Com. v. Bailey, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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