J-S09035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROGER MITCHELL RIERA
Appellant No. 556 MDA 2013
Appeal from the Judgment of Sentence dated November 27, 2012
In the Court of Common Pleas of Lycoming County
Criminal Division at No: CP-41-CR-001459-2011
BEFORE: MUNDY, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014
Appellant Roger Mitchell Riera appeals from judgment of sentence of
the Court of Common Pleas of Lycoming County (trial court), which,
following a jury trial, convicted him of third-degree murder, voluntary
manslaughter and aggravated assault.1 Upon review, we adopt the trial
-sentence motion as well as its
1925(a) opinion and affirm the judgment of sentence.
with the details of this case and
need not further elaborate upon the background of this case. See Trial
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1
18 Pa.C.S. §§ 2502(c), 2503(b) and 2702(a)(1), respectively.
J-S09035-14
Court Opinion, 4/2/13, at 1-16, and Trial Court 1925(a) Opinion, 6/11/13, at
1-3.
-sentence motion,
Appellant filed a concise statement of errors complained of on appeal, raising
a plethora of issues. The trial court issued an opinion in support of its ruling
under Pennsylvania Rule of Appellate Procedure 1925(a). In disposing of
-sentence motion.
On appeal,2 Appellant raises the following eight issues for our review.3
First, Appellant argues that the trial court erred in holding that the evidence
was sufficient to convict him of third-degree murder under Section 2502 of
the Crimes Code (Code), 18 Pa.C.S. § 2502, because the Commonwealth
failed to establish malice.4 Second, Appellant argues that the trial court
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2
We note that the docket reveals that Appellant filed a premature notice of
-day period under
-sentence motion had not
expired. Nonetheless, the docket indicates that Appellant filed a proper
notice of appeal on April 3, 2013.
3
Appellant has decided not to pursue his argument that the trial court erred
in disallowing him to use his prior taped statement to the police, as he now
considers the issue as one for collateral relief. See -
20. Also, Appellant has abandoned his argument that the trial court erred in
complying with Pa.R.Crim.P. 600, relating to a prompt trial. Id. at 15.
4
A challenge to the sufficiency of the evidence is a question of law, subject
to plenary review. Commonwealth v. Williams, 871 A.2d 254, 259 (Pa.
Super. 2005).
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evidence.5 Third, Appellant argues that the trial court erred in precluding
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5
Our Supreme Court recently explained the governing law pertaining to
motion for a new trial based on a weight of evidence argument as follows:
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer, []
744 A.2d 745, 751 52 ([Pa.] 2000); Commonwealth v.
Brown, [] 648 A.2d 1177, 1189 ([Pa.] 1994). A new trial
should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Widmer, [] 744 A.2d at 752.
o determine that
greater weight that to ignore them or to give them equal weight
Id. at [] at 752 (citation
a new trial should be
awarded when the jury's verdict is so contrary to the evidence as
imperative so that right may be given another opportunity to
Brown, [] 648 A.2d at 1189.
An a
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. 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
weight of the evidence. Commonwealth v.
Farquharson, [] 354 A.2d 545 (Pa. 1976). One of
the least assailable reasons for granting or denying a
verdict was or was not against the weight of the
evidence and that a new trial should be granted in
the interest of justice.
Widmer, [] 744 A.2d at 753 (emphasis added).
Commonwealth. v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). Therefore,
(Footnote Continued Next Page)
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§ 505(b)(2.3), and instructing the jury on the same.6 Fourth, Appellant
argues that the trial court erred in admitting into evidence a cell phone video
that, inter alia, depicted the dying victim, because the video was unfairly
prejudicial and inflammatory.7 Fifth, Appellant argues that the trial court
erred in disallowing him to introduce into evidence witness testimony
establishing that the victim carried a knife one year prior to the deadly
shooting. Sixth, Appellant argues that the trial court abused its discretion in
the heat of passion instruction for voluntary manslaughter and [disallowing
8
argues that the trial court abused its discretion by imposing upon him an
_______________________
(Footnote Continued)
record shows that the action is a result of partiality, prejudice, bias or ill-
Id. at 1055.
6
with deference decisions regarding instructions submitted to a
jury; we may reverse the trial court only where we find that it abused its
Commonwealth v. Hornberger,
74 A.3d 279, 282 (Pa. Super. 2013)
7
Admission of evidence is within the sound discretion of the trial court and
will be reversed only upon a showing that the trial court clearly abused its
discretion. Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa.Super.
1999), appeal denied, 795 A.2d 972 (Pa. 2000).
8
To the extent this issue is inconsistent with i.e., broader than the issue
Appellant raised in the trial court, we decline to address more than the issue
raised before the trial court. See Pa.R.A.P. 302
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excessive sentence.9 Finally, Appellant argues that the trial court erred in
determining that the Commonwealth did not violate Pa.R.Crim.P.
testimony.
by President Judge Nancy L. Butts, thoroughly and properly dispose of
10
See Trial Court Opinion, 4/2/13, at 16-32,
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9
It is well-settled that the proper standard of review when considering
whether to affirm the sentencing court's determination is an abuse of
discretion. Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (citation
omitted). An abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. Id.
10
this conclusion by reading Sections 505(b)(2.3)(iii) and (b)(3) together. We
respectfully disagree. Section 505(b)(2.3(iii) is unambiguous that an actor
has no duty to retreat and has a right to stand his ground only if the person
a fireman or
firearm or lethal weapon must be displayed or used for Stand Your Ground
to apply. Section 505(b)(3) does not alter this unambiguous qualification.
Rather, 505(b)(3) addresses the amount of force that may be used by an
judgment as to what force he believes is necessary to respond to the use of
a firearm or lethal weapon against him. The trial court correctly found that
no firearm or lethal weapon was displayed or used by the victim and
therefore, that a Stand Your Ground instruction was not warranted.
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and Trial Court 1925(a) Opinion, 6/11/13, at 3-9. We, therefore, affirm the
We direct that
April 2, 2013 and June 11, 2013 opinions be attached to any future filings in
this case.
Judgment of sentence affirmed.
Mundy, J., filed a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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