J-S68015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 CAL HEIDELBERG, III                       :
                                           :
                    Appellant              :   No. 138 WDA 2018

         Appeal from the Judgment of Sentence December 5, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0003791-2016


BEFORE:      SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 24, 2018

      Cal Heidelberg, III (“Appellant”) appeals from the judgment of sentence

made final by an order granting his post-sentence motion for reconsideration

of sentence and recommending him for boot camp.               Order, 2/14/18.

We affirm.

      The trial court summarized the facts of this case in its Pa.R.A.P. 1925(a)

opinion. Trial Court Opinion, 3/15/18, at 1–4. In short, following a dispute

at a bar near the intersection of 5th Street and Peach Street in Erie,

Pennsylvania, on August 13, 2016, Appellant fled from police, discarded a

firearm into a sewer drain, and discarded a plastic baggie containing drugs.

Appellant was arrested for various drug and weapon offenses.            A jury

convicted Appellant on October 16, 2017, of firearms not to be carried without

a license, tampering or fabricating physical evidence, possession of firearm


____________________________________
* Former Justice specially assigned to the Superior Court.
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prohibited, and disorderly conduct.1 The trial court sentenced Appellant to

incarceration for an aggregate term of four and one-half to nine years on

December 5, 2017.            Appellant filed timely post-sentence motions on

December 11, 2017, which the trial court granted in part, recommending him

for boot camp.        Order, 12/28/17.         Appellant filed a timely appeal on

January 22, 2018. In an amended sentencing order, the parties agreed to

waive Appellant’s ineligibility for boot camp. Order, 2/14/18. Appellant and

the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant states the following questions for our review:

       1. Did the Commonwealth present insufficient evidence to sustain
          each of Appellant’s convictions as the testimony was so
          contradictory on the essential issues that the jury’s findings
          were based on mere conjecture and speculation?

       2. Did the trial court erred [sic] when it denied Appellant’s post-
          sentence request for relief on weight of the evidence grounds?

Appellant’s Brief at 10.

       Appellant’s first issue challenges the sufficiency of the Commonwealth’s

evidence that he possessed a firearm or engaged in disorderly conduct.

Appellant’s Brief at 24. Specifically, Appellant contends that, “[v]iewed in the

light most favorable to the verdict winner, the Commonwealth’s case rested

entirely on the incredibly inconsistent testimony of a number of witnesses.”

Id. at 27.


____________________________________________


1   18 Pa.C.S. §§ 6106(a)(1), 4910(2), 6105(a)(1), and 5503(a)(1),
respectively.

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      The standard for evaluating sufficiency claims 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 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. Estepp, 17 A.3d 939, 943–944 (Pa. Super. 2011).

      The offense of “firearms not to be carried without a license,” is defined,

in relevant part, as follows:

      [A]ny 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)(1).        A person tampers with or fabricates physical

evidence:

      if, believing that an official proceeding or investigation is pending
      or about to be instituted, he . . . (2) makes, presents or uses any
      record, document or thing knowing it to be false and with intent
      to mislead a public servant who is or may be engaged in such
      proceeding or investigation.


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18 Pa.C.S. § 4910(2).      Regarding the offense of possession of firearms

prohibited, the Pennsylvania Crimes Code provides that:

      [a] person who has been convicted of an offense enumerated in
      subsection (b), within or without this 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). Finally, “[a] person is guilty of disorderly conduct

if, with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, he: (1) engages in fighting or threatening, or in violent

or tumultuous behavior[.]” 18 Pa.C.S. § 5503(a)(1).

      The trial court disposed of Appellant’s sufficiency challenge with the

following analysis:

             [T]he Commonwealth presented sufficient evidence for the
      jury to find Appellant guilty of [firearms not to be carried without
      a license]. In particular, both counsel for Appellant and counsel
      for the Commonwealth stipulated Appellant is a Person Not to
      Possess as defined by 18 Pa.C.S. 6105(A)(1) and also stipulated
      Appellant did not have a license to carry a concealed firearm at
      the time of the alleged offense. In addition, the jury heard ample
      testimony from Patrolman James Cousins, Brandon Tufts,
      Christopher Hall, and Mike Dunn, who all indicated Appellant
      carried a firearm on or about his person [at the time of] the
      altercation which occurred near or at Coconut Joe’s on the night
      of August 13th, 2016.

            Likewise, since both counsel for Appellant and counsel for
      the Commonwealth stipulated Appellant is a Person Not to Possess
      as defined by 18 Pa.C.S. 6105(A)(1), in addition to the
      aforementioned testimony, sufficient evidence existed for the jury
      to find Appellant guilty of Possession of Firearm Prohibited.
      Furthermore, the jury is the factfinder who makes the credibility
      determination with respect to each witness as to whether


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      Appellant possessed, used, or controlled a firearm on the night of
      August 13th, 2016.

             Moreover, the Commonwealth presented sufficient evidence
      to support the jury’s verdict finding Appellant guilty of Tampering
      with or Fabricating Physical Evidence.          In particular, both
      Patrolman Cousins and Mr. Dunn indicated Appellant tossed a
      firearm into the sewer drain at the corner of French and Fifth
      Streets while being chased by law enforcement. Also, Mr. Hall and
      Mr. Dunn both confirmed the firearm later retrieved from the
      sewer was the same firearm Appellant brandished during the
      altercation at Coconut Joe’s. Thus, the jury was justified in
      inferring Appellant, by discarding the firearm into the sewer,
      intended to impair the availability of the firearm as evidence at a
      later official proceeding or investigation.

            Finally, the Commonwealth presented sufficient evidence to
      support the jury’s verdict finding Appellant guilty of Disorderly
      Conduct. Specifically, Mr. Tufts and Mr. Hall indicated Appellant,
      while in a public location in front of Coconut Joe’s, participated in
      an altercation and each personally observed Appellant retrieve a
      handgun from a nearby vehicle. Both Mr. Tufts and Mr. Hall stated
      Appellant maintained the firearm at his side during the altercation,
      and Mr. Hall indicated he heard Appellant exclaim[,] “It’s about to
      go down. Are you ready for this?” Patrolman Cousins further
      indicated that after Appellant began to flee, Patrolman Cousins
      commanded Appellant numerous times to stop; however,
      Appellant refused to comply.

                                     * * *

      [The] Commonwealth presented ample circumstantial evidence in
      this case, including testimony from six witnesses, the firearm
      itself, live ammunition found in the chamber of the firearm, and a
      “Firearm and Tool Mark” Lab Report prepared by the Pennsylvania
      State Police Bureau of Forensic Services, which analyzed the
      firearm. . . [T]his [t]rial [c]ourt finds the jury properly considered
      [the] evidence presented by the Commonwealth and such
      evidence was sufficient to warrant the jury’s findings that
      Appellant committed these offenses . . . .

Trial Court Opinion, 3/15/18, at 8–11 (internal citation omitted).




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      Upon review of the certified record, we discern no abuse of the trial

court’s discretion in denying Appellant’s post-sentence motion for judgment

of acquittal; the evidence was sufficient to establish beyond a reasonable

doubt that Appellant committed the offenses charged. In addition to the trial

court’s summary of the evidence, Appellant acknowledges—and the record

confirms—the following facts of record:

     Mr. Tuft “observed Appellant pull out a black handgun, cock it, and hold
      it to the side in his right hand.” Appellant’s Brief at 27; N.T., 10/16/17,
      at 85.

     Mr. Hall observed “an argument between two people at the corner,
      which escalated, causing Appellant to go to his vehicle to retrieve a small
      black handgun.” Appellant’s Brief at 27; N.T., 10/16/17, at 100.
      According to Mr. Hall, “Appellant carried the gun in his left hand, and
      [Mr.] Hall observed him taking it in and out of his pocket multiple times.”
      Appellant’s Brief at 27; N.T., 10/16/17, at 101. Mr. Hall “saw Appellant
      drop and then retrieve the gun near the dumpsters by
      Molly Brannigan’s.” Appellant’s Brief at 27; N.T., 10/16/17, at 102, 112.

     Mr. Dunn, “saw Appellant coming out between two cars with a gun
      coming out of his shorts/pants.” Appellant’s Brief at 28; N.T., 10/16/17,
      at 127–128. Mr. Dunn “observed [Appellant] throwing the gun near the
      corner of Fifth and French Streets.” Appellant’s Brief at 28; N.T.,
      10/16/17, at 129.

     Officer Cousins pursued “Appellant at Fifth and State, saw movement
      near Appellant’s waistline, heard something metal hit the cement near
      the parking lot of Coconut Joe’s, saw Appellant reach down to retrieve
      the object, and then saw a gun in Appellant’s hand.” Appellant’s Brief
      at 28; N.T., 10/17/17, at 6–10, 16. Officer Cousins “described the gun
      as dark in color.” Appellant’s Brief at 29; N.T., 10/17/17, at 41.

     Police located a firearm in the sewer drain at Fifth and French Streets;
      “it was silver and black in color.” Appellant’s Brief at 29; N.T., 10/16/17,
      at 150, 159–160; N.T., 10/17/17, at 144; Commonwealth Exhibit 1.




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Additionally, as the trial court opined, the stipulations established that

Appellant was a “person not to possess firearm” and did not have a license to

carry a firearm. N.T., 10/17/17, at 23–24.

      Viewing the evidence in the light most favorable to the Commonwealth,

we reject Appellant’s assertion that the jury’s verdict was based “entirely on

conjecture and is not sufficiently exclusive of every innocent hypothesis,

namely, that the firearm had been discarded by a third party.” Appellant’s

Brief at 30. The evidence was sufficient to establish that Appellant possessed

a firearm, discarded it, and engaged in disorderly conduct by participating in

an altercation and refusing to comply with Officer Cousins’ directives. Thus,

Appellant’s sufficiency claim fails.

      Appellant’s second issue challenges the jury’s verdict as being against

the weight of the evidence. Appellant’s Brief at 31. According to Appellant,

“the Commonwealth’s case was riddled with inconsistencies on critical factual

questions in the case.” Id.

      “The weight of the evidence is a matter exclusively for the finder of fact,

who is free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711,

723 (Pa. Super. 2015).       Our Supreme Court has set forth the following

standards to be used in addressing challenges to the weight of the evidence:

             A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
      744 A.2d 745, 751–[7]52 (2000); Commonwealth v. Brown,

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      538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
      not be granted because of a mere conflict in the testimony or
      because the judge on the same facts would have arrived at a
      different conclusion. Widmer, 560 A.2d at 319–[3]20, 744 A.2d
      at 752. Rather, “the role of the trial judge is to determine that
      ‘notwithstanding all the facts, certain facts are so clearly of greater
      weight that to ignore them or to give them equal weight with all
      the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
      omitted). It has often been stated that “a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.

            An appellate court’s standard of review when presented with
      a weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

                  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. Brown, 648
            A.2d at 1189. Because the 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.
            Commonwealth v. Farquharson, 467 Pa. 50, 354
            A.2d 545 (Pa. 1976).

      Widmer, 560 Pa. at 321–[3]22, 744 A.2d at 753 (emphasis
      added).

Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013). “Thus, the

trial court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879–880 (Pa. 2008).




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      Here, the trial court disposed of Appellant’s weight challenge as follows:

            Based on the evidence presented by the Commonwealth,
      Appellant’s conviction[s] of said offenses are not against the
      weight of the evidence.         To the extent Appellant asserts
      discrepancies existed among the witnesses’ testimony as to
      whether the firearm was black or gray or as to minute details of
      how the events specifically unfolded, the jury was charged with
      and was solely responsible for resolving any alleged contradictory
      testimony. Similarly, to the extent Appellant asserts Patrolman
      Cousins’ [trial] testimony differed from the testimony he provided
      at Appellant’s preliminary hearing, the jury was also solely
      charged with resolving any question related to the credibility of
      Patrolman Cousins’ testimony. Thus, since the jury as the fact-
      finder was free to believe all, part, or none of the witness[es]’
      testimony against Appellant as outlined above, the jury’s verdicts
      were certainly not “so contrary to the evidence as to shock one’s
      sense of justice.”

Trial Court Opinion, 3/15/18, at 10.

      Upon review of the certified record, we discern no abuse of the trial

court’s discretion in concluding that the verdicts were not against the weight

of the evidence.     The record supports Appellant’s various references to

inconsistencies in the testimonial evidence.      However, as the trial court

opined—and     the    law   affords—any      discrepancies,   contractions,   or

inconsistencies in the witnesses’ testimony were for the jury to resolve, and it

was “free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Gonzalez, 109 A.3d at 723. In this case, the

jury chose to believe the evidence presented by the Commonwealth, as was

its right. Id. This Court will not assume the role of fact-finder and reweigh

the evidence. Appellant’s weight challenge also fails.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018




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