Com. v. Richardson, B. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD LEWIS RICHARDSON, III
Appellant No. 1524 WDA 2015
Appeal from the Judgment of Sentence May 19, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001641-2014
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 18, 2016
Appellant, Bernard Lewis Richardson, III, appeals from the judgment
of sentence entered on May 19, 2015, as made final by the denial of his
post-sentence motion by operation of law on September 28, 2015. We
affirm.
The factual background of this case is as follows. In mid-January
2014, Keith Johnson (“Johnson”) overheard his paramour, Misty Danko
(“Danko”), discussing the fact that the father of two of her children, Ronald
Packroni, was selling marijuana. On the evening of January 13, 2014,
Johnson and Danko met in a Uniontown bar to discuss robbing Ronald
Packroni. During this meeting, Appellant arrived at the bar, discussed the
planned robbery with Johnson, and then left. Eventually, Johnson and
Danko left the bar and picked up Broderick Harris and Appellant.
* Retired Justice specially assigned to the Superior Court
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In an attempt to gain access to Ronald Packroni’s residence, Danko
called him and offered to have sex with him at his residence. Once the four
conspirators arrived at Ronald Packroni’s residence during the early morning
hours of January 14, Ronald Packroni welcomed Danko into the house. A
few minutes later, Danko entered the kitchen and let the other three
perpetrators in to the residence. When Ronald Packroni left his bedroom to
see what was occurring, he encountered one of the three males carrying a
firearm. The intruder ordered Ronald Packroni to lie on the floor with his
face down. Ronald Packroni was then ordered into the living room where he
observed the other two males beating his brother, Jonathan Packroni, and
Jonathan Byers (“Byers”). The three intruders then tied Byers’ and the
Packronis’ wrists and ankles with phone and cable cords. The three
intruders continued to kick and beat the Packronis and Byers with their
firearms. The intruders also told the Packronis and Byers that they were
going to kill them. During this vicious assault, Danko ransacked the
residence. The four perpetrators eventually fled in Ronald Packroni’s
vehicle. Danko received over $11,000.00 in proceeds from the robbery.
The procedural history of this case is as follows. On December 1,
2014, Appellant was charged via criminal information with committing 49
offenses. At the conclusion of a bench trial on May 15, 2015, Appellant was
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convicted of three counts of aggravated assault,1 three counts of false
imprisonment,2 three counts of robbery,3 two counts of burglary,4 two
counts of criminal trespass,5 two counts of theft by unlawful taking,6
unauthorized use of a motor vehicle,7 three counts of making terroristic
threats,8 and conspiracy to commit robbery.9 He was found not guilty of the
29 remaining charges.
On May 19, 2015, the trial court sentenced Appellant to an aggregate
term of 20 to 40 years’ imprisonment.10 On May 29, 2015, Appellant filed a
1
18 Pa.C.S.A. § 2702(a)(4).
2
18 Pa.C.S.A. § 2903(a).
3
18 Pa.C.S.A. § 3701(a)(1)(ii).
4
18 Pa.C.S.A. § 3502(a)(1).
5
18 Pa.C.S.A. § 3503(a)(1)(i).
6
18 Pa.C.S.A. § 3921(a).
7
18 Pa.C.S.A. § 3926(a).
8
18 Pa.C.S.A. § 2706(a)(1).
9
18 Pa.C.S.A. §§ 903, 3701.
10
Appellant was sentenced consecutively to five to ten years’ imprisonment
at each of the three robbery counts and one burglary count. Appellant was
sentenced to no further punishment on the remaining counts.
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post-sentence motion. On September 28, 2015, that motion was deemed
denied via operation of law.11 This timely appeal followed.
Appellant presents three issues for our review:12
1. Whether the trial court erred in not rejecting [Appellant’s]
confession as unreliable[.]
2. Whether the trial court erred by denying [Appellant’s] request
for a new trial on the basis that the court’s verdict of guilt as to
all counts was against the weight of the evidence specifically as
to the element of identity[.]
3. Whether the trial court abused its discretion in denying
[Appellant’s] motion to modify his sentence on the basis that the
same was manifestly unreasonable[.]
11
Pursuant to Pennsylvania Rule of Criminal Procedure 720, the passage of
120 days from the filing of Appellant’s post-sentence motion required the
clerk of courts to enter an order on the docket denying Appellant’s motion
via operation of law. Pa.R.Crim.P. 720(B)(3)(c). Such an order should also
have been forwarded to counsel for Appellant, including notice of: the right
to appeal and the time limits within which an appeal must be filed; the right
to counsel to assist with the appeal; the rights, if Appellant is indigent, to
appeal in forma pauperis and to proceed with assigned counsel as provided
in Rule 122; and, the qualified right to bail under Pa.R.Crim.P. 521(B). See
Pa.R.Crim.P. 720(B)(4). No such order was entered on the docket or
forwarded to counsel for Appellant. Nevertheless, counsel for Appellant filed
a notice of appeal and a concise statement of errors complained of on appeal
on October 1, 2015, within 30 days of the date on which Appellant’s post-
sentence motion was deemed denied by operation of law. The trial court
issued its Rule 1925(a) opinion on October 20, 2015. Because counsel filed
the notice of appeal within 30 days of the date on which Appellant’s post-
sentence motion was deemed denied by operation of law, we may view this
appeal as having been taken in a timely manner from a final order.
We remind the trial court and the clerk of courts to track post-sentence
motions and enter the appropriate order when required by Rule
720(B)(3)(c).
12
We re-numbered the issues for ease of disposition.
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Appellant’s Brief at 8 (complete capitalization omitted).
In his first issue, Appellant argues that the trial court erred in
admitting his confession. This argument is waived. “Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a). Our review of the docket indicates that Appellant failed to
file a motion in limine or a suppression motion. Furthermore, at trial when
the Commonwealth moved the admission of Appellant’s confession,
Appellant’s counsel stated, “No objection, Your Honor.” N.T., 5/15/15, at
112. Thus, Appellant failed to object to the admission of the confession.
Accordingly, this issue is waived.13
In his second issue, Appellant argues that the verdict was against the
weight of the evidence. Specifically, Appellant argues that the trial court’s
finding that he was one of the three men who robbed and assaulted the
Packronis and Byers was against the weight of the evidence. A challenge to
the weight of the evidence must first be raised at the trial level “(1) orally,
on the record, at any time before sentencing; (2) by written motion at any
time before sentencing; or (3) in a post-sentence motion.” In re J.B., 106
A.3d 76, 97 (Pa. 2014) (citation omitted). Appellant properly preserved his
weight of the evidence claim by raising the issue in his post-sentence
motion.
13
Appellant was required to set forth in his brief the place in the record
where the issue was preserved. See Pa.R.A.P. 2117(c). Failure to do so
may result in waiver of that issue. See Pa.R.A.P. 2101.
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“[A] new trial based on a weight of the evidence claim is only
warranted where the [] verdict is so contrary to the evidence that it shocks
one’s sense of justice.” Commonwealth v. Tejada, 107 A.3d 788, 795-
796 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015) (internal
alteration and citation omitted). “[W]e do not reach the underlying question
of whether the verdict was, in fact, against the weight of the evidence.”
Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015)
(citation omitted). Instead, we will reverse the trial court’s ruling on a
weight of the evidence claim after a bench trial only if “the court’s
determination was manifestly erroneous, arbitrary and capricious[,] or
flagrantly contrary to the evidence.” J.J. DeLuca Co., Inc. v. Toll Naval
Assocs., 56 A.3d 402, 410 (Pa. Super. 2012) (internal quotation marks and
citation omitted).
At trial, Danko testified that Appellant was one of the three intruders.
N.T., 5/15/15, at 56. She testified that Appellant beat Byers and the
Packronis and threated to kill them. Id. at 57-58. Danko also testified that
Appellant had a lisp. Byers testified at trial that one of the three intruders
had a lisp. Id. at 81. Finally, Appellant confessed to being one of the three
intruders. Commonwealth’s Exhibit 3. Based upon this review of the
evidence, we conclude that the trial court’s finding that the verdict did not
shock its sense of justice was not “manifestly erroneous, arbitrary and
capricious[,] or flagrantly contrary to the evidence.” J.J. DeLuca, 56 A.3d
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at 410. As such, Appellant is not entitled to relief on his weight of the
evidence claim.
In his final issue, Appellant argues that his sentence is excessive. This
issue challenges the discretionary aspects of Appellant’s sentence. See
Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).
Pursuant to statute, Appellant does not have an automatic right to appeal
the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court has explained, in order to reach the merits of a
discretionary aspects claim,
[w]e conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted). Appellant filed a timely notice of appeal and preserved the issue
in his post-sentence motion. Appellant did not include a Rule 2119(f)
statement in his brief; however, the Commonwealth failed to object to that
omission. Therefore, we may proceed to whether Appellant has raised a
substantial question. See Commonwealth v. Spenny, 128 A.3d 234, 241
(Pa. Super. 2015).
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“In order to establish a substantial question, the appellant must show
actions by the trial court inconsistent with the Sentencing Code or contrary
to the fundamental norms underlying the sentencing process.”
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),
appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).
“[A] bald claim of excessiveness does not present a substantial
question for review[.]” Haynes, 125 A.3d at 807-808. As Appellant’s only
argument as to why this case presents a substantial question is that the
sentence “is manifestly excessive so as to inflict too severe a punishment,”
Appellant’s Brief at 21, he fails to raise a substantial question and we do not
reach the merits of his discretionary aspects claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
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