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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TRAVOYCE O’NEIL
Appellant No. 1398 WDA 2014
Appeal from the Judgment of Sentence August 19, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0002169-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 21, 2015
Appellant, Travoyce O’Neil, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas, following his jury trial
convictions for persons not to possess a firearm, firearms not to be carried
without a license, and resisting arrest as well as the bench convictions for
criminal mischief and public drunkenness.1 We affirm.
The relevant facts and procedural history of this case are as follows.
The testimony at trial disclosed that, during the early morning hours of
October 13, 2013, Officer Matthew Painter of the Uniontown City Police
Department was dispatched to Mount Vernon Towers in Uniontown, Fayette
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18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 5104, 3304(a)(5), 5505,
respectively
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County, Pennsylvania, for a disturbance on the fifth floor. Pulling into the
parking lot, Officer Painter observed Appellant and two females exiting the
rear door to the complex. Officer Painter tried to gather some basic
information about where they were coming from and whether they had any
involvement in the fifth floor disturbance. Officer Painter initially interacted
with Appellant, who was evasive and refused to give his name. Officer
Painter described Appellant’s physical condition as emitting a strong odor of
alcoholic beverage from his nose and mouth area. Officer Painter also
described Appellant as having bloodshot eyes. Officer Painter concluded
Appellant was intoxicated.
While Officer Painter was trying to speak with Appellant, Officer
Jonathan S. Grabiak arrived, approached Officer Painter, and also tried to
talk with Appellant. Officer Grabiak left them to talk to the two females
present. Without disclosing what the females said, Officer Grabiak testified
he told Officer Painter that Appellant had a firearm. Officer Painter asked
Appellant to turn around so he could be arrested and handcuffed for public
drunkenness.
Initially, Appellant complied, but suddenly he fled. Officer Painter
chased Appellant for about 12-15 feet, while Officer Grabiak tried
unsuccessfully to Taser Appellant. Appellant continued to run. When Officer
Painter was finally able to tackle Appellant, they both hit the ground; but
when Appellant popped back up, they went to the ground a second time.
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Officer Painter had to exert significant force to subdue Appellant. Officer
Grabiak testified he saw the firearm fall out of Appellant’s pants pocket and
land inches away from Appellant. Officer Grabiak was able to secure the
firearm. Both officers testified that the lights from the Mount Vernon Towers
and the local businesses surrounding the area rendered the area absolutely
well-lit. Meanwhile, Appellant continued to resist Officer Painter until Officer
Grabiak successfully Tasered him; and Officer Painter was able to secure
him. At the end of the Commonwealth’s case, counsel stipulated that
Appellant was a member of the class of persons prohibited from possessing
a firearm in Pennsylvania.2 The court then instructed the jury on the
stipulation and its significance.
During his defense, Appellant admitted he was intoxicated on the night
in question, but he denied possessing the gun. Appellant said Officer Painter
asked Appellant his name, which he refused to give, until Officer Painter told
Appellant what he had done wrong. Appellant claimed he was unfamiliar
with the area, he ran because he was scared, he had no reason to run, and
he had plenty of time to discard a gun if he had actually had one. Appellant
said he did not resist Officer Painter. Appellant maintained Officer Painter
was just being too aggressive for the situation, and Appellant was trying to
minimize the damage. Appellant also claimed he later told Officer Painter
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Appellant had a prior conviction for second-degree aggravated assault.
The specific prior offense and conviction was not disclosed to the jury.
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that the gun recovered was someone else’s gun.
In rebuttal, Officer Painter testified that Appellant gave him no names
of any individuals he was with that night or statements about who really had
the gun. According to Officer Painter, when he asked why Appellant ran,
Appellant replied: “It was his job to get away from me and my job to catch
him.” (N.T. Trial, 7/10/14, at 22). Following the second day of trial, the
jury convicted Appellant of the firearms offenses and resisting arrest. The
court found Appellant guilty of criminal mischief and public drunkenness.
The court sentenced Appellant on August 19, 2014, to thirty (30) to
sixty (60) months’ incarceration,3 followed by two (2) years’ probation, on
the persons not to possess conviction, with credit for time served, plus
costs, fees, and restitution for the broken watch. Due to the nature of the
offenses, the court also found Appellant RRRI ineligible. The court imposed
no further penalty on the remaining convictions. At sentencing, Appellant
registered a complaint about the prosecution’s closing argument.
Specifically, Appellant complained the prosecutor told the jury (1) they
should believe the police officers because they were police officers and (2)
the two women at the scene told Officer Grabiak that Appellant had a
firearm, even though the court said it was hearsay. (N.T. Sentencing,
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With a prior record score of 3 and an offense gravity score of 10, the
mitigated sentencing guidelines range was 30-42 months. Appellant’s
sentence fell in the mitigated range.
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8/19/14, at 4-5). The court thoroughly instructed Appellant on his post-
sentence motion and appeal rights and responsibilities. Appellant timely
filed a notice of appeal on August 25, 2014, along with a voluntary concise
statement of errors complained of on appeal, per Pa.R.A.P. 1925(b).
Appellant raises one issue for review:
WHETHER THE WEIGHT OF THE EVIDENCE OUTWEIGHS
THE GUILTY VERDICT…THUS ENTITLING [APPELLANT] TO
A NEW TRIAL?
(Appellant’s Brief at 5).
Appellant initially concedes the parties entered a stipulation at trial
that Appellant was a member of the class of persons prohibited from
possessing a firearm in Pennsylvania. Appellant also concedes he has no
license to carry a firearm. Nevertheless, Appellant claims the incident
occurred in the dark of night, he was unfamiliar with the area, and he ran
because he was scared. Officer Painter, who chased after Appellant, did not
see a gun fall from Appellant’s pants pocket or hear it hit the ground. Yet,
Officer Grabiak, who was also at the scene, testified he was able to see,
through the dark, a gun come from Appellant’s front pants pocket and fall to
the ground as Appellant was tackled. Appellant contends there is no logical
way the jury could conclude, based on the officers’ testimony, that Appellant
possessed the gun, when Officer Painter (the tackling officer) did not see or
hear a gun come from Appellant. On the same basis, Appellant challenges
his conviction for firearms not to be carried without a license.
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Appellant further complains the testimony at trial demonstrated he
was not told he was arrested until after the police chased and subdued him.
So, Appellant maintains he was wrongfully convicted of resisting arrest.
Regarding Appellant’s convictions for criminal mischief and public
drunkenness, Appellant claims he did not intentionally damage Officer
Painter’s watch, which could have been broken in some other way than in
the take-down process. Appellant acknowledges Officer Painter and Officer
Grabiak said Appellant had a strong odor of alcohol on his breath and glassy,
bloodshot eyes, when they encountered Appellant. Nevertheless, Appellant
insists he was not the reason for the disturbance call nor was he reported as
an annoyance or causing the destruction of property. Based on the totality
of the Commonwealth’s evidence and Appellant’s evidence, Appellant
submits all of the verdicts should be overturned, because no jury or judge
could logically find the Commonwealth met every element of each crime.
Appellant concludes we should overturn all guilty verdicts based on the
weight of the evidence and grant Appellant a new trial. We cannot agree.
As a preliminary matter, generally, a challenge to the weight of the
evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.
The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
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(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal
denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight
of the evidence generally cannot be raised for the first time in a Rule
1925(b) statement. Commonwealth v. Burkett, 830 A.2d 1034
(Pa.Super. 2003). An appellant’s failure to avail himself of any of the
prescribed methods for presenting a weight of the evidence issue to the trial
court constitutes waiver of that claim, even if the trial court responds to the
claim in its Rule 1925(a) opinion. Id.
Instantly, Appellant failed to challenge the weight of the evidence
before the trial court by any of the available means and ask for a new trial.
See Pa.R.Crim.P. 607. Rather, Appellant raised his weight claim for the first
time in his Rule 1925(b) statement. Thus, his issue on appeal is waived.
See Pa.R.Crim.P. 607; Gillard, supra; Burkett, supra.
Moreover, even if Appellant had properly preserved his challenge to
the weight of the evidence for review, after a thorough review of the record,
the briefs of the parties, the applicable law, and the reasoned opinion of the
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Honorable Steve P. Leskinen, we would conclude the issue merits no relief.
(See Trial Court Opinion, filed October 31, 2014, at 3-7) (finding: parties
stipulated at trial that Appellant was in class of persons prohibited from
possessing firearm; Officer Grabiak testified he saw firearm fall out of
Appellant’s front pants pocket, and firearm was loaded; Appellant did not
have license to possess firearm; when Officer Painter tried to arrest
Appellant, Appellant fled, requiring chase for about 12-15 feet; when Officer
Painter tackled Appellant to ground, he struggled against Officer Painter,
which required use of Taser; Appellant created substantial risk of bodily
injury to both officers and forced them to use substantial force to halt
Appellant’s struggle; jury properly convicted Appellant of firearms offenses
and resisting arrest; additionally, court found beyond reasonable doubt that
Appellant intentionally damaged Officer Painter’s watch and caused
pecuniary loss of $150.00 as result of brawl with Officer Painter; further,
when officers approached Appellant in public place, they observed
Appellant’s strong odor of alcohol and glassy, bloodshot eyes; court properly
convicted Appellant of criminal mischief and public drunkenness; verdicts
were not against weight of evidence). Although Appellant waived this issue,
the record supports the court’s decision to deny Appellant a new trial on the
grounds alleged. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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