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[U] Commonwealth v. Hardy

Superior Court of Pennsylvania

February 11, 2014



Appeal from the Judgment of Sentence September 19, 2011, Court of Common Pleas, Erie County, Criminal Division at No. CP-25-CR-0000831-2011.

Joseph D. Seletyn, Esq.




Antonio Dwayne Hardy ("Hardy") appeals from the judgment of sentence entered following his convictions of robbery and conspiracy.[1] For the following reasons, we affirm .

The facts underlying Hardy's convictions may be summarized as follows. Early on January 24, 2011, Hardy sold some items, including a video game controller, for $15.00 to Christopher Loucks ("Loucks"), the owner of Steel City Games. This was not Hardy's first transaction with Loucks, as he had sold items to Loucks three or four times before this date. Within hours, Hardy told Loucks that he needed to get the controller back. Loucks offered to sell the controller back to Hardy for $40.00. Hardy was not pleased with this markup, but told Loucks that he would come by the store to pick it up. Later that day, Loucks received a call from a restricted phone number. The caller stated that he wanted to buy a flat screen television and indicated that he would be coming to the store that evening. Loucks waited for a couple of hours, but no one arrived to purchase a flat screen television. Around 7 p.m., Loucks closed the shop and began tallying his receipts for the day. I t was at this time that he heard people at the door. Loucks unlocked the door and three men entered the store. One of the men produced a gun and ordered Loucks to hand over all of his money. The gunman and one of the other men continued to threaten Loucks with death if he failed to comply with their demands. The gunman hit Loucks in the head three or four times with the gun, knocking him to the ground.[2]While on the ground, the men stole a total of $3, 100 from Loucks' front pocket and the cash drawers that held the money for Steel City Games. Two of the assailants, including the gunman, were wearing masks over their faces. The third man had his mask pulled down so that Loucks could see his facial features and some of his hair. Loucks recognized this man as Hardy.

The robbers fled and Loucks called the police. He gave the police a description of the men. He also told the police that he knew the unmasked man was a patron of the store, but that he could not recall his name at that time. The next day, Loucks received a phone call from Hardy, who stated that he wanted to come in to sell more items to Loucks. Upon hearing Hardy's voice, Loucks knew that it had been Hardy in his store the night before. Loucks informed the police that Hardy was coming in, and the police set up in-store surveillance. When Hardy arrived, the officers took him into custody.

Following a jury trial, Hardy was convicted of the above-mentioned offenses. He was later sentenced to 60 to 120 months of incarceration on the robbery conviction and 72 to 144 months of incarceration on the conspiracy conviction. The trial court ordered these sentences to run consecutively. Hardy did not file post-sentence motions, but filed a direct appeal. This Court subsequently dismissed his direct appeal because Hardy's counsel failed to file an appellate brief. Hardy filed a PCRA petition alleging that trial counsel was ineffective for failing to file an appellant's brief and seeking the reinstatement of his appellate rights. The PCRA court reinstated his appellate rights on June 6, 2013. This timely appeal follows.

Hardy presents two issues for our review. His first issue asks "[ w]hether the sentencing court committed legal error and abused its discretion in imposing a consecutive sentencing scheme thereby constituting an excessive sentence in disregard of the rehabilitative needs and prospects of [ Hardy] ?" Appellant's Brief at 3. Claims alleging that a sentence is excessive and that the trial court failed to consider the rehabilitative needs of the defendant challenge the discretionary aspects of the sentence. An appellant is not entitled to the review of challenges to the discretionary aspects of a sentencing as of right. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013). Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a 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 appellant's brief has a fatal defect, Pa.R.A.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.A. § 9781(b).

Id. Furthermore, "[ o]bjections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed." Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003).

Hardy timely filed this appeal, but the record reveals that he did not file post-sentence motions and he did not object to the discretionary aspects of the sentence at the time of sentencing. He cannot, therefore, establish that he properly preserved this challenge, as required by the second prong of the test set forth above. Accordingly, this issue has been waived.

In his second issue, Hardy challenges the sufficiency of the evidence supporting his convictions.

When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the fact[ -] finder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. We do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning a defendant's guilt were to be resolved by the fact[ -] finder unless the evidence was so weak and inconclusive that no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa.Super. 2010).

Hardy argues that the evidence was insufficient to support his convictions because "[ t] he Commonwealth's case-in-chief was predicated upon the sole evidence of the testimony of the alleged victim which was uncorroborated." Appellant's Brief at 7. Hardy's claim is unavailing. "The uncorroborated testimony of a victim, if believed by the trier of fact, is sufficient to convict a defendant[ .] " Commonwealth v. Filer, 846 A.2d 139, 14 (Pa.Super. 2004).

Having found one of Hardy's issues waived and no merit to the other, we affirm .

Judgment of sentence affirmed.

Judgment Entered.

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