Com. v. Barnes, R.

J-S28025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY BARNES :
:
Appellant : No. 1832 EDA 2020
Appeal from the Judgment of Sentence Entered July 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001793-2019
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 11, 2022
Appellant, Ricky Barnes, appeals from the July 28, 2020 Judgment of
Sentence entered in the Philadelphia County Court of Common Pleas following
his conviction of Third-Degree Murder and Possessing an Instrument of Crime
(“PIC”).1 Appellant challenges the weight and sufficiency of the
Commonwealth’s evidence and the discretionary aspects of his sentence. After
careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Although Appellant’s Notice of Appeal characterizes his appeal as from the
August 27, 2020 Order denying his post-sentence motion, his appeal properly
lies from the July 28, 2020 Judgment of Sentence. See Commonwealth v.
Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995) (order denying post-
sentence motion acts to finalize judgment of sentence; thus, appeal is taken
from judgment of sentence, not order denying post-sentence motion). See
also Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001). We have corrected the caption accordingly.
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In the late hours of September 8, 2018, Appellant stabbed Oscar Smith,
his housemate, multiple times in the Philadelphia rooming house where they
lived. Darren Noble, who lived on an upper floor of the house, heard the
commotion, and came downstairs to investigate. When he arrived, Noble saw
both men in the hallway, which was covered in blood. Appellant was sitting on
the floor, while Smith, who walked with a cane and relied on a pacemaker,
was lying on the floor and bleeding profusely. Each man screamed at Noble
that the other had stabbed him: Smith told Noble that Appellant had stabbed
him in his back while he was sleeping in his bed, while Appellant accused
Smith of attacking him.
It was immediately obvious to Noble, however, that “Smith[] had more
physical wounds” than Appellant did. N.T. Trial, 1/22/20, at 72. Smith was
“covered” in blood from stab wounds in his head, neck, and back. Id. at 73.
Appellant, however, had no wounds on his body other than light “scratch
marks” on his arms. Id. Noble also noticed a broken steak knife, its blade
detached from its handle, on the floor by Smith’s bedroom door. Noble tried
to staunch Smith’s bleeding with a rag; Appellant remained sitting on the floor
and did not help him.
A guest in the house called 911, and Officers Clayton Baker and Timothy
Grey of the Philadelphia Police Department arrived at the scene. They
immediately recognized that Smith was in dire condition and attempted to
administer emergency medical assistance. As they did, Appellant, who
remained sitting in the hall, repeatedly told them “he stabbed me[,]” and
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pointed to his arms as proof. Id. 117. The officers noted, however, that the
scratches on his arms appeared too superficial to be caused by a stabbing.
The officers called an ambulance that transported Smith to the hospital
and Officer Baker transported Appellant to the hospital. While Appellant was
waiting for treatment, he told Officer Baker that Smith had attacked him with
a knife and that, in response, Appellant had taken the knife from Smith and
stabbed him. After hearing this story, Officer Baker placed Appellant under
arrest.
Doctors treated Smith for two stab wounds in his upper back and two in
the back of his scalp, along with lacerations on his hands and fingers. Despite
their efforts, Smith ultimately died from his injuries.
The Commonwealth charged Appellant with First-Degree Murder, Third-
Degree Murder, and PIC.2 On January 22, 2020, Appellant waived his right to
a jury trial and a two-day bench trial commenced. Daren Noble, Officer Baker,
and Officer Grey, among other witnesses, testified on behalf of the
Commonwealth to the above facts. The court admitted into evidence
photographs taken by police depicting blood on the walls and carpet of Smith’s
bedroom and the hallway, and results of DNA testing that confirmed the
presence of Smith’s and Appellant’s DNA on the murder weapon.
Appellant testified on his own behalf. He admitted that he caused the
death of Smith but asserted that he only did so in response to Smith’s
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2 18 Pa.C.S. § 2502(a) and (c), and § 907(a), respectively.
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unprovoked attack on him. Appellant stated that he was walking through the
hallway to the bathroom when Smith came out of his room and “intentionally
bumped [Appellant] with his shoulder real hard.” N.T. Trial, 1/23/20, at 11.
Appellant testified that, when he asked Smith why he shoved him, Smith said
“I just don’t like you[,]” and then immediately “held up a knife in his right
hand and began coming towards [Appellant] with the knife in his hand.” Id.
at 11. Appellant described Smith slashing him three times on his left arm
before Appellant was able to knock the knife out of Smith’s hand. According
to Appellant, Smith then pinned him to the floor with his knee and put his
forearm over Appellant, causing Appellant to “black[] out” and fear for his life.
Id. at 13.
On January 23, 2020, the trial court found Appellant guilty of Third-
Degree Murder and PIC and ordered a pre-sentence investigation report and
a mental health evaluation. On July 28, 2020, the trial court sentenced
Appellant to an aggregate standard range of 20 to 40 years’ incarceration.
After the court restored Appellant’s post-sentence rights nunc pro tunc,
Appellant filed a post-sentence motion challenging the sufficiency and weight
of the evidence, as well as the discretionary aspects of his sentence. On
August 27, 2020, the court denied the motion.
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On September 21, 2020, this timely appeal followed.3 Both the trial
court and Appellant have complied with Pa.R.A.P. 1925.
Appellant presents the following issues:
1. Were [Appellant’s] actions justified when Mr. Smith
unprovokedly attacked him in the middle of the night and
[Appellant] had the right to stand his ground?
2. Was the verdict against the weight of the evidence where
[Appellant’s] testimony that he was attacked was consistent
with the physical evidence and was not contradicted by the
remaining witnesses?
3. Did the sentencing court abuse its discretion by “double
counting” [Appellant’s] prior criminal history?
Appellant’s Br. at 5.
Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of the
Commonwealth’s evidence. Specifically, he argues that “the evidence was
insufficient to disprove that Mr. Barnes acted in self-defense.” Appellant’s Br.
at 14.
“We review claims regarding the sufficiency of the evidence by
considering whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence to enable the
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3 A timely post-sentence motion will extend the appeal period for thirty days
from the entry of an order denying the motion. Pa.R.Crim.P. 720(A)(2). Where
the trial court expressly grants nunc pro tunc relief to file a post-sentence
motion, the appeal period will toll as if the defendant had filed a timely post-
sentence motion pursuant to Pa.R.Crim.P. 720(A)(1). Commonwealth v.
Dreves, 839 A.2d 1122, 1129 (Pa. Super. 2003).
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fact-finder to find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations
and internal quotation marks omitted). In conducting this review, the
appellate court may not weigh the evidence and substitute its own judgment
for that of the fact finder, which is free to believe all, part, or none of the
evidence. Id. A sufficiency of the evidence challenge contests whether the
record supports the verdict, not whether the record supports the defendant’s
contentions. Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011).
When a defendant employs deadly force, the elements of a claim of self-
defense are that the defendant (1) reasonably believed that force was
necessary to protect himself against death or serious bodily injury; (2) was
free from fault in provoking the use of force against him; and (3) did not
violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740
(Pa. 2012); see also 18 Pa.C.S § 505(b)(2) (pertaining to use of deadly force
in self-protection). A defendant does not have a burden to prove a claim of
self-defense. Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001).
Once a defendant introduces “some evidence” to justify a finding of self-
defense, the issue is properly before the fact-finder and the Commonwealth
bears the burden to disprove the defense beyond a reasonable doubt. Id. The
Commonwealth can satisfy this burden by disproving any of the elements of
self-defense. Mouzon, 53 A.3d at 740-41.
In the instant case, Appellant’s testimony that Smith attacked him first
provided “some evidence” to support a finding of self-defense; thus, the
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burden shifted to the Commonwealth to disprove Appellant’s self-defense
claim beyond a reasonable doubt.
In his brief, however, Appellant does not address the sufficiency of the
Commonwealth’s evidence that he did not act in self-defense. Instead,
Appellant summarizes the evidence that he believes supports his self-defense
claim, and concludes that this Court should vacate the judgment of sentence
because “[t]he evidence presented at trial established that [Appellant] was
justified in his actions.” Appellant’s Br. at 14-17. He does not explain why the
Commonwealth’s evidence was insufficient to disprove his self-defense claim.
Appellant is essentially making a weight of the evidence argument,
which is distinct from a challenge to the sufficiency of the evidence. See
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)
(distinguishing between weight and sufficiency challenges). Appellant has,
therefore, waived this claim. See Commonwealth v. Kane, 10 A.3d 327,
331 (Pa. Super. 2010) (failure to present a sufficiently developed argument
will result in waiver).
Even if the claim were not waived, Appellant’s claim would nonetheless
fail because the Commonwealth presented sufficient evidence to disprove the
self-defense claim. As the trial court set forth in its 1925(a) Opinion, “the
incontrovertible physical evidence presented at trial precludes any reasonable
finding of self-defense in this case[,]” and makes “clear that [Appellant’s] self-
defense claim was wholly fabricated and presented . . . in an attempt to limit
his own culpability for a truly malicious act of violence.” Trial Ct. Op., at 8.
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The evidence showed that Smith had multiple, deep stab wounds in his back
and rear scalp, which were consistent with Appellant attacking him from
behind. Conversely, the superficial scratches on Appellant’s arms were
consistent with the kinds of injuries caused by an unarmed victim attempting
to defend himself against an assailant. The court also noted that the
photographs showing Smith’s bedroom covered in blood corroborated Smith’s
account of Appellant attacking him in his bedroom. Additionally, Daren Noble
testified that Smith told him that Appellant stabbed him unprovoked. See
N.T., Trial, 1/22/20, at 73, 108.
After reviewing the record, we agree with the trial court. There was
sufficient evidence for the trial court to conclude that Appellant himself,
despite his self-serving testimony to the contrary, stabbed Smith unprovoked,
without any reasonable belief that he was in imminent danger of death or
serious bodily injury that necessitated the use of force. Thus, even if it were
not waived, Appellant’s first issue would garner no relief.
Weight of the Evidence
In his second issue, Appellant argues that the verdict was against the
weight of the evidence because Appellant “testified to Mr. Smith’s unprovoked
attack,” and “[t]he Commonwealth offered nothing to the contrary, and even
the physical evidence corroborated [Appellant’s] account of the fight.” Id. at
17.
It is well-settled that the factfinder is the exclusive judge of the weight
of the evidence and is free to believe all, part, or none of the evidence
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presented and to determine the credibility of witnesses. Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003). We cannot substitute our
judgment for that of the factfinder. Id.Where, as here, the trial court has ruled on the weight claim below, an
appellate court’s role is not to reconsider the underlying question of whether
the verdict is against the weight of the evidence; rather, appellate review is
limited to whether the trial court abused its discretion when ruling on the post-
sentence motion. Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super.
2007). “Because the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest consideration to
the findings and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is [or is not] against the weight of the
evidence.” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015)
(citation omitted). “One of the least assailable reasons for granting or denying
a new trial is the lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial should be granted in
the interest of justice.” Id. (citation omitted).
Therefore, in an appeal based on the weight of the evidence, we will
only grant a new trial when the “verdict is so contrary to the evidence as to
shock one’s sense of justice[.]” Commonwealth v. Morales, 91 A.3d 80, 91
(Pa. 2014) (citations omitted). Reversal is only appropriate “where the facts
and inferences disclose a palpable abuse of discretion[.]” Id. (citations and
emphasis omitted).
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Finally, “a true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014) (citation omitted). For that reason, the trial court need not view the
evidence in the light most favorable to the verdict winner and it may instead
use its discretion in concluding whether the verdict was against the weight of
the evidence. Widmer, 744 A.2d at 751 n.3.
In its 1925(a) Opinion, the trial court explained that, “[d]ue to the
irreconcilable inconsistencies between [Appellant’s] self-defense claim and the
unchallenged physical evidence” suggesting that Appellant stabbed Smith
from behind in Smith’s bedroom, the court, “as the fact-finder, could not give
much, if any, weight to [Appellant’s] justification defense.” Trial Ct. Op., at
10. Accordingly, “the weight of the evidence clearly balanced the scale in
favor of the conviction[.]” Id.
After reviewing the record, we discern no abuse of discretion in the trial
court’s denial of Appellant’s challenge to the weight of the evidence. As the
factfinder, the trial court was entitled to believe all, part, or none of the
evidence presented at trial, make its own credibility determinations regarding
testimony, and weigh the evidence as a whole to reach its verdict.
Appellant argues that, because “the Commonwealth presented no
evidence to show that [Appellant] was the aggressor[,]” the DNA tests of the
knife revealed Smith’s DNA on the handle, and the police photographs showed
no blood in Smith’s bed, “only conjecture and surmise would tend to indicate
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that [Appellant] initiated the fight or engaged for any reason other than to
save his own life.” Appellant’s Br. at 19. As a result, he concludes, the evidence
“was so tenuous, vague, and uncertain that the verdict shocked the
conscience.” Id.
Contrary to Appellant’s assertion, the Commonwealth did present
evidence that Appellant was the aggressor. The trial court, thus, acted within
its discretion in discounting Appellant’s self-serving testimony regarding the
encounter and according more weight to the evidence establishing Appellant
as the aggressor.
Our review discerns no abuse of the court’s discretion and the verdict is
not contrary to the weight of the evidence or so vague, uncertain, or tenuous
as to shock the Court’s conscience. Appellant’s weight claim, thus, merits no
relief.
Discretionary Aspects of Sentencing
In his final issue, Appellant argues that the sentencing court abused its
discretion when it “double counted” his criminal record by considering it as an
aggravating factor when the sentencing guidelines already take it into
account. Appellant’s Br. at 19.4 This claim implicates the discretionary aspects
of his sentence. See Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa.
Super. 2019) (“‘double counting’ [claim] presents a challenge to the
discretionary aspects of Appellant's sentence”).
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4 We note that Appellant’s sentence fell under the standard range
recommended by the sentencing guidelines. Trial Ct. Op., at 12.
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Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right, and we therefore consider them as petitions
for allowance of appeal. Id.; 42 Pa.C.S. § 9781(b). An Appellant must
preserve an appeal to the discretionary aspects of his sentence by, among
other things, raising the issue at sentencing or in a post-sentence motion.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003).
The Pennsylvania Rules of Criminal Procedure require any post-sentence
motion to state grounds for relief “with specificity and particularity[.]”
Pa.R.Crim.P. 720(B)(1)(a). Raising only a broad challenge to a sentence as
excessive, without articulating the specific reasons for the challenge, results
in waiver because it deprives the sentencing court of an opportunity to
consider the challenge and, if necessary, correct its errors. See Pa.R.A.P. 302
(“Issues not raised in the lower court are waived”); Mann, 820 A.2d at 794(finding that appellant waived discretionary aspects of sentencing claim where
his boilerplate post-sentence motion failed to state basis of challenge with
specificity and particularity).
Appellant’s post-sentence motion challenging the discretionary aspects
of his sentence states, in its entirety: “[Appellant] hereby requests
reconsideration of sentence based on the manifestly unjust and excessive
sentence imposed upon [Appellant] by the court. Further, the court abused its
discretion in imposing such an extremely excessive sentence.” Post Sentence
Motions Nunc Pro Tunc [sic], Aug. 26, 2020, at ¶ 2.
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This boilerplate assertion makes no reference to the double-counting
argument that Appellant raises now for the first time in his brief. As a result,
the sentencing court could not consider, and did not address, the issue
underlying Appellant’s sentencing challenge. By depriving the trial court of an
opportunity to address his argument, Appellant has waived the issue.
Appellant’s final claim, thus, fails to garner relief.
Conclusion
Having found Appellant’s issues either waived or meritless, we affirm his
Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2022
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