Com. v. Bair, B. ( 2022 )

J-S11038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT BAIR SR. :
:
Appellant : No. 978 WDA 2021
Appeal from the Judgment of Sentence Entered July 22, 2021
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001728-2019
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 28, 2022
Brian Scott Bair, Sr. (“Bair”), appeals from the judgment of sentence
imposed following his convictions for persons not to possess firearms,
receiving stolen property (“RSP”), and prohibited offensive weapons.1 We
affirm.
Given our disposition, a detailed factual history is unnecessary. On
October 22, 2018, Pennsylvania State Trooper Wyatt Tidholm and his partner
went to a home in Fayette County and detained Bair in a trailer on the
property. A woman who was renting the trailer with Bair consented to a
search. During the search, the police discovered a lisdexamfetamine pill, drug
paraphernalia, and an operable shotgun, with a wood grip and the front of the
barrel removed, hidden between the bed and the sidewall. Police arrested
____________________________________________
1 See 18 Pa.C.S.A. §§ 6105(a)(1), 3925(a), 908(a).
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Bair and charged him with the above-listed offenses, as well as possession of
drugs and possession of drug paraphernalia.
At Bair’s jury trial, the parties stipulated that he was not permitted to
possess, use, transfer, or sell a firearm. The jury convicted him of persons
not to possess firearms, RSP, and prohibited offensive weapons, and acquitted
him of the drug charges. The trial court imposed a sentence of four to eight
years of imprisonment for persons not to possess firearms.2
Bair filed a timely post-sentence motion asserting that the verdict was
against the weight of the evidence because the Commonwealth failed to
provide any evidence that he possessed the shotgun, lived in the trailer where
the shotgun was found, knew or should have known that the shotgun was
stolen, or himself sawed off the shotgun’s barrel. Post-Sentence Motion,
7/20/21, at ¶ 2. Bair asserted that the Commonwealth’s failure to prove those
elements of the charges against him rendered the jury’s verdict so contrary
to the evidence as to shock one’s sense of justice. Id. at ¶ 3.
The trial court denied Bair’s motion. See Order, 7/28/21. Bair filed a
timely notice of appeal, and both he and the trial court complied with Pa.R.A.P.
1925.
____________________________________________
2The court imposed no further penalty for Bair’s RSP and prohibited weapons
offenses.
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Bair raises the following issue for our review:
Whether the jury’s verdict is against the weight of the evidence,
because the Commonwealth failed to provide any evidence that:
[Bair] in fact possessed the shotgun at issue; that [Bair] actually
resided in the pop-up trailer where the shotgun was found; that
[Bair] knew or should have known that the shot gun [sic] was
stolen; or that [Bair] was the individual who sawed off the shot
gun’s [sic] barrel?
Bair’s Brief at 3 (unnecessary capitalization omitted).
Before reaching a review of the merits, we must determine whether Bair
preserved this issue for our review. A claim that the verdict was against the
weight of the evidence is addressed in the first instance to the discretion of
the trial court and should not be granted because of a mere conflict in the
testimony or because the judge would have reached a different conclusion. A
trial judge should only grant a weight motion where certain facts are so clearly
of greater weight that to ignore them or to give them equal weight with all the
facts would be to deny justice. See Commonwealth v. Stokes, 78 A.3d
644, 650 (Pa. Super. 2013). A trial court should not overturn a verdict on this
basis unless it is so contrary to the evidence as to shock one’s sense of justice.
See Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016). On appeal,
we apply a deferential standard of review to a trial court’s determination that
the verdict is not against the weight of the evidence:
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 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
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court’s determination that the verdict is against the weight of the
evidence.
Commonwealth v. Juray, --- A.3d ---, ---, 2022 WL 1436070 at *8 (Pa.
Super. 2022) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.
2013) (internal citations omitted; emphasis omitted)). An abuse of discretion
is not a mere error in judgment but, rather, involves, bias, ill will, partiality,
prejudice, manifest unreasonableness, or misapplication of law.
Commonwealth v. Kane, 10 A.3d 327, 333 (Pa. Super. 2010).
Sufficiency and weight claims are distinct. A sufficiency claim asserts
that as a matter of law the evidence failed to establish each element of the
crime charged and the appellant’s commission of that offense beyond a
reasonable doubt, and accordingly seeks a discharge. See Commonwealth
v. Smith, 853 A.2d 1020, 1027 (Pa. Super. 2004). By contrast, a weight
challenge concedes that there is sufficient evidence to sustain the verdict and
addresses the trial court’s exercise of discretion in denying the weight claim.
See Commonwealth v. Widmer, 744 A.2d 751, 752 (Pa. 2000). Where an
appellant conflates weight and sufficiency claims and fails to develop his
weight of the evidence claim, his weight claim is waived. See
Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa. Super. 2019).
It is an appellant’s duty to present arguments that are sufficiently
developed for our review, and “[t]his Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007). If a deficient brief hinders this Court’s
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ability to address any issue on review, the issue will be regarded as waived.
See Pa.R.A.P. 2119(a) (providing that the argument shall be followed by the
discussion and citation of pertinent authorities).
Although Bair argues that the jury’s verdict is against the weight of the
evidence, he states the standard of review for sufficiency claims. He then
premises his claim on the assertion that the Commonwealth failed to prove
certain elements of the charges of which he was convicted. See Bair’s Brief
at 9. Bair cites only cases and statutes that address the sufficiency of the
evidence. See id. at 10 (citing a case stating the elements of persons not to
possess firearms), id. at 11 (citing a case stating the elements of RSP), id. at
15-16 (citing the statute stating the elements of prohibited offense weapons).
Although Bair asserts, in a single paragraph, that the verdict was against
the weight of the evidence, he does not concede the sufficiency of the
evidence, nor does he argue that the trial court abused its discretion in
denying a weight of the evidence claim. See Commonwealth v. Smith, 853
A.2d at 1027; see also Bair’s Brief at 9-17.
Because Bair conflates weight and sufficiency issues and fails to develop
his weight issue, his weight claim is waived. See Sexton, 222 A.3d at 416.
The claim is also waived because Bair does not discuss the weight of the
evidence in his argument or support his discussion with authorities discussing
the weight of the evidence. See Pa.R.A.P. 2119(a) (providing that an
appellant’s argument shall include “such discussion and citation of authorities
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as are deemed pertinent.”); see also Hardy, 918 A.2d at 771 (this Court will
not serve as appellant’s counsel). Accordingly, Bair has waived this issue.
Judgment of sentence affirmed.
President Judge Panella joins this memorandum. Judge Olson concurs
in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2022
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