Com. v. Campbell, S.

J-A07002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAYMOND CAMPBELL,
Appellant No. 126 WDA 2014
Appeal from the Judgment of Sentence Entered October 24, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016091-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 9, 2015
Appellant, Shaymond Campbell, appeals from the judgment of
sentence of two and a half (2½) to five (5) years’ incarceration, followed by
five (5) years’ probation, imposed after he was convicted of person not to
possess a firearm, terroristic threats, criminal mischief, and disorderly
conduct. Appellant challenges the sufficiency of the evidence to sustain his
convictions. We affirm.
The facts which led to Appellant’s convictions are set forth by the trial
court in the following portion of its Rule 1925(a) opinion:
[Appellant’s] charges stem from an incident at the home of his
former girlfriend, Alexis Kaduck, in the early morning hours
between November 5 and November 6, 2012. Appellant had
been staying in the home, at 342 Plum Street in Carnegie, with
Alexis, her mother, Carrie Kaduck, and Alexis’ 16 year old
brother. On the night at issue, [Appellant] and Alexis had been
arguing in [Alexis’] room about a text that [Alexis] had received
from another man. Alexis’ mother, Ms. Kaduck, entered the
J-A07002-15
room and told the couple to stop arguing because her son was
sleeping. At that time, [Appellant] was holding Alexis[’] iPhone.
[Appellant] threw the phone against the wall, leaving a hole in
the wall and breaking the phone in half.
After this occurred, Ms. Kaduck demanded that [Appellant]
leave her home. [Appellant] grabbed a bag and headed down
the stairs to the first floor and, ultimately, out the front door.
Alexis followed [Appellant] outside. Ms. Kaduck stood on the
front porch with Alexis as Alexis asked [Appellant] to return her
phone. [Appellant] threw the phone onto the ground and
smashed it with his foot. Ms. Kaduck grabbed her daughter’s
arm and told her to get in the house. She closed the front door
as soon as both she and her daughter were in the home.
Seconds later, Ms. Kaduck heard four (4) or five (5) loud noises,
which she identified as gun shots. Upon hearing the shots, she
directed her daughter, Alexis, and her son, who had woken up,
to immediately go upstairs to her bedroom.
Ms. Kaduck called 911 as her children ran up the stairs.
While she was on the phone with a 911 operator and heading
upstairs, she heard another loud noise and went down the stairs
to see what was occurring. She saw [Appellant] trying to break
down the back door to enter the house, and she ran back up the
stairs and went into her bedroom with her children. [Appellant]
broke through the back door, and, as [Appellant] ascended the
stairs, Ms. Kaduck opened the door slightly to show him that she
was on the phone with 911. He looked at her and said, “Okay,
snitch, I have something for you.” [Appellant] then went down
the stairs and out the front door. Moments later, Ms. Kaduck
and Alexis heard a loud crash, which occurred when [Appellant]
threw a flower pot through the back windshield of Ms. Kaduck’s
car.
A neighbor had also heard two (2) sets of noise[s] from
the Kaduck’s house. The first noises that she heard she initially
thought were firecrackers. However, after learning that Ms.
Kaduck’s vehicle was struck by bullets, she acknowledged that
the sounds were consistent with a gun being discharged. The
second set of noises that she heard consisted of a bang followed
by what sounded like someone hitting a door. The witness,
Jenaya Mebane, went downstairs and looked out her window to
identify the noise. At that point, she saw [Appellant] run down
the front porch steps and throw something into Ms. Kaduck’s
vehicle.
-2-
J-A07002-15
Ms. Kaduck and Alexis came outside of the home after the
police arrived and saw that Ms. Kaduck’s car had been shot
seven (7) to nine (9) times. The bullets struck the engine, the
dashboard and the seats, as well as smashed all of the windows.
The vehicle was a total loss. They also saw that a flower pot had
been thrown through the rear window of the vehicle.
Additionally, the back doors to the Kaduck residence were
broken down.
Trial Court Opinion (TCO), 7/22/14, at 2-4 (citations to the record omitted).
Based on the aforementioned evidence presented at a non-jury trial on
October 24, 2013, Appellant was found guilty of person not to possess a
firearm, terroristic threats, criminal mischief, and disorderly conduct and was
sentenced by the court to four (4) to eight (8) years’ incarceration, to be
followed by four (4) years’ probation. Appellant was further ordered to pay
$7,188 in restitution. Appellant subsequently filed a motion to modify
sentence, which the court granted, in part, on December 19, 2013, reducing
his sentence to two and a half (2½) to five (5) years’ incarceration, to be
followed by five (5) years’ probation.
Following the modification of his sentence, Appellant filed a timely
notice of appeal, as well as a timely concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant presents the
following sole issue for our review: “Are the guilty verdicts for the crimes of
[p]ossession of a [f]irearm and [t]erroristic [t]hreats supported by sufficient
evidence?” Appellant’s Brief, at 7.
The standard we apply in reviewing a challenge to the sufficiency of
the evidence is well-established:
-3-
J-A07002-15
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record “in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
“Evidence will be deemed sufficient to support the verdict when
it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.
Super. 2005). Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
2000) (“[T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence”). Any doubt about the defendant’s guilt
is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances. See
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001).
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, “[t]he fact that the evidence establishing a
defendant’s participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence.” Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038-39 (Pa. Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in
the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s conviction will be upheld. See
Brewer, 876 A.2d at 1032.
Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 2013)
(citing Commonwealth v. Pedota, 64 A.3d 634, 635-636 (Pa. Super.
2013)).
Appellant first challenges the sufficiency of the evidence to support his
conviction of person not to possess a firearm under 18 Pa.C.S. § 6105(a)(1).
-4-
J-A07002-15
“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.” Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super.
2009). Appellant does not dispute that he was convicted of an enumerated
offense that prohibits him from possessing a firearm. Appellant’s Brief, at
13. Instead, Appellant contends that the Commonwealth failed to prove
beyond a reasonable doubt that he possessed a firearm. Id. Appellant
references the events that took place after the police arrived at the scene,
as well as during his apprehension. Appellant’s Brief, 16-20. The relevant
facts are summarized by the trial court as follows:
Carnegie police officers arrived within minutes of the 911
call and noted the damage done to the back door.
Approximately seven (7) minutes after the first officers were
dispatched to the scene, Scott Township Sergeant Stephen Fury
apprehended [Appellant] at the corner of Ridge Avenue and Hays
Street, several blocks away from the Kaducks’ home on Plum
Avenue. [Appellant] was arrested and patted down, but no gun
was recovered from him. Officer Timothy Clark of the Carnegie
Police Department transported [Appellant] to the Allegheny
County Jail and testified credibly that [Appellant], without
questioning or prompting, asked the officer “Did you find the
gun?”[]
A K-9 officer was brought in to search the area. Although
the canine did find a portion of Ms. Kaduck’s cell phone in an
area behind the home, the dog did not locate [Appellant’s]
weapon. However, the officer handler for the K-9 explained that
the dog does not track down physical items unless instructed to
do so. In the back yard, the dog was instructed to find an
object. However, when the dog was taken to the front of the
-5-
J-A07002-15
home, it was commanded to track [Appellant’s] human scent,
which led him to follow [Appellant’s] path. Several months later,
the Allegheny County Medical Examiner’s Office found that shell
casings recovered from the scene on Plum Avenue matched a
9mm Glock pistol that was involved in a matter not relating to
[Appellant].
TCO, at 4-5. (citations to the record omitted).
Specifically, Appellant avers that the evidence fails to provide any link
whatsoever between himself and the firearm that shot Ms. Kaduck’s car.
Appellant’s Brief, at 19. The essence of Appellant’s argument is that no
witnesses saw him with a firearm or saw him shoot a firearm on the night in
question, nor was he found in possession of a firearm. Appellant, therefore,
suggests that his conviction is based on pure speculation. Id. at 11.
In support of his sufficiency claim, Appellant cites Commonwealth v.
Galindes, 786 A.2d 1004 (Pa. Super. 2001), where the defendants raised
an insufficiency claim regarding their possession of firearms convictions,
based on the fact that the victim never saw a firearm and no firearm was
recovered by the police. Appellant’s Brief, at 27-29. However, similar to the
case at bar, the court in Galindes found the defendants’ insufficiency claims
without merit. Galindes, 786 A.2d at 1011.
In Galindes, the victim heard banging coming from the rear of his
home and observed the defendants kicking in the back door. The victim
yelled “freeze” and “[i]mmediately thereafter he heard a gunshot and saw a
flash.” Id. at 1008. The court concluded “[a]lthough [the victim] did not
see the gun, possession of the firearm undoubtedly manifested itself in the
-6-
J-A07002-15
process of the crime from both the gunshot sounds and accompanying
flashes.” Id. at 1011.
Appellant attempts to distinguish the case at bar, noting that in
Galindes, “[e]ven though the gun was not seen by the victim, there was no
question that the defendant was in the same location as both the shot that
the victim heard and the accompanying flash from the weapon. There was a
visible effect on the victim. That did not occur in the case at bar.”
Appellant’s Brief, at 28-29 (emphasis omitted). We disagree with
Appellants’ distinguishment. The timeline of events in the instant case,
combined with the sound of gunshots and bullet holes found in Ms. Kaduck’s
car, support the inference of Appellant’s possession of a firearm. Appellant’s
statement, “[d]id you find the gun?” to Officer Clark while being transported
to the jail further suggests that Appellant had knowledge of the firearm used
at the scene of the incident.
Moreover, the Commonwealth presented evidence which established
that Appellant had constructive possession of a firearm. “Constructive
possession is an inference arising from a set of facts that possession of the
contraband was more likely than not . . . [C]onstructive possession may be
established by the totality of the circumstances.” Commonwealth v.
Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (citing Commonwealth v.
Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)). In reviewing the
totality of the circumstances in the case at bar, the trial court stated that it:
-7-
J-A07002-15
did not… have any doubt that [Appellant] was in possession of a
gun that night and that he fired it at and into Ms. Kaduck’s car.
The only person on the street in the area of the Kaduck’s vehicle
within seconds of Ms. Kaduck and Alexis returning inside the
home was [Appellant]. There was no evidence presented of
another person or vehicle passing by the home in the mere
seconds between Ms. Kaduck closing the door and the sound of
gunshots. [Appellant] was angry at both Kaducks, and was
standing right next to the vehicle immediately before it was
destroyed by gunfire. This is not a situation where the court
speculated or guessed at what occurred. It is simply the
application of strong and compelling circumstantial evidence
which compels the guilty verdict.
TCO, at 8-9.
Based on our review of the facts in the light most favorable to the
Commonwealth as the verdict winner, we conclude there was sufficient
evidence to support the trial court’s finding that Appellant was in possession
of a firearm. Therefore, we uphold Appellant’s conviction of person not to
possess a firearm.
Next, we address Appellant’s sufficiency claim regarding his conviction
of terroristic threats under 18 Pa.C.S. § 2706(a)(1), which provides, “[a]
person commits the crime of terroristic threats if the person communicates,
either directly or indirectly, a threat to . . . commit any crime of violence
with intent to terrorize another.” Accordingly, in order to sustain a
terroristic threat conviction, the Commonwealth must prove that Appellant
“threaten[ed] to commit a crime of violence and that he communicate[d] the
threat with the intent to terrorize or with reckless disregard for the risk of
causing terror.” Commonwealth v. Kelley, 664 A.2d 123, 128 (Pa. Super.
-8-
J-A07002-15
1995) (citing Commonwealth v. Campbell, 625 A.2d 1215 (Pa. Super.
1993); Commonwealth v. Cancilla, 649 A.2d 991 (Pa. Super. 1994)).
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.
Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003)
(citations and internal quotation marks omitted).
Herein, the basis of the terroristic threats conviction is Appellant’s
statement, “Okay, snitch, I have something for you.” TCO, at 3. Appellant
avers that the words “I have something for you,” do not reference a crime of
violence. Appellant’s Brief, at 31. However, “[e]ven a single verbal threat
might be made… as to support the inference that the actor intended to
terrorize….” Campbell, 625 A.2d at 522 (quoting Commonwealth v.
Ashford, 407 A.2d 1328, 1329 (Pa. Super. 1979)). “[I]t is unnecessary for
[the defendant] to specifically articulate the crime of violence which he or
she intends to commit where the type of crime may be inferred from the
nature of the statement and the context and circumstances surrounding the
utterance of the statement.” Campbell, 624 A.2d at 522 (quoting
Commonwealth v. Hudgens, 582 A.2d 1352 (Pa. Super. 1990)).
Examining the context in which Appellant’s words were spoken, Ms.
Kaduck would reasonably have believed that Appellant was threatening her
with a violent act. She had just heard what she believed to be gunshots.
Moments later, Appellant broke into her house by kicking down the back
-9-
J-A07002-15
door and was coming up the stairs towards her. It would be reasonable for
Ms. Kaduck to assume that her safety was being threatened in these
circumstances. Additionally, the Commonwealth submits that the use of the
word “snitch” by Appellant constitutes an explicit threat of retaliation against
her. We agree.
Appellant further avers that his action of throwing a flower pot through
the rear window of Ms. Kaduck’s car following his statement to Ms. Kaduck
does not constitute a crime of violence. Id. Here, Appellant mistakenly
relies on his actions following the threat, rather than the words that were
spoken and the psychological distress caused to Ms. Kaduck in the moment.
Appellant’s actions following the verbal threat do not alter the perceived
threat to Ms. Kaduck’s personal safety at the time the words were spoken.
In the alternative, Appellant avers that the statement he uttered to
Ms. Kaduck was made during a “heated exchange” and that the offense of
terroristic threats is not intended to criminalize mere “spur of the moment”
utterances made during a “heated exchange”. Appellant’s Brief, at 33-34.
(citations omitted). While Appellant was admittedly angry, 1 “being angry
does not render a person incapable of forming the intent to terrorize.
Rather, … this Court must consider the totality of circumstances to
____________________________________________
1
“[Appellant] was extremely angry and emotionally compromised by the
text message that he found from another man to his girlfriend. He ‘flew off
the handle’….” Appellant’s Brief, at 34.
- 10 -
J-A07002-15
determine whether the threat was a result of a heated verbal exchange or
confrontation.” In re J.H., 797 A.2d 260, 263 (Pa. Super. 2002) (citations
and internal quotation marks omitted).
Based on the circumstances surrounding the incident in question, we
conclude that Appellant’s words were not merely made during a heated
exchange. Ms. Kaduck had retreated back into her house and closed the
door. Appellant escalated the incident on his own when he then proceeded
to break down the back door of Ms. Kaduck’s house and climbed the stairs
towards the bedroom where Ms. Kaduck was hiding with her two children.
Ms. Kaduck did not say anything to Appellant. Rather, she merely opened
the bedroom door so that Appellant could hear that she was on the phone
with 911. Appellant’s statement appears to have been made deliberately
with the intent to threaten retaliation against Ms. Kaduck. We, therefore,
conclude there was sufficient evidence to support Appellant’s conviction of
terroristic threats.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2015
- 11 -
J-A07002-15
- 12 -
Circulated 03/25/2015 03:50 PM
THE COURT OF COMMON PLEAS
OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEAL TH OF CRIMINAL DIVISION
PENNSYLVANIA,·
vs.
CC: 2012-16091
SHAYMOND CAMPBELL,
Defendant.
OPINION
This is a direct appeal following a non-jury trial on October 24, 2013 and the
modification of the Defendant's sentence on December 19, 2013. The Defendant was
charged with. Person not to Possess a Firearm (18 Pa. C.S.A. §6105), Terroristic
Threats (18 Pa. C.S.A.' §2706), Criminal Mischief (18 Pa. C.S.A. §3304), and Disorderly
Conduct (18 Pa. C.S.A. §5503). On October 24, 2013, this court found him guilty of all
charges following a non-jury trial. Immediately following the guilty verdict, this court
sentenced the Defendant to four (4) to eight (8) years incarceration, with credit for time-
served, to be followed by four (4) years of probation. Further, the Defendant was
ordered to pay $7, 188 in restitution. Following argument on, and consideration of, the
Defendant's Motion to Modify Sentence, this court granted the Defendant's motion on
December 19, 2013, reducing his period of incarceration to two and a half (2 1/2) to five
Circulated 03/25/2015 03:50 PM
(5) years incarceration, with credit for time-served, to be followed by five (5) years
probation. Restitution was again ordered to be paid in the amount of $7, 188.
On appeal, the Defendant asserts that there was insufficient evidence to convict
him of Person not to Possess a Firearm and Terroristic Threats and that this court's
verdict was against the weight of the evidence.
· The Defendant's charges stem from an incident at the home of his former
girlfriend, Alexis Kaduck, in the early morning hours between November 5 and
November 6, 2012. (T.R. 10/24/13, p. 11). The Defendant had been staying in the
home, at 342 Plum Street in Carnegie, with Alexis, her mother, Carrie Kaduck, and
.· I
Alexis' 16 year old brother. (T.R. 10/24/13, pp. 11, 28). On the night at issue, the
Defendant and Alexis had been arguing in her room about a text that she had received
from another man. (T.R. 10/24/13, pp. 12, 13). Alexis' mother, Ms. Kaduck, entered the
room and told the couple to stop arguing because her son was sleeping. (T.R.
10/24/13, pp. 28·29). At that time, the Defendant was holding Alexis's iPhone. The
Defendant threw the phone against the wall, leaving a hole in the wall and breaking the
phone in half. (T.A. 10/24/13, pp. 13, 29). ·
After this occurred, Ms. Kaduck demanded that the Defendant leave her home.
., i
The Defendant grabbed a bag and headed down the stairs to the first floor and,
ultimately, out the front door. (T.A. 10/24/13, pp. _13, 29). Alexis followed the Defendant
outside. Ms. Kaduck stood on the front porch with Alexis as Alexis asked the Defendant
2
Circulated 03/25/2015 03:50 PM
to return her phone. (T.A. 10/24/13, pp. 14, 29). The Defendant threw the phone onto
the ground and smashed it with his foot. (T.R. 10/24/13, pp. 14, 29). Ms. Kaduck
grabbed her daughter's arm and told her to get in the house. She closed the front door
as soon as both she and her daughter were in the home. (T.R. 10/24/13, pp. 14, 30).
Seconds later, Ms. Kaduck heard four (4) or five (5) loud noises; which she identified as
gun shots. (T.R. 10/24/13, pp. 31, 34-35). Upon hearing the shots, she directed her
daughter, Alexis, and her son, who had woken . up, to immediately go upstairs to her
bedroom. (T.R. 10/24/13, p. 31).
Ms. Kaduck called 911 as her children ran up the stairs. While she was on the
phone with a 911 operator and heading upstairs, she heard another loud noise and
went down the stairs to see what was occurring. (T.R. 10/24/13, p. 31 ). She saw the
Defendant trying to break down the back door to enter the house, and she ran back up
the stairs and went into her bedroom with her children. (T.A. 10/24/13, p. 31). The
Defendant broke through the back door, and, as the D_efendant ascended the stairs, Ms.
Kaduck opened the door slightly to show him that she was on the phone with 911. (T.R.
10/24/13, p. 31). He looked at her and said, "Okay, snitch, I have something for you."
(T.A. 10/24/13, pp. 25, 31). The Defendant then went down the stairs and out the front
door. (T.R. 10/24/13, pp. 17, 32). Moments later, Ms. Kaduck and Alexis heard a loud
crash, which occurred when the Defendant threw a flower pot through the back
windshield of Ms. Kaduck's car. (T.R. 10/24/13, pp. 17, 32).
3
•
i!
§#-#ii§;;& t !
Circulated 03/25/2015 03:50 PM
A neighbor had also heard two (2) sets of noise from the Kaduck's house. The
first noises that she heard she initially thought were firecrackers. (T.R. 10/24/13, p. 59).
However, after learning that Ms. Kaduck's vehicle was struck by bullets, she
acknowledged that the sounds were consistent with a gun being discharged. (T.R.
10/24/13, pp. 62·63). The second set of noises that she heard consisted of a bang
followed by what sounded like someone hitting a door. (T.R. 10/24/13, p. 60). The ·
witness, Janaya Mebane, went downstairs and looked out her window to identify the
noise. (T.A. 10/24/13, p. 60). At that point, she saw the Defendant run down the front
porch steps and throw something into Ms. Kaduck's vehicle. (T.R. 10/24/13, p. 60).
Ms. Kaduck and Alexis came outside of the home after the police arrived and
saw that Ms. Kaduck's car had been shot seven (7) to nine (9) times .. (T. A. 10/24/13,
pp. 18, 32·33). The bullets struck the engine, the dashboard and the seats, as well as
smashed all of the windows. The vehicle was a total loss. (T.R. 10/24/13, p. 33). They
also saw that a flower pot had been thrown through the rear window of the vehicle.
(T.R. 10/24/13, pp. 19, 33). Additionally, the back doors to the Kaduck residence were
broken down. (T.R. 10/24/13, p. 34).
Carnegie police officers arrived within minutes of the 911 call and noted the
damage done to the back door. (T.R. 10/24/13, pp. 65, 67). Approximately seven (7)
minutes after the first officers were dispatched to the scene, Scott Township Sergeant
Stephen Fury apprehended the Defendant at the corner of Ridge Avenue and Hays
Street, several blocks away from the Kaducks' home on Plum Avenue. (T.A. 10/24/13,
4
Circulated 03/25/2015 03:50 PM
pp. 88, 90, 100-102, 114). The Defendant was arrested and patted down, but no gun
was recovered from him. (T.R. 10/24/13, p. 102). Officer Timothy Clark of the Carnegie
Police Department transported the Defendant to the Allegheny County Jail and testified
credibly that the Defendant, without questioning or prompting, asked the officer "Did you
find the gun?" (T.R. 10/24/13, pp. 80-81 }.
A K-9 officer was brought in to search the area. (T.R. 10/24/13, p. 69}. Although
the canine did find a portion of Ms. Kaduck's cell phone in an area behind the home, the
dog did not locate the Defendant's weapon. (T.R. 10/24/13, p. 117, 119-120).
However, the officer handler for the K-9 explained that the dog does not track down
physical items unless instructed to do so. (T.R. 10/24/13, p. 125). In the back yard, the
dog was instructed to find an object. (T.R. 10/24/13, p. 127). However, when the dog
was taken to the front of the home, it was commanded to track the Defendant's human
scent, which led him to follow the Defendant's path. (T.R. 10/24/13, p. 127). Several
months later, the Allegheny County Medical Examiner's Office found that shell casings
recovered from the scene on Plum Avenue matched a 9mm Glock pistol that was
involved in a matter not relating to the Defendant. (T.R. 10/24/13, pp. 39-46).
On appeal, the Defendant asserts that there was insufficient evidence to find him
guilty of both Person Not to Possess and Terroristic Threats and that this court's verdict
was against the weight of the evidence. For the following reasons set forth below, this
court's verdict was supported by evidence which proved the Defendant guilty beyond a
reasonable doubt for both offenses.
5
Circulated 03/25/2015 03:50 PM
The standard of review regarding claims of insufficiency of the evidence is well·
settled. In reviewing the sufficiency of the evidence, the appellate court must determine
whether the evidence admitted at trial, and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as the verdict winner, is
sufficient to prove every element of the offense beyond a reasonable doubt. Com. v.
Jones, 954 A.2d 1194 (Pa. Super. 2008). An appellate court may not re-welqh the
evidence and substitute its judgment for that of the fact-finder. Id. The Commonwealth
may sustain its burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Com. v. Baker, 72 A.3d 652, 658
(Pa. Super. 2013). However, it is well recognized, however, that a criminal conviction
cannot be based upon mere speculation and conjecture. Com. v. Graham, 81 A.3d
137, 142 (Pa. Super. 2013).
The weight of the evidence is 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. When evidence conflicts, · it is the sole province of the fact finder to
determine credibility and to believe all, part or none of the evidence. Com. v. Lyons,
833 A.2d 245, 258 (Pa. Super. 2003). An appellate court may only reverse the lower
court's verdict if it is so contrary to the evidence as to shock one's sense of justice.
Com. v. Hunzer, 868 A.2d 498, 506 (Pa. Super. 2005). Any question of doubt is for the
fact-finder unless the evidence is so weak and inconclusive that, as a matter of law, n~
6
Circulated 03/25/2015 03:50 PM
probability of fact can be drawn from the combined circumstances. Com. v. Perez, 931
A.2d 703 (Pa. Super. 2007).
Person Not to Possess
The Defendant asserts that his conviction as a Person not to Possess a Firearm
was not proven by sufficient evidence and was against the weight of the evidence
presented. The crime of Persons Not to Possess Firearms is defined in pertinent part
as follows: 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 ... a firearm in this Commonwealth. 18 Pa.C.S.A. § 6105(a)(1). While
the Defendant is correct that no witnesses saw him with a gun or saw him shoot a gun,
and that he was not found with a gun in his possession, there was sufficient
circumstantial evidence for this court to have found that he possessed a gun that night.
".'.
Both Ms. Kaduck ano Alexis testified that, within seconds of going into the house,
"
while the Defendant was outside the home, they heard four (4) or five (5) loud noises, II
I
consistent with gunshots. (T.R. 10/24/13, pp. 14-15, 31, 34-35). Additionally, the
· 11
Kaduck's neighbor, Jenaya Mebane, testified that she also heard four (4} or five (5) '
. !
sounds that she thought sounded like firecrackers, but which were consistent with the
sound of gunshots. (T.R. 10/24/13, pp. 59, 62-63). Responding officers found that Ms.
Kaduck's car had been shot at least six (6) times, and the evidence was uncontroverted
that the vehicle had been riddled with bullets (T.R. 10/24/13, p. 70). Additionally, there
7
Circulated 03/25/2015 03:50 PM
was credible testimony from both Carrie Kaduck and Alexis Kaduck that, at the time of
this incident, the street was otherwise quiet, with no one else outside. (LR. 10/24/13,
pp. 15, 30).
Although this court relied on circumstantial evidence when it found the Defendant
guilty on this count, the Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.
Baker, supra, at 658. Here, the Commonwealthsouqht to prove that the Defendant had
constructive possession of a weapon, as a gun was never found on the Defendant or
recovered at or near the crime scene. Constructive possession is an inference arising
from a set of facts that possession of the contraband was more likely than not, and it
may be established by the totality of the circumstances. Com. v. Parker, 847 A.2d 745,
750 (Pa. Super. 2004).
This court did. not, and does not, have any doubt that the Defendant was in
possession of a gun that night and that he fired it at and into Ms. Kaduck's car. The
only person on the street in the area of the Kaduck's vehicle within seconds of Ms.
Kaduck and Alexis returning inside the home was the Defendant. There was no
·I
evidence presented of another person or vehicle passing by the home in the mere
seconds between Ms. Kaduck closing the door and the sound of gunshots. The
Defendant was angry at both Kaducks, and was standing right next to the vehicle
immediately before it was destroyed by gunfire. This is not a situation where the court
speculated or guessed at what occurred. It is simply the application of strong and
8
i
'
I
t
Circulated 03/25/2015 03:50 PM
compelling circumstantial evidence which compels the guilty verdict. While this court
'
certainly would have preferred that there be physical evidence in the form of a positive
gunshot residue test, or the recovery of the weapon near the scene of the crime or the
location of the Defendant's apprehension, this court based its verdict on the evidence as
presented. Based on all of that evidence, and the reasonable inferences to be drawn
from the evidence, this court correctly found the Defendant guilty of the Person Not to
Possess charge.
Terroristic Threats
The Defendant asserts that the statement made by the Defendant to Ms. Carrie
Kaduck was not serious enough to constitute a terroristic threat. A person commits the
crime of terroristic threats if the person communicates, either directly or indirectly, a
threat to commit any crime of violence with intent to terrorize another. 18 Pa. C.S. A
§2706. To meet its burden of proof, 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. Com. v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003). 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. Id. 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.9
Circulated 03/25/2015 03:50 PM
Ms. Carrje Kaduck testified that the Defendant told her, "Okay, snitch, I have
something for you," when he became aware that she was on the phone with 911. (T.R.
10/24/13, pp. 17, 31). The Defendant made this statement to Ms. Kaduck after throwing
a phone at her wall hard enough to put a hole in the wall, after smashing her daughter's
cell phone with his foot, after firing shots Into her car and after forcibly breaking into her
home, damaging her back door in the process. To suggest that the Defendant's
statement was anything less than a threat, when coupled with his violent conduct that
preceded the statement, is disingenuous and ignores the totality of the circumstances
and the context in which the threat was made. Although the Defendant now maintains
that his subsequent action of throwing a flower pot was not of a serious or threatening
nature, this court viewed his statement as a clear threat of violence intended to terrorize
Ms. Kaduck and her family. This court found the testimony regarding the threat made
and the fear that it caused to be credible, and its conviction on this charge should be
upheld.
This court's verdict was supported by sufficient evidence to sustain convictions
on both the charges of Person Not to Possess and Terroristic Threats. Additionally, the
great weight of the evidence, including inferences to be drawn from that evidence,
support this court's conviction of the Defendant on these charges. This court's verdict
and sentencing should be upheld.
10
Circulated 03/25/2015 03:50 PM
Date
11