J-A16019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TODD A. JOHNSON

                            Appellant                  No. 758 WDA 2016


            Appeal from the Judgment of Sentence February 2, 2016
              In the Court of Common Pleas of Armstrong County
               Criminal Division at No: CP-03-CR-0000197-2015


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                     FILED: SEPTEMBER 29, 2017

        Appellant, Todd A. Johnson, appeals from the February 2, 2016

judgment of sentence entered in the Court of Common Pleas of Armstrong

County (“trial court”) sentencing him to an aggregate sentence of 418

months to life for criminal homicide and robbery.1 Upon review, we affirm.

        The trial court summarized the factual history of the matter as follows.

              On February 10, 2015, [Appellant], then 17 years old,
        drove with his friend Cain Klingensmith to 110 Basin Street in
        Leechburg, Pennsylvania. [Appellant] previously had obtained
        marijuana from individuals living at that residence, and he had
        gone there on February 10, 2015[,] for the same purpose.
        [Appellant] entered the residence wearing black clothing,
        sunglasses[,] and a ski mask, and was carrying a loaded nine-
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2502(b) and 3701(A)(1)(ii), respectively.
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       millimeter handgun.     [Appellant] proceeded upstairs to the
       second floor living area, where one of the victims, Derrike
       Roppolo, age 19, was sitting with several friends. After a period
       of a few minutes, Mr. Roppolo retrieved a baseball bat and
       confronted [Appellant]. After an exchange of words, [Appellant]
       pushed Mr. Roppolo over the arm of a couch and shot him in the
       chest as Mr. Roppolo was attempting to climb back to his feet.
       Mr.Roppolo died shortly thereafter.         After the shooting,
       [Appellant] approached two other individuals, Destony Walker
       and Dakota McKinley, pointed the gun at Mr. McKinley, and
       demanded his cellular phone. Mr. McKinley had taken photos
       and videos of the incident with his Snapchat application, which
       were never retrieved. [Appellant] then fled the scene and was
       apprehended while traveling on State Route 422.

Trial Court Opinion, 4/20/16, at 1-2.

       Appellant was charged with criminal homicide, aggravated assault,

criminal attempt-theft, robbery with threats of bodily injury, possession of

firearms by minor, and terroristic threats. 2       A jury trial was held from

December 7, 2015, through December 10, 2015, on the homicide,

aggravated assault, and robbery counts. On December 10, 2015, the jury

found Appellant guilty of murder of the second degree and robbery with

threats of bodily injury.3       On February 2, 2016, the trial court sentenced

Appellant to 418 months to life in prison.

       Appellant filed a timely post-sentence motion on February 12, 2016.

The trial court held a hearing on the post-sentence motion on March 21,
____________________________________________


2 18 Pa.C.S.A. §§ 2501, 2702(a)(1), 901, 3701(a)(1)(ii), 6110.1, and
2706(a)(1), respectively.
3The jury also found that Appellant was at least 15 years old but less than
18 years old at the time of the offense.




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2016.     On April 20, 2016, the trial court denied Appellant’s post-sentence

motions. On May 19, 2016, Appellant filed a timely notice of appeal and on

May 23, 2016, the trial court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).               Appellant

complied on June 13, 2016, and the trial court issued a Rule 1925(a) opinion

on June 24, 2016.

        Appellant raises eight issues for our review, which we repeat verbatim,

        [I.]    Whether the trial court erred in denying [Appellant’s]
                motion for directed verdict as to first degree murder and
                as such improperly instructed the jury to consider first
                degree murder.

        [II.]   Whether [Appellant] could not have been found to have
                committed attempted robbery because reasonable doubt
                existed as a matter of law.

        [III.] Whether the [trial court’s] charge to [the] jury failed to
               protect [Appellant’s] right to have attempted robbery
               proved beyond a reasonable doubt.

        [IV.]   Whether [Appellant’s] constitutional rights are violated
                when he is convicted of felony-murder but was never
                charged with the underlying felony.

        [V.]    Whether the interest in ensuring that the felony-murder
                conviction as to a juvenile offender is unconstitutional
                outweighs the interest in finality.

        [VI.]   Whether felony-murder    as   applied   to   a   juvenile    is
                unconstitutional.

        [VII.] Whether [Appellant’s] conviction an stand because a
               juvenile standard must be applied to [Appellant’s]
               response in self-defense.

        [VIII.] Whether the required application of the “reasonable
                juvenile standard” in this case requires that the felony-
                murder conviction be overturned.

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Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Appellant’s first issue is that the trial court erred when it denied his

motion for judgment of acquittal on the charge of first degree murder. This

argument is meritless as Appellant was not convicted of first degree murder.

Appellant instead, asserts that it “elevated the seriousness of the crime

committed by [Appellant] to an inappropriate level that could easily have

had some of the jurors considering entering a verdict for First Degree

Murder.” Appellant’s Brief at 24. However, as we have noted, Appellant was

found not guilty of first degree murder. Therefore, this issue is meritless.

Alternatively, the trial court’s April 20, 2016 opinion adequately addresses

this issue and we adopt its reasoning herein.       See Trial Court Opinion,

4/20/16, at 8-11.

      Appellant’s second claim is a challenge to the sufficiency of the

evidence of attempted robbery via his second degree murder conviction.

Appellant failed to raise this issue in his concise statement of matters

complained of on appeal, thus this issue is waived. See Pa.R.A.P. 1925(b).

Moreover, Appellant failed to specify which element of attempted robbery he

is challenging, which also results in waiver.       See Commonwealth v.

Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008). Furthermore, the only

authority Appellant cites in his brief is the Pennsylvania Standard Jury

Instruction; thus, Appellant has failed to develop this argument and it is

waived.   See Pa.R.A.P. 2119; see also Commonwealth v. Kearney, 92




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A.3d 51, 66 (Pa. Super. 2014). Nonetheless, even though we find waiver,

we will address the merits.

      Our standard of review of a sufficiency of the evidence claim is well

established.

      The standard we apply in reviewing the sufficiency of the
      evidence is 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. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonably doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005))

(additional citations omitted) (alteration in original). Further,

      the second degree-murder statute does not set forth or require
      the commission of the predicate offense as an element. To
      secure   a    conviction   for   second-degree      murder,   the
      Commonwealth must prove that the defendant committed a
      murder “while [he or she] was engaged . . . in the
      perpetration of a felony.”           18 Pa.C.S.A. § 2502(b).
      “Perpetration of a felony” is statutorily defined in a very broad
      manner, encompassing, inter alia, “[t]he act of the defendant in


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      engaging in . . . the commission of, or an attempt to commit,
      . . . robbery. . . .” 18 Pa.C.S.A. § 2502(d).

Commonwealth v. Miller, 35 A.3d 1206, 1212 (Pa. 2012) (emphasis in

original).   Moreover, “the Commonwealth is not required to prove that the

accused actually committed the predicate offense.”              Id. (emphasis in

original).

      In the matter sub judice the Commonwealth presented evidence that

Appellant went to 110 Basin Street to steal marijuana.            He entered the

residence dressed in all black, wearing a ski mask with sunglasses, and

holding a loaded firearm in his hand. While holding the firearm in his hand,

Appellant said he was there for a “five-finger discount.”         N.T. Jury Trial,

12/8/15, at 105-06; N.T. Jury Trial, 12/9/15, at 289-90. Thus, there was

clearly sufficient evidence to suggest that Appellant was attempting to rob

the individuals at 110 Basis Street. Appellant’s claim fails.

      Next, Appellant asserts the trial court erred in its charge to the jury on

attempted robbery.     As the trial court properly noted, Appellant failed to

object to the jury instructions in the matter sub judice. Pennsylvania Rule of

Criminal Procedure 647 provides that “[n]o portions of the charge nor

omissions from the charge may be assigned as error unless specific

objections are made thereto before the jury retires to deliberate.”

Pa.R.Crim.P. 647(C).     Moreover, “the mere submission and subsequent

denial of proposed points for charge that are inconsistent with or omitted

from the instructions actually given will not suffice to preserve an issue,



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absent a specific objection or exception to the charge.” Commonwealth v.

Pressley, 887 A.2d 220, 225 (Pa. 2005). As discussed above, Appellant did

not object pursuant to Rule 647(C) before the jury retired to deliberate.

See N.T. Jury Trial, 12/10/15, at 619-661.        Thus, Appellant’s claim is

waived.

     Finally, Appellant’s fourth through eighth issues were not raised in his

Rule 1925 statement.     See Rule 1925(b) Statement, at 2-4; see also

Pa.R.A.P. 1925(b).

           Our jurisprudence is clear and well settled, and firmly
     established that: Rule 1925(b) sets out a simple bright-line rule,
     which obligates an appellant to file and serve a Rule 1925(b)
     statement, when so ordered; any issues not raised in a Rule
     1925(b) statement will be deemed waived; the courts lack
     authority to countenance deviation from the Rule’s terms; the
     Rule’s provisions are not subject to ad hoc exceptions or
     selective enforcement; appellants and their counsel are
     responsible for complying with the Rule’s requirements; Rule
     1925 violations may be raised by the appellate court sua sponte,
     and the Rule applies notwithstanding an appellee’s request not
     to enforce it; and, if Rule 1925 is not clear as to what is required
     of an appellant, on-the record actions taken by the appellant
     aimed at compliance may satisfy the Rule. We yet again repeat
     the principle first stated in [Commonwealth v. Lord, 719 A.2d
     306, 309 (Pa. 1998)] that must be applied here: “[I]n order to
     preserve their claims for appellate review, [a]ppellants must
     comply whenever the trial court orders them to file a Statement
     of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.
     Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
     deemed waived.”

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (quoting Lord, 719

A.2d at 309) (footnote omitted).    Thus, Appellants fourth through eighth

claims are waived.


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      In conclusion, we find that Appellant’s claims are either waived or lack

merit.   Therefore, we affirm the judgment of sentence.     We direct that a

copy of the trial court’s April 20, 2016 opinion be attached to any future

filings in this case.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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