J-S59009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ALLAN E. SAUERBAUM                         :
                                               :
                       Appellant               :      No. 3682 EDA 2017

             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.:                        FILED NOVEMBER 02, 2018

        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”).1 We affirm.

        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


____________________________________________


1   18 Pa.C.S.A. §§ 2701(a), 907(a), 2705, respectively.
J-S59009-18


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?

         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’s Brief at 3).

      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


                                     -2-
J-S59009-18


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

                                     -3-
J-S59009-18


            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. 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.

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).

      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:

            (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.

                                     *     *   *



                                         -4-
J-S59009-18


18 Pa.C.S.A § 2701(a). Possessing instruments of crime is defined as:

         § 907. Possessing instruments of crime

         (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.

                                  *    *    *

18 Pa.C.S.A. § 907(a). Section 2705 of the Crimes Code provides:

         § 2705. Recklessly endangering another person

         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.

18 Pa.C.S.A. § 2705.

      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


                                      -5-
J-S59009-18


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.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/18




                                     -6-
)
)
)
J
     . '                                                                                                        Circulated 10/26/2018 02:43 PM



                                                                                                                           FILED
)

..
I
!
,.                                          IN THE COURT OF COMMON PLEAS
                                       FIRST JUDICIAL DISTR1CT OF PENNSYLVANIA                                        2018 HAR - I PH 3: 32
                                                CR1MTNAL TRIAL DIVISION
                                                                                                                     OFFICE OF ,JUDICf /J.L RECORDS
                                                                                                                          CRIMllli\L fJiVl510H
                                                                                                                       FIRST Jl!DtCl/\l. DISTRICT
                      COMMONWEALTH OF                                            CP-51-CR-0004362-20 I 6f PEHHSYl.VAHIA
                      PENNSYLV ANJA

                               v.
                                                                                 SUPERIOR COURT
                      ALLAN E. SAUERBAUM                                         3682 EDA 2017

                                                               OPINION


                      WOELPPER, J.                                               MARCH I, 2018




                 I.        PROCEDURAL & FACTUAL BACKGROUND

                      On March 30, 2017, following a waiver trial, this Court found Allan E. Sauerbaum

           ("defendant") guilty of simple assault, 1• recklessly endangering another person ("REAP''),2 and

           possessing an instrument of crime ("P[C").3         Defendant appeals his judgments of sentence,

           challenging the sufficiency and weight of the evidence.

                      In the early morning hours of April 9, 2016, defendant and his wife, Kathleen Sauerbaurn,

           were at a bar in the Bridesburg neighborhood of Philadelphia. The two had been married for

           approximately seventeen years but would occasionally separate. Worried that defendant had had

           too much to drink, Mrs. Sauerbaum took the car keys. Rather than drive home with his wife,

           defendant threatened to report her as having stolen the car and began to walk home. N.T. 3/27/17,

           21-24, 32.
                                                                CP·51-CR-0004:J62-2016 Comm, v. s.uarDaum. Allen E
                                                                                     Opinion




           1
               18 Pa.C.S. § 270 l.                                   Ill 11111111111111111 II Ill
           2
               18 Pa.C.S. § 2705.                                              8076201871
           3
               18 Pa.C.S. § 907.
       Mrs. Sauerbaum arrived at their home on Walker Street approximately one hour before

defendant. As she was getting ready to go to sleep, it occurred to her to take defendant's loaded

9-mm gun from where he kept it on the nightstand and hide it under her side of the bed. When

defendant came home, he asked Mrs. Sauerbaum where his gun was. She initially urged that he

did not need the gun, but after he persisted, she told him where it was. Defendant pulled the gun

out from under the bed, cocked it, held it to Mrs. Sauerbaum's forehead, and told her she had two

seconds to get out of the house. When Mrs. Sauerbaum tried to get dressed and gather her

belongings, defendant repeated that she had only two seconds to get out. Mrs. Sauerbaum then

heard the sound of a gunshot "whizzing" by her right ear. She ran down the steps and out of the

house. Id. at 25-28, 37.

       During this time, Teresa Romero, who lived with her husband next door to the Sauerbaums,

awoke to a loud noise. She looked out the window assuming there had been an accident, but did

not see anything. The next thing she heard was someone ringing her doorbell. When she went

downstairs, she saw Mrs. Sauerbaum in her pajamas. When Mrs. Romero opened the door, Mrs.

Sauerbaum said that defendant was trying to kill her and asked if she could use the phone to call

the police. Id. at 47-49.

        Philadelphia Police Officer David Smith responded to the 7000 block of Walker Street for

the report of a man with a gun. He first encountered Mrs. Sauerbaum at the Romero residence,

where he asked her some questions. Then he and his fellow officers went next door to the

Sauerbaums' home. Defendant answered the door with his 9-millimeter Sig Sauer protruding from

his waistband. Police recovered the loaded handgun and took him into custody. It was loaded

with one round in the chamber, and the hammer was cocked into the rear. Id. at 9-20.




                                                2
         After finding defendant guilty of the above charges, the Court deferred sentencing for

completion of a presentence report. On June 13, 2017, the Court sentenced defendant to an

aggregate term of 4 years of probation. Defendant filed a post-sentence motion on June 23, 2017,

raising challenges to the weight and sufficiency of the evidence. The court denied the motion on

October 11, 201 7. This appeal followed.

   II.      DISCUSSION

                A. Sufficiency of the Evidence

         Defendant first claims the evidence at trial was insufficient to sustain the convictions. On

sufficiency review, all evidence is viewed in the light most favorable to the verdict winner to

determine whether "there is sufficient evidence to enable the fact-finder to find every element of

the crime beyond a reasonable doubt." Commonwealth v. Antidormi, 84 AJd 736, 756 (Pa. Super.

2014), appeal denied, 95 A.3d 275 (Pa. 2014). The reviewing court "may not weigh the evidence

and substitute [its] judgment for the fact-finder." Id.

         Defendant claims the evidence that he held a loaded gun to his wife's head and fired a shot

was insufficient to sustain his simple assault conviction. Statement of Errors,   12.   One is guilty

of simple assault if he "attempts to cause ... bodily injury to another" or "attempts by physical

menace to put another in fear of imminent serious bodily injury."          18 Pa.C.S. § 2701 (a)(3).

Evidence that defendant pointed the loaded gun at Mrs. Sauerbaum and fired a shot was certainly

sufficient evidence to sustain the conviction. Even if defendant had not fired the gun, holding it

to his wife's head while threatening her was alone sufficient to prove simple assault by physical

menace. See, e.g.,   In re Maloney, 636 A.2d 671, 674 (Pa. Super, 1994)(defendant guilty of simple
assault where driver pointed gun at another driver while saying, "Get the f*** out of here").




                                                  3
I   '   '   I




                       Defendant also claims the evidence was insufficient to sustain his REAP conviction.

                Statement of Errors,   13.   A conviction under 18 Pa.C.S. § 2705 requires that the Commonwealth

                prove that the defendant has "recklessly engage[ d] in conduct which places or may place another

                person in danger of death or serious bodily injury." Placing a cocked and loaded gun within an

                inch of another person's head and firing it certainly places that individual's life in danger.

                       Finally, based on the above, defendant's claim that the evidence was insufficient to sustain

                his PIC conviction because it failed to establish that he possessed the cocked, loaded gun for

                criminal purposes is equally meritless.

                               B. Weight of the Evidence

                        Defendant next claims that this Court erred in denying his weight of the evidence claim.

                A defendant is not entitled to a new trial based on a weight of the evidence claim unless the verdict

                "is so contrary to the evidence as to shock one's sense of justice.', Commonwealth v. Diggs, 949

                A.2d 873, 879 (Pa. 2008). Appellate review is limited to whether the trial judge palpably abused

                its discretion in denying the appellant's motion for a new trial. Id. As such, a "trial court's denial

                of a motion for a new trial based on a weight of the evidence claim is the least assailable of its

                rulings." Id. at 879-80.

                        Defendant claims that "the greater weight of the evidence did not establish that [he] had a

                handgun; fired a handgun;.or fired a handgun in such a fashion as to cause a threat to the purported

                victim, or fear for the purported victim." Statement of Errors, 14. Here, the Court, sitting as fact-

                 finder, found Mrs. Sauerbaum' s testimony that defendant held a loaded gun to her head while

                 warning her that she had only two seconds to get out credible. Because the verdict did not shock

                 one's sense of justice, the Court did not abuse its discretion in denying defendant's weight of the

                 evidence claim.



                                                                   4
Ill.      CONCLUSION

       For the reasons herein, defendant's judgments of sentence should be affirmed.




                                                                BY THE COURT:



                                                                !JmrwlJ/t�




                                               5
                                IN THE COURT OF COMMON PLEAS
                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                    CRIMINAL TRlAL DIVISION


       COMMONWEALTH OF                                     CP-5l-CR-0004362-2016
       PENNSYLVANIA

               v.
                                                           SUPERIOR COURT
       ALLAN E. SAUERBAUM                                  3682 EDA 2017

                                      PROOF OF SERVICE

I hereby certify that I am this   L day of March, 2018, serving the foregoing Opinion on the
persons indicated below:


By First Class Mail
Andrew G. Gay, Esq.
1518 Walnut Street, Ste. 807
Philadelphia, PA 19101

By Interoffice Mail
Lawrence Goode, Interim Supervisor
Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107




                                              Anna Dillon
                                              Secretary to the Honorable Donna M. Woelpper




                                                 6
