J-S37008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WESLEY RASHAWN RICHARDS

                            Appellant                No. 488 WDA 2015


           Appeal from the Judgment of Sentence February 11, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000567-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JUNE 28, 2016

        Appellant, Wesley Rashawn Richards, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

his bench trial convictions for third-degree murder, persons not to possess

firearms, and firearms not to be carried without a license.1 We affirm.

        The trial court opinion set forth the relevant facts of this case as

follows:

           This matter arises out of the shooting death of the
           [V]ictim…on October 18, 2013 in a bar on the North Side
           of Pittsburgh.      The Commonwealth presented the
           testimony of two eyewitnesses to the shooting and video
           surveillance which also showed the shooting.          The
           eyewitnesses testified that in the early morning hours
           [Victim], [Appellant] and [Appellant’s] companion entered
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1
    18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6106(a)(1), respectively.
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       the bar and were searched by a security guard at the door.
       When [Victim] entered the bar the first time, the security
       worker, Brian Collins, searched him and found a pocket
       knife which he removed and placed behind the bar. Later,
       [Vicitm] left the bar and the knife was returned to him.
       Shortly thereafter, [Victim] returned and was searched
       again but the knife was not found. [Appellant] and his
       companion, Walter Banks, were also searched each time
       they entered or returned to the bar but [the guard] found
       no weapons. [Mr.] Collins knew [Appellant] for several
       years and also knew [Victim] from the neighborhood.

       At some point [Mr.] Collins became aware of something
       happening towards the back of the bar and as he went
       towards that area he saw [Victim] falling to the ground
       and then saw [Appellant] come around the corner with a
       gun in his hand. [Mr.] Collins grabbed [Appellant] and
       pinned him against the bar but was then hit in the head
       with a bottle by [Mr.] Banks. Stunned by the blow to the
       head, [Mr.] Collins let go of [Appellant] and when he
       looked again he saw [Appellant] standing over [Victim]
       shooting at him three times as he lay on the ground. [Mr.]
       Collins then followed [Appellant] and [Mr.] Banks towards
       the back as they left but then returned to [Victim]. [Mr.]
       Collins found [Victim] still alive and saw a closed pocket
       knife on the ground next to him.1
          1
            The autopsy showed [Victim] died of gunshot
          wounds to the trunk. The first entered in the central
          upper back and the second in the lateral left buttock.

       The Commonwealth also called the disc jockey who was
       working at the bar that night, Sylvanius Flowers, who also
       testified that he observed [Victim], [Appellant] and [Mr.]
       Banks standing near the bar together and they appeared
       to be laughing and joking.       He then saw [Appellant]
       backing up toward the stairs and pull a gun out. He
       testified:

          I’m standing there talking to a young lady. [Victim]
          is standing there with the other guy, his arm around
          [Victim’s] neck. And me and the young lady was
          talking on my right side. And I happen to look over


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            and I see [Appellant] reach down beside his knees
            and pull out a gun.

         [Mr.] Flowers also testified:

            He pulls the gun up. He fires a shot. [Victim]
            duck[s] and take[s] the other guy’s arm off [from
            around his neck] and he tries to run. [Then] after
            that he falls down. I don’t know if he was hit or not
            but he falls down. Then [Appellant] comes up from
            around the back, steps back some, and starts
            running back, and goes and shoots him three times
            in the back.

         [Mr.] Flowers testified that he never saw a knife in
         [Victim’s] hand and never saw him threaten [Appellant]
         with a knife. He also testified that he saw the security
         guard, [Mr.] Collins, grab [Appellant] and wrestle with him
         for the gun before [Mr.] Collins was hit in the head with a
         bottle. The bartender, Tylonda Northington, also testified
         that she heard shots and ducked behind the bar and then
         saw [Mr.] Collins struggling with [Appellant] and
         [Appellant’s] hand come over the bar with a gun in it.

         The Commonwealth also introduced video surveillance
         taken from several cameras in the bar that showed
         [Victim], [Appellant] and [Mr.] Banks inside the bar before
         and during the shooting and confirmed the testimony of
         the eyewitnesses. The Commonwealth also introduced the
         certification that [Appellant] was not licensed to carry a
         firearm and it was stipulated that [Appellant] had a felony
         conviction that rendered him a person not to possess.

(Trial Court Opinion, filed July 20, 2015, at 2-4) (internal citations omitted).

Procedurally, the court convicted Appellant on November 3, 2014, of third-

degree murder, persons not to possess firearms, and firearms not to be

carried without a license.   The court sentenced Appellant on February 11,

2015, to an aggregate term of twenty to forty years’ imprisonment.

Appellant timely filed post-sentence motions on February 19, 2015, which

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the court denied on February 23, 2015.     Appellant timely filed a notice of

appeal on March 25, 2015. On April 1, 2015, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).    Following the grant of an extension, Appellant timely

complied.

      Appellant raises one issue for our review:

         WERE APPELLANT’S STATE AND FEDERAL DUE PROCESS
         RIGHTS (AS GUARANTEED HIM BY PA. CONST. ART. I § 9
         AND U.S. CONST. AMEND. XIV) VIOLATED WHEN HE WAS
         CONVICTED OF THE CRIME OF THIRD DEGREE MURDER—
         RATHER THAN, AS HE SHOULD HAVE BEEN, OF
         VOLUNTARY MANSLAUGHTER UNDER EITHER 18 PA.C.S. §
         2503—BASED    ON   INSUFFICIENT   EVIDENCE   (THE
         COMMONWEALTH HAVING FAILED TO PROVE, BEYOND A
         REASONABLE DOUBT, THAT APPELLANT’S ACT OF KILLING
         THE DECEDENT…[WAS] NOT AN ACT THAT UNDER THE
         CIRCUMSTANCES OF THIS CASE CONSTITUTED EITHER
         IMPERFECT SELF-DEFENSE VOLUNTARY MANSLAUGHTER
         OR HEAT-OF-PASSION VOLUNTARY MANSLAUGHTER)?

(Appellant’s Brief at 3).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Randal B.

Todd, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion at 4-7) (finding: Victim did not exchange words

with Appellant, threaten Appellant, or make gestures or actions directed to

Appellant which could reasonably be construed as serious provocation; no

evidence suggested Victim threatened Appellant with knife Victim had in his


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possession or attempted to stab or injure Appellant; rather, eyewitness

testimony and surveillance camera footage show Appellant acted with malice

as he stood over Victim and repeatedly fired shots at him while Victim was

lying on ground; record belies Appellant’s assertion that he acted in sudden

and   intense     passion    resulting    from   serious    provocation    by   Victim;

Commonwealth         presented     sufficient    evidence   to   sustain   Appellant’s

conviction for third-degree murder).2 Accordingly, we affirm on the basis of

the trial court’s opinion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2016


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2
    Appellant also claims the evidence at trial supported a voluntary
manslaughter conviction based on an “imperfect self-defense” theory. See
18 Pa.C.S.A. § 2503(b) (explaining any person who intentionally or
knowingly kills individual commits voluntary manslaughter if at time of killing
he believes circumstances to be such that, if they existed, would justify
killing, but his belief is unreasonable). Nevertheless, Appellant relied solely
on the heat-of-passion voluntary manslaughter theory at trial, so this claim
is waived. See Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa.Super.
1987), appeal denied, 517 Pa. 621, 538 A.2d 875 (1987) (stating: “This
Court cannot review a case upon a theory different from that relied upon in
the trial court, or raised for the first time on appeal”).



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