J-S54007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JONATHAN LANDRON

                            Appellant                 No. 1855 MDA 2013


          Appeal from the Judgment of Sentence September 19, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000559-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                       FILED SEPTEMBER 16, 2014

        Jonathan Landron appeals from the judgment of sentence entered

September 19, 2013, in the Court of Common Pleas of Berks County,

following a bench trial in which Landron was found guilty of robbery,1

burglary,2 theft by unlawful taking,3 criminal trespass,4 and criminal

conspiracy.5 After careful review, we affirm.

        The trial court summarized the facts as follows:

____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 3502(a)(1).
3
    18 Pa.C.S. § 3921(a).
4
    18 Pa.C.S. § 3503(a)(1)(i).
5
    18 Pa.C.S. § 903(a)(1).
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       [Landron]   and   Alexander   Cruz-Cintron,   of    Reading,
                                                             that is

       Cruz approached his longtime friend, Danielle Mojica, and

       Hiester. Cruz knew that Hiester and Mojica sometimes
       smoked marijuana together and that Hiester bought
       cigarettes from Mojica, gave her money, and had promised
       to buy her a tablet. Mojica at first told Cruz and [Landron]
                                                   she worried that
       doing so would jeopardize his willingness to buy her a
       tablet.

       A few days after Cruz first proposed the idea, he and
       [Landron] again raised the idea of stealing from Hiester.
       Mojica again said she was not interested.        But on
       November 26, 2012, Mojica learned that the plans to
       victimize Hiester were already in motion. [Landron] and
       Cruz showed Mojica a black handgun which, she was told,
       would only be used to scare Hiester

       from New York                                           -
       and three males, one black and two Hispanic        arrived in
       Reading to assist in the operation.

       On the morning of November 28, Mojica received a phone
       call.  On the other end of the line she could hear
       [Landron], Cruz, and Kay-Kay, who informed her that the
       pl
       was going to happen. They picked Mojica up and brought

       Street in Reading. Cruz and Kay-Kay persuaded Mojica to
       call Hiester and arrange to go to his house, while



       Mojica made contact with Hiester around 11:00 a.m. She
       sent him a series of text messages trying to persuade him
       to allow her to come over. . . . Hiester said it was not a
       good time, but Mojica persisted, and Hiester agreed to
       allow her to come to his house.

       After Mojica made plans with Hiester, Kay-Kay drove her

       Street in Reading.   Kay-Kay left, and Mojica went inside,

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       where she and Hiester began smoking marijuana and
       talking. After a few minutes, Mojica told Hiester that she
       had left her cigarettes in the car she arrived in, and that
       she also wanted to smoke more marijuana. Hiester went
       out to purchase some cigarettes and blunt paper from a
       corner store nearby. Hiester left through the back door,
       and Mojica remained at the house.

       As soon as Hiester left, Mojica called Cruz to let him know
       that Hiester was gone, just as the three men from New
       York ar                                               a gold
       Mercedes sedan. After entering the home through the
       front door, they began looking for items to steal. They
       grabbed Mojica, taped her to a chair, and placed tape over
       her mouth. Hiester soon returned to his home, re-entering
       through the back door. He was met in the kitchen by a
       black male who was holding a black-and-silver handgun.

       he walked into the room. Hiester hesitated, and the
       gunman approached him, put the gun to his chest and
       tried to push him to the ground. Hiester resisted, and the
       gunman shot him in the chest.

       Hiester did not lose consciousness but attempted to use
       the phone in the kitchen to call 9-1-1. Meanwhile, the
       gunman resumed
       desk. At that time[,] Hiester also became aware of a
       second male in the home, who was descending the stairs
       from the second floor while trying to fend off an attack by
                                                   an would shoot
       the dog or shoot Hiester again Hiester called off the dog
       and rushed out the back door to seek help.

       Hiester found a neighbor and told him he had been shot by
       unknown individuals who were attempting to rob him
       inside his house.    He then lay down in front of the

       waiting for the ambulance, he saw the two males run out

       drive away.     Police and emergency medical personnel
       arrived thereafter, where they found Hiester outside.
       Hiester was taken to the hospital to receive treatment for
       his gunshot wound. He was released from the hospital
       after only six hours.


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          and she was questioned throughout the day by police.
          Afterwards, Mojica sought out [Landron] and Cruz. Cruz


          questioned Mojica about her statements to the police, but
          after she assured them they had not been implicated, they
          went to dinner together and then went bowling.

          After Hiester was discharged from the hospital, he began
          to develop fluid buildup in his chest, which had to be
          drained. Surgery was required around the area of the
          bullet hole, while a pump drained fluid from the area.
          Hiester, a roofing and home improvement contractor,
          returned to work after about three weeks of recovery.
          Hiester discovered that an iPod Touch, a new Samsung
          Galaxy II cell phone, and approximately 3 ounces of
          marijuana had been taken from his home.

Trial Court Opinion, 3/21/14, at 3-5.

        Landron was found guilty of burglary, robbery, theft by unlawful

taking, and criminal conspiracy following a bench trial was held on June 12,

2013.     Landron was sentenced on September 19, 2013 to an aggregate

                                                         filed a post-sentence

motion seeking to modify his sentence on September 29, 2013.          The trial

court denied the motion to modify sentence on October 2, 2013. Landron

filed the instant timely appeal on October 17, 2013. However, on December

20, 2013, Landron filed a post-sentence motion seeking a new trial based

upon newly discovered evidence.         This second post-sentence motion was

denied on December 23, 2013.

        On appeal, Landron raises several issues for our review.      Landron

challenges the sufficiency of the evidence and the weight of the evidence to


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support his conviction.    Landron also challenges the sentence imposed,

asserting that the sentence is excessive. Finally, Landron asserts that the

trial court erred in denying his request for a post-sentence hearing based

upon newly discovered evidence.

      In his first issue, Landron challenges the sufficiency of the evidence to

support his conviction. Our review of the sufficiency of the evidence involves

determining

         whether[,] viewing all the evidence admitted at trial in the
         light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.

Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa. Super. 2008) (citation



                                                                    Id.

      Upon inspection, Landron offers no argument to support a challenge to

the sufficiency of the evidence, since his only contention is that the



was not a credible witness.     Arguments that the fact-finder should have



sufficiency of the evidence. Commonwealth v. W.H.M., 932 A.2d 155, 160



o

the evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa.

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Super. 2003) (finding that review of sufficiency of evidence does not include

assessing credibility of testimony; such a claim goes to weight of evidence).



of his second issue on appeal, which challenges the weight of the evidence

to support his conviction. Pennsylvania Rule of Criminal Procedure 607(A)

provides:

         A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial:

         (1) orally, on the record, at any time before sentencing;
         (2) by written motion at any time before sentencing; or
         (3) in a post-sentence motion.

Id. Failure to raise a weight-of-the-evidence claim prior to appeal as

required in Rule 607(A) will result in waiver of the issue, regardless of

whether the appellant raises this issue on appeal or the trial court addresses

the issue in its Rule 1925(a) opinion. Commonwealth v. Sherwood, 982

A.2d 483, 494 (Pa. 2009).      Instantly, while Landron filed a timely post-

sentence motion, the motion did not raise an identifiable challenge to the

weight of the evidence, nor did La                 -sentence motion claiming



challenge to the weight of the evidence supporting his conviction is waived.

      In his third issue, Landron claims that the sentence imposed by the

trial court is excessive. Challenges to the excessiveness of a sentence raise

questions regarding the discretionary aspects of sentencing, rather than the



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legality of the sentence.    Commonwealth v. Pennington, 751 A.2d 212

(Pa. Super. 2000).      Where the discretionary aspects of a sentence are

challenged, an appeal is not guaranteed as of right. Rather,

      An    appellant   challenging   the   discretionary    aspects   of   his

      four-part test: (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider
      and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
                                                   P. 2119(f); and (4)
      whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S. § 9781(b).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation

omitted).

      Here, Landron asserts that the trial court failed to adequately consider

his circumstances when imposing his sentence.               In particular, Landron

argues that the trial court did not properly consider his minimal prior record

and the fact that he has several children.             However, this argument

challenges the weight the trial judge assigned to particular factors that

would affect sentencing. Typically, a claim that the sentencing court failed

to give adequate weight to a specific sentencing factor does not raise a

substantial question.    See Commonwealth v. Berry, 785 A.2d 994 (Pa.

Super. 2001).    Thus, Landron fails to meet the requirements set forth in

Ferguson, supra.        Accordingly, this issue does not raise a substantial

question, and we find no basis to disturb the trial cour

sentence.


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      Finally, Landron asserts the trial court erred in denying his post-

sentence motion for a new trial based upon a claim of after-discovered

evidence.   In order to succeed on a newly discovered evidence claim, the

petitioner has the burden to prove that the evidence:

         (1) could not have been obtained prior to the conclusion of
         the trial by the exercise of reasonable diligence; (2) is not
         merely corroborative or cumulative; (3) will not be used
         solely to impeach the credibility of a witness; and (4)
         would likely result in a different verdict if a new trial were
         granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012).




burden of demonstrating that he is entitled to a new trial.

                                                              -sentence motion

seeking a new trial, the trial court lacked jurisdiction to rule on the motion.

Without an obvious mistake on the face of the order in question, the trial

court loses jurisdiction to modify an order thirty days after its entry, or upon

the filing of an appeal. Here, Landron filed his post-sentence motion seeking

a new trial on December 20, 2013. This was well past 30 days beyond the

date Landron was sentenced, September 19, 2013, and while the case was

pending on appeal. Accordingly, the trial court did not err by not addressing

                             -sentence motion seeking a new trial.




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     Based on the foregoing, we find that the trial court did not err in

finding Landron guilty, and we find no reason to disturb the judgment of

sentence.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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