Com. v. Richards, W.

J-S37008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WESLEY RASHAWN RICHARDS
Appellant No. 488 WDA 2015
Appeal from the Judgment of Sentence February 11, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000567-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 28, 2016
Appellant, Wesley Rashawn Richards, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his bench trial convictions for third-degree murder, persons not to possess
firearms, and firearms not to be carried without a license.1 We affirm.
The trial court opinion set forth the relevant facts of this case as
follows:
This matter arises out of the shooting death of the
[V]ictim…on October 18, 2013 in a bar on the North Side
of Pittsburgh. The Commonwealth presented the
testimony of two eyewitnesses to the shooting and video
surveillance which also showed the shooting. The
eyewitnesses testified that in the early morning hours
[Victim], [Appellant] and [Appellant’s] companion entered
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18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6106(a)(1), respectively.
J-S37008-16
the bar and were searched by a security guard at the door.
When [Victim] entered the bar the first time, the security
worker, Brian Collins, searched him and found a pocket
knife which he removed and placed behind the bar. Later,
[Vicitm] left the bar and the knife was returned to him.
Shortly thereafter, [Victim] returned and was searched
again but the knife was not found. [Appellant] and his
companion, Walter Banks, were also searched each time
they entered or returned to the bar but [the guard] found
no weapons. [Mr.] Collins knew [Appellant] for several
years and also knew [Victim] from the neighborhood.
At some point [Mr.] Collins became aware of something
happening towards the back of the bar and as he went
towards that area he saw [Victim] falling to the ground
and then saw [Appellant] come around the corner with a
gun in his hand. [Mr.] Collins grabbed [Appellant] and
pinned him against the bar but was then hit in the head
with a bottle by [Mr.] Banks. Stunned by the blow to the
head, [Mr.] Collins let go of [Appellant] and when he
looked again he saw [Appellant] standing over [Victim]
shooting at him three times as he lay on the ground. [Mr.]
Collins then followed [Appellant] and [Mr.] Banks towards
the back as they left but then returned to [Victim]. [Mr.]
Collins found [Victim] still alive and saw a closed pocket
knife on the ground next to him.1
1
The autopsy showed [Victim] died of gunshot
wounds to the trunk. The first entered in the central
upper back and the second in the lateral left buttock.
The Commonwealth also called the disc jockey who was
working at the bar that night, Sylvanius Flowers, who also
testified that he observed [Victim], [Appellant] and [Mr.]
Banks standing near the bar together and they appeared
to be laughing and joking. He then saw [Appellant]
backing up toward the stairs and pull a gun out. He
testified:
I’m standing there talking to a young lady. [Victim]
is standing there with the other guy, his arm around
[Victim’s] neck. And me and the young lady was
talking on my right side. And I happen to look over
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and I see [Appellant] reach down beside his knees
and pull out a gun.
[Mr.] Flowers also testified:
He pulls the gun up. He fires a shot. [Victim]
duck[s] and take[s] the other guy’s arm off [from
around his neck] and he tries to run. [Then] after
that he falls down. I don’t know if he was hit or not
but he falls down. Then [Appellant] comes up from
around the back, steps back some, and starts
running back, and goes and shoots him three times
in the back.
[Mr.] Flowers testified that he never saw a knife in
[Victim’s] hand and never saw him threaten [Appellant]
with a knife. He also testified that he saw the security
guard, [Mr.] Collins, grab [Appellant] and wrestle with him
for the gun before [Mr.] Collins was hit in the head with a
bottle. The bartender, Tylonda Northington, also testified
that she heard shots and ducked behind the bar and then
saw [Mr.] Collins struggling with [Appellant] and
[Appellant’s] hand come over the bar with a gun in it.
The Commonwealth also introduced video surveillance
taken from several cameras in the bar that showed
[Victim], [Appellant] and [Mr.] Banks inside the bar before
and during the shooting and confirmed the testimony of
the eyewitnesses. The Commonwealth also introduced the
certification that [Appellant] was not licensed to carry a
firearm and it was stipulated that [Appellant] had a felony
conviction that rendered him a person not to possess.
(Trial Court Opinion, filed July 20, 2015, at 2-4) (internal citations omitted).
Procedurally, the court convicted Appellant on November 3, 2014, of third-
degree murder, persons not to possess firearms, and firearms not to be
carried without a license. The court sentenced Appellant on February 11,
2015, to an aggregate term of twenty to forty years’ imprisonment.
Appellant timely filed post-sentence motions on February 19, 2015, which
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J-S37008-16
the court denied on February 23, 2015. Appellant timely filed a notice of
appeal on March 25, 2015. On April 1, 2015, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Following the grant of an extension, Appellant timely
complied.
Appellant raises one issue for our review:
WERE APPELLANT’S STATE AND FEDERAL DUE PROCESS
RIGHTS (AS GUARANTEED HIM BY PA. CONST. ART. I § 9
AND U.S. CONST. AMEND. XIV) VIOLATED WHEN HE WAS
CONVICTED OF THE CRIME OF THIRD DEGREE MURDER—
RATHER THAN, AS HE SHOULD HAVE BEEN, OF
VOLUNTARY MANSLAUGHTER UNDER EITHER 18 PA.C.S. §
2503—BASED ON INSUFFICIENT EVIDENCE (THE
COMMONWEALTH HAVING FAILED TO PROVE, BEYOND A
REASONABLE DOUBT, THAT APPELLANT’S ACT OF KILLING
THE DECEDENT…[WAS] NOT AN ACT THAT UNDER THE
CIRCUMSTANCES OF THIS CASE CONSTITUTED EITHER
IMPERFECT SELF-DEFENSE VOLUNTARY MANSLAUGHTER
OR HEAT-OF-PASSION VOLUNTARY MANSLAUGHTER)?
(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 Randal B.
Todd, we conclude Appellant’s issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion at 4-7) (finding: Victim did not exchange words
with Appellant, threaten Appellant, or make gestures or actions directed to
Appellant which could reasonably be construed as serious provocation; no
evidence suggested Victim threatened Appellant with knife Victim had in his
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J-S37008-16
possession or attempted to stab or injure Appellant; rather, eyewitness
testimony and surveillance camera footage show Appellant acted with malice
as he stood over Victim and repeatedly fired shots at him while Victim was
lying on ground; record belies Appellant’s assertion that he acted in sudden
and intense passion resulting from serious provocation by Victim;
Commonwealth presented sufficient evidence to sustain Appellant’s
conviction for third-degree murder).2 Accordingly, we affirm on the basis of
the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2016
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2
Appellant also claims the evidence at trial supported a voluntary
manslaughter conviction based on an “imperfect self-defense” theory. See
18 Pa.C.S.A. § 2503(b) (explaining any person who intentionally or
knowingly kills individual commits voluntary manslaughter if at time of killing
he believes circumstances to be such that, if they existed, would justify
killing, but his belief is unreasonable). Nevertheless, Appellant relied solely
on the heat-of-passion voluntary manslaughter theory at trial, so this claim
is waived. See Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa.Super.
1987), appeal denied, 517 Pa. 621, 538 A.2d 875 (1987) (stating: “This
Court cannot review a case upon a theory different from that relied upon in
the trial court, or raised for the first time on appeal”).
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Circulated 06/03/2016 12:24 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
vs. CC NO: 201400567
WESLEY RICHARDS,
APPEAL
Defendant.
OPINION
JUDGE RANDAL B. TODD
COPIES SENT TO:
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404 A.2d 1305(1979).
In Commonwealth v. Seibert, 622 A.2d 361 (Pa. Super. 1993) the Superior Court stated
the following in discussing the elements necessary to prove third degree murder:
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In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946), the Pennsylvania
Supreme Court clarified the concept of malice: "When an individual commits an
act of gross recklessness for which he must reasonably anticipate that death to
another is likely to result, he exhibits that "wickedness of disposition, hardness of
heart, cruelty, recklessness of consequences, and a mind regardless of social duty"
which proved that there was at that time in him "the state or frame of mind termed
malice." Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum, supra) In
Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981), the Pennsylvania
Supreme Court noted that malice may be found where the "actor consciously
disregard[s] an unjustified and extremely high risk that his actions might cause
death or serious bodily harm." Id. at 228, 431 A.2d at 232. See Commonwealth v.
Rife, 454 Pa. 506, 312 A.2d 406 (1973) (malice imports the absence of
justification, excuse or mitigation and intent to cause a particular harm or the
wanton and willful doing of an act with knowledge of circumstances indicating
awareness of a plain and strong likelihood that harm will result); see also
Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979) (malice may
be found where the perpetrator "consciously disregarded an unjustified and
extremely high risk that his actions might cause death or serious bodily harm.");
Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982)
Commonwealth v. Seibert, 622 A.2d 361, 364-65 (1993)
As verdict winner, the Commonwealth is entitled to have the evidence viewed in the light
most favorable to it. Commonwealth v. Cropper, 345 A.2d 645, 646 (1975) In addition, when
reviewing a sufficiency of the evidence claim the evidence must be viewed in the light most
favorable to the Commonwealth, as verdict winner, to determine if there is sufficient evidence to
enable a fact-finder to find every element of the crime charged beyond a reasonable doubt.
Commonwealth v. McNair, 603 A.2d 1014 (1992). It is exclusively within the province of the
fact-finder to believe none, some or all of the evidence presented. Commonwealth v. Henry, 569
A.2d 929, 939 (1990); Commonwealth v. Jackson, 485 A.2d 1102 (1984). If the fact finder
reasonably could have determined from the evidence presented that all of the necessary elements
of the crime were established, then that evidence will be deemed sufficient to support the verdict.
Commonwealth v. Wood, 637 A.2d 1335, 1343 (1994) Commonwealth v. Hopkins, 747 A.2d
910, 914 (Pa. Super. Ct. 2000)
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when he stated: "And I happen to look over and I see Mr. Wes (Defendant) reach down beside
his knees and pull out a gun." (T., p. 85) This testimony supports the finding that Defendant had
the gun concealed on his person and was sufficient to support his conviction for carrying an
unlicensed concealed weapon.
By the Court:
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