J-S63037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES JOHN SNAVELY,

                            Appellant                No. 2040 MDA 2013


            Appeal from the Judgment of Sentence October 24, 2013
              in the Court of Common Pleas of Cumberland County
                Criminal Division at No.: CP-21-CR-0000378-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 18, 2014

        Appellant, Charles John Snavely, appeals from the judgment of

sentence imposed after his jury conviction of person not to possess a

firearm, terroristic threats, and simple assault by physical menace.1    We

affirm.

        On the night of February 1, 2013, Appellant and his then-girlfriend,

Rose Magaro, were drinking at a bar in Enola, Pennsylvania, when they

started arguing. Appellant left the bar without Ms. Magaro, and returned to

the residence they shared.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6105, 2706(a)(1), and 2701(a)(3), respectively.
J-S63037-14


        When Ms. Magaro arrived home at approximately 1:30 a.m. on the

morning of February 2, 2013, she found that her belongings were lying on

the front lawn. Ms. Magaro attempted to enter the residence, but the front

door was locked and although she banged on it, Appellant refused her entry.

The temperature that night was approximately ten degrees. (See N.T. Trial,

9/10/13, at 58). Ms. Magaro called 911 and falsely claimed that Appellant

was hitting her.    (See N.T. Trial, 9/09/13, at 26).   The East Pennsboro

Township police responded to the scene, but left when Appellant would not

answer the door and Ms. Magaro indicated that she did not wish to go to a

battered women’s shelter.

        Approximately ten minutes later, Appellant allowed Ms. Magaro into

her residence, where they continued to argue.     Forty-five minutes later,

Appellant retrieved an unloaded rifle from the bedroom and put it to Ms.

Magaro’s head, threatening that he was going to kill her.      The parties

continued to argue until Appellant returned to the bedroom and loaded the

firearm. Ms. Magaro again dialed 911 and put the phone on the table when

Appellant came out of the bedroom with the loaded gun.           Appellant

threatened to kill Ms. Magaro, himself, and anyone who came in the front

door.     William Klusman, the 911 dispatcher with the Commonwealth

Department of Public Safety recorded the phone call and what was

occurring.




                                    -2-
J-S63037-14


        When Appellant observed Sergeant Adam Shope of the East Pennsboro

Township Police Department arrive at the scene with Officer Benjamin Epting

and Officer Loper,2 Appellant told Ms. Magaro that he was “not going to

fucking jail” and “he ran out the back door with the gun.” (Id. at 31). Ms.

Magaro came out of the front door “quite upset and flustered” and yelling to

the officers that “[h]e’s got a gun.” (Id. at 44). Looking through the open

front door, Sergeant Shope could see “a flash [that appeared to be] a male

going . . . out the back door.” (Id. at 31, 44-45).

        The police secured the residence; no one was in the home until 7:00

a.m. on the morning of February 2, 2013, when Officer Donald Rynard of the

East Pennsboro Township police department arrived to take photographs of

the scene. (See N.T. Trial, 9/10/13, at 47-48, 50). Officer Rynard retrieved

an empty rifle case lying on the bed in the bedroom.              (See id. at 49).

        Appellant surrendered at approximately 8:00 a.m. that day. Although

he did not have a firearm with him when he surrendered, he admitted that

he had had three of them in his home in the very recent past. (See id. at

62).

        On February 6, 2013, when Officer Epting returned to the residence to

deliver a subpoena, Ms. Magaro gave him two boxes of ammunition found in



____________________________________________


2
    Officer Loper’s first name is not apparent from the record.



                                           -3-
J-S63037-14


the same bedroom from where Appellant had retrieved the firearm on the

night of the incident. (See id. at 64).

       On September 10, 2013, the jury convicted Appellant of the above

charges.     On October 24, 2013, the trial court sentenced him to an

aggregate term of not less than two nor more than ten years’ incarceration.

Appellant timely appealed.3

       Appellant raises two questions for our review:

       I.  [Whether] the evidence presented at trial [was] sufficient
       to convict Appellant of persons not to possess, use,
       manufacture, control, sell or transfer firearms?

       II.   [Whether] the evidence presented at trial [was] sufficient
       to convict Appellant of simple assault?

(Appellant’s Brief, at 6).

       In Appellant’s issues, he claims that the evidence was insufficient to

support his conviction of persons not to possess a firearm and simple

assault. (See id. at 10, 13). Because Appellant has failed to preserve his

sufficiency claims properly, they are waived.

       It is well-settled that:

       when challenging the sufficiency of the evidence on appeal, the
       Appellant’s 1925 statement must “specify the element or
       elements upon which the evidence was insufficient” in order to
       preserve the issue for appeal. [Commonwealth v.] Williams,
       959 A.2d [1252,] 1257 [(Pa. Super. 2008)] (quoting
____________________________________________


3
  Appellant filed a timely Rule 1925(b) statement of errors pursuant to the
court’s order on December 10, 2013; the court filed a Rule 1925(a) opinion
on March 4, 2014. See Pa.R.A.P. 1925.



                                           -4-
J-S63037-14


      Commonwealth v. Flores, 2007 Pa. Super. 87, 921 A.2d 517,
      522-23 (Pa. Super. 2007)). Such specificity is of particular
      importance in cases where, as here, the Appellant was convicted
      of multiple crimes each of which contains numerous elements
      that the Commonwealth must prove beyond a reasonable doubt.
      Id., at 1258 n.9. Here, Appellant . . . failed to specify which
      elements he was challenging in his 1925 statement . . . . While
      the trial court did address the topic of sufficiency in its opinion,
      we have held that this is “of no moment to our analysis because
      we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not
      in a selective manner dependent on an appellee’s argument or a
      trial court’s choice to address an unpreserved claim.” Id. at
      1257 (quoting Flores at 522-23).

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010).

      Presently, Appellant’s Rule 1925(b) statement does not identify which

elements of the three crimes with which he was charged the Commonwealth

allegedly failed to prove. (See Concise Statement of the Errors Complained

of On Appeal, 12/10/13, at 1-2; see also Amended Concise Statement of

Errors Complained of on Appeal, 12/11/13, at 1-2). Accordingly, Appellant’s

challenges to the sufficiency of the evidence are waived.

      Moreover, they would not merit relief.        Appellant claims that the

evidence was insufficient because the “[t]he testimony used to convict [him]

came from a person who admitted she lied to the police about this case

earlier.” (Appellant’s Brief, at 12, 14). This argument goes to the weight of

the evidence, not its sufficiency. See Palo, infra at 1055. However, even if

these were proper sufficiency claims, they would lack merit.

            The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in

                                     -5-
J-S63037-14


      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
      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. Palo, 24 A.3d 1050, 1054-55 (Pa. Super. 2011), appeal

denied, 34 A.3d 828 (Pa. 2011) (citation omitted).           Under this well-

established standard of review, we would conclude that the evidence was

sufficient.

      Section 6105 of the Crimes Code provides, in pertinent part, that: “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 or obtain a license to possess, use, control,

sell, transfer or manufacture a firearm in this Commonwealth.” 18 Pa.C.S.A.

§ 6105(a)(1).   Appellant stipulated that he had been convicted of a crime

enumerated in subsection (b) and that, therefore it was illegal for him to

possess a firearm. (See N.T. Trial, 9/10/13, at 69).




                                     -6-
J-S63037-14


      Also, section 2701 of the Crimes Code provides, in pertinent part, that:

“[A] person is guilty of assault if he . . . attempts by physical menace to put

another in fear of imminent serious bodily injury[.]”          18 Pa.C.S.A. §

2701(a)(3).

      We first observe that, although Ms. Magaro admitted that she lied

about Appellant hitting her the first time she called 911, (see N.T. Trial,

9/09/13, at 26), it was within the province of the jury “to believe all, part or

none” of her testimony. Palo, supra at 1055. Ms. Magaro testified that she

and Appellant were drinking, they argued, he threw her belongings on the

ground outside and locked her out of the house, then, after letting her in, he

held a loaded gun to her head and threatened to kill her. (See N.T. Trial,

9/09/13, at 23, 25, 28-30).

      William Klusman testified that, when he received Ms. Magaro’s second

911 call, he heard a male and female screaming, with the male threatening

to blow them up. (See id. at 15). The incident was recorded by the 911

call center, and the jury had the opportunity to listen to Appellant’s threats.

(See id. at 33).   Ms. Magaro feared that Appellant was going to kill her.

(See id. at 30-31).

      Sergeant Adam Shope testified that, when he arrived on the scene,

Ms. Magaro was “quite upset and flustered.” (See id. at 44). Officer Donald

Rynard, who arrived at the home at 7:00 a.m. to take photographs of the

incident scene, testified that he collected an empty rifle case from the


                                     -7-
J-S63037-14


bedroom. (See N.T. Trial, 9/10/13, at 49). He confirmed that no one had

been in the home since the police had been there hours before. (See id. at

50). Officer Benjamin Epting testified that, when Appellant surrendered at

approximately 8:00 a.m., he admitted to him that there had been guns in

the home within the last two weeks. (See id. at 59, 61-62). When Officer

Epting returned to the home on February 6, 2013 to deliver a subpoena for

the preliminary hearing, Ms. Magaro gave him two boxes of eight millimeter

ammunition she found in the bedroom where Appellant had loaded the gun

on February 2, 2013. (See id. at 64). There were bullets missing from both

boxes. (See id. at 35-36).

      Based on the foregoing, and viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, we would conclude that

there was sufficient evidence from which the jury could find that Appellant

illegally possessed a firearm, and that he put Ms. Magaro “in fear of

imminent serious bodily injury.” 18 Pa.C.S.A. § 2701(a)(3); see also id. at

§ 6105(a)(1).      Therefore, the evidence was sufficient to sustain his

convictions of persons not to possess a firearm and simple assault by

physical menace.    See Palo, supra at 1054-55. Appellant’s claims would

not merit relief, even if not waived.




                                        -8-
J-S63037-14


     Judgment of sentence affirmed.

     Panella, J., joins the Memorandum.

     Bowes, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




                                    -9-
