J-S25023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES D. HEFFELFINGER, JR.               :
                                               :
                       Appellant               :   No. 1786 MDA 2018

        Appeal from the Judgment of Sentence Entered October 11, 2018
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0000532-2017



BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 11, 2019

        Charles D. Heffelfinger, Jr. (Appellant) appeals from the judgment of

sentence imposed after a jury found him guilty of simple assault, aggravated

assault, and recklessly endangering another person (REAP).1            On appeal,

Appellant claims that the evidence was insufficient to support his aggravated

assault and REAP convictions.2 Upon review, we find that Appellant’s issues

are waived, and therefore affirm the judgment of sentence.


____________________________________________


1   18 Pa.C.S.A. §§ 2701, 2702 and 2705.

2  Although this Court granted Appellant’s request for an extension of time to
file a brief, he filed his brief one day late. However, the Commonwealth has
not objected. See Pa.R.A.P. 2188 (if appellant fails to file a brief within the
time prescribed by these rules, or within the time as extended, appellee may
move for dismissal of the matter).
J-S25023-19


      At trial, the Commonwealth presented evidence that on February 12,

2017, Gary Riedel (the victim), his wife Melissa Riedel, and their friends Troy

and Lisa Meckes, were socializing at the Pine Street Pub. While there, Troy

Meckes saw his neighbors, Appellant and Appellant’s father, Charles

Heffelfinger, Sr. Mr. Heffelfinger, Sr. was subsequently asked to leave the bar

due to his high level of intoxication. Troy Meckes offered to drive him home,

and the victim rode in the car with them.

      When the three men arrived at the home of Mr. Heffelfinger, Sr.,

Appellant, who also was intoxicated, was at the home and confronted Troy

Meckes and the victim about not offering him a ride home as well. A heated

argument ensued between Appellant and the victim. Troy Meckes attempted

to get the victim back into the car, and Mr. Heffelfinger, Sr. attempted to

intervene and “break things up.” N.T. Trial, 8/22/18, at 72 (testimony of Troy

Meckes). The victim then took off his shirt and approached Appellant, who in

turn brandished a gun. The victim turned to run but Appellant fired the gun

twice, hitting the victim in the back. The bullet exited the victim’s torso and

he survived. The other bullet hit the tire of a car parked across the street.

Appellant’s mother, Yvonne Heffelfinger, testified that she was home at the

time and was awakened by the skirmish.




                                     -2-
J-S25023-19


        Appellant was charged with attempt to commit murder, 3 aggravated

assault-serious bodily injury, aggravated assault-deadly weapon,4 simple

assault-bodily injury, simple assault-deadly weapon,5 and REAP — all with

respect to the victim. Appellant was also charged with two additional counts

of REAP with respect to his father and Troy Meckes.

        The case proceeded to a jury trial on August 22 and 23, 2018. The

Commonwealth presented the testimony of the victim, the victim’s wife, Troy

Meckes, and two police officers, consistent with the factual summary set forth

above.

        Appellant, who was represented by current counsel, Kent Watkins,

Esquire, of the Schuylkill County Public Defender’s Office, testified in his

defense. He also offered the testimony of both of his parents. The trial court

summarized:

        Both [of Appellant’s] parents were present and witnessed the
        shooting. The father, who was highly intoxicated at the time of
        the incident, testified that the victim was the aggressor. The
        mother seemed to suggest the shooting was accidental while the
        victim and [Appellant] were struggling for [Appellant’s] gun, which
        had been knocked to the ground. [Appellant’s] testimony seemed
        to characterize the shooting as both accidental and in self-
        defense.
____________________________________________


3 18 Pa.C.S.A. §§ 901(a), 2502. The Commonwealth initially charged
Appellant with attempt to commit third-degree murder, but was subsequently
granted leave to amend the charge to attempt to commit first-degree murder.

4   18 Pa.C.S.A. § 2702(a)(1), (4).

5   18 Pa.C.S.A. § 2701(a)(1), (2).


                                           -3-
J-S25023-19



Trial Court Opinion, 11/28/18, at 3.

       The jury found Appellant guilty of the two counts of aggravated assault,

which, as noted above, arose under different subsections of the aggravated

assault statute; two counts of simple assault, which likewise arose under

different subsections of the simple assault statute; and three counts of REAP.

On October 11, 2018, the trial court sentenced Appellant to an aggregate term

of 6 to 12 years of imprisonment.

       Appellant did not file a post-sentence motion, but took this timely

appeal.    In a timely response to the trial court’s order to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, Appellant filed a

statement which set forth, inter alia, the following issues:6

           1. The Commonwealth did not provide sufficient evidence to
       support a conviction for aggravated assault.

           2. The Commonwealth did not provide sufficient evidence to
       support a conviction for recklessly endangering another person as
       to any persons other than the victim.

Appellant’s Concise Statement of Matters, 11/19/18.

       The trial court issued an opinion on November 28, 2018, stating that it

could not respond to Appellant’s sufficiency issues because Appellant failed to

specify “the element or elements for which [Appellant] contends the evidence


____________________________________________


6 Appellant’s Rule 1925(b) statement raised a third issue, alleging that the
trial court erred in allowing the Commonwealth to amend the attempt-to-
commit murder charge. See n.3, supra. However, Appellant has abandoned
this issue in his brief.

                                           -4-
J-S25023-19


was insufficient.” Trial Court Opinion, 11/28/18, at 1.

      On appeal, Appellant restates his sufficiency claims as follows:

      1. Did the Commonwealth fail to provide sufficient evidence to
      support a conviction for aggravated assault?

      2. Did the Commonwealth fail to provide sufficient evidence to
      support a conviction for recklessly endangering another person as
      to any persons other than the victim?

Appellant’s Brief at 4.

      At the outset, we consider the trial court’s suggestion that Appellant has

waived both of his sufficiency claims due to a deficient Rule 1925(b)

statement. This Court has stated:

      when 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. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations

omitted).   This Court has found waiver to be appropriate even when the

Commonwealth did not object to a deficient sufficiency-of-the-evidence Rule

1925(b) claim, and the trial court proceeded to address the appellant’s issues.

We explained:

      [t]he Commonwealth’s [lack of objection] and the presence of a
      trial court opinion [addressing the merits] are of no moment to
      our analysis because we apply Pa.R.A.P. 1925(b) in a predictable,
      uniform fashion, not in a selective manner dependent on an
      appellee’s argument or a trial court’s choice to address an
      unpreserved claim.      Thus, we find 1925(b) waiver where
      appropriate despite the lack of objection by an appellee and

                                     -5-
J-S25023-19


      despite the presence of a trial court opinion.

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(citation omitted).

      We note, however, that in Commonwealth v. Laboy, 936 A.2d 1058

(Pa. 2007), our Supreme Court allowed broad Rule 1925(b) claims of

insufficient evidence in a “relatively straightforward drug case.” Id. at 1060.

In that case, the Commonwealth alleged that the defendant “acted as a

lookout and money handler” in multiple drug sales. Id. at 1058. Following

his conviction, the defendant appealed and in his Rule 1925(b) statement

averred:

      I. Evidence of drug trafficking and conspiracy was insufficient.

      II. Evidence of conspiracy was insufficient.

Id. at 1060. Our Supreme Court declined to hold that this statement was so

deficient as to warrant waiver, stating:

      In the present, relatively straightforward drug case, the
      evidentiary presentation spans a mere thirty pages of transcript.
      It may be possible in more complex criminal matters that the
      common pleas court may require a more detailed statement to
      address the basis for a sufficiency challenge. Here, however, the
      common pleas court readily apprehended [the defendant’s] claim
      and addressed it in substantial detail.

Id. This Court has applied LaBoy in similarly straightforward cases. See

Commonwealth v. Smyser, 195 A.3d 912, 915, 916 (Pa. Super. 2018) (Rule

1925(b) claim “that the Commonwealth failed to present sufficient evidence

for the fact-finder to be convinced beyond a reasonable doubt of [Appellant’s]


                                     -6-
J-S25023-19


guilt” was acceptable where the appellant was convicted of 12 counts of sexual

abuse of children “and his sufficiency challenge present[ed] a question of law

that the trial court readily apprehended”); Commonwealth v. Richard, 150

A.3d 504, 517-518 (Pa. Super. 2016) (although appellant’s Rule 1925(b)

statement conflated weight and sufficiency of evidence, statement was

sufficient to preserve a challenge to the sufficiency of evidence); Interest of

T.L.B., 127 A.3d 813 (Pa. Super. 2015) (although Commonwealth’s Rule

1925(b) claim, “The juvenile court erred when it denied the petition to

adjudicate [the juvenile] delinquent after [he] was found to have committed

a felony graded indecent assault upon a minor victim . . . could have

specifically challenged the finding that [the juvenile] was not in need of

treatment, supervision, or rehabilitation,” the juvenile had admitted he

committed the delinquent acts, and thus the sole question before the court

was whether he was in need of treatment, supervision, or rehabilitation).

       In opining that Appellant’s Rule 1925(b) failed to state Appellant’s

sufficiency claims with specificity, the trial court pointed out that Appellant’s

counsel, Attorney Watkins, has been cautioned against this practice:

       [Attorney Watkins] has been advised on several occasions that a
       challenge to the sufficiency of the evidence requires specificity. A
       panel of the Superior Court admonished him on this subject in the
       non-precedential decision in Commonwealth v. Donella, [1330
       MDA 2017 (Pa. Super. June 25, 2018) (judgment order).7] This
____________________________________________


7 This Court’s judgment order in Donella found the defendant’s sufficiency-
of-the-evidence issue to be waived because the argument section of his brief



                                           -7-
J-S25023-19


       Court has also asked the Chief Public Defender to address this
       issue with him; however, he continues to cite non-specific claims
       of insufficient evidence as a ground for new trial.

Trial Court Opinion, 11/28/18, at 1-2 n.1.       Attorney Watkins has not, in

Appellant’s brief or otherwise, acknowledged or addressed the trial court’s

commentary.

       The Commonwealth suggests that although Appellant’s “sufficiency

claims may be waived due to his unspecific Rule 1925(b) statement,” this

Court should exercise discretion, apply Laboy, and address the merits.

Commonwealth Brief at 6-7. The Commonwealth reasons that a finding of

waiver could eventually lead to a second direct appeal by Appellant, which

“could dissipate limited judicial resources.” Id. at 8.

       After careful review of the record, Laboy, and other relevant decisional

law, we agree with the trial court that Appellant’s sufficiency issues are waived


____________________________________________


contained no discussion on the sufficiency issue. Instead, the brief “argue[d]
only that the trial court should have suppressed the evidence gathered during
the traffic stop” — an issue that was waived because the defendant had not
filed a suppression motion. Donella, 1330 MDA 2017, at 2. The panel stated:

       We are deeply troubled at the performance of Kent D. Watkins,
       Esq. in this case.     The deficiencies evident on the face of
       Appellant’s brief are unacceptable for a public defender. Attorney
       Watkins must furnish a copy of this judgment order to the
       Schuylkill County Commissioners and the Disciplinary Board of the
       Supreme Court of Pennsylvania forthwith.

Id. at 3 n.4.




                                           -8-
J-S25023-19


because Appellant’s Rule 1925(b) statement is deficient.       See Laboy, 936

A.2d at 1060.         Although Appellant was convicted under two different

subsections of the aggravated assault statute, his Rule 1925(b) statement did

not identify which sub-section or elements he wished to address. Instantly,

Appellant was convicted of a total of seven counts relating to three victims —

more than the defendants in Laboy and Smyser, 195 A.3d 912 — and unlike

the 30-page trial presentation of evidence in Laboy, the presentation of

evidence at Appellant’s trial spanned two days and approximately 208 pages

of trial transcript.8 Furthermore, unlike the trial courts in Laboy and T.L.B.,

which addressed the merits of the appellants’ sufficiency issues, in this case,

the trial court specified that it “cannot respond” to Appellant’s issues.9 See

____________________________________________


8   The entire trial transcript is 287 pages.

9 As the deficiencies in Attorney Watkins’ Rule 1925(b) statement resulted in
the failure to preserve particular claims, and not in the waiver of all possible
claims, we decline to find ineffective assistance of counsel per se. See
Commonwealth v. Rosado, 150 A.3d 425, 431 (Pa. 2016) (“We
distinguished counsel’s failure to file a Pa.R.A.P. 1925(b) statement,
occasioning waiver of all claims for purposes of appeal, from a failure to
preserve particular claims; we held the first constitutes ineffectiveness per se,
while the second does not[.]”), citing Commonwealth v. Halley, 870 A.2d
795, 801 (Pa. 2005).

       Furthermore, we observe that the argument in Appellant’s brief is so
undeveloped that we would find waiver. See Commonwealth v. Phillips,
141 A.3d 512, 522 (Pa. Super. 2016) (issues raised in a brief’s statement of
questions involved but not developed in the argument section will be deemed
waived). As noted, the statement of questions presented raises two claims:
insufficient evidence for aggravated assault and insufficient evidence for REAP
“as to any persons other than the victim.” Appellant’s Brief at 4. The



                                           -9-
J-S25023-19


____________________________________________


argument section for aggravated assault, spanning a little more than two
pages, generally cites to legal authority, but fails to address or mention — at
all — Appellant’s convictions, aside from the heading which broadly states:
“The Commonwealth did not provide sufficient evidence to support a
conviction for aggravated assault.” Appellant’s Brief at 8.

      Appellant’s second issue, concerning his REAP convictions, arguably
includes some reference to his case. His argument states: “Appellant’s second
issue challenges the evidence supporting his REAP conviction as insufficient
on two grounds: putting another person at risk and lack of a reckless mens
rea.” Appellant’s Brief at 10. In another paragraph, Appellant contends: “No
evidence was offered showing either [Appellant’s] father or [Troy Meckes]
were in the line of fire or the bullets passed in their direction.” Id.

       Nevertheless, we decline to extend Rosado to find ineffective assistance
per se for the deficient appellate brief. In Rosado, the defendant’s attorney
filed a Rule 1925(b) statement, which challenged the imposition of sentence,
the exclusion of certain evidence, and a juror’s alleged concealment of bias.
Rosado, 150 A.3d at 426. Counsel then filed an appellate brief which
abandoned these issues and instead raised an “unpreserved sufficiency claim.”
Id. This Court affirmed the judgment of sentence upon concluding the
sufficiency issue was waived. Id. The defendant subsequently filed a petition
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, claiming his
attorney’s conduct constituted ineffective assistance of counsel per se. Id. at
426-427. Ultimately, our Supreme Court agreed, and held “that the filing of
an appellate brief which abandons all preserved issues in favor of unpreserved
ones constitutes ineffective assistance of counsel per se.” Id. at 425.

      The Rosado Court noted: “The recognized instances of per se
ineffectiveness entitling a defendant to automatic relief are extremely
narrow.” Rosado, 150 A.3d at 427. Neither our Supreme Court nor this Court
has found ineffective assistance counsel per se based on the particular facts
presented in this appeal: (1) the defendant’s counsel files a Rule 1925(b)
statement, which raised only sufficiency-of-the-evidence issues that are
deemed waived due to the failure to specify the elements of the crimes
challenged; and (2) counsel then files an appellate brief which purports to
raise, but fails to develop argument on, those same sufficiency issues. We
recently reiterated:

       [O]ur role as an intermediate appellate court is clear. “It is not
       the prerogative of an intermediate appellate court to enunciate



                                          - 10 -
J-S25023-19


Trial Court Opinion, 11/28/18, at 1.

       Finally, we consider the Commonwealth’s argument regarding the

“dissipation of limited judicial resources.” See Commonwealth Brief at 8. In

certain circumstances, such as Laboy, Richard, and T.L.B., where the theory

of the case and/or the facts are relatively simple and straightforward, a

deficient Rule 1925(b) statement may not impede appellate review. However,

such circumstances do not exist in this case, where both the trial evidence

and the quantity and diversity in Appellant’s convictions lead us to agree with

the trial court that we “cannot respond” to Appellant’s sufficiency claims,

where Appellant has failed to specify “the element or elements for which [he]

contends the evidence was insufficient.” Trial Court Opinion, 11/28/18, at 1.

       Given the pointed discussion of Attorney Watkins’ conduct by the trial

court in this appeal, as well as the trial court’s reference to the Superior

Court’s judgment order in Donatella, supra, we direct our Prothonotary to

forward a copy of this memorandum to the chief public defender in Schuylkill



____________________________________________


       new precepts of law or to expand existing legal doctrines. Such is
       a province reserved to the Supreme Court.” It is well-settled that
       “the Superior Court is an error correcting court and we are obliged
       to apply the decisional law as determined by the Supreme Court
       of Pennsylvania.”

Matter of M.P., ___ A.3d ___, 2019 WL 850581 at *2 n.2. (Pa. Super. 2019)
(citations omitted). Accordingly, we emphasize that any expansion of the
range of attorney conduct that constitutes ineffective assistance per se must
originate from our Supreme Court.


                                          - 11 -
J-S25023-19


County.

     Judgment of sentence affirmed. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/11/2019




                                  - 12 -
