Com. v. Johonoson, F. ( 2014 )

J-S35027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANKLIN JOHONOSON
Appellant No. 1989 MDA 2013
Appeal from the Judgment of Sentence of September 23, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0004190-2012
BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 09, 2014
Franklin Johonoson appeals his September 23, 2013 judgment of
sentence. We affirm.
The trial court aptly summarized the factual and procedural history of
this case as follows:
On July 12, 2009 at approximately 8:00 a.m., Vonda Kirchner
Convenience Store, received a visit at her home from George
was on his way to the VFW post next door to the service station,
he noticed that one of the large plate glass windows in front of
the convenience store was broken. Kirchner, who lived in a
home behind the service station, walked with Snyder to the
convenience store to assess the damage. When she arrived,
Kirchner observed the broken window and noticed that debris
and lottery tickets were scattered on the ground outside of the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S35027-14
store. After examining the exterior, Kirchner entered the
convenience store and immediately saw that the floor was
littered with dry goods and that lottery tickets and cigarettes
were missing from behind the counter. Additionally, Kirchner
observed that blood was smeared on the floor, the lottery ticket
counter, and on the shards of glass that remained in the front
registers had been pried open, and that coins and several sets of
keys were missing.
After surveying the damage, Kirchner and Snyder contacted
police. Officer Elliot Tirado of the Lancaster City Police
Department was dispatched and arrived at the scene at 9:24
a.m. Once he had interviewed Kirchner and observed the
damage, Officer Tirado contacted Sergeant Bradley Shenk to
assist him in processing the scene. Upon his arrival, Sergeant
Shenk located and processed two fingerprints on the countertop
directly inside of the broken plate glass window. Meanwhile,
Officer Tirado collected six blood samples from inside of the
store, including samples from the top of the deli counter, the
interior floor near the cash register, and the lottery ticket
counter. Additionally, Sergeant Shenk collected a blood sample
from the outside of the store on the ground in front of the
broken window. Finally, Officer Tirado inventoried the items that
were missing from the convenience store and photographed the
damage.
In July 2009, Detective Toby Hickey, the detective assigned to
samples collected from the crime scene to the Pennsylvania
State Police Serology Laboratory. On January 1, 2010, Detective
Hickey received a report from Serologist Brett Albright
blood. Albright then transmitted the samples collected from the
top of the deli counter and the interior floor of the service station
to the Pennsylvania State Police DNA Laboratory for additional
testing.
identification, examined the blood samples and created a DNA
profile for each sample. Irwin determined that both of the
samples contained the same DNA profile and that the profile was
produced by an unidentified male. The DNA profile was then
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which produced a hit indicating that the profile matched a known
blood sample from [] Franklin Johonoson.
Irwin notified Detective Hickey of the findings and that the
Manheim Township Police Department, also located in Lancaster
County, had recently submitted a DNA profile that matched
Johonoson in an unrelated case.
Lieutenant Clark Bearinger of the Lancaster City Police
Department obtained a search warrant permitting him to take a
buccal swab from Johonoson at SCI Mercer. Due to
miscommunication, the swab was never forwarded to the
Pennsylvania State Police Laboratory for comparison with the
uncovered until Detective Hickey reviewed the case file in May
2012. To remedy the error, Detective Hickey immediately
requested and received permission from Detective Sergant Keith
Kreider of the Manheim Township Police and the Pennsylvania
Defend
Station.
identification and comparison, compared the DNA profiles
known sample
Township Police Department, and determined that the two
profiles matched.
In addition, Detective Hickey, a latent fingerprint examiner,
compared the two fingerprints lifted from the counter in the
service stat
Detective Hickey determined that the fingerprints from the crime
comparison, on September 20, 2012, Detective Hickey charged
Johonoson with one count of burglary.[1]
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1
18 Pa.C.S. § 3502(a). The Commonwealth also charged Johonoson
with one count each of theft by unlawful taking and criminal mischief. 18
(Footnote Continued Next Page)
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On August 9, 2013, Johonoson filed a pre-trial motion to
suppress evidence. In his motion, Johonoson claimed that
Detective Hickey did not have the authority to use Manheim
purposes. A suppression hearing was conducted on August 12,
2013, at which time Johonoson additionally asserted a motion to
dismiss for pre-arrest delay. At the conclusion of the hearing,
the cou
On August 12, 2013, following a two-day jury trial, Johonoson
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sentence investigation was ordered. Prior to sentencing,
Johonoson filed a pro se -sentence (written) oral motion for
4[2]
extra ordinary [sic On September 23, 2013,
Johonoson
concurrent to a sentence he was already serving at docket
number 4407-2009. The court specifically indicated that
Johonoson was only to begin accruing time credit in the case at
bar on the date of the sentencing hearing.
4
pro se motion was largely
incomprehensible, and, as a result, the court was unable to
address it on the merits.
On October 2, 2013, Johonoson filed a post-sentence motion
comprised of a motion for arrest of judgment, motion for new
trial, and motion to modify sentence, all of which were denied on
October 11, 2013. On October 7, 2013, the Commonwealth
_______________________
(Footnote Continued)
Pa.C.S. §§ 3921, and 3304(a)(5), respectively. However, the
Commonwealth withdrew both of these charges at the suppression hearing.
2
We note that, at the time that Johonoson filed this pro se motion, he
was represented by counsel. Although the trial court made the motion part
of the certified record, the court did not rule on it. Because hybrid
representation generally is prohibited in Pennsylvania, see Commonwealth
v. Morgan, 39 A.3d 419, 420 (Pa. Super. 2012) (citing Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993), and Commonwealth v. Jette, 23
A.3d 1032 (Pa. 2011)), the trial court was correct in declining to rule on the
motion while Johonoson was represented by counsel.
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submitted a motion to modify sentence, indicating that the court
did not order the correct amount of restitution.6 The court
within thirty days, and, when Johonoson failed to do so, the
Commonwealth submitted a petition to make rule absolute on
November 13, 2013. Accordingly, on January 7, 2014, the court
restitution from $3,360 to $3,660.
6
At the sentencing hearing, the Commonwealth asked
the court to order $3,660 in restitution. However due to a
clerical error, only $3,360 was ordered on the record.
-2 (minor modifications for
clarity; some footnotes omitted).
On November 7, 2013, Johonoson timely filed a notice of appeal. On
November 8, 2013, the trial court ordered Johonoson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Johonoson timely complied. On January 17, 2014, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a).
Johonoson presents the following issues for our consideration:
1. Whether the trial court erred and/or abused its discretion, and
denied Johonoson due process in denying, after a hearing,
-trial motion to suppress DNA evidence and
Johonos
2. Whether the trial court erred and/or abused its discretion in
to convict Johonoson for burglary.
3. Whether the trial court erred and/or abused its discretion in
-sentence motion for arrest in
judgment and motion for new trial and motion to modify
sentence because:
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(a)
insufficient as a matter of law to sustain the verdict
of guilty for burglary because the Commonwealth did
not prove beyond a reasonable doubt all elements of
burglary;
(b) Johonoson was not awarded proper time credit;
(c) Johonoson was ordered to pay restitution even
though the charges of theft and criminal mischief (to
which restitution would have been properly ordered
were withdrawn by the Commonwealth.
Brief for Johonoson at 6 (minor modifications for clarity).
In his first issue, Johonoson argues that the trial court erred in
denying his motion to suppress DNA evidence, and his motion to dismiss for
prosecutorial delay. Johonoson combines these two ostensibly distinct
issues, and structures his claim as one of a violation of due process. See
Brief for Johonoson at 6. However, Johonoson has failed to develop either of
these claims in a manner sufficient to justify our review.
Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure
. . . have . . . the particular point treated
therein, followed by such discussion and citation of authorities as are
pertinent facts or cite legal authority will result in waiver of that particular
issue. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).
roughly one page, and includes only a single case, State v. Hauge, 79 P.3d
131 (Hawaii 2003). Johonoson merely recites the holding in Hauge, and
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notes that the trial court relied upon it. Johonoson makes no effort to apply
Hauge to the instant case. Instead, Johonoson simply asserts that his
Brief for Johonoson at 11. Johonoson provides no discussion whatsoever of
the precise nature of his claim. Without meaningful discussion of the legal
authorities that he relies upon, we cannot review
Id. In short, his undeveloped claim does not present a viable legal
theory upon which relief can be granted. Hence, the issue is waived.
We also
denial of his motion to dismiss for prosecutorial delay, is similarly
underdeveloped. In his brief, Johonoson dedicates the majority of his
discussion on this issue to recounting the procedural history of the case.
Although he cites two cases that purportedly support his contention,
Johonoson has failed to provide any analysis or application of those
authorities to the facts and circumstances at bar. See Pa.R.A.P. 2119(b)
ities must set forth the principle for which they are
Next, Johonoson presents a challenge to the sufficiency of the
evidence. Our standard of review is well-settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in [the]
light most favorable to the Commonwealth as verdict winner,
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support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find [that]
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-
burden may be met by wholly circumstantial evidence and any
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Mobley, 14 A.3d 887, 889 90 (Pa. Super. 2010)
(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010));
see Commonwealth v. Auker, 681 A.2d 1305, 1314 (Pa. 1996).
Under the provision of the Crimes Code applicable at the time of
Joh
building or occupied structure, or separately secured or occupied portion
thereof, with intent to commit a crime therein, unless the premises [were] at
the time open to the public or the actor [was] licensed or privileged to
3502(a).3
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3
The Pennsylvania General Assembly amended subsections 3502(a) and
(b) by Act of July 5, 2012, P.L. 1050, No. 122, § 1, which took effect on
events that occurred in July 2009, we apply the pre-amendment definition of
the offense, which, in any event, does not differ substantively from the
amended statute in any aspect relevant to this case.
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According to Johonoson, the Commonwealth failed to present evidence
sufficient to establish beyond a reasonable doubt that he intended to commit
a crime at the time that he entered Joh
at 16. We disagree. At trial, the Commonwealth presented extensive
Station. The Commonwealth presented evidence demonstrating that blood
samples, which had been collected from the floor of the service station and
matched the latent fingerprints that investigators lifted from the crime
scene.
that she closed the store at 8:00 p.m. on July 11, 2009, and that the store
was not open to the public after closing. Kirchner further testified that she
-glass
window had been broken. Moreover, food and debris were scattered
throughout the store, cigarettes and lottery tickets were missing, and each
rs had been pried open.
Viewing this evidence in the light most favorable to the Commonwealth
inconclusive that, as a matter of law, no probability of fact can be drawn
See Mobley, supra. Rather, the
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conclusion beyond a reasonable doubt that Johonoson entered the service
claim is without merit.
In his next issue, Johonoson claims that the trial court erred in failing
to credit Johonoson for time served. Because Johonoson was incarcerated
on other charges at the time that he was initially arraigned in this case, and
remained incarcerated on both cases until the time of his sentencing in the
instant case, he contends that the trial court should have credited him for
time served at both docket numbers.
custody as a result of the criminal charge for which a sentence is imposed as
9760(1). We have expla
Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa. Super. 1996). Such
on 9760
custody . . Commonwealth v. Hollawell, 604
A.2d 723, 725 (Pa. Super. 1992). At all relevant times, Johonoson was
serving a sentence in another case and necessarily receiving credit for that
time on that sentence. Accordingly, the trial court did not err in refusing to
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award Johonoson double credit for the time that he served on this case prior
to trial.
rt erred in ordering him to pay
restitution also presents a non-waivable challenge to the legality of his
sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1182 83 (Pa.
review is plenary and is limited to determining whether the trial court erred
Commonwealth v. Pombo, 26 A.3d 1155 (Pa. Super.
2011) (citation omitted). It is well-settled that the imposition of restitution
is proper only when there is a direct causal connection between the
underlying crime and the loss. Commonwealth v. Harriott, 919 A.2d 234,
crime wherein property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct result of the crime
...
Instantly, Johonoson
whatsoever that [he] stole lottery tickets, food items and/or broke two cash
causal connection between the burglary and the damaged/stolen items for
which Johonoson was ordered to reimburse the storeowner. In finding
Johonoson guilty of burglary, the jury necessarily found that Johonoson
entered into the store with the intent to commit a crime, in this case theft,
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therein. Consequently
ordering restitution is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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