us to quash the 

appeal. In Dreves, [] the trial court properly advised 

the appellant of his post-sentence and appellate 

rights at sentencing, the appellant filed a postsentence motion twenty days after the imposition of 

sentence, the trial court denied the motion three 

months later, and the appellant filed a notice of 

appeal within thirty days of the entry of the order 

denying the post-sentence motion. Our Court 

concluded that Appellant filed an untimely postsentence motion, should have filed his notice of 

appeal within thirty days of the imposition of 

sentence, and quashed the appeal. Importantly, the 

Dreves court did not encounter a situation where 

the trial court’s compliance or non-compliance with 

Rule 720 would have impacted upon the timeliness 

of the appeal. In Dreves, the trial court did not 

resolve the untimely post-sentence motion prior to 

the expiration of the appeal period. As such, we find 

Dreves factually distinguishable. Finding that a 

court breakdown occurred, we will entertain the 

merits of the instant appeal.

Id. at 499-500. 

In this case, as in Patterson, the trial court failed to comply with Rule 

720(B)(4) and advise Young of the relevant deadlines for appeal purposes 

following the disposition of his untimely post-sentence motion. Also as in 
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Patterson, Young still had approximately two weeks in which to file a timely 

appeal following the denial of his untimely post-sentence motion. 

Accordingly, we find that the trial court’s failure to comply with Rule 

720(B)(4) constitutes a breakdown so as to excuse Young’s untimely filing of 

his notice of appeal. 

Young has raised two issues on appeal. First, he challenges the 

sufficiency of the evidence to support his convictions of third-degree murder, 

possessing instruments of crime and carrying a firearm without a license. 

Young’s Brief at 15-22. 

The standard we apply in reviewing the sufficiency of 

the evidence is whether viewing all the evidence 

admitted at trial in the light most favorable to the 

verdict winner, there is sufficient evidence to enable 

the fact-finder to find every element of the crime 

beyond a reasonable doubt. In applying the above 

test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note

that the facts and circumstances established by the 

Commonwealth need not preclude every possibility 

of innocence. Any doubts regarding a defendant’s 

guilt may be resolved by the fact-finder 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. The 

Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the 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.
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Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008). 

Young’s argument with regard to his third-degree murder conviction 

does not challenge the presence of evidence that would support his 

convictions, but only the credibility of that evidence. See Young’s Brief at 

17 (“Thus, the DNA evidence against [] Young ... was extremely weak.”), 18 

(characterizing the conclusion that Young restrained Victim as 

“preposterous”). An argument challenging credibility determinations is an 

argument addressed to the weight, rather that the sufficiency, of the 

evidence supporting a conviction. Commonwealth v. Gibbs, 981 A.2d 

274, 281-82 (Pa. Super. 2009). As such, it is irrelevant to a sufficiency 

claim and cannot form the basis for relief. 

With regard to the remaining two convictions, possessing an 

instrument of crime and firearms not to be carried without a license, Young 

argues that the evidence was insufficient to support a finding that he 

possessed the firearm that Pryor used to shoot Victim.2 Young’s Brief at 19-

22. He argues, in sum, that the evidence “established nothing more than 

[Young’s] mere presence in a vehicle in which a weapon had been located, 

 

2

 Both of these offenses require establishing that the accused possessed a 

firearm. 18 Pa.C.S.A. 907(a) (“A person commits a misdemeanor of the first 

degree if he possesses any instrument of crime with intent to employ it 

criminally.”); 18 Pa.C.S.A. § 6106(a)(1) (“[A]ny person who carries a 

firearm in any vehicle or any person who carries a firearm concealed on or 

about his person, except in his place of abode or fixed place of business, 

without a valid and lawfully issued license under this chapter commits a 

felony of the third degree.”). 
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and there was no evidence to demonstrate that he even know [sic] of the 

weapon before [Pryor] went to the car and retrieved it.” Id. at 22. We 

disagree. The Commonwealth presented evidence that Young’s DNA was on 

the grip and trigger of the firearm. N.T., 12/3/14, at 221-241. Considering 

this evidence in the light most favorable to the Commonwealth, we conclude 

that it is sufficient to establish that young possessed the firearm.3 

In his second issue, Young argues that his convictions are against the 

weight of the evidence. Young’s Brief at 22. 

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.

This does not mean that the exercise of discretion by 

the trial court in granting or denying a motion for a 

new trial based on a challenge to the weight of the 

evidence is unfettered. In describing the limits of a 

trial court's discretion, we have explained[,] [t]he 

term ‘discretion’ imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate 

conclusion within the framework of the law, and is 

 

3

 Tellingly, Young does not mention this evidence in his argument as to the 

sufficiency of the evidence to support these offenses. See Young’s Brief at 

19-22. 
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not exercised for the purpose of giving effect to the 

will of the judge. Discretion must be exercised on the 

foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. 

Discretion is abused where the course pursued 

represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or 

where the law is not applied or where the record 

shows that the action is a result of partiality, 

prejudice, bias or ill-will. 

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

original) (citations omitted).

Accordingly, we are mindful that as we review Young’s claim, we are 

not passing on the underlying question of whether the verdicts were against 

the weight of the evidence, but rather we are considering whether the trial 

court abused its discretion in denying his motion based upon his claim that 

the verdict was against the weight of the evidence. We are focused, 

therefore, on evidence that the trial court’s ruling is “manifestly 

unreasonable or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill-will.” Id. 

Young, however, fails to appreciate the scope and standard of our 

review. He does not present any argument as to how the trial court abused 

its discretion in denying his post-trial motion. He argues only that the 

evidence supports his version of events and assails the jury’s credibility 

determinations and fact finding. Young’s Brief at 22-25. Thus, his argument 

is directed to the underlying question of whether his convictions are against 
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the weight of the evidence. As stated above, this is not the question before 

us for review. He does not allege how the trial court’s denial of his claim is 

“manifestly unreasonable or where the law is not applied or where the 

record shows that the action is a result of partiality, prejudice, bias or illwill.” Clay, 64 A.3d at 1055. 

Young has not provided us with appropriate argument relative to our 

standard of review, and this Court will not develop an argument on his 

behalf. See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 

2006). In addition, however, we note that our independent review of the 

record provides us with ample support for the conclusion that the trial court 

did not abuse its discretion in deciding that the verdicts in this case were not 

against the weight of the evidence. We therefore find no merit to Young’s 

claim.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2015