J-A13032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHRISTOPHER RICHARDSON                   :
                                          :
                   Appellant              :       No. 1098 WDA 2017

           Appeal from the Judgment of Sentence May 15, 2017
            in the Court of Common Pleas of Allegheny County,
           Criminal Division at No(s): CP-02-CR-0009495-2014

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 25, 2018

     Christopher Richardson (“Richardson”) appeals from the judgment of

sentence imposed following his guilty plea to murder of the third degree. See

18 Pa.C.S.A. § 2502(c). We vacate and remand for resentencing.

     The trial court set forth the relevant facts of the case as follows:

     On July 5, 2014, at approximately 11 a.m., [Richardson] called
     911 from the Sunoco located on 533 Brookline Boulevard. He told
     the dispatcher that the person he was living with at the time, Alan
     Krupitzer [(“Krupitzer”)], the victim in this case, who was age 75,
     was either stabbed or shot and appeared to be dead.

     Officers responded to the Sunoco and made contact with
     [Richardson]. [Richardson] took the police to 2329 Pioneer
     Avenue, where [Richardson] was staying with Krupitzer, and told
     the police that Krupitzer was on the ground bleeding but that he
     didn’t know what happened to him.

     Medics arrived on the scene and pronounced Krupitzer dead at
     11:16 a.m. [Richardson] was then transported to Pittsburgh
     police headquarters, where he waived his Miranda rights and
     agreed to provide a statement.
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      Initially[,] [Richardson] denied having any involvement in the
      death of Krupitzer but then admitted that he had asked Krupitzer
      for money so he could buy himself some beer.

      [Richardson] further stated that when Krupitzer denied having any
      money, that he had checked Krupitzer’s pockets for money and
      Krupitzer pushed him away. [Richardson] then stated that he got
      a knife and stabbed Krupitzer multiple times in the stomach and
      the heart.

      An autopsy was performed on the body of [] Krupitzer. The
      autopsy revealed multiple sharp force injuries of the trunk, to
      include a stab wound to the shoulder, two stab wounds to the
      chest and three stab wounds to the back. The cause of death was
      determined to be multiple stab wounds of the trunk.

Trial Court Opinion, 11/7/17, at 3-4 (citation omitted).

      Richardson was charged with one count each of criminal homicide and

robbery.    Pursuant to an open plea agreement, Richardson pled guilty to

murder of the third degree, and the Commonwealth withdrew the robbery

count.     On May 15, 2017, the trial court, without considering whether

Richardson is an eligible offender under the Recidivism Risk Reduction

Incentive Act (“RRRI”), sentenced Richardson to a prison sentence of ten to

twenty years, with 1,045 days of credit for time served. Richardson filed a

Motion to Modify Sentence, which was denied.

      Richardson filed a timely Notice of Appeal, and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Richardson raises the following questions for our review:

      I.     Whether [] Richardson’s sentence is illegal when the trial
             court failed to determine, on the record at the time of
             sentencing, whether he is an eligible offender under the
             [RRRI], thereby violating 61 Pa.C.S.A. § 4505(a)?

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         II.     Whether the trial court abused its discretion when it
                 overruled [] Richardson’s objection, and allowed
                 Commonwealth witness Ken Krupitzer[, Krupitzer’s
                 brother,] to make a sentencing recommendation[,] when
                 such testimony does not constitute proper victim-impact
                 evidence?

Brief for Appellant at 4.

         In his first claim, Richardson contends that his sentence is illegal

because the trial court failed to determine if he is an eligible offender under

the RRRI. Id. at 19; see also id. (claiming that where there is no statutory

authorization for a sentence, the sentence is illegal). Richardson argues that

under the RRRI, the trial court must make a determination of eligibility at

sentencing. Id. at 21. Richardson points out that the trial court acknowledged

its failure to make this determination. Id. (citing Trial Court Opinion, 11/7/17,

at 6).         Richardson claims that because his sentence is illegal, he must be

resentenced. Brief for Appellant at 23. The Commonwealth concedes that

Richardson’s sentence is illegal and that he is entitled to resentencing. Brief

for the Commonwealth at 6-7.

         “Our scope of review of challenges to the legality of a sentence is

plenary, and the standard of review is de novo.”            Commonwealth v.

Milhomme, 35 A.3d 1219, 1221 (Pa. Super. 2011).

         Under the RRRI, “[a]t the time of sentencing, the court shall make a

determination whether the defendant is an eligible offender.” 61 Pa.C.S.A.

§ 4505(a) (emphasis added); see also 42 Pa.C.S.A. § 9756(b.1) (wherein the


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J-A13032-18


Sentencing Code states, “[t]he court shall determine if the defendant is

eligible for a recidivism risk reduction incentive minimum sentence under 61

Pa.C.S. Ch. 45 (relating to recidivism risk reduction incentive).”). Where the

trial court fails to make a statutorily-required and compulsory RRRI eligibility

determination     at   sentencing,   the    defendant’s     sentence   is    illegal.

Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).

      Our review of the certified record reflects that the trial court failed to

make a determination regarding Richardson’s RRRI eligibility at sentencing.

See N.T., 5/15/17, at 1-15; see also Trial Court Opinion, 11/7/17, at 4

(acknowledging “that failure to make this statutorily[-]required determination

is error[.]”).   The trial court proffers that this error is harmless because

Richardson was clearly not an eligible offender due to the fact that Richardson

stabbed Krupitzer multiple times and Richardson demonstrated violent

behavior. See Trial Court Opinion, 11/7/17, at 4-5. However, as noted above,

the trial court is statutorily mandated to make an on the record determination

regarding RRRI eligibility at sentencing.         See 61 Pa.C.S.A. § 4505(a);

Robinson, supra.       Accordingly, because Richardson’s eligibility must be

determined at the sentencing hearing, we are constrained to vacate

Richardson’s     judgment   of   sentence   and    remand    this   matter   for   a




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J-A13032-18


determination of whether he is RRRI eligible at a new sentencing hearing.1

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2018




____________________________________________


1 In Richardson’s second claim, he argues that the trial court abused its
discretion in allowing Krupitzer’s brother to make a sentencing
recommendation during his victim impact statement. Brief for Appellant at
24-36. While we are vacating and remanding for resentencing based upon
the RRRI issue, the trial court should preclude such a sentencing
recommendation during the victim impact statement due to its irrelevance to
the imposition of the sentence. See Commonwealth v. King, 182 A.3d 449,
455 (Pa. Super. 2018) (noting that “the purpose of victim impact statements
is to personalize the crime and to illustrate the human effects of it.”); see
also 18 P.S. § 11.201(5) (stating that victim impact statements should include
“the physical, psychological and economic effects of the crime on the victim
and the victim’s family.”); 42 Pa.C.S.A. § 9721(b) (stating that in sentencing
a defendant, the trial court must consider “the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.”). With
regard to victim impact statements, we acknowledge that trial courts are
“presumed to be capable of identifying and properly disregarding all but the
most prejudicial and inflammatory evidence.” Commonwealth v. Penrod,
578 A.2d 486, 491 (Pa. Super. 1990). Nevertheless, at the new sentencing
hearing, Krupitzer’s brother’s opinion as to the prison term should not be
admitted.

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