J-S34038-24
2024 PA Super 269
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOMMIE HOLMES :
:
Appellant : No. 489 WDA 2024
Appeal from the Judgment of Sentence Entered October 12, 2022
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001921-2020
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: November 13, 2024
Appellant, Tommie Holmes, appeals from the judgment of sentence
entered in the Court of Common Pleas of Washington County after a jury found
him guilty of numerous drug offenses, enumerated infra. Sentenced to an
aggregate sentence of not less than 10 years nor more than 20 years’
imprisonment, Appellant raises challenges to the sufficiency of the evidence,
to an evidentiary ruling, and to the Commonwealth’s use of a peremptory
strike on an African American juror. After careful consideration, we affirm.
The trial court opinion sets forth the pertinent procedural history of the
case, as follows:
On September 23, 2020, Detectives Jason Fichter and Ryan
McWreath of the Washington County Drug Task Force filed a
criminal complaint against Appellant, through which Appellant was
charged with the [firearm offenses and drug offenses, see infra].
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* Former Justice specially assigned to the Superior Court.
J-S34038-24
Appellant was arrested that same day and was unable to post bail.
Thereafter, Appellant’s preliminary hearing was held on October
26, 2020, before Magisterial District Juge Robert Redlinger and all
charges were held for court.
On November 13, 2020, the Commonwealth filed a Bill of
Information against Appellant which contained the following
charges: Count 1, Possession of a Firearm Prohibited, 18 Pa.C.S.
§ 6105(a)(1), a Felony of the Second Degree; Count 2, Possession
with Intent to Deliver a Controlled Substance, Marijuana, 35 P.S.
§ 780-113(a)(30), an ungraded Felony; Count 3, Criminal
Conspiracy – Possession with Intent to Deliver a Controlled
Substance, Marijuana, 18 Pa.C.S. § 903(a)(1)/35 P.S. § 780-
113(a)(30), an ungraded Felony; Count 4, Possession with Intent
to Deliver a Controlled Substance, Cocaine, 35 P.S. §780-
113(a)(30), an ungraded Felony; Count 5, Criminal Conspiracy –
Possession with Intent to Deliver a Controlled Substance, Cocaine,
18 Pa.C.S. § 903(a)(1)/35 P.S. § 780-113(a)(30), an ungraded
Felony; Count 6, Possession of a Controlled Substance,
Marijuana, 35 P.S. § 780-113(a)(16), an ungraded Misdemeanor;
Count 7, Possession of a Controlled Substance, Cocaine, 35 P.S.
§ 780-113(a)(16), an ungraded Misdemeanor; and Count 8,
Possession of Drug Paraphernalia, Plastic Baggies and/or Digital
Scales, 35 P.S. § 780-113(a)(32), an ungraded Misdemeanor.
....
Appellant’s jury trial commenced on July 12, 2022, and lasted two
days. [Appellant was represented by counsel throughout.] On
July 14, 2022, at the conclusion of trial, the jury found Appellant
guilty at [Counts 2, 3, 4, 5, 6, 7, and 8]. Appellant was found not
guilty at Count 1, Possession of a Firearm Prohibited. The [trial
court] deferred sentencing to October 12, 2022, [to afford time
for the completion of a presentence investigation report].
On October 12, 2022, the [trial court imposed an aggregate
sentence of no less than 10 years to no more than 20 years’
incarceration], to be followed by 12 months of reentry
supervision. Appellant was given time served as calculated by the
Department of Corrections.
On October 24, 2022, Appellant filed a post-sentence motion,
through which Appellant raised a Motion for Judgment of Acquittal,
a Motion for a New Trial, and a Motion to Modify Sentence. A
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hearing on Appellant’s post-sentence motion was held on
November 28, 2022. Following the hearing, [the trial court], in
an order dated February 17, 2023, denied Appellant’s post-sentence motion in its entirety.
[Appellant filed a timely counseled appeal. Counsel failed to file
both a court-ordered Pa.R.A.P. 1925(b) concise statement and an
appellate brief, with the latter omission prompting this Court to
dismiss Appellant’s initial appeal. Subsequently, Appellant filed a
pro se motion with the trial court seeking removal of counsel and
reinstatement of direct appeal rights, which the trial court/PCRA
court granted nunc pro tunc.]
Thereafter, [present counsel] entered his appearance on behalf of
Appellant and filed the instant appeal on April 22, 2024. [The trial
court] directed Appellant to file and serve upon [it] a Concise
Statement of Matters Complained of on Appeal in accordance with
Pa.R.A.P. 1925(b). Appellant filed his Concise Statement on May
14, 2024.
[Appellant’s counseled Rule 1925(b) statement raised the
following enumerated issues:]
1. Was the evidence at trial sufficient to convict
[Appellant on possession with intent to deliver,
criminal conspiracy, and possession of a controlled
substance?
2. Whether the trial court [erred] by admitting
contraband found in the residence that the
[Appellant] had no legal ties to as the facts
[showed]?
3. Whether [Appellant] was granted a fair jury
selection and trial when the jury was [comprised]
of all Caucasian individuals?
4. Whether criminal conspiracy merges with
possession with intent to deliver?
5. Whether the trial court abused its discretion in
sentencing [Appellant] to ten (10) to twenty (20)
years based on Appellant’s prior record score, etc.
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Appellant’s Concise Statement of Matters Complained of on
Appeal, 5/14/2024.
Trial Court Opinion, 6/5/24, at 1-2, 3-4, 5.
The counseled Brief of Appellant presents three questions for this Court’s
consideration:
1. Was the evidence at trial sufficient to convict [Appellant] on
possession with intent to deliver, criminal conspiracy and
possession of a controlled substance?
2. Whether the trial court erred by admitting contraband found in
the residence that [Appellant] had no legal ties to as the facts
were given at trial?
3. Whether [Appellant] was granted a fair jury selection at trial
when the jury was comprised of all Caucasian individuals?
Brief of Appellant, at 7.
In Appellant’s first issue, he argues that the Commonwealth failed to
present evidence sufficient to convict him on PWID, criminal conspiracy, and
possession of a controlled substance.
When reviewing a challenge to the sufficiency of the evidence, our
standard of review is as follows:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed 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. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim, the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
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In applying the above test, we may not [re]weigh the evidence
and substitute our judgment for the fact-finder.
Commonwealth v. James, 297 A.3d 755, 764 (Pa. Super. 2023) (citations
omitted and formatting altered), appeal denied,
309 A.3d 691 (Pa. 2023).
Our review of Appellant’s argument in support of his sufficiency issue
shows it to lack any discussion of the evidence relating to each material
element of the crimes charged. Instead, his argument offers only a conclusory
assertion disagreeing with the trial court’s determination that Appellant’s Rule
1925(b) statement on the issue was inadequate. From that unsupported
position, Appellant pivots to offering generic, boilerplate law pertaining to the
weight of the evidence, an issue that he has not raised and developed in this
appeal. See Brief of Appellant, 11-13.
Because Appellant has not developed his sufficiency claim in any
meaningful way and otherwise conflates the distinct concepts of the sufficiency
of the evidence and weight of the evidence,1 his first issue affords him no
relief. See Pa.R.A.P. 2119(a) (providing that an appellant's argument shall
include “such discussion and citation of authorities as are deemed
pertinent.”); Commonwealth v. Paddy, 14 A.3d 431, 443 (Pa. 2011)
(providing that boilerplate allegations and bald assertions cannot satisfy one’s
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1 See Commonwealth v. Widmer,
744 A.2d 745, 751-52 (Pa. 2000)
(sufficiency of evidence claims are distinct from weight of evidence claims;
explaining differences between sufficiency and weight challenges).
Commonwealth v. Sexton,
222 A.3d 405, 416 (Pa. Super. 2019) (appellant
waived challenge to weight of the evidence where appellant's brief conflated
weight and sufficiency claims and did not otherwise develop weight claim).
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briefing requirements). See also Commonwealth v. Ritchey, 266 A.3d 615
(non-precedential decision)2 (Pa. Super. Ct. 2021) (citing Commonwealth v.
Johnson,
985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority[,] or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”)).
In Appellant’s second issue, he asks “[w]hether the trial court erred by
admitting contraband found in the residence that he had no legal ties to as
the facts shown [sic] at trial?” Brief of Appellant, at 14. Like the deficiencies
inherent in his first issue, Appellant’s second issue fails to develop an
argument with citation to and discussion of pertinent decisional law, which
substantially impairs our ability to conduct meaningful review of this claim.
See Brief of Appellant at 14-15. Accordingly, his second issue fails.
Finally, Appellant contends that the trial court denied him a fair trial
when it denied his Batson challenge during voir dire after the Commonwealth
used one of its peremptory challenges to remove the only African American
individual, Juror 39, in the jury pool. This Court has recently outlined the
governing standard of review of a Batson challenge:
The scope of voir dire rests in the sound discretion of
the trial court, whose decision will not be reversed on
____________________________________________
2 See Pa.R.A.P. 126(b) (stating we may rely on non-precedential decisions
from this Court filed after May 1, 2019, for persuasive value).
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appeal absent palpable error. The purpose of voir dire
is to ensure the empaneling of a competent, fair,
impartial, and unprejudiced jury. The scope of voir
dire should therefore be limited to questions that
attempt to disclose a potential juror's lack of
qualification or fixed opinion regarding the
defendant's guilt or innocence. A prospective juror's
personal views are of no moment absent a showing
that these opinions are so deeply embedded as to
render that person incapable of accepting and
applying the law as given by the court.
Commonwealth v. Scott, 212 A.3d 1094, 1103 (Pa. Super.
2019) (citation omitted).
“[A] prosecutor's challenge to potential jurors solely
on the basis of race violates the Equal Protection
Clause of the United States Constitution” pursuant to
the Supreme Court of the United States decision in
Batson v. Kentucky, 476 U.S. 79 (1986). Id. at
1105. “A Batson claim presents mixed questions of
law and fact. Therefore, our standard of review is
whether the trial court's legal conclusions are correct
and whether its factual findings are clearly
erroneous.” Id. (citation omitted). When a defendant
makes a Batson challenge during jury selection:
First, the defendant must make a prima
facie showing that the circumstances give
rise to an inference that the prosecutor
struck one or more prospective jurors on
account of race; second, if the prima facie
showing is made, the burden shifts to the
prosecutor to articulate a race-neutral
explanation for striking the juror(s) at
issue; and third, the trial court must then
make the ultimate determination of
whether the defense has carried its
burden of proving purposeful
discrimination.
The trial court should consider the totality of
circumstances when determining whether the
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prosecutor acted with discriminatory intent or
engaged in purposeful discrimination. This Court must
give great deference to a trial court's determination
that peremptory challenges were free of
discriminatory intent, and we will not overturn the
determination unless it was clearly erroneous.
Id. at 1105–1106 (internal citations and quotations omitted).
Moreover,
[t]he defendant does not satisfy Batson’s first step of
prima facie evidence merely by showing that the
prosecutor used a number of strikes against
venirepersons of one race. Nor is it sufficient to merely
point out the fact that the prosecutor rejected a higher
percentage of African–American potential jurors than
non-African-American potential jurors. Instead, the
defendant must preserve a full and complete record
of the asserted Batson violation, as it would
otherwise be impossible to conduct meaningful
appellate review of the motivations of prosecutors in
individual cases without such a record.
Within the prima facie case wherein a defendant must
establish on the record the circumstances
demonstrating purposeful discrimination,
Pennsylvania law also requires that a defendant must
make a record specifically identifying (1) the race or
gender of all venirepersons in the jury pools, (2) the
race or gender of all venirepersons remaining after
challenges for cause, (3) the race or gender of those
removed by the prosecutor, and (4) the race or
gender of the jurors who served and the race or
gender of jurors acceptable to the Commonwealth
who were stricken by the defense.
In other words, for a Batson claim to be in a posture
for the trial court to make a proper ruling, the
following must happen. First, a defendant must make
out a prima facie case on the record to the trial court.
The prima facie case requires more than just noting
on the record the race of excluded jurors and the
numerical composition of the prosecution's strikes.
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The prima facie case must be detailed enough for the
trial court eventually to assess whether there has
been purposeful discrimination to establish a Batson
violation. The prima facie case must identify the
circumstances a defendant believes establishes
purposeful discrimination, including those record
items required under Pennsylvania law. Second, once
a defendant qualifies the record with a sufficient prima
facie case, the prosecution is then obligated to provide
race-neutral explanations for the strikes being
questioned. Finally, once the record is complete with
a defendant's prima facie case and the prosecution's
race neutral explanations, the trial court has a proper
foundation to proceed to the third step, in which it
assesses the totality of the circumstances surrounding
juror selection and determines whether the defendant
has made out a case of purposeful discrimination.
Commonwealth v. Murray, 248 A.3d 557, 568 (Pa. Super.
2021) (internal quotations and citations omitted).
Commonwealth v. Miller, 321 A.3d 938, at **3-4 (non-precedential
decision) (Pa. Super. Ct. 2024).
Appellant argues that a prima facie case of purposeful discrimination
was made because the record establishes that the juror in question was the
only African American juror in the jury pool. See Brief for Appellant, at 17.
This argument fails under the governing standard of review expressed above.
Even assuming arguendo that Appellant had presented a prima facie case, the
record reveals the trial court required the Commonwealth to state a race-
neutral explanation for striking Juror 39.
The transcript of voir dire reveals that questioning of Juror 39 first
addressed her ability to serve impartially even though her father is a police
officer for a nearby municipal police department not involved with the present
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matter. N.T. 7/11/2022, at 202-203. The discussion shifted, however, to
whether her impartiality may be affected by the view she expressed in her
questionnaire, namely, that she would be less likely to believe the testimony
of a police officer or other law enforcement officer because of their
employment. N.T. at 202. Specifically, she shared her opinion that law
enforcement has acted with what she referred to as “racial prejudice against
African Americans.” N.T. at 204. This viewpoint, she conceded, can cause
her to doubt whether an officer is telling the truth. Id. She then qualified her
answer by stating, “I don’t think that’s fair to judge every officer. I don’t know
if that was, like, a generalized question or if that was just, like, one specific
officer. Like, I don’t think every – I don’t think that applies to every officer,
no. But I’ve seen it before, so, yeah, I guess that would change my judgment.
Yes.” N.T. at 205.
In response, the Commonwealth asked Juror 39, “Would you be less
likely to believe the officers who get on the stand in this case and testify?
Would you be less likely to believe their testimony because they are officers
than if anyone else got on the stand?” Juror 39 answered, “I mean, yeah. I
would say yes. In my opinion, yeah, I think I would . . . .” N.T. at 205. When
the Commonwealth repeated the question just for the sake of clarity, Juror 39
again replied, “Then yes. Yes.” N.T. at 206
In its Rule 1925(a) opinion, the trial court discerned the above exchange
as providing a credible, race-neutral explanation for the Commonwealth’s
peremptory strike of Juror 39. Trial Court Opinion, at 17-20. We agree.
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Accordingly, we conclude there is no basis to support Appellant’s appellate
claim that purposeful discrimination attended the Commonwealth’s decision
to use its peremptory strike on Juror 39.
For the foregoing reasons, we affirm.
Affirmed.
DATE: 11/13/2024
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