J-S37008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WESLEY RASHAWN RICHARDS
Appellant No. 488 WDA 2015

Appeal from the Judgment of Sentence February 11, 2 015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000567-2014

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 28, 2016
Appellant, Wesley Rashawn Richards, appeals from t he judgment of
sentence entered in the Allegheny County Court of C ommon Pleas, following
his bench trial convictions for third-degree murder , persons not to possess
firearms, and firearms not to be carried without a license. 1 We affirm.
The trial court opinion set forth the relevant fac ts of this case as

follows:
This matter arises out of the shooting death of the

[V]ictim...on October 18, 2013 in a bar on the North Side of Pittsburgh. The Commonwealth presented the testimony of two eyewitnesses to the shooting and v ideo surveillance which also showed the shooting. The eyewitnesses testified that in the early morning ho urs [Victim], [Appellant] and [Appellant’s] companion e ntered

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1 18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6106(a)(1), r espectively.J-S37008-16

- 2 - the bar and were searched by a security guard at th e door. When [Victim] entered the bar the first time, the s ecurity worker, Brian Collins, searched him and found a poc ket knife which he removed and placed behind the bar. Later, [Vicitm] left the bar and the knife was returned to him. Shortly thereafter, [Victim] returned and was searc hed again but the knife was not found. [Appellant] and his companion, Walter Banks, were also searched each ti me they entered or returned to the bar but [the guard] found no weapons. [Mr.] Collins knew [Appellant] for sev eral years and also knew [Victim] from the neighborhood.
At some point [Mr.] Collins became aware of somethi ng happening towards the back of the bar and as he wen t towards that area he saw [Victim] falling to the gr ound and then saw [Appellant] come around the corner wit h a gun in his hand. [Mr.] Collins grabbed [Appellant] and pinned him against the bar but was then hit in the head with a bottle by [Mr.] Banks. Stunned by the blow to the head, [Mr.] Collins let go of [Appellant] and when he looked again he saw [Appellant] standing over [Vict im] shooting at him three times as he lay on the ground . [Mr.] Collins then followed [Appellant] and [Mr.] Banks t owards the back as they left but then returned to [Victim] . [Mr.] Collins found [Victim] still alive and saw a closed pocket knife on the ground next to him. 1

1 The autopsy showed [Victim] died of gunshot wounds to the trunk. The first entered in the cent ral upper back and the second in the lateral left butto ck.
The Commonwealth also called the disc jockey who wa s working at the bar that night, Sylvanius Flowers, w ho also testified that he observed [Victim], [Appellant] an d [Mr.] Banks standing near the bar together and they appea red to be laughing and joking. He then saw [Appellant] backing up toward the stairs and pull a gun out. H e testified:
I’m standing there talking to a young lady. [Victi m] is standing there with the other guy, his arm aroun d [Victim’s] neck. And me and the young lady was talking on my right side. And I happen to look ove rJ-S37008-16

- 3 - and I see [Appellant] reach down beside his knees and pull out a gun.
[Mr.] Flowers also testified:
He pulls the gun up. He fires a shot. [Victim] duck[s] and take[s] the other guy’s arm off [from around his neck] and he tries to run. [Then] after that he falls down. I don’t know if he was hit or not but he falls down. Then [Appellant] comes up from around the back, steps back some, and starts running back, and goes and shoots him three times in the back.
[Mr.] Flowers testified that he never saw a knife i n [Victim’s] hand and never saw him threaten [Appella nt] with a knife. He also testified that he saw the se curity guard, [Mr.] Collins, grab [Appellant] and wrestle with him for the gun before [Mr.] Collins was hit in the hea d with a bottle. The bartender, Tylonda Northington, also t estified that she heard shots and ducked behind the bar and then saw [Mr.] Collins struggling with [Appellant] and [Appellant’s] hand come over the bar with a gun in it.

The Commonwealth also introduced video surveillance taken from several cameras in the bar that showed [Victim], [Appellant] and [Mr.] Banks inside the ba r before and during the shooting and confirmed the testimony of the eyewitnesses. The Commonwealth also introduced the certification that [Appellant] was not licensed to carry a firearm and it was stipulated that [Appellant] had a felony conviction that rendered him a person not to posses s.
(Trial Court Opinion, filed July 20, 2015, at 2-4) (internal citations omitted).
Procedurally, the court convicted Appellant on Nove mber 3, 2014, of thirddegree murder, persons not to possess firearms, and firearms not to be
carried without a license. The court sentenced App ellant on February 11,
2015, to an aggregate term of twenty to forty years ’ imprisonment.
Appellant timely filed post-sentence motions on Feb ruary 19, 2015, whichJ-S37008-16

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the court denied on February 23, 2015. Appellant t imely filed a notice of
appeal on March 25, 2015. On April 1, 2015, the co urt ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Following the grant of an exten sion, Appellant timely
complied.
Appellant raises one issue for our review:

WERE APPELLANT’S STATE AND FEDERAL DUE PROCESS RIGHTS (AS GUARANTEED HIM BY PA. CONST. ART. I § 9 AND U.S. CONST. AMEND. XIV) VIOLATED WHEN HE WAS CONVICTED OF THE CRIME OF THIRD DEGREE MURDER— RATHER THAN, AS HE SHOULD HAVE BEEN, OF VOLUNTARY MANSLAUGHTER UNDER EITHER 18 PA.C.S. § 2503—BASED ON INSUFFICIENT EVIDENCE (THE COMMONWEALTH HAVING FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT APPELLANT’S ACT OF KILLING THE DECEDENT...[WAS] NOT AN ACT THAT UNDER THE CIRCUMSTANCES OF THIS CASE CONSTITUTED EITHER IMPERFECT SELF-DEFENSE VOLUNTARY MANSLAUGHTER OR HEAT-OF-PASSION VOLUNTARY MANSLAUGHTER)?
(Appellant’s Brief at 3).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of th e Honorable Randal B.
Todd, we conclude Appellant’s issue merits no relie f. The trial court opinion
comprehensively discusses and properly disposes of the question presented.
( See Trial Court Opinion at 4-7) (finding: Victim did n ot exchange words
with Appellant, threaten Appellant, or make gesture s or actions directed to
Appellant which could reasonably be construed as se rious provocation; no
evidence suggested Victim threatened Appellant with knife Victim had in hisJ-S37008-16

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possession or attempted to stab or injure Appellant ; rather, eyewitness
testimony and surveillance camera footage show Appe llant acted with malice
as he stood over Victim and repeatedly fired shots at him while Victim was
lying on ground; record belies Appellant’s assertio n that he acted in sudden
and intense passion resulting from serious provocat ion by Victim;
Commonwealth presented sufficient evidence to susta in Appellant’s
conviction for third-degree murder). 2 Accordingly, we affirm on the basis of
the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/28/2016

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2 Appellant also claims the evidence at trial suppor ted a voluntary manslaughter conviction based on an “imperfect self -defense” theory. See 18 Pa.C.S.A. § 2503(b) (explaining any person who i ntentionally or knowingly kills individual commits voluntary mansla ughter if at time of killing he believes circumstances to be such that, if they existed, would justify killing, but his belief is unreasonable). Neverthe less, Appellant relied solely on the heat-of-passion voluntary manslaughter theor y at trial, so this claim is waived. See Commonwealth v. Gordon , 528 A.2d 631, 638 (Pa.Super. 1987), appeal denied , 517 Pa. 621, 538 A.2d 875 (1987) (stating: “This Court cannot review a case upon a theory different from that relied upon in the trial court, or raised for the first time on ap peal”).