J-S58003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILLY JOE RICHTER                          :
                                               :
                       Appellant               :   No. 1713 WDA 2018

      Appeal from the Judgment of Sentence Entered November 2, 2018
              In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003360-2016


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED JANUARY 03, 2020

       Billy Joe Richter appeals from the judgment of sentence entered on

November 2, 2018, in the Court of Common Pleas of Allegheny County,

following his conviction of one count each of murder in the first degree,

robbery, and burglary; two counts each of assault of a law enforcement officer

and aggravated assault; and five counts of recklessly endangering another

person (“REAP”).1 On appeal, Richter claims the evidence was insufficient to

sustain his conviction and the trial court erred in granting the Commonwealth’s

motion in limine to preclude him testifying about his mental health diagnosis

and treatment. After review, we affirm.




____________________________________________


118 Pa.C.S.A. §§ 2501(a), 3701(a)(1), 3502(a), 2702.1(a), 2702(a)(2), and
2705, respectively.
J-S58003-19


      We take the underlying facts and procedural history in this matter from

the trial court’s May 8, 2019 opinion and our review of the certified record.

      At trial, Carol Basinger, [Richter’s] cousin, testified that [he] came
      to visit her at her home in March of 2015. During the course of
      their conversation, [Richter] told Basinger that [he] wanted a gun
      for his upcoming birthday. Basinger testified that [Richter] said[,]
      “he was going to shoot his uncle and his other uncle was going to
      shoot him.” She did not take [him] seriously. She further testified
      [ ] “he would say that the Good Lord told him to kill.”

      Allegheny County Police Detective Laurie McKeel testified that on
      May 20, 2015, she was asked to go to the 911 call center.
      Through her investigation she determined that Harrison Shaffer
      had made a 911 call.[a] She later determined that another
      individual who could be heard on that call was [Richter]. When
      she arrived at the call center, she listened to a recording of the
      beginning of the 911 call and then continued to listen to the open
      line.[b] Over the open line, she heard two voices. She was unsure
      if she heard gunshots because the television was playing in the
      background. She testified that she heard an individual say “It’s
      God’s will.”

            [a]The Commonwealth admitted a recording of the
            911 call and a transcript of the call was marked as an
            exhibit but not admitted. On the 911 call transcript,
            Shaffer says “A guy just broke in and knocked me
            down, and he’s trying to steal my guns. Shaffer later
            says[,] “He’s tearing my house up, getting them
            guns.” Later, Shaffer says “Help me. He shot me.”

            [b]An open line is a 911 call where the caller is not
            responding to the 911 operator but voices and/or
            activity can be heard on the line.

      Forward Township Chief of Police Travis Stoffer responded to a
      burglary in progress call on May 20, 2015, at 505 Pine Avenue. As
      he proceeded to the address, he received updated information
      that the burglary was actually “a home invasion, but the caller
      knows the actor to be his nephew.” Chief Stoffer testified he was
      further updated that dispatch believed they heard gunshots and
      they could no longer get the caller to respond. Upon arrival at
      505 Pine, Chief Stoffer saw a gun come out of the front door and

                                      -2-
J-S58003-19


     then a man came out the front door and fired two rounds at him.
     He returned fire and took cover. Officer Aaron Davis arrived
     shortly thereafter. Chief Stoffer identified [Richter] as the person
     who fired two shots at him. Over the next three to four hours,
     police officers from neighboring jurisdictions arrived and
     established a perimeter while [Richter] periodically opened the
     front door, fired a shot or two, and retreated back into the
     residence. Chief Stoffer heard [Richter] state that he was going
     to shoot one of the officers between the eyes. The SWAT team
     arrived with an armor- plated vehicle to protect the officers who
     were under fire.

     Glenn Fine, then a [Sergeant] with Forward Township Police
     Department, testified that he arrived at the scene shortly after
     Chief Stoffer. He said that he attempted to get to the victim,
     Harrison Shaffer, but was thwarted by shots fired at him and at
     other officers by Richter.

     Aaron Davis, another former Forward Township Police Officer,
     testified [Richter] shot at him and at Chief Stoffer. During an
     exchange of gunfire, [Pennsylvania State] Trooper [Antonio]
     DeMarchi hit [Richter] with a round of ammunition and [Richter]
     retreated into the residence where he was not heard from for
     several minutes. Officer Davis heard [Richter] yell several times
     that he was not going back to prison and that he was going to
     shoot one of the officers between the eyes.

     Lincoln Borough Chief Richard Bosco testified that, after [Richter]
     was shot, he and two other officers approached the residence in
     order to locate the victim and determine his status. As an officer
     pulled on the door, Chief Bosco testified that a shotgun blast hit
     the door and forced their retreat.

     Trooper Antonio DeMarchi of the Pennsylvania State Police
     testified that he and three or four other troopers responded to the
     call and helped establish a perimeter around the house. From his
     vantage point, approximately 80 yards from the front of the
     house, he observed the scene through the magnified scope on his
     rifle. He observed a man come to the door holding a long gun
     across his waist. Trooper DeMarchi watched as the man “started
     to raise the rifle.” The Trooper heard several other officers tell
     the man to drop the gun, but the man, later identified as [Richter],
     failed to do so. As [Richter] was shouldering the weapon, Trooper
     DeMarchi fired one shot which hit [him]. Shortly thereafter, the

                                    -3-
J-S58003-19


      Trooper heard a gunshot from inside the house and pellets hitting
      the trees to his right.

      Lincoln Township Police Department [Sergeant] Jamie Evans
      testified that her hand was on the front door when someone fired
      a weapon from inside the residence. She stated that she believed
      it was the intent of the person who fired the weapon to shoot her
      and other uniformed officers and testified that she would have
      been hit if she had not taken evasive action.

      Detective Todd Dolfi of the Allegheny County Police Department
      testified that, ultimately, he recovered a shotgun on the first floor
      of Shaffer’s residence at the edge of the kitchen. The parties
      stipulated that the firearm was operable. Detective Dolfi also
      testified that he recovered nine spent shotgun shells inside the
      residence.

      Stephanie Nickolas, a scientist from the Allegheny County Medical
      Examiner’s Office, testified that blood was found on the shotgun
      recovered by Detective Dolfi at the crime scene. Ashley Platt, a
      scientist from at the Medical Examiner’s Office, testified that the
      blood on the shotgun matched the DNA profile of [Richter].
      Moreover, the victim, Harrison Shaffer, was specifically excluded
      as a match for the blood on the shotgun. The parties stipulated
      that Dr. Biayang Xu, a forensic pathologist from the Allegheny
      County Medical Examiner’s Office, would have testified if called
      that: Shaffer died as a result of gunshot wounds to the head,
      neck and trunk of his body; the manner of death was homicide;
      based on his examination of the body, Shaffer was first shot in the
      stomach, then the neck, and finally the head; and the assailant
      moved closer to Shaffer as he fired each shot.

Trial Court Opinion, 5/08/19, at 3-6 (record citations omitted).

      On November 1, 2018, the Commonwealth made an oral motion in

limine to preclude Richter from testifying that, prior to trial, he received

mental health treatment as an inpatient at Torrance State Hospital. See N.T.

Trial, 11/01/18, at 254. Defense counsel did not oppose the motion in limine,

specifically stating, “I have no intention of asking Mr. Richter anything


                                      -4-
J-S58003-19


regarding mental illness.” Id. The trial court explained to Richter that, when

he testified, he could only answer questions asked by counsel and his mental

health was not an issue in the case. See id. at 257. While defense counsel

agreed Richter could not testify regarding his mental health problems, Richter

objected saying, “I was there for specific treatment. It should be known. . . .

I was not capable of my own actions, I believe.” Id. at 257-58.

      Richter took the stand in his own defense. He testified he was at a gas

station when he fell asleep in his car and when he awoke he was in his uncle’s

house with a gun in his hands. See id. at 278-79. He maintained “the Lord”

possessed him and “the Lord showed up again and put a hole in my back with

a sword or something.” Id. at 280-81. Richter claimed to have no memory

of killing his uncle or the shoot-out with police and believed the police lied

when they said Trooper DeMarchi shot him because, “I only got one [scar] on

my shoulder blade where the Lord put the sword in.” Id. at 284. On cross-

examination, Richter continued to argue God drove his car to his uncle’s

residence and he had no memory of either shooting his uncle or shooting at

the police. See id. at 289.

      On November 2, 2018, a jury convicted Richter of murder in the first

degree, robbery, burglary, two counts of aggravated assault, two counts of

assault of a police officer, and five counts of REAP. The jury acquitted Richter

on two counts of assault of a police officer and three counts of aggravated

assault. The trial court immediately sentenced him to a term of life


                                     -5-
J-S58003-19


imprisonment for murder in the first degree, followed by an aggregate

consecutive term of 70 to 140 months’ imprisonment for assault on a law

enforcement officer. The instant, timely appeal followed.2

       In his first issue on appeal, Richter contends the evidence was

insufficient to sustain his convictions because the Commonwealth failed to

prove conscious intent beyond a reasonable doubt. Richter’s Brief, at 21-34.

Specifically,    Richter   claims   the    Commonwealth   did   not   disprove   his

“uncontroverted testimony at trial . . . that he acted under the ‘Lord’s will,’

[and] was unconscious for much of the events[.] . . .” Id. at 21. We disagree.

       Our standard of review for a challenge to the sufficiency of the evidence

is as follows:

       The determination of whether sufficient evidence exists to support
       the verdict is a question of law; accordingly, our standard of
       review is de novo and our scope of review is plenary. In assessing
       [a] sufficiency challenge, we must determine whether viewing all
       the evidence admitted at trial in the light most favorable to the
       [Commonwealth], there is sufficient evidence to enable the
       factfinder to find every element of the crime beyond a reasonable
       doubt.     [T]he facts and circumstances established by the
       Commonwealth need not preclude every possibility of innocence.
       . . . [T]he finder 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.




____________________________________________


2 On December 3, 2018, the trial court ordered Richter to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court granted Richter an extension of time, and Richter filed a timely
Rule 1925(b) statement on February 4, 2019. On May 8, 2019, the trial court
issued an opinion.

                                           -6-
J-S58003-19


Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).

      Richter challenges the sufficiency of the evidence underlying each of his

convictions. However, he views the evidence in the light most favorable to

him, rather than the Commonwealth, the verdict winner, as required by our

case law.   See Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa.

Super. 2017), appeal denied, 170 A.3d 1023 (Pa. 2017); Richter’s Brief, at

21-34.

      As Richter’s first issue is actually a broad based challenge to each of his

convictions, albeit on the same grounds at each issue, we will address each

type of crime individually. First, we address his conviction for murder in the

first degree.

      “An individual commits first-degree murder when he intentionally kills

another human being; an intentional killing is defined as a willful, deliberate

and premeditated killing.” Commonwealth v. Williams, 176 A.3d 298, 306

(Pa. Super. 2017) (internal quotation marks and citation omitted). “To sustain

a conviction for first-degree murder, the Commonwealth must establish

beyond a reasonable doubt that: (1) a human being was unlawfully killed;

(2) the defendant was responsible for the killing; and (3) the defendant acted

with malice and the specific intent to kill.” Commonwealth v. Cash, 137

A.3d 1262, 1269 (Pa. 2016) (citation omitted). “[T]he jury, as a factfinder,

may infer that the accused intended to kill a victim based on the accused’s


                                      -7-
J-S58003-19


use of a deadly weapon on a vital part of the victim's body.” Commonwealth

v. Sanchez, 36 A.3d 24, 37 (Pa. 2011) (citation omitted).

      Richter argues the Commonwealth’s evidence cannot establish the he

acted with the specific intent to kill his uncle. Here, the evidence at trial

demonstrated that, prior to the killing, Richter told his cousin he wanted a gun

and would use it to shoot his uncle.     N.T. Trial, 10/30/18, at 34-35.    The

evidence also showed he shot his uncle first in the stomach, then in the neck,

then in the head, moving closer to him with each shot. N.T. Trial, 11/01/18,

at 273. This evidence was easily sufficient for the jury to find Richter acted

with specific intent to kill. See Commonwealth v. Baker, 201 A.3d 791,

796 (Pa. Super. 2018) (evidence defendant sought to obtain gun and then

shot victim twice sufficient to sustain conviction for murder in first degree),

appeal denied, 215 A.3d 963 (Pa. 2019); see also Williams, 176 A.2d at

307-08 (evidence sufficient to sustain conviction for murder in first degree

where defendant possessed deadly weapon and shot victim in chest despite

his claim that he had not intentionally aimed for vital part of body).

      Richter next challenges his conviction for robbery.         To sustain a

conviction for robbery, as charged in this case, the Commonwealth must prove

beyond a reasonable doubt that a person inflicted serious bodily injury upon

another person in the course of committing a theft.         See 18 Pa.C.S.A.

3701(a)(1)(i). “Serious bodily injury” is defined in the Crimes Code as

“[b]odily injury which creates a substantial risk of death or which causes


                                     -8-
J-S58003-19


serious, permanent disfigurement, or protracted loss or impairment of the

function of a bodily member or organ.” 18 Pa.C.S.A. § 2301.

      Richter argues the Commonwealth’s evidence was insufficient to

establish that he intended to inflict serious bodily injury to his uncle. However,

as discussed above, the Commonwealth presented sufficient evidence to show

Richter intentionally killed his uncle. Murder easily satisfies the definition of

serious bodily injury.

      Additionally, the Commonwealth presented evidence through the

victim’s 911 call that Richter was in the process of stealing his guns. N.T. Trial

10/30/18 at 45, 52. The evidence showed Richter killed his uncle with the

stolen gun.     N.T. 10/31-11/01/18, at 151-52, 224-225, 233, 262, 273.

Logically, the jury could infer from this evidence Richter, while committing the

theft of the guns, shot and killed his uncle. See Commonwealth v. Kinney,

863 A.2d 581, 584 (Pa. Super. 2004) (providing jury is permitted to resolve

any doubt as to defendant’s guilt), appeal denied, 881 A.2d 819 (Pa. 2005).

Richter’s attack on the sufficiency of the evidence supporting his robbery

conviction fails.

      Richter also challenges the sufficiency of the evidence supporting his

burglary conviction. We define burglary as follows:

      (a) Offense defined.-A person commits the offense of burglary
      if, with the intent to commit a crime therein, the person:

      (1)     (i) enters a building or occupied structure, or separately
              secured or occupied portion thereof that is adapted for


                                      -9-
J-S58003-19


             overnight accommodations in which at the time of the
             offense any person is present;

             (ii) enters a building or occupied structure, or separately
             secured or occupied portions thereof that is adapted for
             overnight accommodations in which at the time of the
             offense any person is present.

18 Pa.C.S.A. §§ 3502(a)(1)(i) and (ii).

       The intent to commit a crime must be contemporaneous with entering

the dwelling, and we determine intent by the totality of the surrounding

circumstances. See Commonwealth v. Magnum, 654 A.2d 1146, 1147 (Pa.

Super. 1995). “Often, intent cannot be proven directly but must be inferred

from    examination   of   the   facts    and   circumstances   of   the   case.”

Commonwealth v. Willetts, 419 A.2d 1280, 1281 (Pa. Super. 1980).

       Under the totality of the circumstances, and viewing the evidence in the

light most favorable to the Commonwealth as verdict winner, we conclude the

evidence was sufficient to establish Richter had the specific intent to commit

a crime upon entering the home. See Magnum, 654 A.2d at 1147.                The

record reveals Richter broke down the door with the intent to take his uncle’s

guns and shoot him. See N.T. Trial, 10/30/18, at 34-35; Transcript 911 Call

from Harrison Shaffer, 5/20/15, at 2-3, 6. This evidence was sufficient to

sustain Richter’s conviction for burglary.

       Lastly, Richter challenges his convictions for assault on a law

enforcement officer, aggravated assault, and REAP. We define assault of a

law enforcement officer, in pertinent part, as:


                                     - 10 -
J-S58003-19


      A person commits a felony of the first degree who attempts to
      cause or intentionally or knowingly causes bodily injury to a law
      enforcement officer, while in the performance of duty and with
      knowledge that the victim is a law enforcement officer, by
      discharging a firearm.

18 Pa.C.S.A. § 2702.1.

      This Court has previously concluded that, by its plain terms, Section

2702.1 requires the Commonwealth to prove the following elements: “(1) the

defendant attempted to cause, or intentionally or knowingly caused, bodily

injury, (2) the victim was a law enforcement officer acting in the performance

of his duty, (3) the defendant had knowledge the victim was a law

enforcement officer, and (4) in attempting to cause, or intentionally or

knowingly causing such bodily injury, the defendant discharged a firearm.”

Commonwealth v. Landis, 48 A.3d 432, 445 (Pa. Super. 2012). Moreover,

actual bodily injury is not necessary to sustain a conviction under Section

2702.1, where the Commonwealth sets forth evidence the defendant

attempted to cause such bodily injury. See id. Criminal attempt under this

section “requires a showing of some act, albeit not one actually causing bodily

injury, accompanied by an intent to inflict bodily injury upon a law

enforcement officer by discharging a firearm.” Id. at 446.

      The Commonwealth charged Richter with violating 18 Pa.C.S.A. §§

2702(a)(1) and (2). Specifically, Section 2702 states, in relevant part:

      a) Offense defined.--A person is guilty of aggravated assault if
      he:




                                    - 11 -
J-S58003-19


     (1) attempts to cause serious bodily injury to another, or causes
     such injury intentionally, knowingly or recklessly under
     circumstances manifesting extreme indifference to the value of
     human life;

     (2) attempts to cause or intentionally, knowingly or recklessly
     causes serious bodily injury to any of the officers, agents,
     employees or other persons enumerated in subsection (c) or to an
     employee of an agency, company or other entity engaged in public
     transportation, while in the performance of duty;

18 Pa.C.S.A. §§ 2702(a)(1) and (2).

     In the context of § 2702, attempt “is demonstrated by proving that the

accused acted in a manner which constitutes a substantial or significant step

toward perpetrating serious bodily injury upon another along with the intent

to inflict serious bodily injury.” Commonwealth v. Gruf, 822 A.2d 773, 776

(Pa. Super. 2003) (citation omitted).       We can sustain a conviction for

aggravated assault regardless of whether any serious bodily injury actually

occurred. See id.

     Additionally, when an assault takes place but the assailant does not

inflict serious bodily injury, “the charge of aggravated assault can be

supported only if the evidence supports a finding that the blow delivered was

accompanied by the intent to inflict serious bodily injury.” Commonwealth

v. Alexander, 383 A.2d 887, 889 (Pa. 1978). The Commonwealth can prove

intent through direct or circumstantial evidence. See id. We can consider

whether the attacker was disproportionately larger or stronger than the

victim; whether the attacker escalated the attack; whether the attacker

used a weapon to aid in his attack; and any statements made by the

                                   - 12 -
J-S58003-19


attacker.        See id. (emphasis added); see also Commonwealth v.

Jackson, 955 A.2d 441, 446 (Pa. Super. 2008).

      Lastly, [a] person commits a misdemeanor of the second degree if he

recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.”           18 Pa.C.S.A. § 2705.        “[REAP]

requires the creation of danger, so the Commonwealth must prove the

existence   of    an   actual   present    ability   to   inflict   harm   to   another.”

Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa. Super. 2019) (citation

omitted), appeal denied, 215 A.3d 964 (Pa. 2019).

      Here, the testimony at trial established Richter engaged in a standoff

with police, shooting at them when they approached the residence to attempt

to rescue the victim, he continued to shoot at them even when injured. N.T.

Trial, 10/30/18-11/01/18, at 60-64, 67-69, 83-84, 91, 95-96, 108, 119-21,

127-28. Several of the officers overheard Richter say he wanted to shoot a

police officer between the eyes. See id. at 68-69, 95-96. This evidence was

sufficient to establish the required mental states for his convictions for assault

on a law enforcement officer, aggravated assault, and REAP.                          See

Commonwealth v. Hall, 830 A.2d 537, 542-53 (Pa. 2003) (evidence fleeing

defendant fired gun twice in direction of police sufficient to sustain conviction

for aggravated assault); see also Shaw, 203 A.3d at 286 (evidence sufficient

to sustain conviction for REAP where defendant fired gun into ceiling in close

proximity to another person), Commonwealth v. Martuscelli, 54 A.3d 940,


                                          - 13 -
J-S58003-19


949-50 (Pa. Super. 2012) (evidence sufficient to sustain conviction for assault

of law enforcement officer and aggravated assault, where defendant engaged

in armed standoff with police, stated he wanted to shoot police, and shot in

their direction).

       Therefore, Richter’s challenge to the sufficiency of the evidence does not

merit relief.3

       In his second and final claim, Richter contends the trial court abused its

discretion in granting the Commonwealth’s motion in limine to preclude him

from “entering relevant evidence of his mental health treatment and

history[.]” Richter’s Brief, at 35. He maintains, “his mental functioning was

central to his defense negating the mens rea element of his charged crimes.”

Id. However, Richter waived this claim.

       Our review of a trial court’s ruling on a motion in limine is well

established:

       When ruling on a trial court’s decision to grant or deny a motion
       in limine, we apply an evidentiary abuse of discretion standard of
       review. A trial court has broad discretion to determine whether
       evidence is admissible, and a trial court’s ruling regarding the
       admission of evidence will not be disturbed on appeal unless that
       ruling reflects manifest unreasonableness, or partiality, prejudice,
       bias, or ill-will, or such lack of support to be clearly erroneous.



____________________________________________


3 Moreover, Richter’s claim is entirely reliant upon his own testimony and his
words heard on the 911 call. However, the jury was not obligated to believe
his testimony and the evidence must be looked at in the light most favorable
to the Commonwealth, not to him. See Hall, 830 A.2d at 542; Edwards,
177 A.3d at 970.

                                          - 14 -
J-S58003-19


Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(quotation marks and citations omitted).

       Here, Richter acknowledges he did not present a mental health defense.

Richter’s Brief, at 41.         Moreover, as noted above, the record clearly

demonstrates defense counsel agreed on the record she would not bring up

Richter’s mental health treatment and did not oppose the motion in limine.

N.T. Trial, 11/01/18, at 254-58.4 Thus, because Richter did not object to the

motion in limine, he waived the issue. See Commonwealth v. Smith, 131

A.3d 467, 474 (Pa. 2015) (holding defendant waived challenge on appeal to

trial court’s grant of Commonwealth’s motion in limine by failing to object

when court announced its ruling).              Therefore, because Richter waived this

issue, his second and final claim does not merit relief.

       Judgment of sentence affirmed.




____________________________________________


4 On appeal, Richter attempts to gloss over this fact by stating he personally
protested. See Richter’s Brief, at 35; N.T. Trial 11/01/18, at 254-58.
Pennsylvania law does not allow hybrid representation either at trial or on the
appellate level. See Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa.
2013). Moreover, the United States Supreme Court has held there are
numerous choices relating to the conduct of trial, and, with respect to choices
by counsel regarding the admission of evidence, the defendant is bound. See
United States v. Gonzalez, 553 U.S. 242, 248-49 (2008). Thus, at least for
purposes of direct appeal, Richter cannot avoid waiver by claiming he
personally disagreed with counsel’s decision not to oppose the motion in
limine.

                                          - 15 -
J-S58003-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2020




                          - 16 -
