J-S32044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        v.

BRANDON KULB

                             Appellant                No. 2262 EDA 2016


             Appeal from the Judgment of Sentence June 27, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                                  at No(s):
                           CP-51-CR-0006367-2014
                          MC-51-CR-00011603-2014

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2017

        Appellant, Brandon Kulb, appeals from the judgment of sentence of

four to eight years’ imprisonment plus fourteen years’ probation entered in

the Philadelphia County Court of Common Pleas.        Appellant challenges the

sufficiency and weight of the evidence regarding his convictions for

terroristic threats,1 violations of the Uniform Firearms Act (“VUFA”),2 and

possessing an instrument of crime (“PIC”).3 We affirm.

        The trial court summarized the evidence presented at the nonjury trial

as follows:

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2706.
2
    18 Pa.C.S. §§ 6105, 6106, 6108.
3
    18 Pa.C.S. § 907.
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             On March 12, 2014, J.J. was playing basketball at the
         Fishtown Recreation Center located at 1200 E.
         Montgomery Ave., Philadelphia, with his friend, Z.G. At
         some point, J.J. asked the Appellant . . . if he wanted to
         play. J.J. and the Appellant played until J.J. fouled the
         Appellant, which led to an argument. J.J. said he was
         going to go get his brother. He crossed Girard Avenue and
         began to walk down the street, with the Appellant
         following. The Appellant lifted his shirt and pulled out
         what looked to be a .38 caliber handgun from his
         waistband and pointed it at J.J. J.J. and the Appellant
         exchanged words and the Appellant later turned and
         walked away.

            The Commonwealth called Z.G. to testify. He strongly
         resisted questioning and attempted to leave the court
         during direct examination. A sheriff briefly detained him.
         One of the investigating officers, Detective Goodwin,
         testified that Z.G. had previously intended on testifying,
         but was “scared to death” of possible repercussions for his
         family from members of the neighborhood. In fact, Z.G.
         had come to trial that morning but fled down the
         courthouse hallway when he saw several of the Appellant’s
         male friends arrive. Z.G. ran and “started crying, [saying]
         I ain’t going in there. I’m not going to do this. I can’t go
         in there,” referring to at least one of the individuals by
         name.

            At trial, the Commonwealth was unable to procure J.J.’s
         testimony because, despite a bench warrant and personal
         assurances from J.J.’s parents, he did not show up at trial
         the next day and could not be located either at his
         residence or at his school. Police officers attempted to
         locate him at his home address and found the building
         abandoned.

Trial Ct. Op., 8/24/16, at 2-3 (footnote and record citations omitted).

      The trial court found Appellant guilty of the aforementioned charges on

April 22, 2016, and sentenced him on June 27, 2016. Appellant did not file

post-sentence motions. Appellant timely appealed and filed a court-ordered



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Pa.R.A.P. 1925(b) statement of errors complained of on appeal.           The trial

court filed a responsive opinion suggesting that Appellant’s claims were

waived due to a vague Pa.R.A.P. 1925(b) statement and, in any event, were

meritless.

      Appellant presents the following questions for review:

          I. Is [Appellant] entitled to an Arrest of Judgment on all
          charges where, as here, the evidence is insufficient to
          sustain the verdict?

          II. Is [Appellant] entitled to a new trial whereas here, the
          greater weight of the evidence does not support the
          verdict?

Appellant’s Brief at 3.

      We summarize Appellant’s arguments as follows. Appellant contends

that the Commonwealth’s evidence failed to establish that he was in

possession of a firearm.          Id. at 7-8.   He notes the weapon was not

recovered and the Commonwealth failed to exclude the possibility that the

gun was “fake.”           Id. at 7-8.      Appellant further argues that the

Commonwealth failed to adduce any evidence regarding the barrel length of

the weapon.      Id.    at 8-9.   Regarding terroristic threats, Appellant further

asserts   that    the     Commonwealth      failed   to   demonstrate   Appellant

communicated a threat. Id. at 9. Alternatively, he suggests that any threat

was made as a result of “transitory anger.” Id. at 9-10. Appellant observes

that Z.G. refused to testify at trial and Appellant’s conviction relied on Z.G.’s

prior statements, including a signed statement to the police and his grand



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jury testimony. Id. at 12. Thus, Appellant contends that he is entitled to

discharge or a new trial on all charges. We disagree.

      Preliminarily, we consider whether Appellant preserved his issues for

review. This Court has stated:

            A court-ordered concise statement shall concisely
         identify each ruling or error that the appellant intends to
         challenge with sufficient detail to identify all pertinent
         issues for the judge.      Pa.R.A.P. 1925(b)(4)(ii).    The
         Pennsylvania Supreme Court has explained that Rule 1925
         is a crucial component of the appellate process, which is
         intended to aid trial judges in identifying and focusing
         upon those issues which the parties plan to raise on
         appeal. Moreover, it is well-settled that [i]issues that are
         not set forth in an appellant’s statement of matters
         complained of on appeal are deemed waived.

Commonwealth v. Proctor, 156 A.3d 261, 267 (Pa. Super. 2017)

(citations and quotation marks omitted).

      Moreover, with respect to a challenge to the weight of the evidence, it

is well settled that

         [a] weight of the evidence claim must be preserved either
         in a post-sentence motion, by a written motion before
         sentencing, or orally prior to sentencing. Pa.R.Crim.P.
         607[.] Failure to properly preserve the claim will result in
         waiver, even if the trial court addresses the issue in its
         opinion.

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (some

citations and quotation marks omitted).




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        Instantly, we agree with the trial court that Appellant’s Rule 1925(b)

statement was insufficiently concise.4    However, the issues at the nonjury

trial were relatively straightforward.   Appellant argued the Commonwealth

failed to prove that he possessed a firearm or threatened J.J.      See N.T.,

4/22/16, at 62-63. The trial court filed a Rule 1925(a) opinion suggesting

waiver, but addressing these arguments.          See Trial Ct. Op. at 5-8.

Therefore, we will consider these issues. See Commonwealth v. Laboy,

936 A.2d 1058, 1060 (Pa. 2007).

        However, Appellant also attempts to challenge the sufficiency of the

VUFA convictions based on the barrel length and the terroristic threats

conviction based on transitory anger.         These claims were not fairly

suggested at trial or in his Rule 1925(b) statement. Therefore, we conclude

those arguments have been waived. See id.; Proctor, 156 A.3d at 267.


4
    Appellant’s Rule 1925(b) statement read as follows:

           1. The trial court abused its discretion when she ordered
           the complaining witness incarcerated because he refused
           to testify against [Appellant].

           2. The weight of the evidence was contrary to the verdict.
           The evidence presented by the Commonwealth shock the
           conscience of any reasonable person.

           3. The evidence was insufficient to make out any the
           charges against [Appellant].

Appellant’s Rule 1925(b) statement. Appellant has abandoned his first issue
in this appeal.




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     Additionally, we are constrained to conclude that Appellant waived his

challenge to the weight of the evidence.       Appellant did not preserve this

issue after trial or at sentencing and did not file a post-sentence motion.

See Pa.R.Crim.P. 607. Instead, Appellant raised this challenge for the first

time in his Rule 1925(b) statement.        Although the trial court considered

Appellant’s weight of the evidence challenge in its Rule 1925(a) opinion, we

may not address this issue on appeal. See Griffin, 65 A.3d at 938.

     Turning to the sufficiency arguments preserved by Appellant, we note:

        In evaluating a challenge to the sufficiency of the
        evidence, we view the evidence in the light most favorable
        to the Commonwealth together with all reasonable
        inferences from that evidence, and determine whether the
        trier of fact could have found that every element of the
        crimes charged was established beyond a reasonable
        doubt. This standard is equally applicable to cases where
        the evidence is circumstantial rather than direct so long as
        the combination of the evidence links the accused to the
        crime beyond a reasonable doubt.

Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)

(citations and quotation marks omitted).

     Appellant’s first argues that the Commonwealth failed to prove that he

possessed a firearm as was necessary to convict him under Sections 6105,

6106, and 6108, which provide:

        § 6105. Persons not to possess, use, manufacture,
        control, sell or transfer firearms

           (a) Offense defined.--

              (1) A person who has been convicted of an offense
              enumerated in subsection (b), within or without this


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               Commonwealth, regardless of the length of sentence
               or whose conduct meets the criteria in subsection (c)
               shall not possess, use, control, sell, transfer or
               manufacture or obtain a license to possess, use,
               control, sell, transfer or manufacture a firearm in this
               Commonwealth.

18 Pa.C.S. § 6105 (a)(1).

         § 6106. Firearms not to be carried without a license

            (a) Offense defined.--

               (1) Except as provided in paragraph (2), any person
               who carries a firearm in any vehicle or any person
               who carries a firearm concealed on or about his
               person, except in his place of abode or fixed place of
               business, without a valid and lawfully issued license
               under this chapter commits a felony of the third
               degree.

18 Pa.C.S. § 6106(a).

         § 6108. Carrying firearms on public streets or public
         property in Philadelphia

            No person shall carry a firearm, rifle or shotgun at any
            time upon the public streets or upon any public
            property in a city of the first class . . .

18 Pa.C.S. § 6108. It is well settled that the testimony of a witness that the

defendant possessed firearms is sufficient to establish a VUFA offense, even

if a weapon is not recovered.     Commonwealth v. Robinson, 817 A.2d

1153, 1161-62 (Pa. Super. 2003).

      Instantly, the trial court heard Z.G.’s grand jury testimony that he

observed Appellant confront the complainant, J.J. According to Z.G., after

Appellant approached J.J. and they began talking, “everyone ran.”         N.T.,



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4/22/16, at 29. Appellant then “lift[ed] up his shirt” and “pulled out a gun.”

Id.   Z.G. described the weapon as “a back-in-the-day revolver gun, but

smaller.” Id. Z.G. stated J.J. looked like he “didn’t know what to say” and

“was in shock.” Id.

      We conclude Z.G.’s prior statement was sufficient to establish that the

weapon possessed by Appellant was a firearm.5         Z.G. testified that he

observed Appellant with a pistol and was able to discern the cylinder, as well

as the tip of the barrel, of a revolver. See Robinson, 817 A.2d 1161-62.

Moreover, J.J.’s reactions to seeing the weapon provide circumstantial

evidence that the firearm was, in fact, a firearm and not a toy.     Thus, no

relief is due.

      As to Appellant’s arguments that the Commonwealth failed to prove

terroristic threats, Section 2706 provides:

             (a) Offense defined.--A person commits the crime of
             terroristic threats if the person communicates, either
             directly or indirectly, a threat to:

                 (1) commit any crime of violence with intent to
                 terrorize another . . .

                                     ***


5
  Appellant also suggests that Z.G.’s testimony was not worthy of belief
given his age, the passage of time between the incident and his testimony at
the grand jury proceeding, and the non-adversarial nature of a grand jury
proceeding. Appellant’s Brief at 8. However, such arguments go to the
weight of the evidence and warrant no relief in a challenge to the sufficiency
of the evidence. See Brown, 52 A.3d 1139 at 1188; Walker, 836 A.2d at
1000 n.3.



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           (e) Definition.--As used in this section, the term
           “communicates” means conveys in person or by written
           or electronic means, including telephone, electronic
           mail,   Internet,  facsimile,  telex  and    similar
           transmissions.

18 Pa.C.S. § 2706(a)(1). This Court has noted that

        the crime of terroristic threats is committed when a person
        communicates, either directly or indirectly, a threat to
        commit any crime of violence with intent to terrorize
        another. An express or specific threat is not necessary to
        sustain a conviction for terroristic threats. Consequently,
        [i]t is unnecessary for an individual 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.

        [T]he 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. Martinez, 153 A.3d 1025, 1028-29 (Pa. Super. 2016)

(citations and quotation marks omitted).

     In this case, the Commonwealth was unable to produce evidence

regarding the content of Appellant’s statements to J.J.     However, it was

undisputed that an altercation between Appellant and J.J. occurred after J.J.

fouled Appellant in a basketball game. N.T. at 39. J.J. stated he was going

to get his brother and left the recreation center. Id. Appellant followed him

across the street and the two had a verbal exchange.         Id. at 29, 39.

Although Z.G. was unable to hear the exchange, he observed people running

away before Appellant lifted his shirt and pulled out the weapon. Id. at 29.




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Appellant then drew his weapon, pointed it at J.J., and continued talking.

Id. J.J. did not respond and appeared to be in shock. Id.

      Under these circumstances, we find ample evidence that Appellant

communicated a threat to commit a crime of violence with intent to terrorize

another.   See Martinez, 153 A.3d at 1028-29.          The fact that Appellant

pointed a revolver at J.J. establish a threat, as well as the reactions of others

before Appellant pulled out the weapon and J.J.’s reaction after seeing the

weapon, establish that Appellant threatened J.J. with the commission of a

crime of violence. See id. Accordingly, Appellant’s challenge lacks merit.

      Lastly, as to Appellant’s challenge to PIC, Section 907 provides:

            (a) Criminal instruments generally.--A person
            commits a misdemeanor of the first degree if he
            possesses any instrument of crime with intent to
            employ it criminally.

18 Pa.C.S. § 907(a).

      Instantly, Appellant’s argument is an amalgam of his prior arguments

that he did not possess a firearm or threaten J.J.        As we have already

concluded there was sufficient evidence to find Appellant possessed a

firearm and threatened J.J. with a crime of violence, Appellant’s challenge to

the PIC conviction lacks merit.

      Thus, having reviewed the arguments preserved in this appeal, we

agree with the trial court that Appellant’s challenges to the sufficiency of the

evidence warrant no relief.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2017




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