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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

February 28, 2014



Appeal from the Judgment of Sentence February 16, 2010 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017946-2008




Appellant, Ronnie Lee Johnson, appeals from the judgment of sentence entered February 16, 2010, in the Court of Common Pleas of Allegheny County. After careful review, we affirm.

The trial court summarized the relevant facts as follows.

In late July 2007, Anthony Girimonti purchased an SKS assault rifle from Matt Work. Matthew Gardner drove his girlfriend, Lana Blue, and Girimonti to Work's home on the day the purchase took place. On August 1, 2007, Girimonti suggested to Gardner that they rob Sean Diaz (Girimonti's drug dealer) of his marijuana. Concerned that Diaz might have another person with him during the exchange, they wanted a third person to assist with the robbery. Gardner and Blue suggested [Appellant] Girimonti. Earlier in 2007 Gardner and Blue had lived with [Appellant]'s girlfriend, Kelly Peters, and were thus familiar with [Appellant]. [Appellant] was approached and agreed to participate; Gardner, Girimonti, and [Appellant] planned to share the marijuana from the robbery.
At approximately 1:00 P.M. on August 2, 2007, Girimonti called Diaz and, through subsequent phone calls that day, arranged to purchase one half pound of marijuana from Diaz for $800. They agreed to meet at the Elm Street Park baseball field in Imperial at 10:30 P.M.
At 11:00 that morning Gardner and Girimonti drove Blue to work and picked up [Appellant] from his residence. Gardner, Girimonti, and [Appellant] went to a remote wooded area to shoot Girimonti's rifle. Afterwards they returned to Gardner's apartment to discuss the robbery. [Appellant] volunteered to be the gunman, although they planned on using the gun solely to scare Diaz. The plan called for [Appellant] to be dropped off at a location, hide, and then surprise Girimonti, Gardner, and Diaz with the rifle, pretending to rob all three of them. After picking up Blue from work that evening, Gardner drove Girimonti, [Appellant], and Blue to meet Diaz.
Diaz picked up Justin Bumblis after Diaz left work at Smokey Bones Restaurant that evening and drove to Elm Street Park. Girimonti was on the phone with Diaz as they drove to the park. Gardner flashed the car lights to Diaz so he knew it was Girimonti pulling into the park. However, Girimonti told Gardner to turn around after seeing Diaz's car because he did not like the meeting place. Girimonti called Diaz and they agreed to meet elsewhere. Diaz suggested a nearby landfill, but Girimonti did not like that meeting place either. Girimonti instructed Gardner to drive towards Crafton while Diaz remained in Imperial. Girimonti suggested to Diaz that they meet at Tumbleweeds, a bar off Campbells Run Road near a car wash.
Diaz agreed and while he was en route to Tumbleweeds, Gardner drove to the car wash on Campbells Run Road to drop off [Appellant] and thus set up the robbery. [Appellant] left the vehicle with the rifle and a bandana, and hid in the woods behind the car wash. Gardner then drove with Girimonti and Blue to meet Diaz at Tumbleweeds. Girimonti and Diaz were talking on the phone during this time. When they arrived at Tumbleweeds Girimonti suggested that they go to the nearby car wash instead, commenting to Diaz that the parking lot was too crowded to do the exchange. Diaz agreed and followed Gardner's car to that location. Diaz drove around the front of the car wash and parked in a bay facing the woods at the rear of the car wash. Gardner drove around the back of the car wash and parked his car in the back alley between the woods and the bay where Diaz parked.
Diaz, Bumblis, Gardner, and Girimonti exited their respective vehicles. They walked towards each other and met between the two cars to discuss the exchange. They then walked to Diaz's car together for Diaz to retrieve the marijuana. [Appellant] exited the woods armed with the rifle. At that time the persons were positioned around Diaz's car as follows: Bumblis on the passenger's side, Girimonti near the trunk, Diaz on the driver's side, and Gardner at the front of the vehicle.
[Appellant], with the bandana covering the bottom half of his face, pointed the rifle at Bumblis and Diaz and ordered everyone onto the ground. Diaz and Bumblis complied and lay on their stomachs facing towards the front of the car. Girimonti sat against the wall of the bay and Gardner knelt at the front of the car. [Appellant] yelled from the front of Diaz's car, "I heard y'all holding weight. Where is it?" Diaz stood up and opened the driver's door, purportedly to retrieve the marijuana for [Appellant].
However, Diaz jumped into the driver's seat, closed the door, and tried to put the car into drive to escape. At this time Bumblis began to stand. Gardner and Girimonti stood up and yelled to [Appellant] that Diaz was trying to get away, and that [Appellant] should shoot him. [Appellant], who already had the rifle pointed at Diaz, ran over to the driver's side window. [Appellant] pointed the rifle at Diaz's face, and Diaz looked directly into the barrel of the rifle. [Appellant] pulled the trigger and shot Diaz once in the left shoulder through the closed window.
Diaz started screaming, "I'm shot." Gardner, Girimonti, and [Appellant] immediately ran towards Gardner's car. Gardner entered his vehicle to drive away with Blue. [Appellant] got into the car when Gardner turned it around to drive away. As Gardner tried to drive away Girimonti ran after the car and banged on the window until Gardner stopped to let him in. Gardner sped towards the McKees Rocks area.
Unable to move his left arm, Diaz had Bumblis help him into the front passenger seat. Bumblis drove Diaz's car out of the car wash and headed towards Smokey Bones Restaurant in Robinson Township, a location they both knew and felt was safe. Diaz called 911 and reported the shooting and that they were enroute to the restaurant. Arriving at the restaurant shortly after midnight, Diaz gave a coworker the marijuana from the vehicle. Bumblis cut off Diaz's shirt and wrapped Diaz's gunshot wound with half of the shirt.
Police and paramedics arrived shortly thereafter at Smokey Bones and the car wash. A spent shell casing was found in the bay at the car wash. Diaz was emergently transported from the restaurant to the hospital. He underwent surgery to remove bullet fragments above his left collarbone and eye surgery to remove glass from the shattered driver's side window which had lodged in his eyes. Diaz suffered mobility problems for approximately two months and still felt occasional pain in his left arm at the time of trial.
Upon examination paramedics found that Bumblis had been shot in the left calf and transported him to the hospital. Bumblis's left calf was cleaned and wrapped at the hospital. He had to clean out and rebandage the wound daily. Bumblis used crutches for two days and was still enduring pain from the gunshot wound at the time of trial.
Gardner drove Girimonti, [Appellant], and Blue to McKees Rocks where Girimonti directed [Appellant] to dispose of the rifle in a riverbed. [Appellant] did so and Gardner then drove to [Appellant]'s apartment where he dropped [Appellant] off and returned to his home with Girimonti and Blue.
Later that same day Girimonti and Gardner retrieved the rifle from the riverbed and returned to Gardner's apartment in Green Tree where they buried the rifle behind the apartment complex. Later that week Gardner dug up the rifle and hid it under a bridge in Collier Township. One week after the shooting Girimonti returned to the apartment complex to dig up the rifle but found that it was no longer buried there. He instructed Blue to find out where Gardner had hidden it, and he subsequently retrieved the rifle and sold it.
On September 14, 2007, Diaz provided Girimonti's name to law enforcement in connection with the shooting. Based on this information Girimonti was arrested that evening and interviewed. Girimonti provided information that led to the arrest of Gardner, who provided information leading to the arrest of [Appellant].
Crime scene analysis indicated that the bullet that struck both Diaz and Bumblis was fired from outside the vehicle while the driver's window was up, and traveled from the front of the vehicle through the front passenger seat and exited through the rear passenger side door. The recovered shell casing was compared to the recovered rifle, and the crime lab determined the shell casing was ejected from that rifle….

Trial Court 1925(a) Opinion, 4/8/2013, at 4-11 (citations and footnotes omitted).

Appellant was charged with two counts of Robbery (18 Pa. Cons. Stat. Ann. § 3701(a)(1)(i)), two counts of Aggravated Assault (18 Pa. Cons. Stat. Ann. § 2702(a)(1)), one count of Carrying a Firearm Without a License (18 Pa. Cons. Stat. Ann. § 6106(a)(1)), and one count of Criminal Conspiracy (18 Pa. Cons. Stat. Ann. 903(a)(1)).

Appellant's original jury trial resulted in a mistrial because the jury was unable to reach a verdict. At the second jury trial, Appellant was found guilty of all charges.

The trial court sentenced Appellant as follows:
Count one: Robbery – five to ten years['] incarceration;
Count two: Robbery – five to ten years['] incarceration to run concurrent to the sentence of incarceration imposed at count one;
Count three: Aggravated Assault – five to ten years['] incarceration to run concurrent to the previously imposed sentences of incarceration;
Count four: Aggravated Assault – five to ten years['] incarceration to run concurrent to the previously imposed sentences of incarceration;
Count five: Carrying a Firearm without a License – two to four years['] incarceration to run concurrent to the previously imposed sentences of incarceration;
Count six: Criminal Conspiracy – one to two years['] incarceration to run consecutive to the previously imposed sentences of incarceration.

Trial Court 1925(a) Opinion, 4/8/2013, at 3. Thus, Appellant's aggregate sentence was six to twelve years' incarceration. See id.

On February 26, 2010, Appellant filed post sentence motions, which were denied by the trial court. Appellant failed to file a timely appeal. On March 15, 2011, Appellant filed a pro se Post-Conviction Relief Act ("PCRA") petition. The trial court appointed counsel to represent Appellant in the PCRA proceedings.

In the interim, Appellant unsuccessfully petitioned the trial court to reinstitute his appellate rights nunc pro tunc. However, on May 11, 2012, Appellant filed an amended PCRA petition, which eventually resulted in the trial court reinstating his appellate rights. Consequently, Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa. R. App. P. 1925.

Appellant raises two (2) issues for our review:
1. Was the conviction against the weight of the evidence since there was insufficient physical evidence to tie [Appellant] to the offense and where the witnesses and other evidence against him was so unreliable and lacking in credibility that sustaining the conviction would shock the conscience?
2. Was [Appellant]'s sentence excessive in the view of his prior record, mitigating factors, and familial obligations?

Appellant's Brief at 7.

Before discussing the merits of Appellant's challenge to the weight of the evidence, we begin by addressing the trial court's determination that Appellant waived this claim. The trial court concluded that Appellant failed to set forth his argument with sufficient specificity in his accompanying 1925(b) statement, thus precluding meaningful review of the claim. See Trial Court 1925(a) Opinion 4/8/2013, at 12. In support of this decision, the trial court cited to Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002), wherein our Court determined that Seibert waived his claim by generally asserting in his 1925(b) statement that the jury's verdict was against the weight of the evidence.

We respectfully disagree with the trial court's determination. Appellant did not provide a mere blanket assertion that the jury's verdict was against the weight of the evidence. Instead, Appellant alleged that there was insufficient physical evidence to support the convictions, and that the testimony of his co-conspirators "was so unreliable and lacking in credibility that sustaining the conviction would shock the conscience[.]" Appellant's 1925(b) Statement, 2/14/13 at 1-2. Accordingly, we find that Appellant has not waived this claim. We proceed to the merits.

Our standard of review of a claim that the verdict is against the weight of the evidence is well established.

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).

Appellant first maintains the jury's verdict was against the weight of the evidence because there was insufficient physical evidence to support the convictions. The Commonwealth explained the lack of physical evidence through the testimony of Detective Timothy Langan. See N.T. 11/19/09 at 7; 37-40.

He stated that Appellant's fingerprints were not recovered from the victim's vehicle since there was no indication that Appellant touched the vehicle. Further, he explained that it was extremely unlikely that fingerprints could be recovered from the firearm because it changed hands numerous times and was wrapped up, buried, and altered. Therefore, the lack of physical evidence and the Commonwealth's explanation thereto were presented to the jury for their consideration. Moreover, contrary to Appellant's second argument regarding the weight of the evidence, there was adequate eyewitness testimony to support the convictions.

Appellant contends that the eyewitness testimony lacks credibility and shock's one sense of justice since it is based solely on the testimony of his co-conspirators. First, Appellant mischaracterizes the scope of the testimony since it is clear one of the victims also presented eyewitness testimony. See id. at 94-97. Next, with respect to his co-conspirator's testimony - while they received leniency in exchange for testifying, see N.T. 11/18/08 at 56-58; 180-181 - these circumstances were disclosed to the jury who could determine the amount of weight to attribute to their testimony. With this in mind, we will not usurp the jury's function to determine the credibility of the witnesses and the weight to accord their testimony. Accordingly, Appellant's claim fails.

Lastly, we consider Appellant's claim that the trial court's sentence was excessive based on his personal circumstances. These circumstances, which were raised at sentencing, include Appellant's gainful employment, the active role he plays in raising his children, the fact that one of his children was born shortly before sentencing, and the special care he provides to one of his children who suffers from a disability. See Appellant's Brief at 17-18.

We begin by addressing out standard of review in sentencing matters.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007) (citation omitted).

The right to appellate review of the discretionary aspects of a sentence is not absolute, and must be considered a petition for permission to appeal. See Hoch, 936 A.2d at 518 (citation omitted). An appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence.

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations omitted).

We begin by noting that Appellant has filed a timely notice of appeal. Further, the issue was properly preserved in post-sentence motions and his brief does not contain a fatal defect. However, Appellant's claim fails to raise a substantial question.

Whether a particular challenge to a sentence amounts to a substantial question is determined on a case-by-case basis. See Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citation omitted). "A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (citations and internal quotation marks omitted).

"[A]rguments that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas a statement that the court failed to consider facts of record, though necessarily encompassing the factors of § 9721, has been rejected." Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013), reargument denied (Nov. 21, 2013).

While Appellant frames his argument, in part, by stating the sentencing court failed to consider certain statutory factors, in substance Appellant merely asserts the court failed to consider mitigating facts of record. Accordingly, this claim fails to raise a substantial question. Notwithstanding, the trial court's sentence is reasonable in light of its decision to impose concurrent sentences for a majority of the convictions. Furthermore, each of the concurrent sentences were within or below the standard range. Lastly, with respect to the conspiracy conviction, the sole consecutive sentence, the trial court imposed a sentence that was half of that suggested for the mitigated range.

Judgment of sentence affirmed.

Judgment Entered.

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