Com. v. Gordon, B.

Superior Court of Pennsylvania

Com. v. Gordon, B.

DecidedJuly 12, 2018

Docket897 WDA 2017

StatusUnpublished

This text of Com. v. Gordon, B. (Com. v. Gordon, B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Gordon, B., (Pa. Ct. App. 2018).

Pincite

Opinion

J-S18010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BILLY RAY GORDON

Appellant No. 897 WDA 2017

Appeal from the Judgment of Sentence Entered May 25, 2017 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0003070-2016

BEFORE: STABILE, MUSMANNO, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JULY 12, 2018

Appellant Billy Ray Gordon appeals from the May 25, 2017 judgment of

sentence entered in the Court of Common Pleas of Erie County (“trial court”),

following his jury convictions for first-degree murder, aggravated assault,

recklessly endangering another person (“REAP”), possession of instruments of

crime (“PIC”), abuse of a corpse, and tampering with or fabricating physical

evidence.1 Upon review, we affirm.

The facts and procedural history of this case are undisputed, and

thoroughly recounted in the trial court’s opinion. See Trial Court Opinion,

8/8/17, 1-13. Briefly, in connection with the stabbing death of his wife, Linda ____________________________________________

1 18 Pa.C.S.A. §§ 2501(a), 2702(a)(1), 2705, 907(a), 5510, and 4910(1), respectively. J-S18010-18

Gordon, Appellant was found guilty by a jury of the above-mentioned crimes.

On May 25, 2017, the trial court sentenced Appellant to life imprisonment

without the possibility of parole.2 Appellant did not file any post-sentence

motions. Appellant timely appealed to this Court. The trial court directed

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Appellant complied, asserting, inter alia:

[I.] That the evidence produced at trial by the Commonwealth of Pennsylvania was insufficient to support convictions in this matter with first degree murder (Murder 1), aggravated assault, [REAP], [PIC], abuse of corpse and tampering with or fabricating physical evidence[.]

Rule 1925(b) Statement, 7/7/17 (unnecessary capitalizations omitted) (sic).

In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant repeats the same sufficiency-of-the-evidence issue

for our review.

“A claim challenging the sufficiency of the evidence is a question of law.”

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

The standard we apply in reviewing the sufficiency of the evidence is 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. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and ____________________________________________

2 The trial court merged the sentences for aggravated assault and REAP with the life imprisonment sentence for first-degree murder and imposed separate consecutive sentences for PIC (one to four years in prison), abuse of corpse (one to two years in prison) and tampering with or fabricating physical evidence (six to twenty-four months’ imprisonment).

-2- J-S18010-18

inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

Before we may address the merits of Appellant’s sufficiency claim, we

must determine whether he has preserved it for our review. It is settled that

to preserve a challenge to the sufficiency of the evidence on appeal, the

appellant’s Rule 1925(b) statement must state with specificity the element or

elements of the crime upon which the appellant alleges the evidence was

insufficient. See Commonwealth v. Garland, 63 A.3d 339, 334 (Pa. Super.

2013). “Such specificity is of particular importance in cases, where, as here,

the appellant was convicted of multiple crimes each of which contains

numerous elements that the Commonwealth must prove beyond a reasonable

doubt.” Garland, 63 A.3d at 344 (citations omitted). In Garland, the

appellant’s Rule 1925(b) statement simply stated, “[t]he evidence was legally

insufficient to support the convictions.” Id. The panel found the claim waived,

noting, among other things, that the appellant “failed to specify which

elements he was challenging in his Rule 1925(b) statement.” Id. Moreover,

given this Court’s desire to apply Rule 1925 in a “predictable, uniform fashion,”

we have determined that waiver applies even where, as here, the

Commonwealth fails to object and the trial court addresses the issue in its

-3- J-S18010-18

Rule 1925(a) opinion. Commonwealth v. Roche, 153 A.3d 1063, 1071-72

(Pa. Super. 2017), appeal denied, 169 A.3d 599 (Pa. 2017); see

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (holding

that Tyack’s “boilerplate” concise statement declaring “that the evidence was

insufficient to support his conviction” was too vague even where Tyack was

convicted only of one crime).

Instantly, Appellant’s Rule 1925(b) statement, as detailed above, lacks

specificity. In particular, Appellant fails to set forth in his Rule 1925(b)

statement the elements of each of the six crimes that the Commonwealth

allegedly did not prove beyond a reasonable doubt following a four-day jury

trial. Accordingly, we conclude that Appellant has waived his sufficiency-of-

the-evidence claim for lack of specificity. Indeed, as noted, we have held

appellants waived such claims for lack of specificity under less egregious

circumstances.

Even if Appellant’s sufficiency claim was preserved, he still would not be

entitled to relief. After careful review of the record and relevant case law, we

conclude that the trial court accurately and thoroughly addressed the merits

of Appellant’s claim. See Trial Court Opinion, 8/8/17, at 13-20. Accordingly,

we affirm Appellant’s judgment of sentence. We further direct that a copy of

the trial court’s August 9, 2017 opinion be attached to any future filings in this

case.

Judgment of sentence affirmed.

-4- J-S18010-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/12/2018

-5- Circulated 06/28/2018 03:58 PM )

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA v. CRIMINAL DIVISION

BILLY RAY GORDON, NO. CR 3070 of2016 Defendant

Free access — add to your briefcase to read the full text and ask questions with AI