Com. v. Culmer (memorandum)
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J-S13019-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA Appellee v. CORTEZ CULMER Appellant No. 1092 EDA 2012 Appeal from the Judgment of Sentence February 3, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007885-2008 BEFORE: BOWES, J., GANTMAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, J.: Filed: March 5, 2013 Appellant, Cortez Culmer, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for second-degree murder, robbery, and criminal conspiracy.1 We affirm. In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only that the trial court sentenced Appellant on February 3, 2012, to incarceration for life without the possibility of parole for second-degree murder, and to a concurrent term of ten (10) to twenty (20) years incarceration for criminal conspiracy. ____________________________________________ 1 Appellant filed post-sentence 18 Pa.C.S.A. ยงยง 2502(b), 3701, and 903, respectively. J-S13019-13 motions on February 8, 2012,. The court denied Appellant s post-sentence motions on February 29, 2012. On March 28, 2012, Appellant timely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied. Appellant raises the following issues for our review: IS [APPELLANT] ENTITLED TO AN ARREST OF JUDGMENT ON ALL CHARGES WHERE THE VERDICT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE? IS APPELLANT ENTITLED TO A NEW TRIAL WHERE, AS HERE, THE VERDICT IS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE? IS APPELLANT ENTITLED TO A NEW TRIAL AS THE RESULT OF PROSECUTORIAL MISCONDUCT IN CLOSING WHERE THE PROSECUTOR VOUCHED FOR THE WITNESS; WHERE THE COURT FAILED TO GRANT A MISTRIAL AS A RESULT OF THE MISCONDUCT; AND WHERE THE COURT FAILED TO GIVE A CURATIVE INSTRUCTION REGARDING THE MISCONDUCT EVEN THOUGH THE PROSECUTOR CONCEDED TO SAID INSTRUCTION? (Appellant s Brief at 3). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jeffrey P. Minehart, we conclude Appellant s issues merit no relief. (See Trial Court Opinion, filed September 11, 2012, at 3-9) (finding: (1) Appellant failed to articulate insufficiency of evidence claim with particularity; thus, issue is waived; moreover, Appellant discussed plan with third party before and after robbery, two individuals witnessed -2- Appellant participate in robbery, J-S13019-13 Appellant and co-defendant acted pursuant to plan, entered restaurant with intent to commit robbery, and during commission of robbery, Victim was shot and killed; therefore, evidence was sufficient to support Appellant s convictions for second-degree murder and conspiracy; (2) Appellant was implicated by third party and two witnesses to robbery and murder; therefore, guilty verdict does not shock one s sense of justice and is supported by greater weight of evidence; (3) defense counsel challenged credibility of witnesses; prosecutor s assertion that witnesses did not lie amounted to fair response to defense argument and did not constitute improper vouching; further, defense counsel did not request cautionary instruction and cannot argue for it for first time on appeal; therefore, issue is waived). Accordingly, we affirm on the basis of the trial court s opinion. Judgment of sentence affirmed. -3-
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