Opinion
J-S59009-18 No. 3682 EDA 2017
11-02-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. ALLAN E. SAUERBAUM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 13, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004362-2016 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Allan E. Sauerbaum, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for simple assault, possessing an instrument of crime ("PIC"), and recklessly endangering another person ("REAP"). We affirm.
18 Pa.C.S.A. §§ 2701(a), 907(a), 2705, respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we will only summarize them here. After a night out drinking on April 9, 2016, Appellant and his wife argued. During the course of the argument, Appellant held a gun to his wife's head, threatened to shoot her if she did not leave the house in two seconds, and then fired a shot. Following a bench trial, the court convicted Appellant of simple assault, PIC, and REAP on March 30, 2017. On June 13, 2017, the court sentenced Appellant to four (4) years' probation. Appellant timely filed post-sentence motions on June 23, 2017, challenging the sufficiency and weight of the evidence, which the court denied on October 11, 2017. Appellant timely submitted a notice of appeal on November 6, 2017. On November 13, 2017, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on December 4, 2017.
Appellant raises the following issues for our review:
IS [APPELLANT] ENTITLED TO AN ARREST OF JUDGMENT ON THE CHARGES OF SIMPLE ASSAULT, PIC, AND RECKLESSLY ENDANGERING ANOTHER PERSON AND ALL OF THEM WHERE THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE VERDICT?(Appellant's Brief at 3).
IS [APPELLANT] ENTITLED TO A NEW TRIAL ON THE CHARGES OF SIMPLE ASSAULT, PIC, AND RECKLESSLY ENDANGERING ANOTHER PERSON WHERE THE VERDICT ON ALL CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE?
Appellant first argues he did not fire the gun, and there was no evidence to prove he did. Appellant alleges there were no bullet holes or cartridge casings discovered in the home. Appellant asserts his wife was uninjured and did not have any gunshot residue on her person. Appellant maintains that even if the gun was fired, there was no proof his wife was ever in danger of any harm. Appellant contends there was insufficient evidence to sustain his convictions for simple assault, PIC, and REAP. For the same reasons, Appellant also submits the weight of the evidence did not support the convictions. Appellant concludes he should be granted an arrest of judgment on all charges or, alternatively, a new trial. We disagree.
Appellate review of a claim challenging the sufficiency of the evidence is as follows:
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 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. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).
The following principles apply to a weight of the evidence claim:
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may only reverse the...verdict if it is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Champney , 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (most internal citations omitted).
Commonwealth v. Small , 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
The Pennsylvania Crimes Code defines simple assault as:
§ 2701. Simple Assault
(a) Offense defined.—Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:
18 Pa.C.S.A § 2701(a). Possessing instruments of crime is defined as:(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon;
(3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.
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§ 907. Possessing instruments of crime18 Pa.C.S.A. § 907(a). Section 2705 of the Crimes Code provides:
(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
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§ 2705. Recklessly endangering another person18 Pa.C.S.A. § 2705.
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Donna M. Woelpper, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed March 1, 2018, at 3-5) (finding: (1) Commonwealth presented evidence that Appellant pointed loaded gun at his wife and fired shot; even if Appellant did not fire shot, act of holding gun to his wife's head while threatening to shoot her was still sufficient to prove simple assault by physical menace; Appellant's act of placing cocked and loaded gun within inches of his wife's head and firing was also sufficient to sustain Appellant's REAP and PIC convictions; (2) court found wife's testimony credible that Appellant held loaded gun to her head while warning her that she had only two seconds to get out of house; verdict does not shock one's sense of justice; Appellant's weight claim fails). Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/2/18
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