Com. v. Barnes, R.

• Court: Superior Court of Pennsylvania
• Decided: January 11, 2022
• Docket: 1832 EDA 2020
• Status: Unpublished

Opinion

J-S28025-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICKY BARNES : : Appellant : No. 1832 EDA 2020

Appeal from the Judgment of Sentence Entered July 28, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001793-2019

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 11, 2022

Appellant, Ricky Barnes, appeals from the July 28, 2020 Judgment of

Sentence entered in the Philadelphia County Court of Common Pleas following

his conviction of Third-Degree Murder and Possessing an Instrument of Crime

(“PIC”).1 Appellant challenges the weight and sufficiency of the

Commonwealth’s evidence and the discretionary aspects of his sentence. After

careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although Appellant’s Notice of Appeal characterizes his appeal as from the August 27, 2020 Order denying his post-sentence motion, his appeal properly lies from the July 28, 2020 Judgment of Sentence. See Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995) (order denying post- sentence motion acts to finalize judgment of sentence; thus, appeal is taken from judgment of sentence, not order denying post-sentence motion). See also Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001). We have corrected the caption accordingly. J-S28025-21

In the late hours of September 8, 2018, Appellant stabbed Oscar Smith,

his housemate, multiple times in the Philadelphia rooming house where they

lived. Darren Noble, who lived on an upper floor of the house, heard the

commotion, and came downstairs to investigate. When he arrived, Noble saw

both men in the hallway, which was covered in blood. Appellant was sitting on

the floor, while Smith, who walked with a cane and relied on a pacemaker,

was lying on the floor and bleeding profusely. Each man screamed at Noble

that the other had stabbed him: Smith told Noble that Appellant had stabbed

him in his back while he was sleeping in his bed, while Appellant accused

Smith of attacking him.

It was immediately obvious to Noble, however, that “Smith[] had more

physical wounds” than Appellant did. N.T. Trial, 1/22/20, at 72. Smith was

“covered” in blood from stab wounds in his head, neck, and back. Id. at 73.

Appellant, however, had no wounds on his body other than light “scratch

marks” on his arms. Id. Noble also noticed a broken steak knife, its blade

detached from its handle, on the floor by Smith’s bedroom door. Noble tried

to staunch Smith’s bleeding with a rag; Appellant remained sitting on the floor

and did not help him.

A guest in the house called 911, and Officers Clayton Baker and Timothy

Grey of the Philadelphia Police Department arrived at the scene. They

immediately recognized that Smith was in dire condition and attempted to

administer emergency medical assistance. As they did, Appellant, who

remained sitting in the hall, repeatedly told them “he stabbed me[,]” and

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pointed to his arms as proof. Id. 117. The officers noted, however, that the

scratches on his arms appeared too superficial to be caused by a stabbing.

The officers called an ambulance that transported Smith to the hospital

and Officer Baker transported Appellant to the hospital. While Appellant was

waiting for treatment, he told Officer Baker that Smith had attacked him with

a knife and that, in response, Appellant had taken the knife from Smith and

stabbed him. After hearing this story, Officer Baker placed Appellant under

arrest.

Doctors treated Smith for two stab wounds in his upper back and two in

the back of his scalp, along with lacerations on his hands and fingers. Despite

their efforts, Smith ultimately died from his injuries.

The Commonwealth charged Appellant with First-Degree Murder, Third-

Degree Murder, and PIC.2 On January 22, 2020, Appellant waived his right to

a jury trial and a two-day bench trial commenced. Daren Noble, Officer Baker,

and Officer Grey, among other witnesses, testified on behalf of the

Commonwealth to the above facts. The court admitted into evidence

photographs taken by police depicting blood on the walls and carpet of Smith’s

bedroom and the hallway, and results of DNA testing that confirmed the

presence of Smith’s and Appellant’s DNA on the murder weapon.

Appellant testified on his own behalf. He admitted that he caused the

death of Smith but asserted that he only did so in response to Smith’s

2 18 Pa.C.S. § 2502(a) and (c), and § 907(a), respectively.

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unprovoked attack on him. Appellant stated that he was walking through the

hallway to the bathroom when Smith came out of his room and “intentionally

bumped [Appellant] with his shoulder real hard.” N.T. Trial, 1/23/20, at 11.

Appellant testified that, when he asked Smith why he shoved him, Smith said

“I just don’t like you[,]” and then immediately “held up a knife in his right

hand and began coming towards [Appellant] with the knife in his hand.” Id.

at 11. Appellant described Smith slashing him three times on his left arm

before Appellant was able to knock the knife out of Smith’s hand. According

to Appellant, Smith then pinned him to the floor with his knee and put his

forearm over Appellant, causing Appellant to “black[] out” and fear for his life.

Id. at 13.

On January 23, 2020, the trial court found Appellant guilty of Third-

Degree Murder and PIC and ordered a pre-sentence investigation report and

a mental health evaluation. On July 28, 2020, the trial court sentenced

Appellant to an aggregate standard range of 20 to 40 years’ incarceration.

After the court restored Appellant’s post-sentence rights nunc pro tunc,

Appellant filed a post-sentence motion challenging the sufficiency and weight

of the evidence, as well as the discretionary aspects of his sentence. On

August 27, 2020, the court denied the motion.

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On September 21, 2020, this timely appeal followed.3 Both the trial

court and Appellant have complied with Pa.R.A.P. 1925.

Appellant presents the following issues:

1. Were [Appellant’s] actions justified when Mr. Smith unprovokedly attacked him in the middle of the night and [Appellant] had the right to stand his ground?

2. Was the verdict against the weight of the evidence where [Appellant’s] testimony that he was attacked was consistent with the physical evidence and was not contradicted by the remaining witnesses?

3. Did the sentencing court abuse its discretion by “double counting” [Appellant’s] prior criminal history?

Appellant’s Br. at 5.

Sufficiency of the Evidence

In his first issue, Appellant challenges the sufficiency of the

Commonwealth’s evidence. Specifically, he argues that “the evidence was

insufficient to disprove that Mr. Barnes acted in self-defense.” Appellant’s Br.

at 14.

“We review claims regarding the sufficiency of the evidence by

considering whether, viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence to enable the

3 A timely post-sentence motion will extend the appeal period for thirty days from the entry of an order denying the motion. Pa.R.Crim.P. 720(A)(2). Where the trial court expressly grants nunc pro tunc relief to file a post-sentence motion, the appeal period will toll as if the defendant had filed a timely post- sentence motion pursuant to Pa.R.Crim.P. 720(A)(1). Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super. 2003).

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

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations

and internal quotation marks omitted). In conducting this review, the

appellate court may not weigh the evidence and substitute its own judgment

for that of the fact finder, which is free to believe all, part, or none of the

evidence. Id. A sufficiency of the evidence challenge contests whether the

record supports the verdict, not whether the record supports the defendant’s

contentions. Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011).

When a defendant employs deadly force, the elements of a claim of self-

defense are that the defendant (1) reasonably believed that force was

necessary to protect himself against death or serious bodily injury; (2) was

free from fault in provoking the use of force against him; and (3) did not

violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740

(Pa. 2012); see also 18 Pa.C.S § 505(b)(2) (pertaining to use of deadly force

in self-protection). A defendant does not have a burden to prove a claim of

self-defense. Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001).

Once a defendant introduces “some evidence” to justify a finding of self-

defense, the issue is properly before the fact-finder and the Commonwealth

bears the burden to disprove the defense beyond a reasonable doubt. Id. The

Commonwealth can satisfy this burden by disproving any of the elements of

self-defense. Mouzon, 53 A.3d at 740-41.

In the instant case, Appellant’s testimony that Smith attacked him first

provided “some evidence” to support a finding of self-defense; thus, the

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burden shifted to the Commonwealth to disprove Appellant’s self-defense

claim beyond a reasonable doubt.

In his brief, however, Appellant does not address the sufficiency of the

Commonwealth’s evidence that he did not act in self-defense. Instead,

Appellant summarizes the evidence that he believes supports his self-defense

claim, and concludes that this Court should vacate the judgment of sentence

because “[t]he evidence presented at trial established that [Appellant] was

justified in his actions.” Appellant’s Br. at 14-17. He does not explain why the

Commonwealth’s evidence was insufficient to disprove his self-defense claim.

Appellant is essentially making a weight of the evidence argument,

which is distinct from a challenge to the sufficiency of the evidence. See

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)

(distinguishing between weight and sufficiency challenges). Appellant has,

therefore, waived this claim. See Commonwealth v. Kane, 10 A.3d 327,

331 (Pa. Super. 2010) (failure to present a sufficiently developed argument

will result in waiver).

Even if the claim were not waived, Appellant’s claim would nonetheless

fail because the Commonwealth presented sufficient evidence to disprove the

self-defense claim. As the trial court set forth in its 1925(a) Opinion, “the

incontrovertible physical evidence presented at trial precludes any reasonable

finding of self-defense in this case[,]” and makes “clear that [Appellant’s] self-

defense claim was wholly fabricated and presented . . . in an attempt to limit

his own culpability for a truly malicious act of violence.” Trial Ct. Op., at 8.

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The evidence showed that Smith had multiple, deep stab wounds in his back

and rear scalp, which were consistent with Appellant attacking him from

behind. Conversely, the superficial scratches on Appellant’s arms were

consistent with the kinds of injuries caused by an unarmed victim attempting

to defend himself against an assailant. The court also noted that the

photographs showing Smith’s bedroom covered in blood corroborated Smith’s

account of Appellant attacking him in his bedroom. Additionally, Daren Noble

testified that Smith told him that Appellant stabbed him unprovoked. See

N.T., Trial, 1/22/20, at 73, 108.

After reviewing the record, we agree with the trial court. There was

sufficient evidence for the trial court to conclude that Appellant himself,

despite his self-serving testimony to the contrary, stabbed Smith unprovoked,

without any reasonable belief that he was in imminent danger of death or

serious bodily injury that necessitated the use of force. Thus, even if it were

not waived, Appellant’s first issue would garner no relief.

Weight of the Evidence

In his second issue, Appellant argues that the verdict was against the

weight of the evidence because Appellant “testified to Mr. Smith’s unprovoked

attack,” and “[t]he Commonwealth offered nothing to the contrary, and even

the physical evidence corroborated [Appellant’s] account of the fight.” Id. at

17.

It is well-settled that the factfinder is the exclusive judge of the weight

of the evidence and is free to believe all, part, or none of the evidence

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presented and to determine the credibility of witnesses. Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003). We cannot substitute our

judgment for that of the factfinder. Id.

Where, as here, the trial court has ruled on the weight claim below, an

appellate court’s role is not to reconsider the underlying question of whether

the verdict is against the weight of the evidence; rather, appellate review is

limited to whether the trial court abused its discretion when ruling on the post-

sentence motion. Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super.

2007). “Because the trial judge has had the opportunity to hear and see the

evidence presented, an appellate court will give the gravest consideration to

the findings and reasons advanced by the trial judge when reviewing a trial

court’s determination that the verdict is [or is not] against the weight of the

evidence.” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015)

(citation omitted). “One of the least assailable reasons for granting or denying

a new trial is the lower court’s conviction that the verdict was or was not

against the weight of the evidence and that a new trial should be granted in

the interest of justice.” Id. (citation omitted).

Therefore, in an appeal based on the weight of the evidence, we will

only grant a new trial when the “verdict is so contrary to the evidence as to

shock one’s sense of justice[.]” Commonwealth v. Morales, 91 A.3d 80, 91

(Pa. 2014) (citations omitted). Reversal is only appropriate “where the facts

and inferences disclose a palpable abuse of discretion[.]” Id. (citations and

emphasis omitted).

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Finally, “a true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014) (citation omitted). For that reason, the trial court need not view the

evidence in the light most favorable to the verdict winner and it may instead

use its discretion in concluding whether the verdict was against the weight of

the evidence. Widmer, 744 A.2d at 751 n.3.

In its 1925(a) Opinion, the trial court explained that, “[d]ue to the

irreconcilable inconsistencies between [Appellant’s] self-defense claim and the

unchallenged physical evidence” suggesting that Appellant stabbed Smith

from behind in Smith’s bedroom, the court, “as the fact-finder, could not give

much, if any, weight to [Appellant’s] justification defense.” Trial Ct. Op., at

10. Accordingly, “the weight of the evidence clearly balanced the scale in

favor of the conviction[.]” Id.

After reviewing the record, we discern no abuse of discretion in the trial

court’s denial of Appellant’s challenge to the weight of the evidence. As the

factfinder, the trial court was entitled to believe all, part, or none of the

evidence presented at trial, make its own credibility determinations regarding

testimony, and weigh the evidence as a whole to reach its verdict.

Appellant argues that, because “the Commonwealth presented no

evidence to show that [Appellant] was the aggressor[,]” the DNA tests of the

knife revealed Smith’s DNA on the handle, and the police photographs showed

no blood in Smith’s bed, “only conjecture and surmise would tend to indicate

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that [Appellant] initiated the fight or engaged for any reason other than to

save his own life.” Appellant’s Br. at 19. As a result, he concludes, the evidence

“was so tenuous, vague, and uncertain that the verdict shocked the

conscience.” Id.

Contrary to Appellant’s assertion, the Commonwealth did present

evidence that Appellant was the aggressor. The trial court, thus, acted within

its discretion in discounting Appellant’s self-serving testimony regarding the

encounter and according more weight to the evidence establishing Appellant

as the aggressor.

Our review discerns no abuse of the court’s discretion and the verdict is

not contrary to the weight of the evidence or so vague, uncertain, or tenuous

as to shock the Court’s conscience. Appellant’s weight claim, thus, merits no

relief.

Discretionary Aspects of Sentencing

In his final issue, Appellant argues that the sentencing court abused its

discretion when it “double counted” his criminal record by considering it as an

aggravating factor when the sentencing guidelines already take it into

account. Appellant’s Br. at 19.4 This claim implicates the discretionary aspects

of his sentence. See Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa.

Super. 2019) (“‘double counting’ [claim] presents a challenge to the

discretionary aspects of Appellant's sentence”). ____________________________________________

4 We note that Appellant’s sentence fell under the standard range recommended by the sentencing guidelines. Trial Ct. Op., at 12.

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Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right, and we therefore consider them as petitions

for allowance of appeal. Id.; 42 Pa.C.S. § 9781(b). An Appellant must

preserve an appeal to the discretionary aspects of his sentence by, among

other things, raising the issue at sentencing or in a post-sentence motion.

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003).

The Pennsylvania Rules of Criminal Procedure require any post-sentence

motion to state grounds for relief “with specificity and particularity[.]”

Pa.R.Crim.P. 720(B)(1)(a). Raising only a broad challenge to a sentence as

excessive, without articulating the specific reasons for the challenge, results

in waiver because it deprives the sentencing court of an opportunity to

consider the challenge and, if necessary, correct its errors. See Pa.R.A.P. 302

(“Issues not raised in the lower court are waived”); Mann, 820 A.2d at 794

(finding that appellant waived discretionary aspects of sentencing claim where

his boilerplate post-sentence motion failed to state basis of challenge with

specificity and particularity).

Appellant’s post-sentence motion challenging the discretionary aspects

of his sentence states, in its entirety: “[Appellant] hereby requests

reconsideration of sentence based on the manifestly unjust and excessive

sentence imposed upon [Appellant] by the court. Further, the court abused its

discretion in imposing such an extremely excessive sentence.” Post Sentence

Motions Nunc Pro Tunc [sic], Aug. 26, 2020, at ¶ 2.

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This boilerplate assertion makes no reference to the double-counting

argument that Appellant raises now for the first time in his brief. As a result,

the sentencing court could not consider, and did not address, the issue

underlying Appellant’s sentencing challenge. By depriving the trial court of an

opportunity to address his argument, Appellant has waived the issue.

Appellant’s final claim, thus, fails to garner relief.

Conclusion

Having found Appellant’s issues either waived or meritless, we affirm his

Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/11/2022

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