J-S01042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TRAVOYCE O’NEIL

                            Appellant              No. 1398 WDA 2014


            Appeal from the Judgment of Sentence August 19, 2014
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0002169-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED APRIL 21, 2015

       Appellant, Travoyce O’Neil, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas, following his jury trial

convictions for persons not to possess a firearm, firearms not to be carried

without a license, and resisting arrest as well as the bench convictions for

criminal mischief and public drunkenness.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

The testimony at trial disclosed that, during the early morning hours of

October 13, 2013, Officer Matthew Painter of the Uniontown City Police

Department was dispatched to Mount Vernon Towers in Uniontown, Fayette

____________________________________________


1
   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 5104, 3304(a)(5), 5505,
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County, Pennsylvania, for a disturbance on the fifth floor. Pulling into the

parking lot, Officer Painter observed Appellant and two females exiting the

rear door to the complex.            Officer Painter tried to gather some basic

information about where they were coming from and whether they had any

involvement in the fifth floor disturbance. Officer Painter initially interacted

with Appellant, who was evasive and refused to give his name.                     Officer

Painter described Appellant’s physical condition as emitting a strong odor of

alcoholic beverage from his nose and mouth area.                Officer Painter also

described Appellant as having bloodshot eyes.            Officer Painter concluded

Appellant was intoxicated.

      While Officer Painter was trying to speak with Appellant, Officer

Jonathan S. Grabiak arrived, approached Officer Painter, and also tried to

talk with Appellant.     Officer Grabiak left them to talk to the two females

present. Without disclosing what the females said, Officer Grabiak testified

he told Officer Painter that Appellant had a firearm.          Officer Painter asked

Appellant to turn around so he could be arrested and handcuffed for public

drunkenness.

      Initially, Appellant complied, but suddenly he fled.              Officer Painter

chased   Appellant     for   about    12-15   feet,   while   Officer   Grabiak     tried

unsuccessfully to Taser Appellant. Appellant continued to run. When Officer

Painter was finally able to tackle Appellant, they both hit the ground; but

when Appellant popped back up, they went to the ground a second time.


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Officer Painter had to exert significant force to subdue Appellant.         Officer

Grabiak testified he saw the firearm fall out of Appellant’s pants pocket and

land inches away from Appellant.           Officer Grabiak was able to secure the

firearm. Both officers testified that the lights from the Mount Vernon Towers

and the local businesses surrounding the area rendered the area absolutely

well-lit. Meanwhile, Appellant continued to resist Officer Painter until Officer

Grabiak successfully Tasered him; and Officer Painter was able to secure

him.    At the end of the Commonwealth’s case, counsel stipulated that

Appellant was a member of the class of persons prohibited from possessing

a firearm in Pennsylvania.2          The court then instructed the jury on the

stipulation and its significance.

       During his defense, Appellant admitted he was intoxicated on the night

in question, but he denied possessing the gun. Appellant said Officer Painter

asked Appellant his name, which he refused to give, until Officer Painter told

Appellant what he had done wrong.              Appellant claimed he was unfamiliar

with the area, he ran because he was scared, he had no reason to run, and

he had plenty of time to discard a gun if he had actually had one. Appellant

said he did not resist Officer Painter.        Appellant maintained Officer Painter

was just being too aggressive for the situation, and Appellant was trying to

minimize the damage.         Appellant also claimed he later told Officer Painter
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2
  Appellant had a prior conviction for second-degree aggravated assault.
The specific prior offense and conviction was not disclosed to the jury.



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that the gun recovered was someone else’s gun.

        In rebuttal, Officer Painter testified that Appellant gave him no names

of any individuals he was with that night or statements about who really had

the gun.     According to Officer Painter, when he asked why Appellant ran,

Appellant replied: “It was his job to get away from me and my job to catch

him.”    (N.T. Trial, 7/10/14, at 22).         Following the second day of trial, the

jury convicted Appellant of the firearms offenses and resisting arrest. The

court found Appellant guilty of criminal mischief and public drunkenness.

        The court sentenced Appellant on August 19, 2014, to thirty (30) to

sixty (60) months’ incarceration,3 followed by two (2) years’ probation, on

the persons not to possess conviction, with credit for time served, plus

costs, fees, and restitution for the broken watch. Due to the nature of the

offenses, the court also found Appellant RRRI ineligible. The court imposed

no further penalty on the remaining convictions.            At sentencing, Appellant

registered    a    complaint     about     the    prosecution’s   closing   argument.

Specifically, Appellant complained the prosecutor told the jury (1) they

should believe the police officers because they were police officers and (2)

the two women at the scene told Officer Grabiak that Appellant had a

firearm, even though the court said it was hearsay.                (N.T. Sentencing,

____________________________________________


3
  With a prior record score of 3 and an offense gravity score of 10, the
mitigated sentencing guidelines range was 30-42 months.       Appellant’s
sentence fell in the mitigated range.



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8/19/14, at 4-5).    The court thoroughly instructed Appellant on his post-

sentence motion and appeal rights and responsibilities.        Appellant timely

filed a notice of appeal on August 25, 2014, along with a voluntary concise

statement of errors complained of on appeal, per Pa.R.A.P. 1925(b).

      Appellant raises one issue for review:

         WHETHER THE WEIGHT OF THE EVIDENCE OUTWEIGHS
         THE GUILTY VERDICT…THUS ENTITLING [APPELLANT] TO
         A NEW TRIAL?

(Appellant’s Brief at 5).

      Appellant initially concedes the parties entered a stipulation at trial

that Appellant was a member of the class of persons prohibited from

possessing a firearm in Pennsylvania.      Appellant also concedes he has no

license to carry a firearm.     Nevertheless, Appellant claims the incident

occurred in the dark of night, he was unfamiliar with the area, and he ran

because he was scared. Officer Painter, who chased after Appellant, did not

see a gun fall from Appellant’s pants pocket or hear it hit the ground. Yet,

Officer Grabiak, who was also at the scene, testified he was able to see,

through the dark, a gun come from Appellant’s front pants pocket and fall to

the ground as Appellant was tackled. Appellant contends there is no logical

way the jury could conclude, based on the officers’ testimony, that Appellant

possessed the gun, when Officer Painter (the tackling officer) did not see or

hear a gun come from Appellant. On the same basis, Appellant challenges

his conviction for firearms not to be carried without a license.


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     Appellant further complains the testimony at trial demonstrated he

was not told he was arrested until after the police chased and subdued him.

So, Appellant maintains he was wrongfully convicted of resisting arrest.

Regarding   Appellant’s   convictions   for   criminal   mischief   and   public

drunkenness, Appellant claims he did not intentionally damage Officer

Painter’s watch, which could have been broken in some other way than in

the take-down process. Appellant acknowledges Officer Painter and Officer

Grabiak said Appellant had a strong odor of alcohol on his breath and glassy,

bloodshot eyes, when they encountered Appellant. Nevertheless, Appellant

insists he was not the reason for the disturbance call nor was he reported as

an annoyance or causing the destruction of property. Based on the totality

of the Commonwealth’s evidence and Appellant’s evidence, Appellant

submits all of the verdicts should be overturned, because no jury or judge

could logically find the Commonwealth met every element of each crime.

Appellant concludes we should overturn all guilty verdicts based on the

weight of the evidence and grant Appellant a new trial. We cannot agree.

     As a preliminary matter, generally, a challenge to the weight of the

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.

The Rule provides:

        Rule 607. Challenges to the Weight of the Evidence

        (A) A claim that the verdict was against the weight of the
        evidence shall be raised with the trial judge in a motion for
        a new trial:


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            (1) orally, on     the   record,   at   any   time    before
            sentencing;

            (2) by written motion at any time before sentencing; or

            (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).    “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight

of the evidence generally cannot be raised for the first time in a Rule

1925(b)   statement.      Commonwealth         v.   Burkett,     830   A.2d   1034

(Pa.Super. 2003).      An appellant’s failure to avail himself of any of the

prescribed methods for presenting a weight of the evidence issue to the trial

court constitutes waiver of that claim, even if the trial court responds to the

claim in its Rule 1925(a) opinion. Id.

      Instantly, Appellant failed to challenge the weight of the evidence

before the trial court by any of the available means and ask for a new trial.

See Pa.R.Crim.P. 607. Rather, Appellant raised his weight claim for the first

time in his Rule 1925(b) statement.      Thus, his issue on appeal is waived.

See Pa.R.Crim.P. 607; Gillard, supra; Burkett, supra.

      Moreover, even if Appellant had properly preserved his challenge to

the weight of the evidence for review, after a thorough review of the record,

the briefs of the parties, the applicable law, and the reasoned opinion of the

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Honorable Steve P. Leskinen, we would conclude the issue merits no relief.

(See Trial Court Opinion, filed October 31, 2014, at 3-7) (finding: parties

stipulated at trial that Appellant was in class of persons prohibited from

possessing firearm; Officer Grabiak testified he saw firearm fall out of

Appellant’s front pants pocket, and firearm was loaded; Appellant did not

have license to possess firearm; when Officer Painter tried to arrest

Appellant, Appellant fled, requiring chase for about 12-15 feet; when Officer

Painter tackled Appellant to ground, he struggled against Officer Painter,

which required use of Taser; Appellant created substantial risk of bodily

injury to both officers and forced them to use substantial force to halt

Appellant’s struggle; jury properly convicted Appellant of firearms offenses

and resisting arrest; additionally, court found beyond reasonable doubt that

Appellant   intentionally   damaged   Officer    Painter’s   watch   and   caused

pecuniary loss of $150.00 as result of brawl with Officer Painter; further,

when    officers   approached   Appellant   in   public   place,   they   observed

Appellant’s strong odor of alcohol and glassy, bloodshot eyes; court properly

convicted Appellant of criminal mischief and public drunkenness; verdicts

were not against weight of evidence). Although Appellant waived this issue,

the record supports the court’s decision to deny Appellant a new trial on the

grounds alleged. Accordingly, we affirm.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




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