Com. v. Leach, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD LEACH, :
:
Appellant : No. 336 EDA 2018
Appeal from the Judgment of Sentence, January 29, 2016,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007298-2014,
CP-51-CR-0008095-2014.
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 18, 2019
Ronald Leach appeals from the judgment of sentence imposed after a
jury found him guilty of multiple offenses including attempted murder (serious
bodily injury), aggravated assault (serious bodily injury), and several firearm
violations.1 Upon review, we affirm.
The trial court aptly summarized the pertinent facts and, in part, the
procedural history as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 We note that Leach filed a single notice of appeal at each docket containing
both cases. Pa.R.A.P 341 and Commonwealth v. Walker, 185 A.3d 969(Pa. 2018) require that a separate notice of appeal from an order resolving
issues on more than one docket be filed or the appeal must be quashed.
However, because the filing of Leach’s notice was on January 19, 2018, prior
to the decision in Walker on June 1, 2018, and Walker only applies to cases
prospectively, this appeal may proceed.
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The underlying charges stem from the report that on April 18,
2014, Appellant Ronald Leach[,] in concert with two other people,
verbally argued with the victim Ronald Johns and Alphonso
Boddie, [Johns’] cousin, in the street within the small 5300
residential block of Lesher Street in the Frankford section of
Philadelphia. Leach settled the argument by firing a .40 caliber
semi-automatic firearm twenty-one times at the victim Ronald
Johns and [] Johns' cousin. During the course of [Leach’s] firing,
the victim was struck in the back three times as well as in the leg
and neck with piercing bullets. After the victim was shot, the
victim's cousin grabbed a holstered weapon off of the victim's
unresponsive body on the ground and returned fire eleven times.
[Leach] and his associates ran from the block. The victim was
transported via responding police officers to Temple Hospital
where he received emergency life-saving medical treatment which
included numerous surgeries. At least thirty-two fired cartridge
casings were recovered from the 5300 block of Lesher Street and
resulting bullet strike damages and bullet holes in several
occupied homes along that residential block were documented.
Subsequent analysis of the fired cartridge casings proved that at
least two .40 caliber semi-automatic guns had been fired during
the melee.
Appellant's apprehension occurred on April 23, 2014, following
foot pursuit by two uniformed police officers who had been on
patrol on the 5300 block of Lesher Street. They observed [] Leach
walking on the sidewalk with a semi-automatic firearm displayed
in his waistband and alighted from their marked police vehicle.
Seeing the officers, [Leach] ran into the row home residence
located at 5332 Lesher Street. As the first officer attempted to
follow, the front door was slammed shut by an occupant later
identified as Michelle Melendez to prevent entry of the officers.
[Leach] was stopped by the second foot pursuing uniformed police
officer after he ran out of the back door of the same residence.
Officers retrieved a loaded operable .9 millimeter semi-automatic
firearm that the [Leach] had been carrying during the chase.
An additional .40 caliber firearm was recovered from inside the
second floor front bedroom in the residence at 5332 Lesher Street
along with narcotics and drug packaging materials throughout the
home. Occupants of the house at the time of [Leach’s] arrest
included Ms. Melendez, her twenty year old son, Gilbert
Candaleria, her boyfriend Ellis Cole and [an]other male from the
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second floor back bedroom. Each were charged with various
offenses.
All of the arrested residents admitted that the gun recovered by
officers from the front bedroom had been retrieved and stored by
Ellis Cole just after the subject shooting. That recovered firearm
matched eleven of the fired cartridge casings from the shooting
scene. Ms. Melendez reported seeing [Leach] known to them as
"Moody" and another male identified as "Q," later identified as co-
defendant Quideem Willis, shoot [] Johns on April 18, 2014. Ms.
Melendez's son admitted to seeing Moody and Q arguing with the
shooting victim before hearing shots and seeing Ellis Cole run into
the street and subsequently return with a weapon. They
acknowledged that [Leach] in concert with Q and others had been
renting that residence from Michelle Melendez. Each occupant
gave consistent reports of seeing Moody run into the residence
armed with another firearm yelling for them to hide evidence
followed by the pursuing patrol officers on the date of arrest.
[Leach] was arrested for offenses stemming from both sets of
incidents. Subsequent to [Leach’s] arrest, Michelle Melendez's
son, Gilbert Candeleria, had informed law enforcement that during
his processing and prison transport, he had overhead [Leach]
admit to Ellis Cole that he had shot the victim "because he had
been messing with one of his friends."
After indicting grand jury, arraignment, and scheduling
conferences, the consolidated cases against [] Leach and a co-
defendant Quideem Willis were scheduled for a joint jury trial on
October 13, 2015 . . . .
***
On October 22, 2015, the jury found [] Leach guilty under Docket
Number CP-51-CR-0008095-2014 of: one count of Attempted
Murder With Serious Bodily Injury Caused under 18 [Pa.C.S.A.] §
901 §§ A, Aggravated Assault-Causing Serious Bodily Injury under
18 [Pa.C.S.A.] § 2702 §§ A1, graded as a Felony of the First
Degree; one count of Possession of Firearm as A Prohibited Person
under 18 [Pa.C.S.A.] § 6105 §§ A1 graded as a Felony of the
Second Degree; one count of Possession of Firearm Without A
License under 18 [Pa.C.S.A.] § 6106 §§ A1 graded as a Felony of
the Third Degree; one count of Possession of Firearm On A Public
Street in Philadelphia under 18 [Pa.C.S.A.] § 6108 §§ A1 graded
as a Misdemeanor of the First Degree; [] Leach was found not
guilty of Conspiracy under 18 [Pa.C.S.A.] § 903 §§ C.
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Under the case docketed under case number CP-51-CR-7298-
2014 relating to the officers' apprehension and recovery, the jury
found [] Leach guilty of: one count of Possession of Firearm as A
Prohibited Person under 18 [Pa.C.S.A.] § 6105 §§ A1 graded as a
Felony of the Second Degree; one count of Possession of Firearm
Without A License under 18 [Pa.C.S.A.] § 6106 §§ A1 graded as a
Felony of the Third Degree; one count of Possession of Firearm On
A Public Street in Philadelphia under 18 [Pa.C.S.A.] § 6108 §§ A1
graded as a Misdemeanor of the First Degree . . . .
Trial Court Opinion, 11/6/18, at 1-5 (citations omitted). Leach’s co-defendant
was found not guilty.
The trial court sentenced Leach to an aggregate sentence of thirty-three
years (33) and six (6) months to sixty-eight (68) years of imprisonment with
no credit for time served. At the time of sentencing, Leach was twenty-five
(25) years old.
Initially, no post-sentence motion or appeal was filed on behalf of Leach.
However, Leach filed a PCRA petition seeking reinstatement of his rights to
file a post-sentence motion and appeal, which the court granted.
Leach filed a post-sentence motion. The trial court granted the motion
in part and denied it in part, crediting Leach for time served, but denying his
request for a reduction in sentence, inter alia.
Leach timely appealed. The trial court and Leach complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Leach raises the following issues:
Is the evidence sufficient to convict [Leach] of attempted murder
and aggravated assault, where the evidence did not establish
beyond a reasonable doubt that [Leach] did not act with
justification and in self-defense?
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Is the sentence imposed unduly harsh and excessive under the
circumstances of this case and [Leach]?
Leach’s Brief at 6.
In his first issue, Leach argues that the evidence was insufficient to
support his conviction for attempted murder and aggravated assault.
Specifically, he claims that the Commonwealth failed to disprove that Leach
acted with justification or in self-defense. Instead, according to Leach, the
evidence at trial showed that Johns was attempting to draw his firearm and
shoot Leach during their confrontation. Leach believed that force was
necessary to protect himself against death or serious bodily injury. Leach’s
Brief at 29. Furthermore, in light of the multiple shots fired at Leach, Leach
could not have avoided the use of force with complete safety by retreating.
Leach therefore acted with justification and in self-defense. Thus, he claims
the evidence was insufficient as a matter of law to support a conviction for the
crimes of attempted murder and aggravated assault. Id. at 29-31. Leach
does not challenge the sufficiency of the evidence as to any other elements of
these crimes.
The Commonwealth argues, however, that Leach did not present the
theory of self-defense at trial in this matter. Instead, Leach’s case at trial
focused on the misidentification of him as the shooter, which conflicted with a
claim of self-defense. As a result, the Commonwealth contends that it was
not required to disprove his claim of self-defense. Commonwealth’s Brief at
7-8.
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Initially, we note that the Commonwealth’s argument raises the
question of whether Leach’s sufficiency claim is properly before this Court.
Before proceeding with the merits of Leach’s first issue, we must determine
whether Leach properly preserved this issue. Based upon our review of the
record, we conclude that he did not.
The Commonwealth accurately notes that, at trial, Leach did not raise
the issue of self-defense. Rather, he based his defense on the identification
of Johns’ shooter; Leach claimed it was not him. In fact, during closing
argument, defense counsel emphasized that Leach’s case was not one of self-
defense. Counsel argued to the jury as follows:
And let me be very, very, very clear right here because there’s
some indication somewhere that [Johns] had a gun and may have
pulled it out. This is not a self-defense case.
I am not telling you that that man had a gun and he pulled it out
and shot [] Johns justifiably because he feared for his safety. I
am not telling you that at all, just so we’re clear.
N.T., October 21, 2015, at 135. Consequently, the trial court did not give the
jury a self-defense charge. Thus, the jury could not have found that Leach
acted in self-defense.
Moreover, although there was testimony that Johns had a gun, and
therefore “some evidence” upon which a theory of self-defense could have
been advanced, this clearly was not the defense’s strategy. A claim of self-
defense would have contradicted the defense’s theory that Leach was not the
shooter. Where a defendant denies the act of using deadly force in defense
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of himself, he has negated one of the elements of self-defense; therefore, he
cannot avail himself of a claim of self-defense. See Commonwealth v.
Mayfield, 585 A.2d 1069, 1075 (Pa. Super. 1991) (en banc).
Instead, Leach raised the issue of self-defense for the first time in his
concise statement of matters complained of on appeal. A theory or issue
which has not been raised before the trial court cannot be raised for the first
time on appeal. Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super.
1987), appeal denied, 538 A.2d 875 (1988); Commonwealth v. Alvin, 516
A.2d 376, 380 (Pa. Super. 1986). Because this issue was not raised with the
trial court, we do not reach the merits of this claim
In his second issue, Leach challenges the discretionary aspects of his
sentence. As noted above, the trial court imposed an aggregate sentence for
all convictions of thirty-three years (33) and six (6) months to sixty-eight (68)
years of imprisonment. Leach argues that this was excessive, essentially
amounting to a life sentence. Specifically, he claims that the trial court failed
to consider all mitigating factors, including Leach’s age and rehabilitative
needs. Leach’s Brief at 45. Additionally, he claims that his sentence was
unreasonable because the trial court imposed several consecutive sentences,
despite the fact that the convictions were part of a single episode (the shooting
and his subsequent arrest). Id. at 44. This is particularly so given that the
lead charge, attempted murder, carries a heightened guideline range based
upon the higher offense gravity score and already considers that a firearm
was involved. Yet, the trial court imposed separate sentences for the firearms
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violations. Id. at 44-45. Thus, according to Leach, the trial court abused its
discretion.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004)(citation omitted). An appellant challenging the discretionary
aspects of his sentence must invoke this Court's jurisdiction by satisfying a
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 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa. Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge's
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)
(quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999)
(en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim of
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excessiveness can raise a substantial question as to the appropriateness of a
sentence. Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002).
However, “[a]n allegation that a sentencing court ‘failed to consider’ or
‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate.” Cruz-Centeno, 668 A.2d 536,
545 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (1996)(quoting
Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995), appeal
denied, 661 A.2d 873 (1995)). Moreover, “[w]here [PSI] reports exist, we
shall continue to presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988).
A [PSI] report constitutes the record and speaks for itself. . . .
Having been fully informed by the pre-sentence report, the
sentencing court's discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where it can
be demonstrated that the judge had any degree of awareness of
the sentencing considerations, and there we will presume also that
the weighing process took place in a meaningful fashion.
Id.; see also Commonwealth v. Tirado, 870 A.2d 362, 368 (explaining if
sentencing court has benefit of PSI, law presumes court was aware of relevant
information regarding appellant's character and weighed those considerations
along with mitigating factors).
In determining whether to allow Leach’s claims regarding the
discretionary aspect of his sentence to proceed, we note that Leach satisfied
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criteria one (1) through three (3) above. However, he has failed to satisfy the
fourth criterion requiring presentation of a substantial question.
Leach’s claim that the trial court failed to consider mitigating factors,
such as Leach’s age and rehabilitative needs, does not raise a substantial
question. Moreover, the trial court considered Leach’s PSI in fashioning his
sentence. We therefore may presume that the trial court was aware of
relevant mitigating factors.
Furthermore, Leach’s argument regarding the trial court’s imposition of
consecutive sentences does not raise a substantial question given the
circumstances of this case. As noted by the trial court, the court imposed
consecutive sentences only after careful consideration of all relevant
sentencing factors including the paramount need for protection of the public,
the gravity of the offense, and Leach’s poor prospect of rehabilitation. Trial
Court Opinion, 11/6/18, at 19. The trial court viewed Leach’s conduct in this
matter as violent and cruel. Leach shot at Johns as he fled from Leach. Leach
continued to shoot him even after he had fallen to the ground. Leach fired his
illegally possessed firearm, which held especially damaging, piercing bullets,
at least 21 times. Bullets were found all over the residential block,
endangering those who lived there. Leach’s conduct caused Johns to undergo
multiple surgeries and other medical procedures for his injuries. He suffered
a great deal since the incident and likely will suffer into the future. He too
was in his twenties at the time of the shooting. Most significantly, the trial
court had grave concerns for the safety of the community given Leach’s
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conduct in this case, his history, and propensity for violence. We therefore
do not consider this case as one where the trial court’s exercise of discretion
resulted in a sentence that was “grossly disparate” to Leach’s conduct or
“viscerally appear[s] patently unreasonable.” See Commonwealth v.
Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010).
Thus, for these reasons, we deny Leach’s petition for allowance of appeal
and do not address the merits of his sentencing issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/19
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