Com. v. Johonoson, F.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2014
• Docket: 1989 MDA 2013
• Status: Unpublished

Opinion

J-S35027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

FRANKLIN JOHONOSON

Appellant No. 1989 MDA 2013

Appeal from the Judgment of Sentence of September 23, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0004190-2012

BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 09, 2014

Franklin Johonoson appeals his September 23, 2013 judgment of

sentence. We affirm.

The trial court aptly summarized the factual and procedural history of

this case as follows:

On July 12, 2009 at approximately 8:00 a.m., Vonda Kirchner

Convenience Store, received a visit at her home from George

was on his way to the VFW post next door to the service station, he noticed that one of the large plate glass windows in front of the convenience store was broken. Kirchner, who lived in a home behind the service station, walked with Snyder to the convenience store to assess the damage. When she arrived, Kirchner observed the broken window and noticed that debris and lottery tickets were scattered on the ground outside of the ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S35027-14

store. After examining the exterior, Kirchner entered the convenience store and immediately saw that the floor was littered with dry goods and that lottery tickets and cigarettes were missing from behind the counter. Additionally, Kirchner observed that blood was smeared on the floor, the lottery ticket counter, and on the shards of glass that remained in the front

registers had been pried open, and that coins and several sets of keys were missing.

After surveying the damage, Kirchner and Snyder contacted police. Officer Elliot Tirado of the Lancaster City Police Department was dispatched and arrived at the scene at 9:24 a.m. Once he had interviewed Kirchner and observed the damage, Officer Tirado contacted Sergeant Bradley Shenk to assist him in processing the scene. Upon his arrival, Sergeant Shenk located and processed two fingerprints on the countertop directly inside of the broken plate glass window. Meanwhile, Officer Tirado collected six blood samples from inside of the store, including samples from the top of the deli counter, the interior floor near the cash register, and the lottery ticket counter. Additionally, Sergeant Shenk collected a blood sample from the outside of the store on the ground in front of the broken window. Finally, Officer Tirado inventoried the items that were missing from the convenience store and photographed the damage.

In July 2009, Detective Toby Hickey, the detective assigned to

samples collected from the crime scene to the Pennsylvania State Police Serology Laboratory. On January 1, 2010, Detective Hickey received a report from Serologist Brett Albright

blood. Albright then transmitted the samples collected from the top of the deli counter and the interior floor of the service station to the Pennsylvania State Police DNA Laboratory for additional testing.

identification, examined the blood samples and created a DNA profile for each sample. Irwin determined that both of the samples contained the same DNA profile and that the profile was produced by an unidentified male. The DNA profile was then

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which produced a hit indicating that the profile matched a known blood sample from [] Franklin Johonoson.

Irwin notified Detective Hickey of the findings and that the Manheim Township Police Department, also located in Lancaster County, had recently submitted a DNA profile that matched Johonoson in an unrelated case.

Lieutenant Clark Bearinger of the Lancaster City Police Department obtained a search warrant permitting him to take a buccal swab from Johonoson at SCI Mercer. Due to miscommunication, the swab was never forwarded to the Pennsylvania State Police Laboratory for comparison with the

uncovered until Detective Hickey reviewed the case file in May 2012. To remedy the error, Detective Hickey immediately requested and received permission from Detective Sergant Keith Kreider of the Manheim Township Police and the Pennsylvania

Defend Station.

identification and comparison, compared the DNA profiles

known sample Township Police Department, and determined that the two profiles matched.

In addition, Detective Hickey, a latent fingerprint examiner, compared the two fingerprints lifted from the counter in the service stat Detective Hickey determined that the fingerprints from the crime

comparison, on September 20, 2012, Detective Hickey charged Johonoson with one count of burglary.[1]

____________________________________________

1 18 Pa.C.S. § 3502(a). The Commonwealth also charged Johonoson with one count each of theft by unlawful taking and criminal mischief. 18 (Footnote Continued Next Page)

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On August 9, 2013, Johonoson filed a pre-trial motion to suppress evidence. In his motion, Johonoson claimed that Detective Hickey did not have the authority to use Manheim

purposes. A suppression hearing was conducted on August 12, 2013, at which time Johonoson additionally asserted a motion to dismiss for pre-arrest delay. At the conclusion of the hearing, the cou

On August 12, 2013, following a two-day jury trial, Johonoson - sentence investigation was ordered. Prior to sentencing, Johonoson filed a pro se -sentence (written) oral motion for 4[2] extra ordinary [sic On September 23, 2013, Johonoson concurrent to a sentence he was already serving at docket number 4407-2009. The court specifically indicated that Johonoson was only to begin accruing time credit in the case at bar on the date of the sentencing hearing. 4 pro se motion was largely incomprehensible, and, as a result, the court was unable to address it on the merits.

On October 2, 2013, Johonoson filed a post-sentence motion comprised of a motion for arrest of judgment, motion for new trial, and motion to modify sentence, all of which were denied on October 11, 2013. On October 7, 2013, the Commonwealth _______________________ (Footnote Continued)

Pa.C.S. §§ 3921, and 3304(a)(5), respectively. However, the Commonwealth withdrew both of these charges at the suppression hearing. 2 We note that, at the time that Johonoson filed this pro se motion, he was represented by counsel. Although the trial court made the motion part of the certified record, the court did not rule on it. Because hybrid representation generally is prohibited in Pennsylvania, see Commonwealth v. Morgan, 39 A.3d 419, 420 (Pa. Super. 2012) (citing Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993), and Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011)), the trial court was correct in declining to rule on the motion while Johonoson was represented by counsel.

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submitted a motion to modify sentence, indicating that the court did not order the correct amount of restitution.6 The court

within thirty days, and, when Johonoson failed to do so, the Commonwealth submitted a petition to make rule absolute on November 13, 2013. Accordingly, on January 7, 2014, the court

restitution from $3,360 to $3,660. 6 At the sentencing hearing, the Commonwealth asked the court to order $3,660 in restitution. However due to a clerical error, only $3,360 was ordered on the record.

-2 (minor modifications for

clarity; some footnotes omitted).

On November 7, 2013, Johonoson timely filed a notice of appeal. On

November 8, 2013, the trial court ordered Johonoson to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Johonoson timely complied. On January 17, 2014, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).

Johonoson presents the following issues for our consideration:

1. Whether the trial court erred and/or abused its discretion, and denied Johonoson due process in denying, after a hearing, -trial motion to suppress DNA evidence and Johonos

2. Whether the trial court erred and/or abused its discretion in

to convict Johonoson for burglary.

3. Whether the trial court erred and/or abused its discretion in -sentence motion for arrest in judgment and motion for new trial and motion to modify sentence because:

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(a) insufficient as a matter of law to sustain the verdict of guilty for burglary because the Commonwealth did not prove beyond a reasonable doubt all elements of burglary;

(b) Johonoson was not awarded proper time credit;

(c) Johonoson was ordered to pay restitution even though the charges of theft and criminal mischief (to which restitution would have been properly ordered were withdrawn by the Commonwealth.

Brief for Johonoson at 6 (minor modifications for clarity).

In his first issue, Johonoson argues that the trial court erred in

denying his motion to suppress DNA evidence, and his motion to dismiss for

prosecutorial delay. Johonoson combines these two ostensibly distinct

issues, and structures his claim as one of a violation of due process. See

Brief for Johonoson at 6. However, Johonoson has failed to develop either of

these claims in a manner sufficient to justify our review.

Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure

. . . have . . . the particular point treated

therein, followed by such discussion and citation of authorities as are

pertinent facts or cite legal authority will result in waiver of that particular

issue. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).

roughly one page, and includes only a single case, State v. Hauge, 79 P.3d

131 (Hawaii 2003). Johonoson merely recites the holding in Hauge, and

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notes that the trial court relied upon it. Johonoson makes no effort to apply

Hauge to the instant case. Instead, Johonoson simply asserts that his

Brief for Johonoson at 11. Johonoson provides no discussion whatsoever of

the precise nature of his claim. Without meaningful discussion of the legal

authorities that he relies upon, we cannot review

Id. In short, his undeveloped claim does not present a viable legal

theory upon which relief can be granted. Hence, the issue is waived.

We also

denial of his motion to dismiss for prosecutorial delay, is similarly

underdeveloped. In his brief, Johonoson dedicates the majority of his

discussion on this issue to recounting the procedural history of the case.

Although he cites two cases that purportedly support his contention,

Johonoson has failed to provide any analysis or application of those

authorities to the facts and circumstances at bar. See Pa.R.A.P. 2119(b)

ities must set forth the principle for which they are

Next, Johonoson presents a challenge to the sufficiency of the

evidence. Our standard of review is well-settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in [the] light most favorable to the Commonwealth as verdict winner,

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support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find [that] every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact- burden may be met by wholly circumstantial evidence and any

finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889 90 (Pa. Super. 2010)

(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010));

see Commonwealth v. Auker, 681 A.2d 1305, 1314 (Pa. 1996).

Under the provision of the Crimes Code applicable at the time of

Joh

building or occupied structure, or separately secured or occupied portion

thereof, with intent to commit a crime therein, unless the premises [were] at

the time open to the public or the actor [was] licensed or privileged to

3502(a).3

3 The Pennsylvania General Assembly amended subsections 3502(a) and (b) by Act of July 5, 2012, P.L. 1050, No. 122, § 1, which took effect on

events that occurred in July 2009, we apply the pre-amendment definition of the offense, which, in any event, does not differ substantively from the amended statute in any aspect relevant to this case.

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According to Johonoson, the Commonwealth failed to present evidence

sufficient to establish beyond a reasonable doubt that he intended to commit

a crime at the time that he entered Joh

at 16. We disagree. At trial, the Commonwealth presented extensive

Station. The Commonwealth presented evidence demonstrating that blood

samples, which had been collected from the floor of the service station and

matched the latent fingerprints that investigators lifted from the crime

scene.

that she closed the store at 8:00 p.m. on July 11, 2009, and that the store

was not open to the public after closing. Kirchner further testified that she

-glass

window had been broken. Moreover, food and debris were scattered

throughout the store, cigarettes and lottery tickets were missing, and each

rs had been pried open.

Viewing this evidence in the light most favorable to the Commonwealth

inconclusive that, as a matter of law, no probability of fact can be drawn

See Mobley, supra. Rather, the

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conclusion beyond a reasonable doubt that Johonoson entered the service

claim is without merit.

In his next issue, Johonoson claims that the trial court erred in failing

to credit Johonoson for time served. Because Johonoson was incarcerated

on other charges at the time that he was initially arraigned in this case, and

remained incarcerated on both cases until the time of his sentencing in the

instant case, he contends that the trial court should have credited him for

time served at both docket numbers.

custody as a result of the criminal charge for which a sentence is imposed as

9760(1). We have expla

Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa. Super. 1996). Such

on 9760

custody . . Commonwealth v. Hollawell, 604

A.2d 723, 725 (Pa. Super. 1992). At all relevant times, Johonoson was

serving a sentence in another case and necessarily receiving credit for that

time on that sentence. Accordingly, the trial court did not err in refusing to

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award Johonoson double credit for the time that he served on this case prior

to trial.

rt erred in ordering him to pay

restitution also presents a non-waivable challenge to the legality of his

sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1182 83 (Pa.

review is plenary and is limited to determining whether the trial court erred

Commonwealth v. Pombo, 26 A.3d 1155 (Pa. Super.

2011) (citation omitted). It is well-settled that the imposition of restitution

is proper only when there is a direct causal connection between the

underlying crime and the loss. Commonwealth v. Harriott, 919 A.2d 234,

crime wherein property has been stolen, converted or otherwise unlawfully

obtained, or its value substantially decreased as a direct result of the crime

...

Instantly, Johonoson

whatsoever that [he] stole lottery tickets, food items and/or broke two cash

causal connection between the burglary and the damaged/stolen items for

which Johonoson was ordered to reimburse the storeowner. In finding

Johonoson guilty of burglary, the jury necessarily found that Johonoson

entered into the store with the intent to commit a crime, in this case theft,

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therein. Consequently

ordering restitution is without merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014

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