Commonwealth v. Tucker (2016)

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

“An illegal sentence must be vacated.” Commonwealth v. Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

Tucker, 143 A.3d at 958 (affirming conviction but holding that illegal sentence must be vacated).

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016)). “[T]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required.” Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa.Super. 2007), appeal denied, 594 Pa. 676 , 932 A.2d 1286 (2007).

See Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020) (questions concerning merger implicate legality of sentence and may be raised by this Court sua sponte); Commonwealth v. Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (“[a]n illegal sentence must be vacated” (citation omitted)).

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. -6- J-S20034-23 Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011)) (brackets omitted).

Therefore, Appellant’s claim is meritless. - 14 - J-S43044-22 Commonwealth v. Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (stating that “[a]n illegal sentence must be vacated” (citation omitted)).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. ____________________________________________ 3 In the argument section of the Anders brief, counsel addresses the same issues raised in Appellant’s pro se response, namely, the sufficiency of the evidence and the discretionary aspects of sentencing.

“An illegal sentence must be vacated.” Commonwealth v. Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016). - 17 - J-S41041-22 Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, we conclude the evidence was sufficient to sustain Appellant’s conviction for criminal attempt to commit first- degree murder.

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016)). “[T]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required.” Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa.Super. 2007), appeal denied, 594 Pa. 676 , 932 A.2d 1286 (2007).

Commonwealth v. Tucker 143 A.3d 955, 960 (Pa. Super. 2016).

Commonwealth v. Tucker 143 A.3d 955, 960 (Pa. Super. 2016).

“In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are - 17 - J-S38026-25 injected into the case or otherwise discovered at trial.” Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017).

Commonwealth v. Tucker 143 A.3d 955, 960 (Pa. Super. 2016).

See Jordan, 65 A.3d at 323 (stating specific intent to kill can be inferred from the use of a deadly weapon on a vital area of the body); Commonwealth v. Tucker, 143 A.3d 955, 964-65 (Pa. Super. 2016) (finding the jury could infer specific intent to kill where defendant fired three gunshots at the victim but only struck the ____________________________________________ stated above, the totality of the evidence presented at trial established that Appellant was the shooter.

“We will not reverse a trial court’s decision absent a showing of … prejudice to the defendant.” Commonwealth v. Tucker, 143 A.3d 955, 966 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011)) (brackets omitted). -5- J-S11044-24 The Commonwealth is required to introduce sufficient evidence to prove beyond a reasonable doubt both the statutory elements of the crimes and that the defendant was the perpetrator of the crimes.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011)) (brackets omitted).

Specifically, we are mindful of the following: Moreover, “it is Appellant’s responsibility to ensure that this Court has the complete record necessary to properly review a claim.” Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super. 2016) (internal quotation marks and citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (internal citations, quotations, and brackets omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011)) (brackets omitted).

Therefore, the video “was in evidence and became a part of the record once it was played without ____________________________________________ 8 See Commonwealth v. Pacheco, 227 A.3d 358, 374 (Pa. Super. 2020) (deeming a claim waived where the appellant waited until after the witness was excused before lodging an objection); Commonwealth v. Tucker, 143 A.3d 955, 962 (Pa. Super. 2016) (holding appellant waived claim where he waited until after direct and cross-examination of t…

Specifically, we are mindful of the following: Moreover, “it is Appellant’s responsibility to ensure that this Court has the complete record necessary to properly review a claim.” Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super. 2016) (internal quotation marks and citation omitted).

Rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record. -7- J-A22030-23 Commonwealth v. Tucker, 143 A.3d 955, 966 (Pa. Super. 2016) (quotation marks, citations, and corrections omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)). -2- J-S11037-23 Additionally, the following principles govern our review of an order denying a motion to suppress: An appellate court’s standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are sup…

Commonwealth v. Tucker, 143 A.3d 955, 966 (Pa. Super. 2016) (quotation marks and citations omitted) (cleaned up).

Commonwealth v. Tucker, 143 A.3d 955, 966 (Pa. Super. 2016) (quotation marks, citations, and corrections omitted).

Commonwealth v. Reid, 99 A.3d 427, 469 (Pa. 2014); Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016); Commonwealth v. Lawrence, 960 A.2d 473, 477 (Pa. Super. 2008).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

Commonwealth v. Tucker, 143 A.3d 955, 966 (Pa. Super. 2016) (quotation marks, citations, and corrections omitted).

Commonwealth v. Tucker, 143 A.3d 955, 960 (Pa. Super. 2016) (citations omitted). 18 Pa.C.S.A. § 1103(1) provides that, except as it relates to second or subsequent offenses, first-degree felonies carry a maximum term of incarceration of “not more than 20 years.” In addition, second-degree felonies carry a maximum term of “not more than ten years.” Id., at § 1103(2).

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016); Pa.R.A.P. 302(a).

“For a defendant to be found guilty of attempted murder, the Commonwealth must establish specific intent to kill.” Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation omitted).

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 Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

It is axiomatic that “[t]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.” Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal denied, 641 Pa. 63 , 165 A.3d 895 (2017) (quoting Commonwealth v. -6- J-S02022-22 Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).

“The failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.” Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (internal quotation omitted).

See Commonwealth v. Cornelius, 180 A.3d 1256 , 1261–62 (Pa. Super. 2018) (finding claim challenging denial of motion for mistrial waived where defense counsel failed to object at the time the alleged prejudicial statement was made); see also Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”).

See also Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).

See also Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.E. 103(a)(1).

See Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (“[T]he -8- J-S56004-17 failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).

See Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”) - 14 - J-A06033-17 Judgment of sentence affirmed.

See Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).2 Appellant has acknowledged the claim is waived; however, he raises a claim of ineffective assistance of counsel.

Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (“the failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal”).

See Pa.R.E. 614 Cmt.; see also Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).5 ____________________________________________ 5 We note that even if Appellant properly had preserved this…

See Pa.R.E. 614 Cmt.; see also Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016) (“[T]he failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the -2- J-S72038-16 issue.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).