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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


1
    18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6106(a)(1), respectively.
J-S37008-16


       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


                                  -2-
J-S37008-16


            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

                                     -3-
J-S37008-16


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


                                    -4-
J-S37008-16


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


____________________________________________


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”).



                                           -5-
                                                              Circulated 06/03/2016 12:24 PM




        IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


    COMMONWEALTH OF PENNSYLVANIA               CRIMINAL DIVISION

    vs.                                        CC NO: 201400567

    WESLEY RICHARDS,
                                               APPEAL
                           Defendant.
                                               OPINION


                                               JUDGE RANDAL B. TODD


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                                               Michael Streily, Esquire
                                               Assistant District Attorney
                                               401 Courthouse
                                               Pittsburgh, PA 15219

                                               Counsel for Defendant:

                                               Scott B. Rudolf, Esquire
                                               Appellate Counsel
                                               Law Offices of the Public Defender
                                               400 County Office Building
                                               Pittsburgh, PA 15219
  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF                              )               CRIMINAL DIVISION
PENNSYLVANIA,                                )
                                             )               CC NO: 201400567
vs.                                          )
                                             )
WESLEY RICHARDS,                             )
                                             )
       Defendant.                            )


July 20, 2015

TODD,J.

                                            OPINION

       This is an appeal by Defendant, Wesley Richards, following a non-jury trial in which he

was found guilty of Murder of the Third Degree in violation of 18 Pa.C.S.A. § 2502(c);

Possession of Firearm Prohibited in violation of 18 Pa.C.S.A.§ 6105(a)(l); and, Firearms Not To

Be Carried W/0 License in violation of 18 Pa.C.S.A.§ 6106(a)(l). Defendant was sentenced to

20 to 40 years incarceration for murder and concurrent sentences of 5 to 10 and 3 to 6 years on

the remaining counts.. Defendant filed Post Sentence Motions which were denied on February

23, 2015. On March 25, 2015 Defendant filed a Notice of Appeal. On April 1, 2015 a 1925(b)

Order for Concise Statement of Matters Complained of on Appeal was filed. On April 28, 2015

Defendant filed his Concise Statement setting forth the following:

       1.       Appellant's state and federal due process rights, guaranteed to him by Pa.
                Const. art. I§ 9 and U.S. Const. amend. XIV, were violated when he was
                convicted of 18 Pa.C.S. § 2502(c) Third Degree Murder (CC2014-00567,
                Count I) notwithstanding the Commonwealth's failure to prove, beyond a
                reasonable doubt, that Appellant's fatal shooting of the Decedent, Donald
                Lowry, was not an act of qualifying as 18 Pa.C.S. § 2503(a) Voluntary
                Manslaughter.




                                                 1
       2.      Appellant's state and federal due process rights, guaranteed to him by Pa.
               Const. art. I§ 9 and U.S. Const. amend. XIV, were violated when he was
               convicted of 18 Pa.C.S. § 6106 Unlawful Possession of an Unlicensed
               Concealed Firearm (CC 2014-00567, Count III) notwithstanding the
               Commonwealth's failure beyond a reasonable doubt, that the firearm that
               Appellant possessed on October 18, 2013 had been concealed by him on
               his person.

BACKGROUND

       This matter arises out of the shooting death of the victim, Donald Lowry, on October 18,

2013 in a bar on the North Side of Pittsburgh. (T., p. 11) The Commonwealth presented the

testimony of two eyewitness to the shooting and video surveillance which also showed the

shooting. The eyewitnesses testified that in the early morning hours Lowry, Defendant and his

companion entered the bar and were searched by a security guard at the door. When Lowry

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. (T., p. 37) Later, Lowry left the bar

and the knife was returned to him. Shortly thereafter, Lowry returned and was searched again

but the knife was not found. (T., p. 38) Defendant and his companion, Walter Banks, were also

searched each time they entered or returned to the bar but found no weapons. (T., p. 40) Collins

knew Defendant for several years and also knew Lowry from the neighborhood.

       At some point Collins became aware of something happening towards the back of the

bar and as he went towards that area he saw Lowry falling to the ground and then saw Defendant

come around the comer with a gun in his hand. (T., p. 42) Collins grabbed Defendant and

pinned him against the bar but was then hit in the head with a bottle by Banks. (T., p. 43)

Stunned by the blow to the head, Collins let go of Defendant and when he looked again he saw

Defendant standing over Lowry shooting at him three times as he lay on the ground. (T., pp. 43-

44) Collins then followed Defendant and Banks towards the back as they left but then returned



                                                2
to Lowry. Collins found Lowry still alive and saw a closed pocket knife on the ground next to
                   1
him. (T., p. 45)

        The Commonwealth also called the disc jockey who was working at the bar that night,

Sylvanius Flowers, who also testified that he observed Lowry, Defendant and Banks standing

near the bar together and they appeared to be laughing and joking. (T., p. 84) He then saw

Defendant backing up toward the stairs and pull a gun out. He testified:

        I'm standing there talking to a young lady. Donald (Lowery) is standing there
        with the other guy, his arm around Donald's neck. And me and the young lady
        was talking on my right side. And I happen to look over and I see Mr. Wes
        (Defendant) reach down beside his knees and pull out a gun. (T., p. 85)

Flowers also testified:

        He pulls the gun up. He fires a shot. Donald duck and take the other guy's arm
        off and he tries to run. The after that he falls down. I don't know if he was hit or
        not but he falls down. Then Mr. Wes comes up from around the.back, steps back
        some, and starts running back, and goes and shoots him three times in the back.
        (T., p. 86)


Flowers testified that he never saw a knife in Lowry's hand and never saw him threaten

Defendant with a knife. (T., p. 86) He also testified that he saw the security guard, Collins,

grab Defendant and wrestle with him for the gun before Collins was hit in the head with a bottle.

(T., p. 87) The bartender, Tylonda Northington, also testified that she heard shots and ducked

behind the bar and then saw Collins struggling with Defendant and Defendant's hand come over

the bar with a gun in it. (T., p. 95).

        The Commonwealth also introduced video surveillance taken from several cameras in the

bar that showed Lowry, Defendant and Banks inside the bar before and during the shooting and


1
 The autopsy showed Lowery died of gunshot wounds to the trunk. The first entered in the
central upper back and the second in the lateral left buttock. (T., p. 59)
                                                  3
confirmed the testimony of the eyewitnesses. The Commonwealth also introduced the

certification that Defendant was not licensed to carry a firearm and it was stipulated that

Defendant had a felony conviction that rendered him a person not to possess. (T., p. 60)

Considering all of the testimony, Defendant was found guilty of third degree murder.

DISCUSSION:

Defendant first argues that the Commonwealth failed to prove beyond a reasonable doubt that

Defendant's fatal shooting of the victim was not voluntary manslaughter.       Voluntary

manslaughter is defined in pertinent part as follows:

          a) General rule.--A person who kills an individual without lawful justification
          commits voluntary manslaughter if at the time of the killing he is acting under a
          sudden and intense passion resulting from serious provocation by:
          (1) the individual killed; 18 Pa.C.S.A. § 2503

Murder, including murder in the third degree, is defined as follows:

          a) Murder of the first degree.--A criminal homicide constitutes murder of the
          first degree when it is committed by an intentional killing.
          (b) Murder of the second degree.--A criminal homicide constitutes murder of
          the second degree when it is committed while defendant was engaged as a
          principal or an accomplice in the perpetration of a felony.
          (c) Murder of the third degree.--All other kinds of murder shall be murder of
          the third degree. Murder of the third degree is a felony of the first degree. 18 Pa.
          C.S.A. § 2502


Third-degree murder is defined in the Crimes Code as "All other kinds of murder" other than

first-degree murder or second-degree murder. 18 Pa.C.S.A. § 2502(c). The elements of the third-

degree murder, as developed by case law, are a killing done with legal malice but without the

specific intent to kill required in first-degree murder. Commonwealth v. Pitts, 404 A.2d 1305

(1979).

          In Commonwealth v. Seibert, 622 A.2d 361 (Pa. Super. 1993) the Superior Court stated

the following in discussing the elements necessary to prove third degree murder:

                                                    4
       In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946), the Pennsylvania
       Supreme Court clarified the concept of malice: "When an individual commits an
       act of gross recklessness for which he must reasonably anticipate that death to
       another is likely to result, he exhibits that "wickedness of disposition, hardness of
       heart, cruelty, recklessness of consequences, and a mind regardless of social duty"
       which proved that there was at that time in him "the state or frame of mind termed
       malice." Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum, supra) In
       Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981), the Pennsylvania
       Supreme Court noted that malice may be found where the "actor consciously
       disregard[s] an unjustified and extremely high risk that his actions might cause
       death or serious bodily harm." Id. at 228, 431 A.2d at 232. See Commonwealth v.
       Rife, 454 Pa. 506, 312 A.2d 406 (1973) (malice imports the absence of
       justification, excuse or mitigation and intent to cause a particular harm or the
       wanton and willful doing of an act with knowledge of circumstances indicating
       awareness of a plain and strong likelihood that harm will result); see also
       Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979) (malice may
       be found where the perpetrator "consciously disregarded an unjustified and
       extremely high risk that his actions might cause death or serious bodily harm.");
       Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982)
       Commonwealth v. Seibert, 622 A.2d 361, 364-65 (1993)


       As verdict winner, the Commonwealth is entitled to have the evidence viewed in the light

most favorable to it. Commonwealth v. Cropper, 345 A.2d 645, 646 (1975) In addition, when

reviewing a sufficiency of the evidence claim the evidence must be viewed in the light most

favorable to the Commonwealth, as verdict winner, to determine if there is sufficient evidence to

enable a fact-finder to find every element of the crime charged beyond a reasonable doubt.

Commonwealth v. McNair, 603 A.2d 1014 (1992). It is exclusively within the province of the

fact-finder to believe none, some or all of the evidence presented. Commonwealth v. Henry, 569

A.2d 929, 939 (1990); Commonwealth v. Jackson, 485 A.2d 1102 (1984). If the fact finder

reasonably could have determined from the evidence presented that all of the necessary elements

of the crime were established, then that evidence will be deemed sufficient to support the verdict.

Commonwealth v. Wood, 637 A.2d 1335, 1343 (1994) Commonwealth v. Hopkins, 747 A.2d

910, 914 (Pa. Super. Ct. 2000)



                                                 5
when he stated: "And I happen to look over and I see Mr. Wes (Defendant) reach down beside

his knees and pull out a gun." (T., p. 85) This testimony supports the finding that Defendant had

the gun concealed on his person and was sufficient to support his conviction for carrying an

unlicensed concealed weapon.


                                             By the Court:




                                                7
