J-S30011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    ROBERT JERMAINE BAILEY,

                             Appellant               No. 1086 WDA 2017


          Appeal from the Judgment of Sentence Entered May 24, 2017
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000177-2015


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 23, 2018

        Appellant, Robert Jermaine Bailey, appeals from the judgment of

sentence of an aggregate term of 5 to 10 years’ incarceration, imposed after

he was convicted of multiple offenses, including persons not to possess a

firearm, terroristic threats, and simple assault. We affirm.

        Appellant’s convictions stem from an altercation he had with two

women, Tiffany Presher and Jennifer Colina, who were staying at the same

residence as Appellant and another man, Daniel Brown.          According to

Presher’s trial testimony, she and Colina were sleeping in a bedroom when

Appellant, who had been cleaning another room in the home, entered the

bedroom and began screaming at the two women “to get up and help clean….”


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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N.T. Trial, 1/26/16, at 56. Presher claimed that Colina started arguing with

Appellant, and Colina then “tried calling 911 twice, but got disconnected both

times.”     Id. Colina also tried to “record [Appellant] yelling at [them,]” at

which point Appellant “smacked [Colina’s] arm and knocked the phone out of

her hand.” Id.

         Colina then told Appellant she was going to call the police, at which point

Appellant left the room and immediately came back in with “a little black

handgun.” Id. at 57. Appellant pointed the gun in the direction of Presher

and Colina and told the women that if they called the police, “he was going to

shoot [them] in [their] faces.” Id. at 56, 58. Presher stated that as Appellant

pointed the gun at her, she was scared. Id. at 58. She also testified that as

she and Colina tried to leave the house, Appellant told them that if they went

to the police and he was arrested, he “was going to send the word to the street

for [them] both to get killed.” Id. at 59. Presher testified that she and Colina

escaped the house and began walking toward the police station, hiding

between buildings as they went. Id. at 59, 60. Presher explained that Colina

“was … scared to go to the cops,” but as the women were walking, they saw

a police officer, “flagged him down[,] and told him … what was going on.” Id.

at 59.

         That police officer was Bryan Smith of the Cumberland Township Police

Department. Id. at 123. Officer Smith testified that when Presher and Colina

stopped him and reported the above facts, he called for assistance and then

traveled to the house where the incident occurred. Id. at 124. There, he

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spoke with Daniel Brown, who told the officer that Appellant had left. Id. at

125. Having been provided a description of Appellant by Presher and Colina,

Officer Smith began canvassing the area. Id. at 126. The officer spoke to

neighbors who directed him to the back of a house where he encountered

Appellant, who matched the description provided by Presher and Colina. Id.

at 128. Officer Smith announced his presence and told Appellant to stop, but

Appellant ran through a yard and jumped over a fence at the back. Id. Officer

Smith pursued Appellant while repeatedly telling him to stop, but the officer

lost sight of him in the nearby woods. Id.

      Other officers who had responded to the scene also began searching for

Appellant, who was eventually found inside the “basement of a building that

had several apartments attached to it and also a business.” Id. at 129, 134.

Appellant was placed under arrest and searched, which revealed a clear baggie

containing marijuana in his pocket. Id. at 137.

      Meanwhile, Officer Smith received a radio report that Thomas Berry,

who lived in a residence close to where the officer had first observed Appellant,

had found a gun in his yard. Id. at 129, 138. Officer Smith went to Berry’s

home and secured the gun, which “was in two separate parts [lying] in a

corner … inside of [Berry’s] fence in his yard.” Id. at 129, 130. Officer Smith

was shown the weapon at trial and identified it as the gun he had found in

Berry’s yard. Id. at 130.

      Berry also testified at Appellant’s trial. He explained that on the day of

the above-described incident, he heard a commotion outside and “saw Officer

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Smith running through the yard yelling for someone to stop.” Id. at 68. When

Officer Smith was out of sight, Berry saw that “something was [lying] by [his]

fence that wasn’t there just ten minutes ago” when he had been in his yard

with his dogs. Id. Berry went outside to look at the object and realized it

“was a pistol….” Id. He called 911 and Officer Smith returned to recover the

weapon. Id.

       At the close of Appellant’s trial, the jury convicted him of single counts

of burglary, 18 Pa.C.S. § 3502(a)(2); persons not to possess a firearm, 18

Pa.C.S. § 6105(a)(1); possession of marijuana, 35 P.S. § 780-113(a)(31)(i);

and harassment, 18 Pa.C.S. § 2709(a)(1).              The jury also found Appellant

guilty of two counts each of terroristic threats, 18 Pa.C.S. § 2706(a)(1);

recklessly endangering another person,              18 Pa.C.S. § 2705; and simple

assault, 18 Pa.C.S. § 2701(a)(3).1 Appellant was initially sentenced to 8 to

16 years’ incarceration for these offenses; however, after he filed post-

sentence motions, the court entered a judgment of acquittal for Appellant’s

convictions    of   burglary    and    recklessly    endangering   another   person.

Accordingly, Appellant was resentenced on May 24, 2017, to an aggregate

term of 5 to 10 years’ imprisonment.


____________________________________________


1  The jury acquitted Appellant of criminal trespass, 18 Pa.C.S. §
3503(a)(1)(ii); carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1);
theft by unlawful taking, 18 Pa.C.S. § 3921(a); receiving stolen property, 18
Pa.C.S. § 3925(a); and possession of drug paraphernalia, 35 P.S. § 780-
113(a)(32). Another charge of flight to avoid apprehension, 18 Pa.C.S. §
5126(a), was nol prossed prior to trial.

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      Appellant again filed a timely post-sentence motion, which the court

denied. He then filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The trial court filed a Rule 1925(a) opinion

on August 29, 2017, relying, in part, on prior orders and opinions it had issued

in ruling on Appellant’s post-sentence motions.

      On appeal, Appellant presents six issues for our review, which we have

reordered for ease of disposition:

      1. Whether the trial court erred in failing to grant a mistrial, after
         two jurors saw … Appellant while incarcerated or handcuffed,
         and counsel informed one juror that … Appellant was being
         escorted by the sheriff.

      2. Whether the trial court erred in permitting police officers to
         testify to expert opinions regarding the alleged firearm, its
         operability, and whether it was in fact the “frame or receiver”
         of a firearm.

      3. Whether the trial court erred in sustaining the Commonwealth’s
         objection to the presentation of character evidence regarding
         the truthful and non-violent character of … Appellant by Tina
         Krupa.

      4. Whether the trial court erred in denying trial counsel’s motion
         to dismiss the charges against … Appellant relating to Jennifer
         Colina, as … Colina did not testify.

      5. Whether the evidence in this case was insufficient to sustain
         the verdict.

      6. Whether the verdict in this case was against the weight of the
         evidence.

Appellant’s Brief at 8.

      Appellant first argues that the trial court erred by failing to grant a

mistrial after one juror, who was a county maintenance worker, encountered

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Appellant in a cell in the prison through the course of the juror’s job, and

another juror purportedly saw Appellant in handcuffs and being escorted by a

sheriff after jury selection.   Appellant acknowledges that the trial court

excused both of these jurors. See Appellant’s Brief at 22. He avers, however,

that the court erred by not conducting any “investigation” into whether either

of these jurors talked with the other members of the jury panel about seeing

Appellant incarcerated or in handcuffs. Id. According to Appellant, “[i]n the

absence of conducting an investigation into whether any other juror was

notified of [these] fact[s], the [c]ourt should have granted a mistrial, and …

Appellant should have been permitted to select a new, untainted jury.” Id.

      Notably, Appellant does not cite to where in the record he requested a

mistrial or asked that the court conduct further investigation into what the at-

issue jurors may have told the other members of the jury. Our review of the

record shows that, just prior to the start of trial, the court and the parties

discussed the two jurors who were allegedly tainted, those jurors were

questioned, and the court ultimately granted Appellant’s request to dismiss

both. See N.T. Trial, 1/26/16, at 3-13. Appellant never requested a mistrial

or any examination of the remaining jury members. Accordingly, he cannot

now complain that the trial court failed to conduct that investigation, or grant

a mistrial, when he made no such requests to the court. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”).




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      In Appellant’s next issue, he argues that the court erroneously allowed

a lay witness - Police Officer Thomas Obarto - to offer expert testimony

“regarding the alleged firearm, its operability, and whether it was in fact the

‘frame or receiver’ of a firearm.” Appellant’s Brief at 23 (emphasis omitted).

Again, Appellant has waived this issue for our review.      First, as Appellant

concedes, he did not object when the officer was testifying about the firearm.

See Appellant’s Brief at 26; see also N.T. Trial at 167-74. Indeed, much of

the officer’s testimony about the gun was elicited by defense counsel on cross-

examination. Id. at 169-174.

      Second, while Appellant attempts to excuse his failure to object to the

officer’s testimony by claiming that “the [c]ourt made a ruling on this matter

prior to trial,” he clearly misconstrues the record.   Appellant’s Brief at 26.

Prior to trial, the court did remark that “somebody with lay experience who

knows something about guns” could testify about the operability of a firearm.

N.T. Trial at 26. However, this comment was made during a discussion with

the parties about the whether the Commonwealth had to prove that the gun

was operable. See id. at 26-28. The court’s remark was not in response to

any discussion about whether Officer Obarto had to be qualified as an expert

to offer testimony about the gun. Therefore, because Appellant never raised

any objection to Officer Obarto’s testimony about the firearm prior to trial, or

at the time when that testimony was given, he has waived this issue for our

review. See Pa.R.A.P. 302(a).




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      Next, Appellant asserts that the trial court improperly excluded

character evidence offered during the direct-examination of Appellant’s fiancé,

Tina Krupa. Specifically, Krupa testified:

      [Ms. Krupa:] I would just like to say that, you know, [Appellant],
      he’s a really good guy. He’s good at heart. And my children love
      him more than anything. And I love him. And I believe him and
      I believe in --

N.T. Trial at 203.   At that point, the Commonwealth objected to Krupa’s

testimony, and the court sustained the objection and directed “the jury to

disregard the last statement.” Id.

      Appellant now avers that, “[w]hile certainly the statements about []

Krupa’s love for … Appellant and her personal opinion about him were

inadmissible, the remaining statements should not have been struck, as they

were permissible character evidence pursuant to Pa.R.E. 405….” Appellant’s

Brief at 29. Rule 405 states, in pertinent part:

      (a) By Reputation. When evidence of a person’s character or
      character trait is admissible, it may be proved by testimony about
      the person’s reputation. Testimony about the witness’s opinion as
      to the character or character trait of the person is not admissible.

         (1) On cross-examination of the character witness, the court
         may allow an inquiry into relevant specific instances of the
         person’s conduct probative of the character trait in question.

         (2) In a criminal case, on cross-examination of a character
         witness, inquiry into allegations of other criminal conduct by
         the defendant, not resulting in conviction, is not permissible.

Pa.R.E. 405(a).

      Appellant does not specifically identify which of Krupa’s above-quoted

statements was admissible under Rule 405, but we presume he is referring to


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her testimony that she “believe[d] him.” N.T. Trial at 203. Appellant offers

no discussion of why this statement by Krupa was admissible, nor any legal

authority that would support that position. Clearly, the entirety of Krupa’s

testimony about her love for Appellant, his character of being a ‘good guy,’

and her belief in his innocence, constituted her own personal opinion about

Appellant’s character, which was not admissible reputation evidence under

Rule 405. Therefore, we discern no abuse of discretion in the court’s decision

to preclude Krupa from further testifying in this vein, and to instruct the jury

to disregard her prior statements. See Commonwealth v. Young, 989 A.2d

920, 924 (Pa. Super. 2010) (“Questions concerning the admissibility of

evidence lie within the sound discretion of the trial court, and a reviewing

court will not reverse the trial court's decision absent a clear abuse of

discretion.”) (citation omitted).

      Appellant’s fourth and fifth issues are interrelated and, thus, we will

address them together.     Appellant argues that the trial court should have

dismissed his convictions of one count of terroristic threats, and one count of

simple assault, committed against victim Jennifer Colina, because Colina did

not testify at trial and, thus, there was insufficient evidence to support those

charges. We disagree.

      When examining a challenge to the sufficiency of evidence, our
      standard of review 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

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         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
         [trier] 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. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (internal

citations omitted).

      In Beasley, we explained that,

      [f]or a defendant to be convicted of terroristic threats,

         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.
         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.

Id. at 46 (internal citations and quotation marks omitted). Additionally, “a

person is guilty of [simple] assault if he … attempts by physical menace to put

another in fear of imminent serious bodily injury[.]” 18 Pa.C.S. § 2701(a)(3).




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      Here, Appellant contends that without Colina’s testimony, there was no

evidence to establish “that the threats allegedly made by … Appellant had

actually been communicated, or that they seriously impaired [Colina’s]

personal security.” Appellant’s Brief at 35. He also maintains that because

Colina did not testify, the Commonwealth did not present “any credible

evidence that the alleged actions of … Appellant would have placed [Colina] in

fear of imminent serious bodily injury….” Id.

      Appellant’s arguments are unconvincing.       Notably, he cites no legal

authority to support his position that a victim must always testify in order for

the Commonwealth to establish the elements of a crime. As set forth supra,

“[the Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”    Beasley, 138 A.3d at 45 (citation omitted).            Here, the

Commonwealth proved the elements of terroristic threats and simple assault

against Colina through Tiffany Presher’s testimony. Namely, Presher testified

that Appellant pointed a gun at her and Colina, and verbally threatened to

shoot them in the face if they called police. Presher also testified that Colina

twice tried to call 911 during the argument with Appellant and that, after the

women escaped the house, Colina did not want to go to police because she

was scared.      This evidence was sufficient to prove that Appellant

communicated a threat to commit violence against Colina with the intent to

terrorize her, thus supporting his terroristic threats conviction. Additionally,

Appellant’s threat to shoot Colina in the face, while pointing a gun in her and

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Presher’s direction, was sufficient proof that he attempted, by physical

menace, to put Colina in fear of serious bodily injury. Therefore, his simple

assault conviction against Colina was supported by sufficient evidence.

      Appellant also challenges the sufficiency of the evidence to sustain his

conviction of persons not to possess a firearm.

      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. The term “firearm” is
      defined in that section as any weapon that is “designed to or may
      readily be converted to expel any projectile by the action of an
      explosive or the frame or receiver of any such weapon.” 18
      Pa.C.S. § 6105(i).

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009).

      Appellant initially contends that the Commonwealth failed to prove that

he possessed the firearm found in Thomas Berry’s yard. We disagree. Tiffany

Presher testified that she saw Appellant in possession of a small black

handgun. Officer Berry testified that a short time after Presher’s argument

with Appellant, he pursued Appellant through a yard and over a chain link

fence.   Berry observed Officer Smith chasing Appellant, and immediately

thereafter noticed a small gun in his yard close to his fence. That gun had not

been there when Berry was in his yard minutes before Officer Smith’s pursuit

of Appellant. This circumstantial evidence was sufficient for the jury to infer

that Appellant possessed the gun that was found in Berry’s yard.

      Appellant additionally contends that the evidence was insufficient to

prove that the gun was a ‘firearm,’ as that term is defined by section 6105:

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      (i) Firearm.--As used in this section only, the term “firearm” shall
      include any weapons which are designed to or may readily be
      converted to expel any projectile by the action of an explosive or
      the frame or receiver of any such weapon.

18 Pa.C.S. § 6105(i).

      Appellant argues that “the testimony … was insufficient to show that the

object was readily convertible to fire a projectile by way of explosive” because

Officer Obarto testified that “the object was lacking a significant number of

parts, such that any conversion to be able to fire a projectile would certainly

not be readily accomplished.” Appellant’s Brief at 33-34. He also maintains

that “the object was missing so many parts that the trier of fact should not

have been permitted to consider it as the frame or receiver of an object that

could be readily convertible to fire a projectile by way of explosive, without

the testimony of an expert in the matter.” Id. at 34.

      In Commonwealth v. Thomas, 988 A.2d 669 (Pa. Super. 2009), this

Court held that,

      [t]he statutory language [of section 6105] is clear, and it does
      not require proof that the weapon was capable of expelling
      a projectile when it was seized; on the contrary, the fact that
      a person can be prosecuted simply for possessing a semiautomatic
      pistol frame refutes this notion because the frame requires
      additional parts, e.g., a slide and barrel, in order to fire a bullet.3
      Thus, the use of the terms “frame” and “receiver” in section
      6105(i) demonstrates that the legislature sought to eliminate the
      operability requirement articulated in [Commonwealth v.]
      Layton[, 307 A.2d 843 (Pa. 1973),] for purposes of this section.
         3 The frame of a semiautomatic pistol is the portion of the
         weapon that houses the trigger and bears a serial number
         that must be recorded whenever a complete pistol or pistol
         frame is transferred through a federal firearms licensee
         (“FFL”) to a new owner. Other gun parts such as barrels,


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         slides, triggers, firing pins, and magazines are not regulated
         in this manner and may be purchased from the
         manufacturer or other vendors without the assistance of an
         FFL. The definition of firearm codified at 18 Pa.C.S. §
         6105(i) and § 6106(e) is consistent with the federal
         government’s view that the frame of the weapon is a
         firearm, even if it cannot fire ammunition due to a missing
         barrel, trigger, or other necessary components.

Thomas, 988 A.2d at 672 (emphasis added).

      Clearly, our decision in Thomas defeats Appellant’s argument that the

evidence was insufficient to convict him under section 6105 because the

firearm was not operable, as operability is not a requirement of that provision.

Moreover, Thomas elucidates that the frame of a gun, which houses a trigger,

constitutes a ‘firearm’ under section 6105. Here, the evidence was sufficient

to circumstantially prove that Appellant possessed at least the frame of a gun.

Notably, Officer Obarto was shown the gun at trial, and explained what he was

observing as follows:

      [Officer Obarto:] This part[ is] basically the main frame of the
      gun. This is the recoil spring, the barrel, magazine, holder,
      trigger. This is the slide, we call it a slide. Sight pin. The slide
      fits on the barrel as such.

N.T. Trial at 167 (emphasis added). Officer Obarto also testified that the gun

could be fired “with the insertion of a pin” into a hole on the weapon. Id. at

168. While on cross-examination, Officer Obarto acknowledged that various,

inner parts of the gun were missing, he never retracted his prior testimony

that the main frame of the gun was there, or that the gun could be fired with

the insertion of a firing pin.




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      Additionally, Officer Smith testified that the gun had a slide, grips,

barrel, the trigger, and a magazine, which did not have any bullets in it, but

“was inside of the grip” when he found the gun. Id. at 132. While the gun

was found in two pieces, it was able to be assembled into one piece, as

confirmed by Officer Smith during his testimony at trial. Id. at 131.

      We conclude that the totality of this testimony, viewed in the light most

favorable to the Commonwealth, was sufficient to prove that the gun

possessed by Appellant was at least the frame of a pistol, which qualifies as a

firearm under section 6105. Therefore, the evidence was sufficient to prove

that Appellant possessed a firearm as defined by that provision.

      In Appellant’s final issue on appeal, he claims that the jury’s verdict was

against the weight of the evidence pertaining to his convictions of terroristic

threats and simple assault against Jennifer Colina, and his conviction of

persons not to possess a firearm.

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly
      exercised, and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.




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Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      In support of Appellant’s weight claim, he simply reiterates the same

arguments presented in his challenges to the sufficiency of the evidence. In

rejecting these claims, the trial court detailed the above-discussed trial

testimony, and then concluded that,

      [t]he jury had the opportunity to hear witness testimony, observe
      witness demeanor, judge witness credibility and receive[d]
      appropriate instructions from the trial judge. There is nothing to
      suggest that the jury verdict was so contrary to the weight of the
      evidence that it would shock one’s sense of justice.

Trial Court Post[-]Sentence Motion Opinion and Order, 5/9/17, at 15

(unnumbered).

      Given our discussion of Appellant’s sufficiency arguments, which he

reiterates in support of his weight challenge, we discern no abuse of discretion

in the trial court’s decision. Appellant’s terroristic threats and simple assault

convictions against Colina were clearly supported by Presher’s testimony.

Moreover, Presher testified that she saw Appellant with a gun, and a gun was

found in close physical and temporal proximity to Appellant’s path of flight

from Officer Smith. Although Officer Obarto testified that many pieces of that

gun were missing, the jury was presented with testimony establishing that

Appellant possessed at least the frame of a pistol. Consequently, the trial

court’s rejection of Appellant’s weight-of-the-evidence challenge was not an

abuse of discretion.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2018




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