J-S33028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

BERNARD LEWIS RICHARDSON, III

                         Appellant                  No. 1524 WDA 2015


           Appeal from the Judgment of Sentence May 19, 2015
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001641-2014

BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MAY 18, 2016

      Appellant, Bernard Lewis Richardson, III, appeals from the judgment

of sentence entered on May 19, 2015, as made final by the denial of his

post-sentence motion by operation of law on September 28, 2015.          We

affirm.

      The factual background of this case is as follows.     In mid-January

2014, Keith Johnson (“Johnson”) overheard his paramour, Misty Danko

(“Danko”), discussing the fact that the father of two of her children, Ronald

Packroni, was selling marijuana.     On the evening of January 13, 2014,

Johnson and Danko met in a Uniontown bar to discuss robbing Ronald

Packroni. During this meeting, Appellant arrived at the bar, discussed the

planned robbery with Johnson, and then left.        Eventually, Johnson and

Danko left the bar and picked up Broderick Harris and Appellant.



* Retired Justice specially assigned to the Superior Court
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     In an attempt to gain access to Ronald Packroni’s residence, Danko

called him and offered to have sex with him at his residence. Once the four

conspirators arrived at Ronald Packroni’s residence during the early morning

hours of January 14, Ronald Packroni welcomed Danko into the house.        A

few minutes later, Danko entered the kitchen and let the other three

perpetrators in to the residence. When Ronald Packroni left his bedroom to

see what was occurring, he encountered one of the three males carrying a

firearm.    The intruder ordered Ronald Packroni to lie on the floor with his

face down. Ronald Packroni was then ordered into the living room where he

observed the other two males beating his brother, Jonathan Packroni, and

Jonathan Byers (“Byers”).     The three intruders then tied Byers’ and the

Packronis’ wrists and ankles with phone and cable cords.          The three

intruders continued to kick and beat the Packronis and Byers with their

firearms.    The intruders also told the Packronis and Byers that they were

going to kill them.      During this vicious assault, Danko ransacked the

residence.     The four perpetrators eventually fled in Ronald Packroni’s

vehicle. Danko received over $11,000.00 in proceeds from the robbery.

     The procedural history of this case is as follows.     On December 1,

2014, Appellant was charged via criminal information with committing 49

offenses. At the conclusion of a bench trial on May 15, 2015, Appellant was




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convicted of three counts of aggravated assault,1 three counts of false

imprisonment,2 three counts of robbery,3 two counts of burglary,4 two

counts of criminal trespass,5 two counts of theft by unlawful taking,6

unauthorized use of a motor vehicle,7 three counts of making terroristic

threats,8 and conspiracy to commit robbery.9 He was found not guilty of the

29 remaining charges.

        On May 19, 2015, the trial court sentenced Appellant to an aggregate

term of 20 to 40 years’ imprisonment.10 On May 29, 2015, Appellant filed a




1
    18 Pa.C.S.A. § 2702(a)(4).
2
    18 Pa.C.S.A. § 2903(a).
3
    18 Pa.C.S.A. § 3701(a)(1)(ii).
4
    18 Pa.C.S.A. § 3502(a)(1).
5
    18 Pa.C.S.A. § 3503(a)(1)(i).
6
    18 Pa.C.S.A. § 3921(a).
7
    18 Pa.C.S.A. § 3926(a).
8
    18 Pa.C.S.A. § 2706(a)(1).
9
    18 Pa.C.S.A. §§ 903, 3701.
10
   Appellant was sentenced consecutively to five to ten years’ imprisonment
at each of the three robbery counts and one burglary count. Appellant was
sentenced to no further punishment on the remaining counts.



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post-sentence motion.      On September 28, 2015, that motion was deemed

denied via operation of law.11 This timely appeal followed.

        Appellant presents three issues for our review:12

     1. Whether the trial court erred in not rejecting [Appellant’s]
        confession as unreliable[.]

     2. Whether the trial court erred by denying [Appellant’s] request
        for a new trial on the basis that the court’s verdict of guilt as to
        all counts was against the weight of the evidence specifically as
        to the element of identity[.]

     3. Whether the trial court abused its discretion in denying
        [Appellant’s] motion to modify his sentence on the basis that the
        same was manifestly unreasonable[.]


11
   Pursuant to Pennsylvania Rule of Criminal Procedure 720, the passage of
120 days from the filing of Appellant’s post-sentence motion required the
clerk of courts to enter an order on the docket denying Appellant’s motion
via operation of law. Pa.R.Crim.P. 720(B)(3)(c). Such an order should also
have been forwarded to counsel for Appellant, including notice of: the right
to appeal and the time limits within which an appeal must be filed; the right
to counsel to assist with the appeal; the rights, if Appellant is indigent, to
appeal in forma pauperis and to proceed with assigned counsel as provided
in Rule 122; and, the qualified right to bail under Pa.R.Crim.P. 521(B). See
Pa.R.Crim.P. 720(B)(4). No such order was entered on the docket or
forwarded to counsel for Appellant. Nevertheless, counsel for Appellant filed
a notice of appeal and a concise statement of errors complained of on appeal
on October 1, 2015, within 30 days of the date on which Appellant’s post-
sentence motion was deemed denied by operation of law. The trial court
issued its Rule 1925(a) opinion on October 20, 2015. Because counsel filed
the notice of appeal within 30 days of the date on which Appellant’s post-
sentence motion was deemed denied by operation of law, we may view this
appeal as having been taken in a timely manner from a final order.

We remind the trial court and the clerk of courts to track post-sentence
motions and enter the appropriate order when required by Rule
720(B)(3)(c).
12
     We re-numbered the issues for ease of disposition.



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Appellant’s Brief at 8 (complete capitalization omitted).

       In his first issue, Appellant argues that the trial court erred in

admitting his confession. This argument is waived. “Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). Our review of the docket indicates that Appellant failed to

file a motion in limine or a suppression motion. Furthermore, at trial when

the    Commonwealth    moved     the   admission   of   Appellant’s   confession,

Appellant’s counsel stated, “No objection, Your Honor.”       N.T., 5/15/15, at

112.    Thus, Appellant failed to object to the admission of the confession.

Accordingly, this issue is waived.13

       In his second issue, Appellant argues that the verdict was against the

weight of the evidence. Specifically, Appellant argues that the trial court’s

finding that he was one of the three men who robbed and assaulted the

Packronis and Byers was against the weight of the evidence. A challenge to

the weight of the evidence must first be raised at the trial level “(1) orally,

on the record, at any time before sentencing; (2) by written motion at any

time before sentencing; or (3) in a post-sentence motion.” In re J.B., 106

A.3d 76, 97 (Pa. 2014) (citation omitted). Appellant properly preserved his

weight of the evidence claim by raising the issue in his post-sentence

motion.

13
  Appellant was required to set forth in his brief the place in the record
where the issue was preserved. See Pa.R.A.P. 2117(c). Failure to do so
may result in waiver of that issue. See Pa.R.A.P. 2101.



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      “[A] new trial based on a weight of the evidence claim is only

warranted where the [] verdict is so contrary to the evidence that it shocks

one’s sense of justice.”   Commonwealth v. Tejada, 107 A.3d 788, 795-

796 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015) (internal

alteration and citation omitted). “[W]e do not reach the underlying question

of whether the verdict was, in fact, against the weight of the evidence.”

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015)

(citation omitted).   Instead, we will reverse the trial court’s ruling on a

weight of the evidence claim after a bench trial only if “the court’s

determination was manifestly erroneous, arbitrary and capricious[,] or

flagrantly contrary to the evidence.” J.J. DeLuca Co., Inc. v. Toll Naval

Assocs., 56 A.3d 402, 410 (Pa. Super. 2012) (internal quotation marks and

citation omitted).

      At trial, Danko testified that Appellant was one of the three intruders.

N.T., 5/15/15, at 56.      She testified that Appellant beat Byers and the

Packronis and threated to kill them. Id. at 57-58. Danko also testified that

Appellant had a lisp. Byers testified at trial that one of the three intruders

had a lisp. Id. at 81. Finally, Appellant confessed to being one of the three

intruders.   Commonwealth’s Exhibit 3.      Based upon this review of the

evidence, we conclude that the trial court’s finding that the verdict did not

shock its sense of justice was not “manifestly erroneous, arbitrary and

capricious[,] or flagrantly contrary to the evidence.” J.J. DeLuca, 56 A.3d



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at 410.     As such, Appellant is not entitled to relief on his weight of the

evidence claim.

      In his final issue, Appellant argues that his sentence is excessive. This

issue challenges the discretionary aspects of Appellant’s sentence.        See

Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).

Pursuant to statute, Appellant does not have an automatic right to appeal

the discretionary aspects of his sentence.     See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      [w]e conduct a four-part analysis to determine: (1) whether
      [the] 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 [the] 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted). Appellant filed a timely notice of appeal and preserved the issue

in his post-sentence motion.      Appellant did not include a Rule 2119(f)

statement in his brief; however, the Commonwealth failed to object to that

omission.    Therefore, we may proceed to whether Appellant has raised a

substantial question. See Commonwealth v. Spenny, 128 A.3d 234, 241

(Pa. Super. 2015).


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      “In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to   the   fundamental        norms     underlying   the       sentencing   process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial   question   is   to   be   evaluated    on    a   case-by-case   basis.”

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),

appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).

      “[A] bald claim of excessiveness does not present a substantial

question for review[.]” Haynes, 125 A.3d at 807-808. As Appellant’s only

argument as to why this case presents a substantial question is that the

sentence “is manifestly excessive so as to inflict too severe a punishment,”

Appellant’s Brief at 21, he fails to raise a substantial question and we do not

reach the merits of his discretionary aspects claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2016




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