J-S35027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

FRANKLIN JOHONOSON

                            Appellant               No. 1989 MDA 2013


        Appeal from the Judgment of Sentence of September 23, 2013
             In the Court of Common Pleas of Lancaster County
             Criminal Division at No.: CP-36-CR-0004190-2012


BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 09, 2014

       Franklin Johonoson appeals his September 23, 2013 judgment of

sentence. We affirm.

       The trial court aptly summarized the factual and procedural history of

this case as follows:

       On July 12, 2009 at approximately 8:00 a.m., Vonda Kirchner

       Convenience Store, received a visit at her home from George

       was on his way to the VFW post next door to the service station,
       he noticed that one of the large plate glass windows in front of
       the convenience store was broken. Kirchner, who lived in a
       home behind the service station, walked with Snyder to the
       convenience store to assess the damage. When she arrived,
       Kirchner observed the broken window and noticed that debris
       and lottery tickets were scattered on the ground outside of the
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-S35027-14


     store.    After examining the exterior, Kirchner entered the
     convenience store and immediately saw that the floor was
     littered with dry goods and that lottery tickets and cigarettes
     were missing from behind the counter. Additionally, Kirchner
     observed that blood was smeared on the floor, the lottery ticket
     counter, and on the shards of glass that remained in the front

     registers had been pried open, and that coins and several sets of
     keys were missing.

     After surveying the damage, Kirchner and Snyder contacted
     police.    Officer Elliot Tirado of the Lancaster City Police
     Department was dispatched and arrived at the scene at 9:24
     a.m.    Once he had interviewed Kirchner and observed the
     damage, Officer Tirado contacted Sergeant Bradley Shenk to
     assist him in processing the scene. Upon his arrival, Sergeant
     Shenk located and processed two fingerprints on the countertop
     directly inside of the broken plate glass window. Meanwhile,
     Officer Tirado collected six blood samples from inside of the
     store, including samples from the top of the deli counter, the
     interior floor near the cash register, and the lottery ticket
     counter. Additionally, Sergeant Shenk collected a blood sample
     from the outside of the store on the ground in front of the
     broken window. Finally, Officer Tirado inventoried the items that
     were missing from the convenience store and photographed the
     damage.

     In July 2009, Detective Toby Hickey, the detective assigned to

     samples collected from the crime scene to the Pennsylvania
     State Police Serology Laboratory. On January 1, 2010, Detective
     Hickey received a report from Serologist Brett Albright

     blood. Albright then transmitted the samples collected from the
     top of the deli counter and the interior floor of the service station
     to the Pennsylvania State Police DNA Laboratory for additional
     testing.


     identification, examined the blood samples and created a DNA
     profile for each sample. Irwin determined that both of the
     samples contained the same DNA profile and that the profile was
     produced by an unidentified male. The DNA profile was then




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       which produced a hit indicating that the profile matched a known
       blood sample from [] Franklin Johonoson.

       Irwin notified Detective Hickey of the findings and that the
       Manheim Township Police Department, also located in Lancaster
       County, had recently submitted a DNA profile that matched
       Johonoson in an unrelated case.


       Lieutenant Clark Bearinger of the Lancaster City Police
       Department obtained a search warrant permitting him to take a
       buccal swab from Johonoson at SCI Mercer.            Due to
       miscommunication, the swab was never forwarded to the
       Pennsylvania State Police Laboratory for comparison with the

       uncovered until Detective Hickey reviewed the case file in May
       2012.   To remedy the error, Detective Hickey immediately
       requested and received permission from Detective Sergant Keith
       Kreider of the Manheim Township Police and the Pennsylvania

       Defend
       Station.


       identification   and    comparison,     compared   the   DNA   profiles

       known sample
       Township Police Department, and determined that the two
       profiles matched.

       In addition, Detective Hickey, a latent fingerprint examiner,
       compared the two fingerprints lifted from the counter in the
       service stat
       Detective Hickey determined that the fingerprints from the crime


       comparison, on September 20, 2012, Detective Hickey charged
       Johonoson with one count of burglary.[1]


____________________________________________


1
      18 Pa.C.S. § 3502(a). The Commonwealth also charged Johonoson
with one count each of theft by unlawful taking and criminal mischief. 18
(Footnote Continued Next Page)


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J-S35027-14


      On August 9, 2013, Johonoson filed a pre-trial motion to
      suppress evidence.   In his motion, Johonoson claimed that
      Detective Hickey did not have the authority to use Manheim

      purposes. A suppression hearing was conducted on August 12,
      2013, at which time Johonoson additionally asserted a motion to
      dismiss for pre-arrest delay. At the conclusion of the hearing,
      the cou

      On August 12, 2013, following a two-day jury trial, Johonoson
                                                                      -
      sentence investigation was ordered.        Prior to sentencing,
      Johonoson filed a pro se      -sentence (written) oral motion for
                                    4[2]
      extra ordinary [sic                  On September 23, 2013,
      Johonoson
      concurrent to a sentence he was already serving at docket
      number 4407-2009.        The court specifically indicated that
      Johonoson was only to begin accruing time credit in the case at
      bar on the date of the sentencing hearing.
          4
                             pro    se     motion      was    largely
          incomprehensible, and, as a result, the court was unable to
          address it on the merits.

      On October 2, 2013, Johonoson filed a post-sentence motion
      comprised of a motion for arrest of judgment, motion for new
      trial, and motion to modify sentence, all of which were denied on
      October 11, 2013. On October 7, 2013, the Commonwealth
                       _______________________
(Footnote Continued)

Pa.C.S. §§ 3921, and 3304(a)(5), respectively.           However, the
Commonwealth withdrew both of these charges at the suppression hearing.
2
       We note that, at the time that Johonoson filed this pro se motion, he
was represented by counsel. Although the trial court made the motion part
of the certified record, the court did not rule on it.        Because hybrid
representation generally is prohibited in Pennsylvania, see Commonwealth
v. Morgan, 39 A.3d 419, 420 (Pa. Super. 2012) (citing Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993), and Commonwealth v. Jette, 23
A.3d 1032 (Pa. 2011)), the trial court was correct in declining to rule on the
motion while Johonoson was represented by counsel.




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J-S35027-14


     submitted a motion to modify sentence, indicating that the court
     did not order the correct amount of restitution.6 The court

     within thirty days, and, when Johonoson failed to do so, the
     Commonwealth submitted a petition to make rule absolute on
     November 13, 2013. Accordingly, on January 7, 2014, the court

     restitution from $3,360 to $3,660.
        6
           At the sentencing hearing, the Commonwealth asked
        the court to order $3,660 in restitution. However due to a
        clerical error, only $3,360 was ordered on the record.

                                                -2 (minor modifications for

clarity; some footnotes omitted).

     On November 7, 2013, Johonoson timely filed a notice of appeal. On

November 8, 2013, the trial court ordered Johonoson to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Johonoson timely complied. On January 17, 2014, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).

     Johonoson presents the following issues for our consideration:

     1. Whether the trial court erred and/or abused its discretion, and
        denied Johonoson due process in denying, after a hearing,
                        -trial motion to suppress DNA evidence and
        Johonos

     2. Whether the trial court erred and/or abused its discretion in


        to convict Johonoson for burglary.

     3. Whether the trial court erred and/or abused its discretion in
                                   -sentence motion for arrest in
        judgment and motion for new trial and motion to modify
        sentence because:




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         (a)
               insufficient as a matter of law to sustain the verdict
               of guilty for burglary because the Commonwealth did
               not prove beyond a reasonable doubt all elements of
               burglary;

         (b)   Johonoson was not awarded proper time credit;

         (c)   Johonoson was ordered to pay restitution even
               though the charges of theft and criminal mischief (to
               which restitution would have been properly ordered
               were withdrawn by the Commonwealth.

Brief for Johonoson at 6 (minor modifications for clarity).

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

denying his motion to suppress DNA evidence, and his motion to dismiss for

prosecutorial delay.    Johonoson combines these two ostensibly distinct

issues, and structures his claim as one of a violation of due process. See

Brief for Johonoson at 6. However, Johonoson has failed to develop either of

these claims in a manner sufficient to justify our review.

      Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure

                                     . . . have . . . the particular point treated

therein, followed by such discussion and citation of authorities as are



pertinent facts or cite legal authority will result in waiver of that particular

issue. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).



roughly one page, and includes only a single case, State v. Hauge, 79 P.3d

131 (Hawaii 2003).     Johonoson merely recites the holding in Hauge, and



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notes that the trial court relied upon it. Johonoson makes no effort to apply

Hauge to the instant case.     Instead, Johonoson simply asserts that his




Brief for Johonoson at 11. Johonoson provides no discussion whatsoever of

the precise nature of his claim. Without meaningful discussion of the legal

authorities that he relies upon, we cannot review



         Id. In short, his undeveloped claim does not present a viable legal

theory upon which relief can be granted. Hence, the issue is waived.

     We also

denial of his motion to dismiss for prosecutorial delay, is similarly

underdeveloped.    In his brief, Johonoson dedicates the majority of his

discussion on this issue to recounting the procedural history of the case.

Although he cites two cases that purportedly support his contention,

Johonoson has failed to provide any analysis or application of those

authorities to the facts and circumstances at bar.   See Pa.R.A.P. 2119(b)

                     ities must set forth the principle for which they are



     Next, Johonoson presents a challenge to the sufficiency of the

evidence. Our standard of review is well-settled:

     We must determine whether the evidence admitted at trial, and
     all reasonable inferences drawn therefrom, when viewed in [the]
     light most favorable to the Commonwealth as verdict winner,

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       support the conviction beyond a reasonable doubt. Where there
       is sufficient evidence to enable the trier of fact to find [that]
       every element of the crime has been established beyond a
       reasonable doubt, the sufficiency of the evidence claim must fail.

       The evidence established at trial need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented. It is not within the
       province of this Court to re-weigh the evidence and substitute
       our judgment for that of the fact-
       burden may be met by wholly circumstantial evidence and any

       finder unless the evidence is so weak and inconclusive that, as a
       matter of law, no probability of fact can be drawn from the
       combined circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889 90 (Pa. Super. 2010)

(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010));

see Commonwealth v. Auker, 681 A.2d 1305, 1314 (Pa. 1996).

       Under the provision of the Crimes Code applicable at the time of

Joh

building or occupied structure, or separately secured or occupied portion

thereof, with intent to commit a crime therein, unless the premises [were] at

the time open to the public or the actor [was] licensed or privileged to

                         3502(a).3



____________________________________________


3
      The Pennsylvania General Assembly amended subsections 3502(a) and
(b) by Act of July 5, 2012, P.L. 1050, No. 122, § 1, which took effect on

events that occurred in July 2009, we apply the pre-amendment definition of
the offense, which, in any event, does not differ substantively from the
amended statute in any aspect relevant to this case.



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J-S35027-14



     According to Johonoson, the Commonwealth failed to present evidence

sufficient to establish beyond a reasonable doubt that he intended to commit

a crime at the time that he entered Joh

at 16.   We disagree.    At trial, the Commonwealth presented extensive



Station. The Commonwealth presented evidence demonstrating that blood

samples, which had been collected from the floor of the service station and




matched the latent fingerprints that investigators lifted from the crime

scene.



that she closed the store at 8:00 p.m. on July 11, 2009, and that the store

was not open to the public after closing. Kirchner further testified that she

                                                                       -glass

window had been broken.        Moreover, food and debris were scattered

throughout the store, cigarettes and lottery tickets were missing, and each

                               rs had been pried open.

     Viewing this evidence in the light most favorable to the Commonwealth




inconclusive that, as a matter of law, no probability of fact can be drawn

                                          See Mobley, supra.     Rather, the

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conclusion beyond a reasonable doubt that Johonoson entered the service



claim is without merit.

      In his next issue, Johonoson claims that the trial court erred in failing

to credit Johonoson for time served. Because Johonoson was incarcerated

on other charges at the time that he was initially arraigned in this case, and

remained incarcerated on both cases until the time of his sentencing in the

instant case, he contends that the trial court should have credited him for

time served at both docket numbers.



custody as a result of the criminal charge for which a sentence is imposed as



9760(1). We have expla



Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa. Super. 1996). Such

                                                                      on 9760



custody . .                              Commonwealth v. Hollawell, 604

A.2d 723, 725 (Pa. Super. 1992).       At all relevant times, Johonoson was

serving a sentence in another case and necessarily receiving credit for that

time on that sentence. Accordingly, the trial court did not err in refusing to




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award Johonoson double credit for the time that he served on this case prior

to trial.

                                             rt erred in ordering him to pay

restitution also presents a non-waivable challenge to the legality of his

sentence.   Commonwealth v. Atanasio, 997 A.2d 1181, 1182 83 (Pa.



review is plenary and is limited to determining whether the trial court erred

                      Commonwealth v. Pombo, 26 A.3d 1155 (Pa. Super.

2011) (citation omitted). It is well-settled that the imposition of restitution

is proper only when there is a direct causal connection between the

underlying crime and the loss. Commonwealth v. Harriott, 919 A.2d 234,



crime wherein property has been stolen, converted or otherwise unlawfully

obtained, or its value substantially decreased as a direct result of the crime

...

       Instantly, Johonoson

whatsoever that [he] stole lottery tickets, food items and/or broke two cash



causal connection between the burglary and the damaged/stolen items for

which Johonoson was ordered to reimburse the storeowner.            In finding

Johonoson guilty of burglary, the jury necessarily found that Johonoson

entered into the store with the intent to commit a crime, in this case theft,




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therein.   Consequently

ordering restitution is without merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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