J-S09035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROGER MITCHELL RIERA

                            Appellant                  No. 556 MDA 2013


       Appeal from the Judgment of Sentence dated November 27, 2012
              In the Court of Common Pleas of Lycoming County
                Criminal Division at No: CP-41-CR-001459-2011


BEFORE: MUNDY, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 25, 2014

        Appellant Roger Mitchell Riera appeals from judgment of sentence of

the Court of Common Pleas of Lycoming County (trial court), which,

following a jury trial, convicted him of third-degree murder, voluntary

manslaughter and aggravated assault.1          Upon review, we adopt the trial

                                               -sentence motion as well as its

1925(a) opinion and affirm the judgment of sentence.

                                                with the details of this case and



need not further elaborate upon the background of this case.           See Trial



____________________________________________


1
    18 Pa.C.S. §§ 2502(c), 2503(b) and 2702(a)(1), respectively.
J-S09035-14



Court Opinion, 4/2/13, at 1-16, and Trial Court 1925(a) Opinion, 6/11/13, at

1-3.

                                                              -sentence motion,

Appellant filed a concise statement of errors complained of on appeal, raising

a plethora of issues. The trial court issued an opinion in support of its ruling

under Pennsylvania Rule of Appellate Procedure 1925(a).          In disposing of



                                                 -sentence motion.

       On appeal,2 Appellant raises the following eight issues for our review.3

First, Appellant argues that the trial court erred in holding that the evidence

was sufficient to convict him of third-degree murder under Section 2502 of

the Crimes Code (Code), 18 Pa.C.S. § 2502, because the Commonwealth

failed to establish malice.4       Second, Appellant argues that the trial court


____________________________________________


2
 We note that the docket reveals that Appellant filed a premature notice of
                                                         -day period under
                                                 -sentence motion had not
expired. Nonetheless, the docket indicates that Appellant filed a proper
notice of appeal on April 3, 2013.
3
  Appellant has decided not to pursue his argument that the trial court erred
in disallowing him to use his prior taped statement to the police, as he now
considers the issue as one for collateral relief. See                       -
20. Also, Appellant has abandoned his argument that the trial court erred in
complying with Pa.R.Crim.P. 600, relating to a prompt trial. Id. at 15.
4
  A challenge to the sufficiency of the evidence is a question of law, subject
to plenary review. Commonwealth v. Williams, 871 A.2d 254, 259 (Pa.
Super. 2005).



                                           -2-
J-S09035-14



evidence.5    Third, Appellant argues that the trial court erred in precluding



____________________________________________


5
 Our Supreme Court recently explained the governing law pertaining to
motion for a new trial based on a weight of evidence argument as follows:
             A motion for a new trial based on a claim that the verdict
       is against the weight of the evidence is addressed to the
       discretion of the trial court. Commonwealth v. Widmer, []
       744 A.2d 745, 751 52 ([Pa.] 2000); Commonwealth v.
       Brown, [] 648 A.2d 1177, 1189 ([Pa.] 1994). A new trial
       should not be granted because of a mere conflict in the
       testimony or because the judge on the same facts would have
       arrived at a different conclusion. Widmer, [] 744 A.2d at 752.
                                                    o determine that

       greater weight that to ignore them or to give them equal weight
                                               Id. at [] at 752 (citation
                                                  a new trial should be
       awarded when the jury's verdict is so contrary to the evidence as
       imperative so that right may be given another opportunity to
                  Brown, [] 648 A.2d at 1189.
             An a
       with a weight of the evidence claim is distinct from the standard
       of review applied by the trial court:
             Appellate review of a weight claim is a review of the
             exercise of discretion, not of the underlying question
             of whether the verdict is against the weight of the
             evidence. Brown, 648 A.2d at 1189. Because the
             trial judge has had the opportunity to hear and see
             the evidence presented, an appellate court will give
             the gravest consideration to the findings and reasons
             advanced by the trial judge when reviewing a trial

              weight of the evidence.          Commonwealth v.
              Farquharson, [] 354 A.2d 545 (Pa. 1976). One of
              the least assailable reasons for granting or denying a

           verdict was or was not against the weight of the
           evidence and that a new trial should be granted in
           the interest of justice.
       Widmer, [] 744 A.2d at 753 (emphasis added).
Commonwealth. v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). Therefore,

(Footnote Continued Next Page)


                                           -3-
J-S09035-14



§ 505(b)(2.3), and instructing the jury on the same.6             Fourth, Appellant

argues that the trial court erred in admitting into evidence a cell phone video

that, inter alia, depicted the dying victim, because the video was unfairly

prejudicial and inflammatory.7          Fifth, Appellant argues that the trial court

erred in disallowing him to introduce into evidence witness testimony

establishing that the victim carried a knife one year prior to the deadly

shooting. Sixth, Appellant argues that the trial court abused its discretion in



the heat of passion instruction for voluntary manslaughter and [disallowing
                                           8



argues that the trial court abused its discretion by imposing upon him an




                       _______________________
(Footnote Continued)


record shows that the action is a result of partiality, prejudice, bias or ill-
      Id. at 1055.
6
             with deference decisions regarding instructions submitted to a
jury; we may reverse the trial court only where we find that it abused its
                                         Commonwealth v. Hornberger,
74 A.3d 279, 282 (Pa. Super. 2013)
7
  Admission of evidence is within the sound discretion of the trial court and
will be reversed only upon a showing that the trial court clearly abused its
discretion. Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa.Super.
1999), appeal denied, 795 A.2d 972 (Pa. 2000).
8
  To the extent this issue is inconsistent with i.e., broader than the issue
Appellant raised in the trial court, we decline to address more than the issue
raised before the trial court. See Pa.R.A.P. 302




                                            -4-
J-S09035-14



excessive sentence.9       Finally, Appellant argues that the trial court erred in

determining      that   the    Commonwealth       did   not   violate   Pa.R.Crim.P.



testimony.




by President Judge Nancy L. Butts, thoroughly and properly dispose of
                                   10
                                        See Trial Court Opinion, 4/2/13, at 16-32,

____________________________________________


9
  It is well-settled that the proper standard of review when considering
whether to affirm the sentencing court's determination is an abuse of
discretion. Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (citation
omitted). An abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. Id.
10




this conclusion by reading Sections 505(b)(2.3)(iii) and (b)(3) together. We
respectfully disagree. Section 505(b)(2.3(iii) is unambiguous that an actor
has no duty to retreat and has a right to stand his ground only if the person
                                                                a fireman or


firearm or lethal weapon must be displayed or used for Stand Your Ground
to apply. Section 505(b)(3) does not alter this unambiguous qualification.
Rather, 505(b)(3) addresses the amount of force that may be used by an

judgment as to what force he believes is necessary to respond to the use of
a firearm or lethal weapon against him. The trial court correctly found that
no firearm or lethal weapon was displayed or used by the victim and
therefore, that a Stand Your Ground instruction was not warranted.



                                           -5-
J-S09035-14



and Trial Court 1925(a) Opinion, 6/11/13, at 3-9. We, therefore, affirm the

                                    We direct that

April 2, 2013 and June 11, 2013 opinions be attached to any future filings in

this case.

      Judgment of sentence affirmed.

      Mundy, J., filed a concurring and dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




                                    -6-
