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[U] Commonwealth v. Bayete

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHIKUYO ASINIA BAYETE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered November 26, 2012, in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0000473-2012

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

Chikuyo Asinia Bayete ("Appellant") has appealed from the judgment of sentence imposed after a jury convicted him of robbery, criminal conspiracy to com m it robbery, theft by unlawful taking, simple assault, possessing an instrument of crime, and burglary. We affirm.

On July 19, 2013, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. The order stated that "any issue not properly included in the said Statement shall be deemed waived." Appellant filed a statement on August 9, 2013, which contained a single sufficiency issue:

There was insufficient evidence for the jury to find, beyond a reasonable doubt, that [ Appellant] was guilty of the crimes for which he was convicted when (1) prosecution witnesses Jordan Tracy and Jarod Tracy were unreliable since they had been given leniency for criminal charges in return for their testimony [ and] (2) Korrine Carson and Jarod Tracy did not provide sufficient testimony identifying [ Appellant] and (3) no physical evidence was presented by the prosecution to link [ Appellant] to the scene of the crime.

I n his brief filed with this Court, Appellant raises the following five issues:

[1.] THE COURT ERRED IN THIS CASE BY FAILING TO EXCLUDE PHOTOGRAPHS DUE TO THEIR INFLAMMATORY NATURE.
[2.] THE COURT ERRED IN PERMITTING THE PROSECUTION TO INTRODUCE EVIDENCE OF [APPELLANT'S] PREVIOUS FELONY CONVICTION.
[3.] THE COURT ERRED IN FAILING TO ALLOW [APPELLANT] TO PRESENT THE TESTIMONY OF LIONEL SHARROD.
[4.] THE EVIDENCE WAS INSUFFICIENT IN THIS CASE TO PROVE THE CHARGES FOR WHICH [APPELLANT] WAS CONVICTED.
[5.] THE SENTENCE IN THIS CASE WAS MANIFESTLY EXCESSIVE AN[D] CLEARLY UNREASONABLE IN THAT IT WAS IN THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES WITHOUT SUFFICIENT REASONS [sic] BEING SET FORTH ON THE RECORD.

Appellant's Brief at 2.

Based on the foregoing, we find that four of Appellant's five issues are waived because Appellant failed to include them in his Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. Pa.R.A.P. 1925(b)(4)(ii) provides that "The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the [ trial court] judge." Pa.R.A.P. 1925(b)(4)(vii) directs that "Issues not included in the Statement and/ or not raised in accordance with the provisions of this paragraph (b)(4) are waived." See also Commonwealth v. Rolan, 964 A.2d 398 (Pa.Super. 2008) (where the trial court orders a concise statement of matters complained of on appeal, any issue not contained in the statement is waived on appeal).

With regard to Appellant's sufficiency claim raised in his Pa.R.A.P. 1925(b) statement, our standard of review requires that we evaluate the record "in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence." Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). "Evidence will be deem ed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Id. Significantly, "[ we] may not substitute [ our] judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed." Commonwealth v. Ostrosky, 866 A.2d 423, 427 (Pa.Super. 2005).

In his one paragraph argument, Appellant contends that the testimony at trial was insufficient to support his convictions because "none of the witnesses could identify [ Appellant] as being inside the apartment on the night in question." Appellant's Brief at 11. Appellant avers:

[ Appellant's] testimony remained consistent throughout the trial; the [ victim s'] testimony was not consistent. … Further, there was no evidence presented that [ Appellant] assaulted anyone. There was no evidence presented that [ Appellant] had a firearm, and, in fact Shanti Bayete did have a pistol. [ Appellant] tried to pick up his brother after his brother had been shot. That was the extent of his involvement in this case, based on all of the testimony given at trial.

Id. at 11-12.

We note that aside from his assessment of the trial testimony, Appellant fails to develop his sufficiency argument with citation to pertinent legal authority or otherwise. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. B.D.G., 959 A.2d 362 (Pa.Super. 2008).

In the absence of waiver of Appellant's undeveloped sufficiency argument, our review of the record leads us to conclude that Appellant's argument is meritless. Consistent with the notes of trial testimony, the trial court explained:

[ Appellant] was one of two (2) conspirators in a home invasion. (The other was his brother who was shot and killed at the scene.) [ Appellant] was recognized at the scene, after he pulled up his mask while over his brother's body, by one of the victims, Jordan Tracy, whom [ Appellant] looked at before he fled. [ Appellant] was apprehended a short time and distance from the scene, brought back and identified as one of the invaders by all three (3) of the victim s. The issue of credibility as to identification was one for the jury to decide. Defense counsel pointed out and argued all the discrepancies and inconsistencies in the evidence, and it was for the jury to decide who to believe. As the Commonwealth pointed out and the trial transcript bears out, there was sufficient evidence, if believed, upon which a verdict of guilty could legally rest. Neither the fact that the identifying witnesses were given leniency for criminal charges against them, nor the fact there may have been no physical evidence to link [ Appellant] to the crime precludes the possibility of a conviction.

Trial Court Opinion, 8/ 28/ 13, at 1.

One of the robbery victims, Korrine Carson, testified to being robbed, "tased", and hit by two m asked assailants. N.T., 9/ 12/ 12, at 21-23. Another victim, Jordan Tracy, testified that two m asked individuals entered his apartment with guns and a taser, "tased" and pistol-whipped him, then took his safe, and exited the apartment. Id. at 44-50. As the assailants were fleeing, one of them was shot. Id. at 51. Jordan Tracy looked out his window and saw Appellant lift his mask; at that point, Jordan Tracy recognized Appellant, who was dragging the assailant who had been shot. Id. at 51-54. Jordan Tracy knew Appellant's brother. Id. at 56. The third robbery victim, Jarod Tracy, testified to being with his brother, Jordan, and Korrine Carson, when two masked assailants entered the apartment with guns, asking for money. Id. at 76. Although the assailants pointed their guns at Jarod Tracy, he was able to run out of the apartment without being hit . Id. at 78.

Erie Police Officer James Cousins testified to responding to the disturbance and a report of a man shot. Id. at 84. Officer Cousins discovered Korrine Carson and Jordan Tracy, who said they had been robbed, and the deceased body of Shanti Bayete, who the victims identified as one of the robbers. Id . at 86. Officer Cousins observed Korrine Carson to be " very upset, very emotional, shaken. Literally Shaking." Id . at 87. Officer Cousins noted that " Jordan was also upset, borderline anger, but also he had some physical marks on him." Id . at 87-88. Officer Cousins testified that Jarod Tracy then appeared "from the apartment onto the landing." Id. at 89.

Erie Police Detective Eric Sam broak testified to being called to the scene and finding a Smith & Wesson gun, and a clip that belonged to the gun, "maybe two yards from the apartment complex." Id. at 94.

Erie Patrolm an Nick Sadler testified to responding to a dispatch call of shots fired and seeing a person running "from pretty much the exact area where [ the shooting] occurred." Id. at 99-100. Patrolm an Sadler apprehended the person, who was identified as Appellant. Id. at 100. Patrolman Sadler returned to the scene, where the three victims "stated that they saw what happened and knew who it was." Id. at 101. Patrolman Sadler testified:

Three of them stated, you know, I know who robbed me, I could tell you who robbed me. [ I] asked them if they'd be able to identify them, and they said they could. At that point Officer Griffith removed [ Appellant] from his patrol car and they were all positively identified.

I d. Patrolm an Sadler noticed that Appellant had blood on his boots. Id. at 102. Patrolman Sadler testified that Jarod Tracy "said he was the one who shot the individual in the street." Id.

Appellant testified in his defense. Appellant testified that his brother was meeting with Jordan Tracy not to rob him, but to buy "four ounces of kush weed." N.T., 9/ 13/ 12, at 5. Appellant explained that he went looking for his brother because " he was taking too long…for a drug transaction." Id. at 7. Appellant testified that when he approached the Tracys' apartment, he saw his brother laying in the street. Id. at 9. It was at that point Appellant "tried to lift him up" and then "tried to get some help." Id. Appellant admitted that he had blood on him, and a gun, a taser, and some pantyhose were by his brother's body. Id. at 11. He also admitted that his brother was wearing gloves. Id. Appellant denied being inside the Tracys' apartment or robbing them. Id. at 12.

Given the foregoing, there was sufficient evidence to refute the essence of Appellant's sufficiency argument that "none of the witnesses could identify [Appellant] as being inside the [Tracys'] apartment on the night in question." Appellant's Brief at 11. As we may not substitute our judgment for the jury as factfinder, Ostrosky, supra, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.


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