Opinion
J-S34027-18 No. 1740 WDA 2017
08-29-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. RUSSELL JAMES COSTELLO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered November 7, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No: CP-26-CR-0000957-2017 BEFORE: BOWES, STABILE, and STRASSBURGER, J. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Russell James Costello, appeals from the November 7, 2017 judgment of sentence imposing an aggregate two to four years of incarceration for theft by unlawful taking, receiving stolen property, unlawful possession of a firearm, terroristic threats, possession of an instrument of crime ("PIC"), simple assault, recklessly endangering another person ("REAP"), and disorderly conduct. We affirm.
The trial court summarized the pertinent facts:
Judith Sarah Moran dated Appellant [...] for a period of sixteen years, was engaged to him, and lived with him until the Fall of 2016 when the relationship ended. Around six o'clock in the evening of April 10, 2017, Moran drove to the VFW in
Fairchance, Pennsylvania. Moran's vehicle, a silver Sebring, was parked in the lot of the VFW when someone alerted her that the windshield had been smashed. Moran contacted the state police and waited to view the video of the incident. Upon reviewing the video, Moran was able to identify Appellant as the person who smashed her windshield.
Prior to her leaving for the evening, Barry Blosser arranged to give Moran a ride. Blosser went out to the parking lot to warm his car and to make sure it was safe for Moran to exit the VFW. Blosser indicated that it was safe and Moran met Blosser at the door to the VFW. As the two exited, Moran saw 'something fast coming from [her] left eye and [Appellant] had come from the flagpole and bushes and was running at them.'
Moran testified that Appellant first came at Blosser and then came at her and held her by the hair. Moran ran back to the side door of the bar at the VFW to pound on it asking for 911 to be called. Moran could see something long, like a stick, in Appellant's hand but was unable to identify it because it was dark outside. Appellant threw Moran to the ground from holding her in a headlock or choke hold. Blosser asked Appellant what he was doing to which Appellant responded by knocking Blosser and Moran to the ground. Blosser was 'knocked out cold.' At that point, Moran saw a gun on the ground and watched as Appellant picked it up and pointed it at them. Appellant continued to point the gun at Blosser and Moran while talking, then when others exited the VFW, Appellant waived the gun at everyone, gesturing, and saying 'I'll kill all of you.' Appellant left the parking lot and was not seen again.
Barry Blosser testified that he was at the VFW when Moran's windshield was busted and he arranged to take her home since she was afraid. When the two were ready to leave, Blosser went to the parking lot to look around and start the car, and while he was in the car, retrieved his Glock pistol from the car and put it in his front pocket. Blosser signaled back inside that it was okay for Moran to come to the car, but when she exited the VFW, Appellant appeared and ran past Blosser carrying something that looked like a crow bar. Blosser pulled his gun and told Appellant to drop it, and Appellant complied by dropping the object. Appellant then proceeded toward Moran, grabbing her and 'shaking the shit out of her.' As Moran broke loose from Appellant's grasp, she ran back to the VFW, and Blosser and Appellant began arguing, but
Appellant chased after Moran and grabbed her again. Blosser tried to separate Appellant from Moran when Appellant hit him and he fell to the ground. Blosser watched as Moran and Appellant fought for his pistol on the blacktop. Appellant grabbed the gun, pointed it at Blosser and pulled the trigger. The gun was loaded but, according to Blosser, there was not a bullet in the chamber, so it did not discharge.Trial Court Opinion, 1/23/18, at 2-3 (record citations omitted).
The Commonwealth filed its information on June 16, 2017. On October 4, 2017, a jury found Appellant guilty of the aforementioned offenses. The trial court imposed sentence on November 7, 2017, and this timely appeal followed. On December 5, 2017, the trial court ordered Appellant to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on December 18, 2017, identifiying the following issue:
Issue No. 1: Whether the evidence was legally and factually insufficient to prove that [Appellant] was guilty of theft by unlawful taking, receiving stolen property, possession of a firearm prohibited, firearms not to be carried without a license, terroristic threats and possession of a weapon?Appellant's Concise Statement, 12/18/17, at 1. Thus, Appellant challenged the sufficiency of the evidence for six convictions, but he failed to specify which element or elements the Commonwealth failed to prove. This Court has written:
[W]hen challenging the sufficiency of the evidence on appeal, the Appellant's 1925 statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. 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.Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied , 3 A.3d 670 (Pa. 2010) (internal citations and quotation marks omitted); see also Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013). Based on the foregoing, we deem Appellants sufficiency of the evidence challenges waived.
Moreover, even were we to address the merits, Appellant would not obtain relief.
The standard we apply in reviewing sufficiency of the evidence is whether in viewing all the evidence admitted at trial in 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. Any doubts concerning an appellant's guilt are to be resolved by the trier of fact unless the evidence was so weak and inconclusive that no probability of fact could be drawn therefrom. The trier of fact while passing upon credibility of witnesses ... is free to believe all, part or none of the evidence. Additionally, [t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.Garland , 63 A.3d at 344-45 (internal citations and quotation marks omitted).
Concerning theft by unlawful taking, receiving stolen property, and the two firearms offenses—all of which turn on Appellant's possession of Blosser's firearm—Appellant argues that he picked the gun up to avoid being shot. Appellant's Brief at 17-18. Appellant's argument is based on his own self-serving testimony which, as the trial court pointed out, the jury disbelieved. The trial court opinion adequately addresses Appellant's challenges to the theft and weapons charges. Were we to reach the merits of these issues, we would reject them for the reasons stated in the trial court's opinion of January 23, 2018.
"A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S.A. § 3921(a).
"A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner." 18 Pa.C.S.A. § 3925(a).
Section 6105 provides: "A person who has been convicted of an [enumerated] offense [...] shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth." 18 Pa.C.S.A.§ 6105(a)(1). Section 6106 provides: "Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree." 18 Pa. C.S.A. § 6106(a)(1).
The entirety of Appellant's argument as to terroristic threats is that "it was not [Appellant's] intent to terrorize. His intention was to get out of the situation without being shot." Appellant's Brief at 18. Once again, this rests on his own self-serving testimony and ignores evidence that he waived the gun at Moran, Blosser, and other passers by stating, "I'll kill all of you." We would reject Appellant's challenge to the terroristic threats convictions for the reasons explained in the trial court's opinion.
"A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another[.]" 18 Pa. C.S.A. § 2706(a)(1).
Finally, Appellant argues the evidence was insufficient to convict him of PIC because he was never seen in possession of the hammer police found on the ground at the scene. Appellant's argument ignores that Moran and Blosser saw him in possession of an object that appeared to be a crow bar. Also, Appellant appeared on surveillance video smashing the windshield of Moran's car. Sufficient circumstantial evidence establishes that Appellant was in possession of the hammer found at the scene of the crime, and that he used it with the intent to commit a crime. We would reject Appellant's challenge to his PIC conviction based on the trial court's opinion. We direct that a copy of the trial court's January 23, 2018 opinion be attached to this memorandum.
"A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally." 18 Pa.C.A. § 907(b).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/29/2018
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