J-S74016-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ROBERT JOHNSON, :

:

Appellant : No. 35 EDA 2014

Appeal from the Judgment of Sentence December 11, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0011137-2012

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 23, 2014

Robert Johnson (“Johnson”) appeals from the December 11, 2013 

judgment of sentence entered by the Philadelphia County Court of Common 

Pleas. Upon finding that Johnson waived the issues raised, we dismiss the 

appeal.

The trial court summarized the factual history of the case as follows:

[Johnson] was arrested July 11, 2012 after 

police officers recovered a firearm from a vehicle in 

which [Johnson] was the front seat passenger. The 

record from trial shows that Police Officers James 

Battista and Joseph lnnamorato pulled over a vehicle 

for a Motor Vehicle Code violation. The driver and 

[Johnson] showed their hands as police approached 

the stopped car and then provided the police with 

their identification[s]. After running the vehicle 

occupants’ names through the computer system in 

the police car and discovering there was an 

outstanding warrant for [Johnson]’s arrest,[FN]1 the 

police officers returned to the stopped vehicle. Both 

officers noticed the driver and [Johnson] reaching 
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towards the floor area of the car. Officer Battista 

asked [Johnson] to put up his hands and exit the 

vehicle. Officer Battista then observed that the floor 

mat below where [Johnson] had been sitting was 

raised and there appeared to be an object 

underneath it. After placing [Johnson] under arrest 

based upon his outstanding warrant, Officer Battista 

looked under the floor mat and recovered a black .45 

caliber handgun loaded with nine live rounds of 

ammunition. The driver of the vehicle was also 

placed under arrest and police recovered narcotics 

from his person. (N.T. 7/17/13, p. 51-85, 130).

On July 17-18, 2013, [Johnson] appeared 

before this [c]ourt for a trial by jury. Although 

[Johnson] initially was charged with three violations 

of the Uniform Firearms Act: Carrying a Firearm 

Without a License (18 Pa.C.S. § 6106), Carrying 

Firearms on Public Streets or Public Property in 

Philadelphia (18 Pa.C.S. § 6108); and Persons Not to 

Possess, Use, Manufacture, Control, Sell or Transfer 

Firearms (18 Pa.C.S. § 6105), the Commonwealth 

chose to proceed on only the § 6105 charge. 

[Johnson] stipulated at trial that he belonged to a 

class of persons not permitted to carry firearms. 

(N.T. 7/7/13, p. 162). The jury found [Johnson] 

guilty. 

On December 11, 2013, this [c]ourt sentenced 

[Johnson] to 5 to 10 years [of] state incarceration, 

to be served consecutively to any other sentence. As 

conditions of his sentence, he was ordered to 

undergo random urinalysis, obtain his GED, complete 

a job training program, attend drug treatment, seek 

and maintain employment, stay out of trouble with 

the law, and pay mandatory court costs. (N.T. 

12/11/13, p. 19).

__________________________________

[FN]1

 This fact was not made known to the jury. 

Instead, Officer Battista simply testified that he 

returned to the car “[b]ased on information that [he] 

received after running [Johnson]’s name through the 

computer.” (N.T. 7/17/13, p. 59).
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Trial Court Opinion, 5/30/14, at 1-2 (footnote in the original).

Johnson filed a timely notice of appeal, followed by a court-ordered 

concise statement of errors complained of on appeal. He raises the following 

issues for our review:

A. Did the [trial c]ourt err in allowing a jury trial to 

proceed with only the VUFA 6105 charge, when 

[Johnson] was also charged with VUFA 6106 and 

6108, and stipulated that he was in a class of 

citizens barred from ever legally possessing a firearm 

due to a prior conviction[?] Under the particular 

circumstances of this case, the VUFA 6105 charge 

should have been severed and decided separately 

from the other two charges to avoid undue 

prejudice. The case was a constructive possession 

case[;] therefore, if the jury would have found 

[Johnson] guilty of VUFA 6106, then the severed 

part of the case would have been very easy to 

stipulate to the former conviction and have the jury 

deliberate (probably for 2 minutes) that [Johnson] 

was also guilty of VUFA 6105. There was a 

stipulation that the firearm was operable, so that 

added element to VUFA 6106 as opposed to VUFA 

6105 would not have resulted in any confusion for 

the jury.

B. Did the [trial c]ourt err by not giving a curative 

instruction at any point during the trial or at the 

opening and closing statement of the Assistant 

District Attorney, where that attorney inappropriately 

referred to [Johnson] legally not being able to 

possess a firearm, and referring to the State 

Legislature putting [Johnson] in a category of people

who cannot possess a firearm[?]

Johnson’s Brief at 3.
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Johnson’s lengthy first issue boils down to a simple claim – that the 

Commonwealth should not have been permitted to withdraw the charge of 

carrying a firearm without a license1and proceed solely on the charge of 

possession of a firearm by a prohibited person.2 Rather, according to 

 

1

 The Uniform Firearms Act defines carrying a firearm without a license as 

follows:

(1) Except as provided in paragraph (2), any 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.

(2) A person who is otherwise eligible to possess a

valid license under this chapter but 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 and has not committed 

any other criminal violation commits a misdemeanor 

of the first degree.

18 Pa.C.S.A. § 6106(a) (footnote omitted).

2

 Section 6105(a) of the Uniform Firearms Act defines possession of a 

firearm by a prohibited person as follows:

(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence 

or whose conduct meets the criteria in subsection (c) 

shall not possess, use, control, sell, transfer or 

manufacture or obtain a license to possess, use, 

control, sell, transfer or manufacture a firearm in this 

Commonwealth.
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Johnson, the trial court should have required the Commonwealth to try him 

on both charges and bifurcated the verdict so that the jury was required to 

determine whether he carried a firearm without a license, and only then 

consider whether he was a person prohibited from carrying a firearm. 

Johnson’s Brief at 8, 12-13. The Commonwealth contends that this claim is 

waived, as Johnson failed to object at the time the Commonwealth informed 

the trial court that it was proceeding solely on the prohibited person charge. 

Commonwealth’s Brief at 6-7. 

“[T]o preserve a claim of error for appellate review, a party must 

make a specific objection to the alleged error before the trial court in a 

timely fashion and at the appropriate stage of the proceedings; failure to 

raise such objection results in waiver of the underlying issue on appeal.” 

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (citations 

omitted). In violation of our Rules of Appellate Procedure, Johnson fails to 

identify in his appellate brief where in the record he preserved the issue 

raised. See Pa.R.A.P. 2117(c), 2119(e). Indeed, Johnson does not claim to 

 

(2)(i) A person who is prohibited from possessing, 

using, controlling, selling, transferring or 

manufacturing a firearm under paragraph (1) or 

subsection (b) or (c) shall have a reasonable period 

of time, not to exceed 60 days from the date of the 

imposition of the disability under this subsection, in 

which to sell or transfer that person's firearms to 

another eligible person who is not a member of the 

prohibited person's household.

18 Pa.C.S.A. § 6105(a).
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have raised the issue before the trial court. See generally Johnson’s Brief 

at 7-13. The law is well settled that issues not raised before the trial court 

are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 

302(a); see also Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. 

Super. 2009) (finding an argument raised on appeal waived based upon the 

appellant’s failure to identify where in the record he raised the argument 

before the trial court). 

Although not the duty of this Court when conducting appellate review, 

we nonetheless scoured the record in an attempt to discern where, if at all, 

Johnson preserved this issue for our review. Our search proved fruitless, as 

the certified record on appeal does not include a transcription of the 

Commonwealth withdrawing the charge of carrying a firearm without a 

license. 

It is black letter law in this jurisdiction that an 

appellate court cannot consider anything which is not 

part of the record in the case. It is also well[]settled 

in this jurisdiction that it is Appellant’s responsibility 

to supply this Court with a complete record for 

purposes of review. A failure by Appellant to insure 

that the original record certified for appeal contains 

sufficient information to conduct a proper review 

constitutes waiver of the issue sought to be 

examined.

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007) 

(internal citations omitted). Therefore, we find this issue waived.

As his second issue on appeal, Johnson asserts that the trial court 

erred by failing to provide a curative instruction to the jury regarding the 
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Commonwealth’s opening statement, during which the Commonwealth said: 

“This defendant, Robert Johnson, can never own, possess, control[, or] carry 

a firearm, a gun, a handgun, a rifle, any kind of gun, ever, never [sic].” 

N.T. 7/17/13, at 36. He baldly states that this amounted to “prosecutorial 

misconduct” and that the trial court’s failure to address this with the jury 

“was gross error,” depriving Johnson of “his right to a fair and impartial trial 

guaranteed under the laws of the Commonwealth of Pennsylvania and the 

United States of America.” Johnson’s Brief at 14. He does not develop any 

argument in support of these claims, nor does he cite to any legal authority. 

The Commonwealth again asserts that this issue is waived for a number of 

reasons, one of which is Johnson’s failure to cite to a single legal authority in 

support of his argument or engage in any meaningful analysis. 

Commonwealth’s Brief at 9. 

Rule of Appellate Procedure 2119(a), governing the argument section 

of an appellate brief, requires: “The argument ... shall have at the head of 

each part--in distinctive type or in type distinctively displayed--the particular 

point treated therein, followed by such discussion and citation of authorities 

as are deemed pertinent.” Pa.R.A.P. 2119(a). “This Court is neither 

obliged, nor even particularly equipped, to develop an argument for a party. 

To do so places the Court in the conflicting roles of advocate and neutral 

arbiter.” Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 

2008) (en banc) (internal citations omitted). Thus, where an appellant cites 
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no legal authorities and fails to develop meaningful analysis of the argument 

raised, the issue is waived for lack of development. Commonwealth v. 

Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal denied, 95 A.3d 

275 (Pa. 2014). 

Johnson’s violations of the Rules of Appellate Procedure leave us with 

no issues to review on appeal. 

Briefs and reproduced records shall conform in all 

material respects with the requirements of these 

rules as nearly as the circumstances of the particular 

case will admit, otherwise they may be suppressed, 

and, if the defects are in the brief or reproduced 

record of the appellant and are substantial, the 

appeal or other matter may be quashed or 

dismissed.

Pa.R.A.P. 2101. We therefore dismiss his appeal.

Appeal dismissed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014