Com. v. Richardson, W. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM M. RICHARDSON :
:
Appellant : No. 2822 EDA 2022
Appeal from the Judgment of Sentence Entered June 24, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006269-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 4, 2023
Appellant, William Richardson, appeals from a June 24, 2022 Judgment
of Sentence entered in the Philadelphia County Court of Common Pleas
following his conviction of Aggravated Assault, Possession of Firearm
Prohibited, and Carrying a Firearm Without a License. 1 Appellant challenges
the trial court’s denial of his motion to suppress, the sufficiency and weight of
the evidence, and the length of the sentence imposed. After careful review,
we affirm.
On May 18, 2019, Delores Ward (“Victim”) spent the day with her friend,
Julia Whittington, in James Watkins’s apartment. Appellant, who lived next
door to Watkins, spent some time with Victim and Whittington. All three left
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2702, § 6105, and § 6106, respectively.
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the apartment after Appellant propositioned Whittington and she rejected his
advances.
Later that day, Victim and Whittington returned to the apartment.
Appellant called Whittington while standing outside the door and demanded
that the women let him into the apartment, but Victim and Whittington
refused. When Watkins returned home and walked through the door, Appellant
walked in behind him. Appellant stepped around Watkins and punched Victim
in the face. Victim jumped on Appellant, brought him to the ground, and
punched Appellant. While on the ground, Appellant pulled Victim closer, took
a gun from his waistband, and shot her in the stomach, causing severe injuries
which resulted in, among other things, the removal of a kidney and the
resection of her pancreas. Appellant fled the scene while Watkins called 911.
Police officers arrested Appellant later that night several blocks away
from the apartment. He did not have a firearm on his person at the time of
the arrest. The next day, police secured a warrant to search Appellant’s
residence and found the firearm used in the shooting. Appellant was prohibited
from possessing a firearm because of prior convictions.
The Commonwealth charged Appellant with the above offenses, in
addition to attempted murder and related offenses.
On October 7, 2020, Appellant entered an open guilty plea. The court
ordered a pre-sentence investigation and deferred sentencing. After
numerous continuances and the appointment of new counsel, Appellant filed
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a motion to withdraw his guilty plea, which the court granted on June 29,
2021.
On August 6, 2021, Appellant filed a motion to suppress the evidence
found during the search of his home, challenging, inter alia, the affidavit of
probable cause supporting the search warrant as overly vague. On November
22, 2021, the court denied Appellant’s Motion to Suppress the firearm located
pursuant to a search of his home.
On April 11, 2022, the case proceeded to a waiver trial, where Victim,
Whittington, Watkins, and Appellant testified. The trial court found Appellant
guilty of the above offenses.
On June 24, 2022, the court imposed an aggregate term of of 9 to 30
years’ incarceration.2
Appellant filed a timely post-sentence motion, which the trial court
denied.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the Court erred in denying appellant’s motion to suppress
insofar as the factual averments in the warrant affidavit did not establish
probable cause because there was no reason to believe [Appellant] went
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2 The aggregate sentence includes a “very mitigated” term of 4½ to 20 years’
incarceration on the aggravated assault conviction, a consecutive term of 4½
to 10 years’ incarceration for person not to possess firearms, and a concurrent
term of 3½ to 7 years’ incarceration for firearms not to be carried without a
license, with credit for time served. N.T. Sentencing, 6/24/22, at 31-32.
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to his home after the incident and because the affidavit failed to state
with particularity what item(s) were to be seized?
2. Whether the Court abused its discretion in denying [Appellant]’s
challenge to the weight of the evidence insofar as (a) the victim
conceded that she was using unlawful force against [Appellant] at the
time that she was shot; (b) the Commonwealth’s witnesses were
completely inconsistent in their testimony regarding how the incident
occurred; (c) [Appellant] testified that he woke up while being attacked
and that he shot to ward off the person who was attacking him?
3. Whether the evidence was insufficient insofar as the Commonwealth
failed to disprove self-defense beyond a reasonable doubt?
4. Whether the Court’s judgment of sentence was excessive in light of
the facts and circumstances, [Appellant]’s background and
characteristics, the mitigation submitted, the applicable guidelines, the
fact that his criminal history was overstated and was stale, and that the
court in effect ordered a life sentence?
Appellant’s Br. at 9.
I. Motion to Suppress
In his first issue, Appellant challenges the suppression court’s denial of
his motion to suppress the firearm obtained during the search of his home.
Appellant’s Br. at 13. Appellant argues that the search warrant was defective
because “there was no reason for law enforcement to believe that [Appellant]
re-entered his residence following the incident at issue.” Id. We affirm the
decision of the suppression court.
Our review of a challenge to the denial of a motion to suppress “is limited
to determining whether the suppression court's factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.” Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super. 2014)
(citation omitted). “[O]ur scope of review is limited to the factual findings and
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legal conclusions of the suppression court.” In re L.J., 79 A.3d 1073, 1080
(Pa. 2013). We defer to the suppression court, “as factfinder[,] to pass on the
credibility of witnesses and the weight to be given to their testimony.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003).
“[H]owever, we maintain de novo review over the suppression court's legal
conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010).
In Pennsylvania, “the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution protect
citizens from unreasonable searches and seizures.” Commonwealth v.
Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal alteration and
quotation marks omitted). “Where there exists a reasonable expectation of
privacy, Article I, Section 8 and the Fourth Amendment generally require
police to obtain a warrant, issued by a neutral and detached magistrate and
founded upon probable cause, prior to conducting a search or seizure of a
person and/or a person's property, unless one of the few well delineated
exceptions apply.” Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa.
2017).
“A search warrant is defective if the issuing authority has not been
supplied with the necessary information . . . [to establish that] a fair
probability exists that contraband or evidence of a crime will be found in a
particular place.” Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa.
Super. 2007). When reviewing whether probable cause supported the
issuance of the search warrant, we consider the totality of the circumstances
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set forth in the affidavit evaluated according to a common-sense
determination. Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super.
2013).
Appellant avers that “there was nothing law enforcement could have
relied upon to form a reasonable belief that contraband or evidence of a crime
would likely be found in . . . [Appellant’s] residence.” Appellant’s Br. at 15
(emphasis in original). Appellant argues that since he fled from the area of
the shooting and was subsequently arrested several blocks away, law
enforcement did not have probable cause to obtain the warrant on Appellant’s
residence. Id.The suppression court found that the affidavit established sufficient
probable cause to search Appellant’s residence, and the evidence was
therefore legally obtained. Tr. Ct. Op., 12/12/22, at 33. In particular, the
suppression court considered that the witnesses were unsure if Appellant
returned to his apartment after committing the crime, that Appellant did not
have a gun on him at the time of his arrest, and that Appellant lived next door
to the scene of the crime. Id.We conclude that the record supports the findings of the suppression
court and the legal conclusion that there was sufficient probable cause to
obtain a warrant on Appellant’s residence. The totality of the circumstances,
including that Appellant’s apartment was next door to the scene of the crime
and that Appellant did not have a gun on him at the time of his arrest,
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establishes a fair probability that evidence of the crime would be found at his
residence. Appellant’s claim, thus, fails.3
II. Weight of the Evidence
In his second issue, Appellant argues that the verdict was against the
weight of the evidence and the trial court abused its discretion in failing to
grant a new trial. Appellant’s Br. at 19. We affirm the decision of the trial
court.
“The weight of the evidence is exclusively for the finder of fact, who is
free to believe all, none[,] or some of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545
(Pa. Super. 2015) (citation omitted). The fact-finder is solely responsible for
resolving contradictory testimony. Commonwealth v. Hopkins, 747 A.2d
910, 917 (Pa. Super. 2000). It is well-settled that we cannot substitute our
judgment for that of the trier of fact. Talbert, supra at 546.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id. at 545-46.
“In order for a defendant to prevail on a challenge to the weight of the
evidence, the evidence must be so tenuous, vague and uncertain that the
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3 Although presented in his Statement of Questions Involved, Appellant
provided no argument pertaining to his claim that “the affidavit failed to state
with particularity what item(s) were to be seized[.]” Appellant’s Br. at 9.
Appellant, thus, abandoned this claim.
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verdict shocks the conscience of the court.” Id. at 546 (citation omitted). As
our Supreme Court has made clear, reversal is only appropriate “where the
facts and inferences disclose a palpable abuse of discretion[.]”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citations and
emphasis omitted).
Appellant argues that the Commonwealth presented contradictory
testimony from witnesses “who were either high or on drugs” at the time of
the incident. Appellant’s Br. at 20. Appellant claims that “the evidence as a
whole established that [Appellant] was justified in his actions on the date in
question” and that “the witnesses were all intoxicated at the time of the event
and really have no memory or grasp of what actually occurred.” Id.The trial court, however, concluded that there were only “minor
inconsistencies” in witness testimonies “that could be attributed to the length
of time between the incident and trial” and that Appellant’s testimony was
“wildly inconsistent” with that of other witnesses. Tr. Ct. Op. at 37.
Appellant essentially asks us to reassess the credibility of the witnesses
and reweigh the testimony and evidence presented at trial. We cannot and
will not do so. Our review of the record shows that the evidence is not tenuous,
vague, or uncertain, and the verdict was not so contrary to the evidence as to
shock the court’s conscience. We, thus, discern no abuse of discretion in the
trial court’s denial of Appellant’s weight claim.
III. Sufficiency of the Evidence
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In his third issue, Appellant argues that the Commonwealth failed to
disprove self-defense beyond a reasonable doubt, and the evidence was thus
insufficient to support the verdict. Appellant’s Br. at 16. Appellant argues that
the judgment of sentence must be vacated. Id. We affirm the judgment of
sentence and dismiss Appellant’s claim.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “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 fact-finder to find
every element of the crime beyond a reasonable doubt.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and
citations omitted). “Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence.” Id. “In conducting this review, the appellate court may
not weigh the evidence and substitute its judgment for the fact-finder.” Id.When one employs deadly force, as Appellant did, the elements of a
claim of self-defense are that the individual (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). A defendant does not have a
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burden to prove a claim of self-defense. Commonwealth v. Torres, 766 A.2d
342, 345 (Pa. 2001). Once a defendant claims self-defense, the
Commonwealth bears the burden of disproving it and can do so by, inter alia,
proving that the defendant was not free from fault in provoking or continuing
the altercation. Mouzon, 53 A.3d at 740.
Appellant argues that he “testified repeatedly and consistently that he
was attacked by the people (including the victim) while he was inside of the
house” and that he only shot the victim to “ward off an unlawful assault.”
Appellant’s Br. at 17-18. Appellant claims that this indicates that the
Commonwealth has failed to disprove self-defense beyond a reasonable
doubt. Id. at 18.
In its Rule 1925(a) Opinion, the trial court observed that it had found
that Appellant’s testimony lacked credibility and had concluded that Appellant
was the aggressor in the altercation with Victim. Tr. Ct. Op. at 34, 37. The
trial court also found that Appellant could not invoke self-defense because he
was not free from fault in provoking the encounter, he did not reasonably
believe he was in imminent danger of death or great bodily harm, and he
violated his duty to retreat. Id. at 35.
The record supports the trial court’s findings. Appellant asks us to usurp
the fact-finder’s credibility determination and credit his testimony over the
Commonwealth’s evidence to find that he shot the victim in self-defense. We
cannot and will not do so. We discern no abuse of discretion in the trial court’s
conclusion that the verdict was not against the weight of the evidence.
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IV. Sentencing
In his fourth issue, Appellant claims that the sentence imposed for his
aggravated assault conviction is excessive. Appellant’s Br. at 21-22. This
argument implicates the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Instead, an appellant must invoke this Court’s jurisdiction by (1) filing
a timely notice of appeal; (2) properly preserving the issue at sentencing or
in a motion to reconsider or modify the sentence; (3) complying with Pa.R.A.P.
2119(f), which requires a separate section of the brief setting forth a concise
statement of the reasons relied upon for allowance of appeal; and (4)
presenting a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.
In the instant case, Appellant met the first three criteria. We, thus, next
determine if Appellant has raised a substantial question meriting our review
of his sentence.
“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. Summers, 245 A.3d 686, 692 (Pa. Super. 2021). Where
a sentence falls within or below the sentencing guidelines, an allegation that
the sentencing court failed to consider mitigating factors does not raise a
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substantial question. Commonwealth v. Rhoades, 8 A.3d 912, 918-19 n.12
(Pa. Super. 2010).
Appellant claims that his sentence is excessive because he is 63 years
old, “there was an element of justification to [Appellant’s] conduct,” and his
placement in the “REVOC criminal history category was a gross overstatement
of his criminal history, as argued at sentencing.” Appellant’s Br. at 22-23.
Appellant’s Br. at 22. Appellant does not provide citation to the record, does
not acknowledge that his sentence fell below the standard range of the
recommended guideline range, and makes no argument that the court’s
actions were inconsistent with a specific provision of the Sentencing Code or
contrary to the fundamental norms which underlie the sentencing process.
We conclude Appellant has failed to raise a substantial question. We,
thus, affirm his judgment of sentence.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/04/2023
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