Com. v. Landron, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JONATHAN LANDRON
Appellant No. 1855 MDA 2013
Appeal from the Judgment of Sentence September 19, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000559-2013
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J. FILED SEPTEMBER 16, 2014
Jonathan Landron appeals from the judgment of sentence entered
September 19, 2013, in the Court of Common Pleas of Berks County,
following a bench trial in which Landron was found guilty of robbery,1
burglary,2 theft by unlawful taking,3 criminal trespass,4 and criminal
conspiracy.5 After careful review, we affirm.
The trial court summarized the facts as follows:
____________________________________________
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 3502(a)(1).
3
18 Pa.C.S. § 3921(a).
4
18 Pa.C.S. § 3503(a)(1)(i).
5
18 Pa.C.S. § 903(a)(1).
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[Landron] and Alexander Cruz-Cintron, of Reading,
that is
Cruz approached his longtime friend, Danielle Mojica, and
Hiester. Cruz knew that Hiester and Mojica sometimes
smoked marijuana together and that Hiester bought
cigarettes from Mojica, gave her money, and had promised
to buy her a tablet. Mojica at first told Cruz and [Landron]
she worried that
doing so would jeopardize his willingness to buy her a
tablet.
A few days after Cruz first proposed the idea, he and
[Landron] again raised the idea of stealing from Hiester.
Mojica again said she was not interested. But on
November 26, 2012, Mojica learned that the plans to
victimize Hiester were already in motion. [Landron] and
Cruz showed Mojica a black handgun which, she was told,
would only be used to scare Hiester
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and three males, one black and two Hispanic arrived in
Reading to assist in the operation.
On the morning of November 28, Mojica received a phone
call. On the other end of the line she could hear
[Landron], Cruz, and Kay-Kay, who informed her that the
pl
was going to happen. They picked Mojica up and brought
Street in Reading. Cruz and Kay-Kay persuaded Mojica to
call Hiester and arrange to go to his house, while
Mojica made contact with Hiester around 11:00 a.m. She
sent him a series of text messages trying to persuade him
to allow her to come over. . . . Hiester said it was not a
good time, but Mojica persisted, and Hiester agreed to
allow her to come to his house.
After Mojica made plans with Hiester, Kay-Kay drove her
Street in Reading. Kay-Kay left, and Mojica went inside,
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where she and Hiester began smoking marijuana and
talking. After a few minutes, Mojica told Hiester that she
had left her cigarettes in the car she arrived in, and that
she also wanted to smoke more marijuana. Hiester went
out to purchase some cigarettes and blunt paper from a
corner store nearby. Hiester left through the back door,
and Mojica remained at the house.
As soon as Hiester left, Mojica called Cruz to let him know
that Hiester was gone, just as the three men from New
York ar a gold
Mercedes sedan. After entering the home through the
front door, they began looking for items to steal. They
grabbed Mojica, taped her to a chair, and placed tape over
her mouth. Hiester soon returned to his home, re-entering
through the back door. He was met in the kitchen by a
black male who was holding a black-and-silver handgun.
he walked into the room. Hiester hesitated, and the
gunman approached him, put the gun to his chest and
tried to push him to the ground. Hiester resisted, and the
gunman shot him in the chest.
Hiester did not lose consciousness but attempted to use
the phone in the kitchen to call 9-1-1. Meanwhile, the
gunman resumed
desk. At that time[,] Hiester also became aware of a
second male in the home, who was descending the stairs
from the second floor while trying to fend off an attack by
an would shoot
the dog or shoot Hiester again Hiester called off the dog
and rushed out the back door to seek help.
Hiester found a neighbor and told him he had been shot by
unknown individuals who were attempting to rob him
inside his house. He then lay down in front of the
waiting for the ambulance, he saw the two males run out
drive away. Police and emergency medical personnel
arrived thereafter, where they found Hiester outside.
Hiester was taken to the hospital to receive treatment for
his gunshot wound. He was released from the hospital
after only six hours.
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and she was questioned throughout the day by police.
Afterwards, Mojica sought out [Landron] and Cruz. Cruz
questioned Mojica about her statements to the police, but
after she assured them they had not been implicated, they
went to dinner together and then went bowling.
After Hiester was discharged from the hospital, he began
to develop fluid buildup in his chest, which had to be
drained. Surgery was required around the area of the
bullet hole, while a pump drained fluid from the area.
Hiester, a roofing and home improvement contractor,
returned to work after about three weeks of recovery.
Hiester discovered that an iPod Touch, a new Samsung
Galaxy II cell phone, and approximately 3 ounces of
marijuana had been taken from his home.
Trial Court Opinion, 3/21/14, at 3-5.
Landron was found guilty of burglary, robbery, theft by unlawful
taking, and criminal conspiracy following a bench trial was held on June 12,
2013. Landron was sentenced on September 19, 2013 to an aggregate
filed a post-sentence
motion seeking to modify his sentence on September 29, 2013. The trial
court denied the motion to modify sentence on October 2, 2013. Landron
filed the instant timely appeal on October 17, 2013. However, on December
20, 2013, Landron filed a post-sentence motion seeking a new trial based
upon newly discovered evidence. This second post-sentence motion was
denied on December 23, 2013.
On appeal, Landron raises several issues for our review. Landron
challenges the sufficiency of the evidence and the weight of the evidence to
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support his conviction. Landron also challenges the sentence imposed,
asserting that the sentence is excessive. Finally, Landron asserts that the
trial court erred in denying his request for a post-sentence hearing based
upon newly discovered evidence.
In his first issue, Landron challenges the sufficiency of the evidence to
support his conviction. Our review of the sufficiency of the evidence involves
determining
whether[,] viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder.
Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa. Super. 2008) (citation
Id.Upon inspection, Landron offers no argument to support a challenge to
the sufficiency of the evidence, since his only contention is that the
was not a credible witness. Arguments that the fact-finder should have
sufficiency of the evidence. Commonwealth v. W.H.M., 932 A.2d 155, 160
o
the evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa.
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Super. 2003) (finding that review of sufficiency of evidence does not include
assessing credibility of testimony; such a claim goes to weight of evidence).
of his second issue on appeal, which challenges the weight of the evidence
to support his conviction. Pennsylvania Rule of Criminal Procedure 607(A)
provides:
A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(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.
Id. Failure to raise a weight-of-the-evidence claim prior to appeal as
required in Rule 607(A) will result in waiver of the issue, regardless of
whether the appellant raises this issue on appeal or the trial court addresses
the issue in its Rule 1925(a) opinion. Commonwealth v. Sherwood, 982
A.2d 483, 494 (Pa. 2009). Instantly, while Landron filed a timely post-
sentence motion, the motion did not raise an identifiable challenge to the
weight of the evidence, nor did La -sentence motion claiming
challenge to the weight of the evidence supporting his conviction is waived.
In his third issue, Landron claims that the sentence imposed by the
trial court is excessive. Challenges to the excessiveness of a sentence raise
questions regarding the discretionary aspects of sentencing, rather than the
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legality of the sentence. Commonwealth v. Pennington, 751 A.2d 212(Pa. Super. 2000). Where the discretionary aspects of a sentence are
challenged, an appeal is not guaranteed as of right. Rather,
An appellant challenging the discretionary aspects of his
four-part test: (1) whether 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
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. § 9781(b).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation
omitted).
Here, Landron asserts that the trial court failed to adequately consider
his circumstances when imposing his sentence. In particular, Landron
argues that the trial court did not properly consider his minimal prior record
and the fact that he has several children. However, this argument
challenges the weight the trial judge assigned to particular factors that
would affect sentencing. Typically, a claim that the sentencing court failed
to give adequate weight to a specific sentencing factor does not raise a
substantial question. See Commonwealth v. Berry, 785 A.2d 994 (Pa.
Super. 2001). Thus, Landron fails to meet the requirements set forth in
Ferguson, supra. Accordingly, this issue does not raise a substantial
question, and we find no basis to disturb the trial cour
sentence.
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Finally, Landron asserts the trial court erred in denying his post-
sentence motion for a new trial based upon a claim of after-discovered
evidence. In order to succeed on a newly discovered evidence claim, the
petitioner has the burden to prove that the evidence:
(1) could not have been obtained prior to the conclusion of
the trial by the exercise of reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4)
would likely result in a different verdict if a new trial were
granted.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012).
burden of demonstrating that he is entitled to a new trial.
-sentence motion
seeking a new trial, the trial court lacked jurisdiction to rule on the motion.
Without an obvious mistake on the face of the order in question, the trial
court loses jurisdiction to modify an order thirty days after its entry, or upon
the filing of an appeal. Here, Landron filed his post-sentence motion seeking
a new trial on December 20, 2013. This was well past 30 days beyond the
date Landron was sentenced, September 19, 2013, and while the case was
pending on appeal. Accordingly, the trial court did not err by not addressing
-sentence motion seeking a new trial.
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Based on the foregoing, we find that the trial court did not err in
finding Landron guilty, and we find no reason to disturb the judgment of
sentence.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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