J-S54041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :   PENNSYLVANIA
            v.                            :
                                          :
JAMES STEVENSON,                          :
                                          :
                   Appellant              :   No. 173 WDA 2016

           Appeal from the Judgment of Sentence January 20, 2016
              in the Court of Common Pleas of Fayette County,
             Criminal Division, No(s): CP-26-CR-0000218-2015

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 04, 2016

        James Stevenson (“Stevenson”) appeals from the          judgment of

sentence imposed following his convictions of six counts of recklessly

endangering another person (“REAP”); and one count each of criminal

attempt (homicide), aggravated assault, possession of a firearm prohibited,

firearms carried without a license, discharge of a firearm into an occupied

structure, terroristic threats, criminal mischief, and driving while operating

privilege suspended.1 We affirm.

        On January 4, 2015, around 2:00 a.m., Stevenson went to the

apartment     of   Darla   Bryan    (“Bryan”)    and   Blaine    Sullenberger

(“Sullenberger”), located at 121 Main Street in Belle Vernon.      Bryan and

Sullenberger had been caring for Stevenson’s dog in their apartment for a

week.    However, earlier that day, the dog escaped and ran away.       Upon

1
  See 18 Pa.C.S.A. §§ 2705, 901(a), 2501, 2702(a)(1), 6105(a)(1),
6105(a)(1), 2707.1(a), 2706(a)(1), 3304; 75 Pa.C.S.A. § 1543(a).
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learning this, Stevenson became angry and an argument ensued.                   The

argument escalated into a physical altercation between Stevenson and

Sullenberger.     After the tussle ended, Stevenson left the apartment,

informing Bryan and Sullenberger that he would be back.              Bryan then

instructed her neighbor, Arthur Cicchitto (“Cicchitto”), to call the police.2

      Approximately one minute after Stevenson left the apartment, Bryan,

while standing on the porch, saw Stevenson walking toward her, armed with

a gun. Stevenson approached Bryan, placed the gun barrel to her temple,

and stated, “have a nice death, bitch.”          However, Stevenson became

distracted when Sullenberger opened the front door to the apartment

building, armed with a bat. Stevenson then fired four or five shots towards

the front door.   Fortunately, however, none of the bullets struck anyone.

Stevenson then fled in his truck, stating that he would be back to “finish the

job.” Later, while the police were at the scene, Sullenberger saw Stevenson

in his truck on the street.         Sullenberger informed the police as to

Stevenson’s presence, but the truck then “took off.”           Later, the police

arrested Stevenson.

      Following trial, the jury found Stevenson guilty of the above-

mentioned crimes.     The trial court sentenced Stevenson to an aggregate

sentence of fifteen to thirty years in prison. Stevenson filed a Post-Sentence


2
  Cicchitto and Bryan’s apartments were located in the same building, on
separate floors. Additionally, three of Cicchitto’s children were inside of the
building at the time.

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Motion and a Motion for New Trial.        The trial court denied the Motions.

Stevenson filed a timely Notice of Appeal.       Thereafter, Stevenson filed a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of

on Appeal.

      On appeal, Stevenson raises the following issues:

      [1.] [Did] the Commonwealth fail[] to present evidence
      demonstrating [Stevenson’s] intent to [cause] [] death or
      serious bodily injury to [] Sullenberger[?]

      [2.] [Did] the Commonwealth fail[] to present evidence
      demonstrating that [Stevenson] carried or possessed a firearm
      or that he intentionally, knowingly or recklessly discharged a
      firearm into an occupied structure on January 4, 2015[?]

      [3.] [Did] the Commonwealth fail[] to present evidence
      demonstrating that [Stevenson] communicated a threat to
      commit a crime of violence with the intent to terrorize []
      Bryan[?]

      [4.] [Did] the Commonwealth fail[] to present evidence
      demonstrating that [Stevenson’s] conduct placed any of the
      residents of 121 Main Street in danger of death or serious bodily
      injury on January 4, 2015[?]

      [5.] [Was] the jury verdict [] against the weight of the
      evidence[?]

      [6.] Whether the trial court erred in overruling defense counsel’s
      [M]otion for mistrial[,] when the officer testified that
      [Stevenson] refused to make a statement at the time of his
      arrest in violation of [Stevenson’s] right to remain silent[?]

Brief for Appellant at 7 (some capitalization omitted).

      In his first four claims, Stevenson alleges that the evidence was

insufficient to sustain his convictions. Id. at 11-16. The standard of review

for a sufficiency of the evidence claim is as follows:


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      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial the
      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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation and brackets omitted).

      In his first claim, Stevenson contends that the evidence was

insufficient   to   support   his   criminal   attempt   and   aggravated   assault

convictions. See Brief for Appellant at 10-12. Stevenson argues that the

Commonwealth failed to present evidence that he attempted to cause death

or serious bodily injury to Sullenberger. Id. at 10. Stevenson asserts that

the gun matching the slugs and shell casing found at the scene were never

recovered, and that there were no fingerprints or DNA to connect him to the

crime scene. Id. at 11. Stevenson claims that the swabs taken from the

steering wheel and door handle of his vehicle were never tested for gunshot

residue. Id. at 12. Stevenson additionally asserts that the investigation of


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the crime scene did not take place until more than 24 hours after the

incident occurred. Id.

      “[A] person commits an attempt when, with intent to commit a

specific crime, he does any act which constitutes a substantial step toward

the commission of that crime.”          18 Pa.C.S.A. § 901(a).        “For the

Commonwealth to prevail in a conviction of criminal attempt to commit

homicide, it must prove beyond a reasonable doubt that the accused[,] with

a specific intent to kill[,] took a substantial step towards that goal.”

Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super. 2005).

“[A] specific intent to kill can be inferred from the fact that the accused used

a deadly weapon to inflict injury to a vital part of the victim’s body.”    Id.

(emphasis omitted).

      “A person is guilty of aggravated assault if he … attempts to cause

serious bodily injury to another, or causes such injury intentionally,

knowingly    or   recklessly   under    circumstances   manifesting    extreme

indifference to the value of human life.”        18 Pa.C.S.A. § 2702(a)(1).

“Serious bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” Id. § 2301. Further,

      where the victim does not sustain serious bodily injury, the
      Commonwealth must prove that the appellant acted with specific
      intent to cause serious bodily injury. The Commonwealth may
      prove intent to cause serious bodily injury by circumstantial


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     evidence. In determining whether the Commonwealth proved
     the Appellant had the requisite specific intent, the fact-finder is
     free to conclude the accused intended the natural and probable
     consequences of his actions to result therefrom.                 A
     determination of whether an appellant acted with intent to cause
     serious bodily injury must be determined on a case-by-case
     basis.

Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (citation

and brackets omitted).

     Here, Stevenson became angry at Sullenberger after Stevenson’s dog

escaped while in Sullenberger’s care. N.T., 1/12/16, at 14-17. Stevenson

and Sullenberger engaged in a scuffle, during which Stevenson punched

Sullenberger in the face. Id. at 106. After hitting Sullenberger, Stevenson

informed Sullenberger that he had “something” for him and left to retrieve a

gun. Id. at 18, 107. After he returned, Stevenson approached Bryan, put

the gun to her head, and stated “have a nice death, bitch.”        Id. at 22.

Thereafter, Stevenson fired multiple shots in the direction on Sullenberger.

Id. at 23, 87, 111-12.

     The evidence, viewed in a light most favorable to the Commonwealth,

demonstrated that Stevenson took a substantial step in attempting to kill

and/or cause the serious bodily injury of another, when he fired the gun at

the victims. See Holley, 945 A.2d at 249 (concluding that the evidence was

sufficient to support the defendant’s convictions for attempted murder and

aggravated assault where he, while wrestling with a police officer, took the

officer’s gun and fired a shot, even though the officer was not shot); see



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also Commonwealth v. Lopez, 654 A.2d 1150, 1155 (Pa. Super. 1995)

(stating that evidence that defendant, who had an altercation with the

victim, returned to the home and fired eight shots into a residence

established a prima facie case of aggravated assault even though the

residence was vacant when the shooting took place). Based on the evidence

of the record, there is sufficient evidence to sustain Stevenson’s convictions

of criminal attempt and aggravated assault.

      In his second claim, Stevenson contends that the Commonwealth

failed to present evidence demonstrating that he carried or possessed a

firearm or that he intentionally, knowingly or recklessly discharged a firearm

into an occupied structure.3   Brief for Appellant at 13. Stevenson contends

that the firearm was never recovered and that the investigation did not

reveal any forensic evidence that linked him to the shooting, as gunshot

residue swab results were never obtained. Id. at 14.

      Here,   the   Commonwealth     presented   undisputed   evidence   that

Stevenson is a “person prohibited by law from possessing, using, controlling,

selling, transferring, manufacturing, or obtaining a license to possess, use,


3
  The Crimes Code defines “discharge of firearm into an occupied structure”
as follows: “a person commits an offense if he knowingly, intentionally, or
recklessly discharges a firearm from any location into an occupied
structure.“ 18 Pa.C.S.A. § 2707.1(a). An “occupied structure” is “any
structure, vehicle, or place adapted for overnight accommodation of persons
or for carrying on business therein, whether or not a person is actually
present.” Id. § 2707.1(d). The only limitation on the location requirement
is that the person discharging the gun must be outside of the occupied
structure. Commonwealth v. McCoy, 962 A.2d 1160, 1169 (Pa. 2009).

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control, sell, transfer or manufacture a firearm in the State of Pennsylvania.”

N.T., 01/12/16, at 10-11.     Additionally, Bryan, Cicchitto and Sullenberger

testified that Stevenson, while outside, possessed a firearm and fired

multiple shots towards the victims and into their residence. Id. at 23, 87,

111-12.

      This   evidence,   viewed      in    the   light   most   favorable   to   the

Commonwealth, demonstrates that Stevenson was in possession of the gun.

See Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014)

(concluding that testimony of a single witness was sufficient to sustain

persons not to possess firearms conviction); Commonwealth v. Galindas,

786 A.2d 1004, 1011 (Pa. Super. 2001) (concluding that the evidence was

sufficient to support firearms convictions, despite the fact that the police

never recovered a firearm, where witness testimony indicated that the

defendant possessed a firearm).           The evidence is sufficient to support

Stevenson’s convictions of possession of firearm prohibited, firearms not to

be carried without a license and discharge of firearm into an occupied

structure.

      In Stevenson’s third claim, he contends that the evidence was

insufficient to support his terroristic threats conviction. Brief for Appellant at

15.   Stevenson argues that the Commonwealth failed to present evidence

that Stevenson communicated a threat to commit a crime of violence with

the intent to terrorize Bryan. Id.



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        “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(a)(1).

        Here, Bryan testified that Stevenson approached her, held a gun to her

head and stated, “have a nice death, bitch.”       N.T., 01/12/16 at 21, 22.

Bryan states that Stevenson’s actions scared her and put her in fear for her

life.   Id. at 22-23.   Bryan’s testimony is sufficient to support Stevenson’s

terroristic threats conviction.   See Commonwealth v. Kelley, 664 A.2d

123, 128 (Pa. Super. 1995) (concluding that the defendant’s threats to “kill”

the victim demonstrated that the defendant intended to terrorize the

victim); Commonwealth v. Hudgens, 582 A.2d 1352, 1358 (Pa. Super.

1990) (holding that the evidence was sufficient to support intent to terrorize

victim where the defendant threatened to “stick the victim with the sword”

that he was holding in his hand).

        In his fourth claim, Stevenson contends that the evidence was

insufficient to support his REAP convictions.      Brief for Appellant at 16.

Stevenson argues that his conduct did not place any of the residents of 121

Main Street in danger. Id. Stevenson further asserts that the firearm was

never discovered and DNA was never tested. Id.

        A person commits REAP “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. “[T]he Crimes Code requires (1) a mens rea



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of recklessness, (2) an actus reus, (3) causation, and (4) the achievement of

a particular result, namely danger to another person of death or serious

bodily injury.”   Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.

Super. 2003) (citation omitted).

      Here, Stevenson fired his gun four times in the direction of Bryan,

Sullenberger, Cicchitto, and Cicchitto’s three children. See N.T., 01/12/16,

at 24, 38, 40, 43, 45, 48, 87, 111-12, 114-16.        The evidence is amply

sufficient to support Stevenson’s six REAP convictions. See Reynolds, 835

A.2d at 729 (holding that pointing a loaded gun at victim created the danger

of death of serious bodily injury and was thus sufficient to support REAP

convictions); see also Commonwealth v. Peer, 684 A.2d 1077, 1080 (Pa.

Super. 1996) (holding that pointing a loaded gun at a victim was sufficient

to support REAP conviction).

      In his fifth claim, Stevenson contends that the jury’s verdict was

against the weight of the evidence because the police did not locate the

firearm; the samples taken from Stevenson and his vehicle were never

tested; and Stevenson did not arrive at the location of the incident until the

morning after the shooting. Brief for Appellant at 17-18.4

            Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the

4
  Contrary to the Commonwealth’s claim that Stevenson waived this claim
for failing to preserve it pursuant to Pennsylvania Rule of Criminal Procedure
607(A), the record reveals that Stevenson raised the weight of the evidence
claim in his Motion for New Trial.

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      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court's determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

             In order for a defendant to prevail on a challenge to the
      weight of the evidence, the evidence must be so tenuous, vague
      and uncertain that the verdict shocks the conscience of the
      court.

Talbert, 129 A.3d at 545-46 (citations and quotation marks omitted). “The

weight of the evidence is exclusively for the finder of fact, who is free to

believe all, none or some of the evidence and to determine the credibility of

the witnesses.” Id. at 545 (citation and brackets omitted).

      Stevenson essentially asks us to reassess the credibility of the

witnesses and reweigh the testimony and evidence presented at trial.

However, it is well settled that we cannot substitute our judgment for that of

the trier of fact.   See id.   Here, the jury found the credible evidence

demonstrated that Stevenson possessed a firearm and fired the firearm four

times at the residence.     Thus, the verdict was not so contrary to the

evidence as to shock the conscience, and the trial court properly denied

Stevenson’s weight of the evidence claim. See id. at 546 (stating that the

jury found credible evidence that the appellant was the shooter and thus,

the verdict did not shock the conscience).




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       In Stevenson’s final claim, he argues that the trial court erred in

overruling his oral motion for mistrial made when the prosecutor questioned

Stevenson as to whether he made a statement at the time of his arrest.

Brief for Appellant at 19. However, Stevenson failed to raise this claim in his

Rule   1925(b) Concise    Statement;      thus the   claim is   waived.   See

Commonwealth v. Johnson, 107 A.3d 52, 69 (Pa. 2014) (stating that an

issue not raised in Pa.R.A.P. 1925(b) concise statement is waived).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2016




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