J-A07002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                    v.

SHAYMOND CAMPBELL,

                          Appellant                   No. 126 WDA 2014


     Appeal from the Judgment of Sentence Entered October 24, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0016091-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 9, 2015

      Appellant, Shaymond Campbell, appeals from the             judgment of

sentence of two and a half (2½) to five (5) years’ incarceration, followed by

five (5) years’ probation, imposed after he was convicted of person not to

possess a firearm, terroristic threats, criminal mischief, and disorderly

conduct. Appellant challenges the sufficiency of the evidence to sustain his

convictions. We affirm.

      The facts which led to Appellant’s convictions are set forth by the trial

court in the following portion of its Rule 1925(a) opinion:

      [Appellant’s] charges stem from an incident at the home of his
      former girlfriend, Alexis Kaduck, in the early morning hours
      between November 5 and November 6, 2012. Appellant had
      been staying in the home, at 342 Plum Street in Carnegie, with
      Alexis, her mother, Carrie Kaduck, and Alexis’ 16 year old
      brother. On the night at issue, [Appellant] and Alexis had been
      arguing in [Alexis’] room about a text that [Alexis] had received
      from another man. Alexis’ mother, Ms. Kaduck, entered the
J-A07002-15


     room and told the couple to stop arguing because her son was
     sleeping. At that time, [Appellant] was holding Alexis[’] iPhone.
     [Appellant] threw the phone against the wall, leaving a hole in
     the wall and breaking the phone in half.

           After this occurred, Ms. Kaduck demanded that [Appellant]
     leave her home. [Appellant] grabbed a bag and headed down
     the stairs to the first floor and, ultimately, out the front door.
     Alexis followed [Appellant] outside. Ms. Kaduck stood on the
     front porch with Alexis as Alexis asked [Appellant] to return her
     phone.     [Appellant] threw the phone onto the ground and
     smashed it with his foot. Ms. Kaduck grabbed her daughter’s
     arm and told her to get in the house. She closed the front door
     as soon as both she and her daughter were in the home.
     Seconds later, Ms. Kaduck heard four (4) or five (5) loud noises,
     which she identified as gun shots. Upon hearing the shots, she
     directed her daughter, Alexis, and her son, who had woken up,
     to immediately go upstairs to her bedroom.

            Ms. Kaduck called 911 as her children ran up the stairs.
     While she was on the phone with a 911 operator and heading
     upstairs, she heard another loud noise and went down the stairs
     to see what was occurring. She saw [Appellant] trying to break
     down the back door to enter the house, and she ran back up the
     stairs and went into her bedroom with her children. [Appellant]
     broke through the back door, and, as [Appellant] ascended the
     stairs, Ms. Kaduck opened the door slightly to show him that she
     was on the phone with 911. He looked at her and said, “Okay,
     snitch, I have something for you.” [Appellant] then went down
     the stairs and out the front door. Moments later, Ms. Kaduck
     and Alexis heard a loud crash, which occurred when [Appellant]
     threw a flower pot through the back windshield of Ms. Kaduck’s
     car.

            A neighbor had also heard two (2) sets of noise[s] from
     the Kaduck’s house. The first noises that she heard she initially
     thought were firecrackers. However, after learning that Ms.
     Kaduck’s vehicle was struck by bullets, she acknowledged that
     the sounds were consistent with a gun being discharged. The
     second set of noises that she heard consisted of a bang followed
     by what sounded like someone hitting a door. The witness,
     Jenaya Mebane, went downstairs and looked out her window to
     identify the noise. At that point, she saw [Appellant] run down
     the front porch steps and throw something into Ms. Kaduck’s
     vehicle.

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J-A07002-15


            Ms. Kaduck and Alexis came outside of the home after the
      police arrived and saw that Ms. Kaduck’s car had been shot
      seven (7) to nine (9) times. The bullets struck the engine, the
      dashboard and the seats, as well as smashed all of the windows.
      The vehicle was a total loss. They also saw that a flower pot had
      been thrown through the rear window of the vehicle.
      Additionally, the back doors to the Kaduck residence were
      broken down.

Trial Court Opinion (TCO), 7/22/14, at 2-4 (citations to the record omitted).

      Based on the aforementioned evidence presented at a non-jury trial on

October 24, 2013, Appellant was found guilty of person not to possess a

firearm, terroristic threats, criminal mischief, and disorderly conduct and was

sentenced by the court to four (4) to eight (8) years’ incarceration, to be

followed by four (4) years’ probation. Appellant was further ordered to pay

$7,188 in restitution.    Appellant subsequently filed a motion to modify

sentence, which the court granted, in part, on December 19, 2013, reducing

his sentence to two and a half (2½) to five (5) years’ incarceration, to be

followed by five (5) years’ probation.

      Following the modification of his sentence, Appellant filed a timely

notice of appeal, as well as a timely concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).           Appellant presents the

following sole issue for our review: “Are the guilty verdicts for the crimes of

[p]ossession of a [f]irearm and [t]erroristic [t]hreats supported by sufficient

evidence?” Appellant’s Brief, at 7.

      The standard we apply in reviewing a challenge to the sufficiency of

the evidence is well-established:



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     As a general matter, our standard of review of sufficiency claims
     requires that we evaluate the record “in the light most favorable
     to the verdict winner giving the prosecution the benefit of all
     reasonable inferences to be drawn from the evidence.”
     Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
     “Evidence will be deemed sufficient to support the verdict when
     it establishes each material element of the crime charged and
     the commission thereof by the accused, beyond a reasonable
     doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.
     Super. 2005).     Nevertheless, “the Commonwealth need not
     establish guilt to a mathematical certainty.” Id.; see also
     Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
     2000) (“[T]he facts and circumstances established by the
     Commonwealth need not be absolutely incompatible with the
     defendant’s innocence”). Any doubt about the defendant’s guilt
     is to be resolved by the fact finder unless the evidence is so
     weak and inconclusive that, as a matter of law, no probability of
     fact can be drawn from the combined circumstances.            See
     Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
     2001).

     The Commonwealth may sustain its burden by means of wholly
     circumstantial evidence.     See Brewer, 876 A.2d at 1032.
     Accordingly, “[t]he fact that the evidence establishing a
     defendant’s participation in a crime is circumstantial does not
     preclude a conviction where the evidence coupled with the
     reasonable inferences drawn therefrom overcomes the
     presumption of innocence.” Id. (quoting Commonwealth v.
     Murphy, 795 A.2d 1025, 1038-39 (Pa. Super. 2002)).
     Significantly, we may not substitute our judgment for that of the
     fact finder; thus, so long as the evidence adduced, accepted in
     the light most favorable to the Commonwealth, demonstrates
     the respective elements of a defendant’s crimes beyond a
     reasonable doubt, the appellant’s conviction will be upheld. See
     Brewer, 876 A.2d at 1032.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 2013)

(citing Commonwealth v. Pedota, 64 A.3d 634, 635-636 (Pa. Super.

2013)).

     Appellant first challenges the sufficiency of the evidence to support his

conviction of person not to possess a firearm under 18 Pa.C.S. § 6105(a)(1).

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“In   order    to   obtain   a   conviction   under   18   Pa.C.S.   §     6105,   the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed a firearm and that he was convicted of an enumerated offense

that prohibits him from possessing, using, controlling, or transferring a

firearm.”     Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super.

2009). Appellant does not dispute that he was convicted of an enumerated

offense that prohibits him from possessing a firearm. Appellant’s Brief, at

13.   Instead, Appellant contends that the Commonwealth failed to prove

beyond a reasonable doubt that he possessed a firearm.               Id.    Appellant

references the events that took place after the police arrived at the scene,

as well as during his apprehension. Appellant’s Brief, 16-20. The relevant

facts are summarized by the trial court as follows:

            Carnegie police officers arrived within minutes of the 911
      call and noted the damage done to the back door.
      Approximately seven (7) minutes after the first officers were
      dispatched to the scene, Scott Township Sergeant Stephen Fury
      apprehended [Appellant] at the corner of Ridge Avenue and Hays
      Street, several blocks away from the Kaducks’ home on Plum
      Avenue. [Appellant] was arrested and patted down, but no gun
      was recovered from him. Officer Timothy Clark of the Carnegie
      Police Department transported [Appellant] to the Allegheny
      County Jail and testified credibly that [Appellant], without
      questioning or prompting, asked the officer “Did you find the
      gun?”[]

            A K-9 officer was brought in to search the area. Although
      the canine did find a portion of Ms. Kaduck’s cell phone in an
      area behind the home, the dog did not locate [Appellant’s]
      weapon. However, the officer handler for the K-9 explained that
      the dog does not track down physical items unless instructed to
      do so. In the back yard, the dog was instructed to find an
      object. However, when the dog was taken to the front of the


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J-A07002-15


      home, it was commanded to track [Appellant’s] human scent,
      which led him to follow [Appellant’s] path. Several months later,
      the Allegheny County Medical Examiner’s Office found that shell
      casings recovered from the scene on Plum Avenue matched a
      9mm Glock pistol that was involved in a matter not relating to
      [Appellant].

TCO, at 4-5. (citations to the record omitted).

      Specifically, Appellant avers that the evidence fails to provide any link

whatsoever between himself and the firearm that shot Ms. Kaduck’s car.

Appellant’s Brief, at 19.   The essence of Appellant’s argument is that no

witnesses saw him with a firearm or saw him shoot a firearm on the night in

question, nor was he found in possession of a firearm. Appellant, therefore,

suggests that his conviction is based on pure speculation. Id. at 11.

      In support of his sufficiency claim, Appellant cites Commonwealth v.

Galindes, 786 A.2d 1004 (Pa. Super. 2001), where the defendants raised

an insufficiency claim regarding their possession of firearms convictions,

based on the fact that the victim never saw a firearm and no firearm was

recovered by the police. Appellant’s Brief, at 27-29. However, similar to the

case at bar, the court in Galindes found the defendants’ insufficiency claims

without merit. Galindes, 786 A.2d at 1011.

      In Galindes, the victim heard banging coming from the rear of his

home and observed the defendants kicking in the back door.          The victim

yelled “freeze” and “[i]mmediately thereafter he heard a gunshot and saw a

flash.” Id. at 1008. The court concluded “[a]lthough [the victim] did not

see the gun, possession of the firearm undoubtedly manifested itself in the



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J-A07002-15



process of the crime from both the gunshot sounds and accompanying

flashes.” Id. at 1011.

      Appellant attempts to distinguish the case at bar, noting that in

Galindes, “[e]ven though the gun was not seen by the victim, there was no

question that the defendant was in the same location as both the shot that

the victim heard and the accompanying flash from the weapon. There was a

visible effect on the victim.      That did not occur in the case at bar.”

Appellant’s Brief,   at 28-29     (emphasis omitted).        We   disagree   with

Appellants’ distinguishment.     The timeline of events in the instant case,

combined with the sound of gunshots and bullet holes found in Ms. Kaduck’s

car, support the inference of Appellant’s possession of a firearm. Appellant’s

statement, “[d]id you find the gun?” to Officer Clark while being transported

to the jail further suggests that Appellant had knowledge of the firearm used

at the scene of the incident.

      Moreover, the Commonwealth presented evidence which established

that Appellant had constructive possession of a firearm.            “Constructive

possession is an inference arising from a set of facts that possession of the

contraband was more likely than not . . . [C]onstructive possession may be

established by the totality of the circumstances.”          Commonwealth v.

Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (citing Commonwealth v.

Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)).              In reviewing the

totality of the circumstances in the case at bar, the trial court stated that it:




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J-A07002-15


      did not… have any doubt that [Appellant] was in possession of a
      gun that night and that he fired it at and into Ms. Kaduck’s car.
      The only person on the street in the area of the Kaduck’s vehicle
      within seconds of Ms. Kaduck and Alexis returning inside the
      home was [Appellant]. There was no evidence presented of
      another person or vehicle passing by the home in the mere
      seconds between Ms. Kaduck closing the door and the sound of
      gunshots. [Appellant] was angry at both Kaducks, and was
      standing right next to the vehicle immediately before it was
      destroyed by gunfire. This is not a situation where the court
      speculated or guessed at what occurred.         It is simply the
      application of strong and compelling circumstantial evidence
      which compels the guilty verdict.

TCO, at 8-9.

      Based on our review of the facts in the light most favorable to the

Commonwealth as the verdict winner, we conclude there was sufficient

evidence to support the trial court’s finding that Appellant was in possession

of a firearm.   Therefore, we uphold Appellant’s conviction of person not to

possess a firearm.

      Next, we address Appellant’s sufficiency claim regarding his conviction

of terroristic threats under 18 Pa.C.S. § 2706(a)(1), which provides, “[a]

person commits the crime of terroristic threats if the person communicates,

either directly or indirectly, a threat to . . . commit any crime of violence

with intent to terrorize another.”     Accordingly, in order to sustain a

terroristic threat conviction, the Commonwealth must prove that Appellant

“threaten[ed] to commit a crime of violence and that he communicate[d] the

threat with the intent to terrorize or with reckless disregard for the risk of

causing terror.” Commonwealth v. Kelley, 664 A.2d 123, 128 (Pa. Super.




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1995) (citing Commonwealth v. Campbell, 625 A.2d 1215 (Pa. Super.

1993); Commonwealth v. Cancilla, 649 A.2d 991 (Pa. Super. 1994)).

      Neither the ability to carry out the threat, nor a belief by the
      person threatened that the threat will be carried out, is an
      element of the offense.       Rather, the harm sought to be
      prevented by the statute is the psychological distress that
      follows from an invasion of another’s sense of personal security.

Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003)

(citations and internal quotation marks omitted).

      Herein, the basis of the terroristic threats conviction is Appellant’s

statement, “Okay, snitch, I have something for you.” TCO, at 3. Appellant

avers that the words “I have something for you,” do not reference a crime of

violence. Appellant’s Brief, at 31.    However, “[e]ven a single verbal threat

might be made… as to support the inference that the actor intended to

terrorize….”   Campbell, 625 A.2d at 522 (quoting Commonwealth v.

Ashford, 407 A.2d 1328, 1329 (Pa. Super. 1979)). “[I]t is unnecessary for

[the defendant] to specifically articulate the crime of violence which he or

she intends to commit where the type of crime may be inferred from the

nature of the statement and the context and circumstances surrounding the

utterance of the statement.”          Campbell, 624 A.2d at 522 (quoting

Commonwealth v. Hudgens, 582 A.2d 1352 (Pa. Super. 1990)).

      Examining the context in which Appellant’s words were spoken, Ms.

Kaduck would reasonably have believed that Appellant was threatening her

with a violent act. She had just heard what she believed to be gunshots.

Moments later, Appellant broke into her house by kicking down the back

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door and was coming up the stairs towards her. It would be reasonable for

Ms. Kaduck to assume that her safety was being threatened in these

circumstances. Additionally, the Commonwealth submits that the use of the

word “snitch” by Appellant constitutes an explicit threat of retaliation against

her. We agree.

       Appellant further avers that his action of throwing a flower pot through

the rear window of Ms. Kaduck’s car following his statement to Ms. Kaduck

does not constitute a crime of violence.           Id.   Here, Appellant mistakenly

relies on his actions following the threat, rather than the words that were

spoken and the psychological distress caused to Ms. Kaduck in the moment.

Appellant’s actions following the verbal threat do not alter the perceived

threat to Ms. Kaduck’s personal safety at the time the words were spoken.

       In the alternative, Appellant avers that the statement he uttered to

Ms. Kaduck was made during a “heated exchange” and that the offense of

terroristic threats is not intended to criminalize mere “spur of the moment”

utterances made during a “heated exchange”.              Appellant’s Brief, at 33-34.

(citations omitted).      While Appellant was admittedly angry, 1 “being angry

does not render a person incapable of forming the intent to terrorize.

Rather, … this Court must consider the totality of circumstances to


____________________________________________


1
  “[Appellant] was extremely angry and emotionally compromised by the
text message that he found from another man to his girlfriend. He ‘flew off
the handle’….” Appellant’s Brief, at 34.



                                          - 10 -
J-A07002-15



determine whether the threat was a result of a heated verbal exchange or

confrontation.” In re J.H., 797 A.2d 260, 263 (Pa. Super. 2002) (citations

and internal quotation marks omitted).

        Based on the circumstances surrounding the incident in question, we

conclude that Appellant’s words were not merely made during a heated

exchange.     Ms. Kaduck had retreated back into her house and closed the

door.     Appellant escalated the incident on his own when he then proceeded

to break down the back door of Ms. Kaduck’s house and climbed the stairs

towards the bedroom where Ms. Kaduck was hiding with her two children.

Ms. Kaduck did not say anything to Appellant. Rather, she merely opened

the bedroom door so that Appellant could hear that she was on the phone

with 911.    Appellant’s statement appears to have been made deliberately

with the intent to threaten retaliation against Ms. Kaduck.   We, therefore,

conclude there was sufficient evidence to support Appellant’s conviction of

terroristic threats.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/2015


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                           THE COURT OF COMMON PLEAS
                       OF ALLEGHENY COUNTY, PENNSYLVANIA



  COMMONWEAL TH OF                                CRIMINAL DIVISION
  PENNSYLVANIA,·


 vs.
                                                  CC: 2012-16091
 SHAYMOND CAMPBELL,

                  Defendant.




                                         OPINION



       This is a direct appeal following a non-jury trial on October 24, 2013 and the

modification of the Defendant's sentence on December 19, 2013. The Defendant was

charged with. Person not to Possess a Firearm (18 Pa. C.S.A. §6105), Terroristic

Threats (18 Pa. C.S.A.' §2706), Criminal Mischief (18 Pa. C.S.A. §3304), and Disorderly

Conduct (18 Pa. C.S.A. §5503). On October 24, 2013, this court found him guilty of all

charges following a non-jury trial. Immediately following the guilty verdict, this court

sentenced the Defendant to four (4) to eight (8) years incarceration, with credit for time-

served, to be followed by four (4) years of probation. Further, the Defendant was

ordered to pay $7, 188 in restitution. Following argument on, and consideration of, the

Defendant's Motion to Modify Sentence, this court granted the Defendant's motion on

December 19, 2013, reducing his period of incarceration to two and a half (2 1/2) to five
                                                                                Circulated 03/25/2015 03:50 PM




  (5) years incarceration, with credit for time-served, to be followed by five (5) years

  probation. Restitution was again ordered to be paid in the amount of $7, 188.



            On appeal, the Defendant asserts that there was insufficient evidence to convict

  him of Person not to Possess a Firearm and Terroristic Threats and that this court's

  verdict was against the weight of the evidence.



      ·    The Defendant's charges stem from an incident at the home of his former

 girlfriend, Alexis Kaduck, in the early morning hours between November 5 and

 November 6, 2012. (T.R. 10/24/13, p. 11). The Defendant had been staying in the

 home, at 342 Plum Street in Carnegie, with Alexis, her mother, Carrie Kaduck, and
                 .·   I



 Alexis' 16 year old brother. (T.R. 10/24/13, pp. 11, 28).      On the night at issue, the

 Defendant and Alexis had been arguing in her room about a text that she had received

 from another man. (T.R. 10/24/13, pp. 12, 13). Alexis' mother, Ms. Kaduck, entered the

room and told the couple to stop arguing because her son was sleeping.                 (T.R.

10/24/13, pp. 28·29). At that time, the Defendant was holding Alexis's iPhone.          The

Defendant threw the phone against the wall, leaving a hole in the wall and breaking the

phone in half. (T.A. 10/24/13, pp. 13, 29).       ·



          After this occurred, Ms. Kaduck demanded that the Defendant leave her home.
                                                                                                             ., i
The Defendant grabbed a bag and headed down the stairs to the first floor and,

ultimately, out the front door. (T.A. 10/24/13, pp. _13, 29). Alexis followed the Defendant

outside. Ms. Kaduck stood on the front porch with Alexis as Alexis asked the Defendant



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  to return her phone. (T.A. 10/24/13, pp. 14, 29). The Defendant threw the phone onto

  the ground and smashed it with his foot. (T.R. 10/24/13, pp. 14, 29).       Ms. Kaduck

  grabbed her daughter's arm and told her to get in the house. She closed the front door

  as soon as both she and her daughter were in the home. (T.R. 10/24/13, pp. 14, 30).

 Seconds later, Ms. Kaduck heard four (4) or five (5) loud noises; which she identified as

 gun shots. (T.R. 10/24/13, pp. 31, 34-35). Upon hearing the shots, she directed her

 daughter, Alexis, and her son, who had woken . up, to immediately go upstairs to her

 bedroom. (T.R. 10/24/13, p. 31).



        Ms. Kaduck called 911 as her children ran up the stairs. While she was on the

 phone with a 911 operator and heading upstairs, she heard another loud noise and

 went down the stairs to see what was occurring.    (T.R. 10/24/13, p. 31 ). She saw the

 Defendant trying to break down the back door to enter the house, and she ran back up

the stairs and went into her bedroom with her children. (T.A. 10/24/13, p. 31). The

Defendant broke through the back door, and, as the D_efendant ascended the stairs, Ms.

Kaduck opened the door slightly to show him that she was on the phone with 911. (T.R.

10/24/13, p. 31). He looked at her and said, "Okay, snitch, I have something for you."

(T.A. 10/24/13, pp. 25, 31). The Defendant then went down the stairs and out the front

door. (T.R. 10/24/13, pp. 17, 32). Moments later, Ms. Kaduck and Alexis heard a loud

crash, which occurred when the Defendant threw a flower pot through the back

windshield of Ms. Kaduck's car. (T.R. 10/24/13, pp. 17, 32).




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         A neighbor had also heard two (2) sets of noise from the Kaduck's house. The

  first noises that she heard she initially thought were firecrackers. (T.R. 10/24/13, p. 59).

  However, after learning that Ms. Kaduck's vehicle was struck by bullets, she

  acknowledged that the sounds were consistent with a gun being discharged.                      (T.R.

  10/24/13, pp. 62·63). The second set of noises that she heard consisted of a bang

 followed by what sounded like someone hitting a door.                (T.R. 10/24/13, p. 60).     The ·

 witness, Janaya Mebane, went downstairs and looked out her window to identify the

 noise. (T.A. 10/24/13, p. 60). At that point, she saw the Defendant run down the front

 porch steps and throw something into Ms. Kaduck's vehicle. (T.R. 10/24/13, p. 60).



        Ms. Kaduck and Alexis came outside of the home after the police arrived and

 saw that Ms. Kaduck's car had been shot seven (7) to nine (9) times .. (T. A. 10/24/13,

 pp. 18, 32·33). The bullets struck the engine, the dashboard and the seats, as well as

smashed all of the windows. The vehicle was a total loss. (T.R. 10/24/13, p. 33).               They

also saw that a flower pot had been thrown through the rear window of the vehicle.

(T.R. 10/24/13, pp. 19, 33). Additionally, the back doors to the Kaduck residence were

broken down. (T.R. 10/24/13, p. 34).



       Carnegie police officers arrived within minutes of the 911 call and noted the

damage done to the back door. (T.R. 10/24/13, pp. 65, 67). Approximately seven (7)

minutes after the first officers were dispatched to the scene, Scott Township Sergeant

Stephen Fury apprehended the Defendant at the corner of Ridge Avenue and Hays

Street, several blocks away from the Kaducks' home on Plum Avenue. (T.A. 10/24/13,



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  pp. 88, 90, 100-102, 114). The Defendant was arrested and patted down, but no gun

  was recovered from him. (T.R. 10/24/13, p. 102). Officer Timothy Clark of the Carnegie

  Police Department transported the Defendant to the Allegheny County Jail and testified

  credibly that the Defendant, without questioning or prompting, asked the officer "Did you

  find the gun?" (T.R. 10/24/13, pp. 80-81 }.



        A K-9 officer was brought in to search the area. (T.R. 10/24/13, p. 69}. Although

 the canine did find a portion of Ms. Kaduck's cell phone in an area behind the home, the

 dog did not locate the Defendant's weapon.           (T.R. 10/24/13, p. 117, 119-120).

 However, the officer handler for the K-9 explained that the dog does not track down

 physical items unless instructed to do so. (T.R. 10/24/13, p. 125). In the back yard, the

 dog was instructed to find an object. (T.R. 10/24/13, p. 127). However, when the dog

 was taken to the front of the home, it was commanded to track the Defendant's human

 scent, which led him to follow the Defendant's path. (T.R. 10/24/13, p. 127). Several

months later, the Allegheny County Medical Examiner's Office found that shell casings

recovered from the scene on Plum Avenue matched a 9mm Glock pistol that was

involved in a matter not relating to the Defendant. (T.R. 10/24/13, pp. 39-46).



       On appeal, the Defendant asserts that there was insufficient evidence to find him

guilty of both Person Not to Possess and Terroristic Threats and that this court's verdict

was against the weight of the evidence. For the following reasons set forth below, this

court's verdict was supported by evidence which proved the Defendant guilty beyond a

reasonable doubt for both offenses.


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          The standard of review regarding claims of insufficiency of the evidence is well·

  settled. In reviewing the sufficiency of the evidence, the appellate court must determine

  whether the evidence admitted at trial, and all reasonable inferences drawn therefrom,

  viewed in the light most favorable to the Commonwealth as the verdict winner, is

  sufficient to prove every element of the offense beyond a reasonable doubt. Com. v.

  Jones, 954 A.2d 1194 (Pa. Super. 2008). An appellate court may not re-welqh the

  evidence and substitute its judgment for that of the fact-finder. Id. The Commonwealth

  may sustain its burden of proving every element of the crime beyond a reasonable

 doubt by means of wholly circumstantial evidence. Com. v. Baker, 72 A.3d 652, 658

 (Pa. Super. 2013). However, it is well recognized, however, that a criminal conviction

 cannot be based upon mere speculation and conjecture. Com. v. Graham, 81 A.3d

 137, 142 (Pa. Super. 2013).




       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.    When evidence conflicts, · it is the sole province of the fact finder to

determine credibility and to believe all, part or none of the evidence. Com. v. Lyons,

833 A.2d 245, 258 (Pa. Super. 2003). An appellate court may only reverse the lower

court's verdict if it is so contrary to the evidence as to shock one's sense of justice.

Com. v. Hunzer, 868 A.2d 498, 506 (Pa. Super. 2005). Any question of doubt is for the

fact-finder unless the evidence is so weak and inconclusive that, as a matter of law, n~


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         probability of fact can be drawn from the combined circumstances. Com. v. Perez, 931

         A.2d 703 (Pa. Super. 2007).



         Person Not to Possess



                The Defendant asserts that his conviction as a Person not to Possess a Firearm

         was not proven by sufficient evidence and was against the weight of the evidence

        presented. The crime of Persons Not to Possess Firearms is defined in pertinent part

        as follows: a person who has been convicted of an offense enumerated in subsection

        (b), within or without this Commonwealth ... shall not possess, use, control, sell, transfer

        or manufacture ... a firearm in this Commonwealth.      18 Pa.C.S.A. § 6105(a)(1).      While

        the Defendant is correct that no witnesses saw him with a gun or saw him shoot a gun,

        and that he was not found with a gun in his possession, there was sufficient

        circumstantial evidence for this court to have found that he possessed a gun that night.




".'.
              Both Ms. Kaduck ano Alexis testified that, within seconds of going into the house,
"
       while the Defendant was outside the home, they heard four (4) or five (5) loud noises,                        II
                                                                                                                      I
       consistent with gunshots.     (T.R. 10/24/13, pp. 14-15, 31, 34-35).      Additionally, the
                                                                                                                   · 11
       Kaduck's neighbor, Jenaya Mebane, testified that she also heard four (4} or five (5)                           '
                                                                                                                   . !
       sounds that she thought sounded like firecrackers, but which were consistent with the

       sound of gunshots. (T.R. 10/24/13, pp. 59, 62-63). Responding officers found that Ms.

       Kaduck's car had been shot at least six (6) times, and the evidence was uncontroverted

       that the vehicle had been riddled with bullets (T.R. 10/24/13, p. 70). Additionally, there


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      was credible testimony from both Carrie Kaduck and Alexis Kaduck that, at the time of

      this incident, the street was otherwise quiet, with no one else outside. (LR. 10/24/13,

      pp. 15, 30).



             Although this court relied on circumstantial evidence when it found the Defendant

     guilty on this count, the Commonwealth may sustain its burden of proving every element

     of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.

     Baker, supra, at 658. Here, the Commonwealthsouqht to prove that the Defendant had

     constructive possession of a weapon, as a gun was never found on the Defendant or

     recovered at or near the crime scene. Constructive possession is an inference arising

     from a set of facts that possession of the contraband was more likely than not, and it

     may be established by the totality of the circumstances. Com. v. Parker, 847 A.2d 745,

     750 (Pa. Super. 2004).



           This court did. not, and does not, have any doubt that the Defendant was in

    possession of a gun that night and that he fired it at and into Ms. Kaduck's car. The

    only person on the street in the area of the Kaduck's vehicle within seconds of Ms.

    Kaduck and Alexis returning inside the home was the Defendant.           There was no
                                                                                                              ·I
    evidence presented of another person or vehicle passing by the home in the mere

    seconds between Ms. Kaduck closing the door and the sound of gunshots.                 The

    Defendant was angry at both Kaducks, and was standing right next to the vehicle

    immediately before it was destroyed by gunfire. This is not a situation where the court

    speculated or guessed at what occurred. It is simply the application of strong and



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i
'
I
t
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   compelling circumstantial   evidence which compels the guilty verdict. While this court
                                                                '
   certainly would have preferred that there be physical evidence in the form of a positive

   gunshot residue test, or the recovery of the weapon near the scene of the crime or the

   location of the Defendant's apprehension, this court based its verdict on the evidence as

   presented. Based on all of that evidence, and the reasonable inferences to be drawn

  from the evidence, this court correctly found the Defendant guilty of the Person Not to

  Possess charge.



  Terroristic Threats



          The Defendant asserts that the statement made by the Defendant to Ms. Carrie

 Kaduck was not serious enough to constitute a terroristic threat. A person commits the

 crime of terroristic threats if the person communicates, either directly or indirectly, a

 threat to commit any crime of violence with intent to terrorize another. 18 Pa. C.S. A

 §2706.    To meet its burden of proof, the Commonwealth must prove that 1) the

 defendant made a threat to commit a crime of violence, and 2) the threat was

communicated with the intent to terrorize another or with reckless disregard for the risk

of causing terror. Com. v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003). Neither the

ability to carry out the threat, nor a belief by the person threatened that the threat will be

carried out, is an element of the offense. Id. Rather, the harm sought to be prevented

by the statute is the psychological distress that follows from an invasion of another's

sense of personal security. Id.




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          Ms. Carrje Kaduck testified that the Defendant told her, "Okay, snitch, I have

  something for you," when he became aware that she was on the phone with 911.             (T.R.

  10/24/13, pp. 17, 31). The Defendant made this statement to Ms. Kaduck after throwing

 a phone at her wall hard enough to put a hole in the wall, after smashing her daughter's

 cell phone with his foot, after firing shots Into her car and after forcibly breaking into her

 home, damaging her back door in the process.            To suggest that the Defendant's

 statement was anything less than a threat, when coupled with his violent conduct that

 preceded the statement, is disingenuous and ignores the totality of the circumstances

 and the context in which the threat was made. Although the Defendant now maintains

 that his subsequent action of throwing a flower pot was not of a serious or threatening

 nature, this court viewed his statement as a clear threat of violence intended to terrorize

Ms. Kaduck and her family. This court found the testimony regarding the threat made

and the fear that it caused to be credible, and its conviction on this charge should be

upheld.



       This court's verdict was supported by sufficient evidence to sustain convictions

on both the charges of Person Not to Possess and Terroristic Threats. Additionally, the

great weight of the evidence, including inferences to be drawn from that evidence,

support this court's conviction of the Defendant on these charges. This court's verdict

and sentencing should be upheld.




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Date




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