J. S69024/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KEVIN WHITE, : No. 2492 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, March 7, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos. CP-51-CR-0013419-2010,

CP-51-CR-0013420-2010, CP-51-CR-0013421-2010

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 22, 2016

Kevin White appeals from the March 7, 2014 judgment of sentence 

resulting from his convictions of third-degree murder, conspiracy to commit 

robbery, three counts of robbery, and two counts of aggravated assault.1 

We affirm.

The trial court recited the following relevant facts:

On July 14, 2010 Anthony White (“Anthony”) 

hosted a party for his friends at his address of 

4913 North Camac Street. On July 15, 2010, at 

approximately 1:00 a.m., Kevin White ([appellant, 

unrelated to Anthony White]) and Lashawn Peterson 

(“Lashawn”) were sitting on the porch of 4939 

Camac Street when they were approached by Lamar 

Clanton (“Lamar”) and Nasir Johnson (“Nasir”). 

Lamar and Nasir discussed robbing the party down 

the block that Anthony was hosting. Lamar and 

 

1 18 Pa.C.S.A. §§ 2502(c), 903(c), 3701(a)(1), 2702(a), respectively.
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Nasir planned to gain entrance to the party while 

[appellant] and Peterson kept watch outside for 

police. The four men then walked down the street to 

Anthony’s house.

At approximately 1:45 a.m., Nasir attempted 

to gain entrance to the party. Anthony refused to let 

Nasir into the party and as Anthony was attempting 

to close the inside door, Lamar ran onto the porch 

with a blue-green garment covering his face and 

fired his gun. The first bullet went through the 

screen door, passed through Anthony’s shoulder, and 

hit Rendell Miller (“Rendell”), [killing him]. Anthony 

then succeeded in closing the door, after which two 

more shots were fired. Another party guest, 

Glenn Thornton (“Glenn”), was seated on a chair 

near the door and was grazed in the chest by a 

bullet. Anthony watched through the window as 

Lamar and Nasir ran off the porch heading northward 

up the street. Throughout this whole time 

[appellant] was standing close by, acting as a 

lookout.

Ryan Hatchell (“Ryan”) was driving down the 

4900 block of North Camac Street at approximately 

1:45 a.m. when he heard the gun shots and saw a 

muzzle flash on the porch of the party house. He 

saw two individuals run from the house toward 

4939 North Camac Street, the house at which 

[appellant] had been sitting earlier that evening. 

Ryan then called the police. In responding to the 

radio call, Officer Comitalo went to 4939 North 

Camac Street and found [appellant] on the porch. 

The officer obtained consent to search the house and 

found Lashawn on the second floor lying down on a 

blue-green shirt with his eyes closed, [in an attempt 

to appear as though he was sleeping]. The shirt 

matched the description of the shooter.

Trial court opinion, 3/20/15 at 3-4.

Following a jury trial, appellant was convicted of the aforementioned 

charges on October 4, 2013. On March 7, 2014, the trial court sentenced 
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appellant to 19-40 years’ imprisonment. Appellant filed post-sentence 

motions on March 14, 2014. On August 7, 2014, the trial court denied 

appellant’s post-sentence motions. Appellant filed notice of appeal on 

August 26, 2014. On October 24, 2014, the trial court ordered appellant to 

produce a concise statement of matters complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Appellant complied with the trial court’s order on 

November 28, 2014. The trial court has filed an opinion pursuant to 

Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

I. Is the Defendant entitled to an arrest of 

judgment on all charges including murder in

the third degree, conspiracy to commit 

robbery, three counts of robbery and two 

counts of aggravated assault where the verdict 

is not supported by sufficient evidence?

II. Is the Defendant entitled to a new trial on all 

charges where the greater weight of the 

evidence does not support the guilty verdict?

Appellant’s brief at 3.

I.

The first issue appellant raises for our review is whether the 

Commonwealth presented sufficient evidence to warrant convictions for 

third-degree murder, robbery, conspiracy to commit robbery, and 

aggravated assault. Before we can address the merits of appellant’s claim, 

we must first determine that appellant’s issues were preserved for the 

purposes of appeal.
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It is well settled that in order to properly preserve issues on appeal for 

a sufficiency of the evidence claim, an appellant is required to specify the 

elements of the crime upon which the evidence presented by the 

Commonwealth was insufficient within his Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Commonwealth v. Manley, 

985 A.2d 256, 262 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa. 

2010), citing Commonwealth v. Williams, 959 A.2d 1252, 1257 

(Pa.Super. 2008). Failure to do so will result in a waiver of appeal for any 

offenses not listed in the concise statement. Williams, 959 A.2d at 1257, 

quoting Commonwealth v. Flores, 921 A.2d 517, 522 (Pa.Super. 2007) 

(emphasis deleted). 

Here, a review of appellant’s concise statement of errors complained of 

on appeal reveals that appellant avers that the Commonwealth presented 

insufficient evidence to warrant convictions for the following offenses: 

third-degree murder, robbery, conspiracy to commit robbery, and 

aggravated assault. Appellant’s concise statement with respect to his 

sufficiency of the evidence claim is as follows:

That the defendant is entitled to an arrest of 

judgment on CP-51-CR-0013421-2010, with regard 

[to] the charges of murder in the third degree, 

robbery and criminal conspiracy to rob—the lead 

murder bill in this matter; an arrest of judgment on 

CP-51-CR-0013420-2010, with regard to the charges 

of aggravated assault and robbery, (victim 

Glenn Thornton); and an arrest of judgment on 

CP-51-CR-0013419-2010, with regard to the charges 

of aggravated assault and robbery, (victim 
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Anthony White), as the evidence on all of the bills is 

insufficient to support the verdict.

The Commonwealth did not prove that the defendant 

was a perpetrator, conspirator, or an accomplice to 

any of the crimes enumerated. Moreover, and with 

regard to the murder bill, the Commonwealth did not 

prove that the defendant acted with malice. With 

regard to the conspiracy bill, the Commonwealth 

utterly failed to prove that the defendant agreed to 

commit any crime with anybody else. Thus, the 

evidence is woefully insufficient to sustain any of the 

jury’s findings and, hence, an arrest of judgment 

must be awarded.

Appellant’s Rule 1925(b) statement, 11/28/14 at 1-2.

With the above statement, appellant has waived any sufficiency of the 

evidence appeal relating to his convictions of robbery and aggravated 

assault because he did not enumerate any element of those crimes, nor did 

he attempt to explain how the evidence was insufficient. See Manley, 

supra at 262. Therefore, we need only address whether the Commonwealth 

presented sufficient evidence to warrant appellant’s conviction of 

third-degree murder and conspiracy to commit robbery. 

In regards to the sufficiency of the evidence of the third-degree 

murder conviction, appellant makes the following argument:

The Commonwealth, as the verdict winner has the 

right to all reasonable inferences flowing from the 

evidence. However, and on the murder bill and 

where the Defendant did not shoot and kill the victim 

and where the Defendant had not entered into a 

conspiracy to murder the victim, and where the 

Defendant rendered no aid in murdering the victim, 

there is simply no basis upon which the Defendant 

could be found guilty of murder.
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Appellant’s brief at 10-11. Appellant’s statement is clearly missing text and 

it is difficult for this court to discern appellant’s exact argument because he 

does not adequately develop his argument that the evidence was not 

sufficient to warrant a conviction of third-degree murder. Moreover, 

appellant does not address the issue that he raised in his Rule 1925(b) 

statement, supra, that the Commonwealth failed to sufficiently prove that 

he acted with malice. Therefore, appellant has waived his sufficiency of the 

evidence claim as it relates to his third-degree murder conviction. See 

Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.Super. 2012) (finding an 

issue to be waived for “bald assertions” without any other relevant analysis).

We now turn to appellant’s claim that the Commonwealth failed to 

present sufficient evidence to warrant a conviction for conspiracy to commit 

robbery. In his brief, appellant admits to entering into a conspiracy to 

commit robbery:

Thus and in that the Defendant did not conspire 

to do anything other but to rob, the Defendant 

should only have been found guilty of criminal 

conspiracy to rob and robbery on the murder bill 

and should not have been found guilty of any offense 

dealing with victims Glen [sic] Thornton and 

Anthony White. Thus, the undersigned respectfully 

requests that an arrest of judgment be granted to 

the Defendant on the charge of murder in the third 

degree on CP-51-CR-0013421-2010 and on all 

charges on the remaining bills.

Appellant’s brief at 14 (emphasis added). By admitting that he should have 

been convicted of conspiracy to commit robbery, appellant is effectively 
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waiving his claim that the evidence was not sufficient, and therefore no relief 

is due.

II.

In his second issue, appellant avers that the verdict is contradictory to 

the weight of the evidence presented. When considering the weight of the 

evidence, we use the following standard:

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 the 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. Widmer, 744 A.2d 745, 753 

(Pa. 2000).

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 
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the limits of a trial court’s decision, we have 

explained:

The term “discretion” imports the 

exercise of judgment, wisdom and skill 

so as to reach a dispassionate conclusion 

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 in 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), quoting Widmer, 

744 A.2d at 753 (citations omitted) (emphasis deleted).

Under his weight of the evidence argument, appellant further attacks 

the sufficiency of the evidence presented by the Commonwealth:

While jury verdicts are almost always sacrosanct, a 

jury verdict can be overturned where there is 

insufficient evidence. A verdict must be based on 

the concept of guilt beyond a reasonable doubt. It 

cannot be based on speculation, conjecture, or 

surmise. All jury verdicts are usually sacrosanct, it is 

not unheard [of] for a jury verdict to be overturned. 

The undersigned would concede that a jury verdict 

would be rarely disturbed on the basis of a claim 

against the sufficiency of the evidence.

Appellant’s brief at 15-16 (emphasis added). Challenges to the sufficiency of 

the evidence and the weight of the evidence are separate claims involving 

different standards of review and relief. See Widmer, 744 A.2d at 
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751-752. Here, by making a sufficiency of the evidence argument under the 

guise of a weight of the evidence claim, appellant waives the latter claim, 

and therefore no relief is due.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/22/2016