J-A21014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER ANTHONY THOMAS,
Appellant No. 1028 WDA 2016
Appeal from the Judgment of Sentence Entered April 4, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014007-2014
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 07, 2017
Appellant, Christopher Anthony Thomas, appeals from the judgment of
sentence of 42 to 84 months’ incarceration, imposed after he was convicted
of carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). We affirm.
The trial court summarized the procedural history and the evidence
presented at trial as follows:
On January 13, 2016, a jury found Appellant … guilty of one
count of Carrying a Firearm Without a License.1 This [c]ourt
sentenced Appellant on April 4, 2016, to a term of 42 to 84
months[’ incarceration]. Appellant’s Post-Sentence Motion was
denied on June 15, 2016. Appellant filed a Notice of Appeal on
July 15, 2016[,] and his Statement of Errors Complained of on
Appeal on August 4, 2016.
1
The jury acquitted [Appellant] on charges of Attempted
Homicide, Robbery, Aggravated Assault, Burglary, and
Criminal Conspiracy.
***
SUMMARY OF THE EVIDENCE
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At trial, Damien Beam testified that in the early morning hours of
July 22, 2014, he was playing video games in his living room
when he heard a knock at the door. [Mr.] Beam opened the
door and two men pushed their way into the apartment. [Mr.]
Beam testified that Appellant pulled a semiautomatic pistol from
his waistband and demanded that [Mr.] Beam drop everything
he had. Appellant pointed the gun at [Mr.] Beam’s chest from a
distance of three to five feet away. Appellant and the other
assailant, later identified as David Calhoun, started to bicker,
and [Mr.] Beam s[e]ized the opportunity to grab a shotgun from
behind the tapestry and told his intruders to get out or he would
shoot. Instead of leaving the house, Appellant shot at [Mr.]
Beam and missed. [Mr.] Beam returned fire and hit Appellant.
Next, [Mr.] Calhoun charged [Mr.] Beam. [Mr.] Beam shot and
hit [Mr.] Calhoun, who fell on top of [Mr.] Beam pulling the
tapestry down as he fell. The shot knocked [Mr.] Calhoun
unconscious. [Mr.] Calhoun awoke when [Mr.] Beam attempted
to extricate himself from under [Mr.] Calhoun’s unconscious
body. [Mr.] Beam and [Mr.] Calhoun wrestled for the shotgun.
[Mr.] Beam prevailed and fatally shot [Mr.] Calhoun in the neck.
Officer John Shamlin of the Pittsburgh Police Department
testified that he was the first police officer to arrive on scene and
he observed Appellant lying on the ground outside the front door
of [Mr.] Beam’s building. Officer Shamlin asked Appellant how
many times he had been shot, and Appellant replied that he just
needed a glass of water and he would be fine. Officer Shamlin
then asked twice if Appellant knew who had shot him and
Appellant said he did not know. Officer Shamlin asked Appellant
his name, but Appellant did not reply. One of the officers who
had arrived while Appellant and Officer Shamlin were speaking to
each other observed a gun at the scene. When Officer Shamlin
heard someone mention a gun, he surveyed the area and
observed to his right a semiautomatic handgun, later identified
as a Ruger, in the grass a short distance from Appellant. When
Officer Shamlin was speaking with Appellant, [Mr.] Beam and his
girlfriend came to the entry door of the apartment complex and
[Mr.] Beam told the Officer that he had shot and killed someone
in his apartment. Officer Shamlin entered the apartment and
observed shotgun shell casings both inside and outside of [Mr.]
Beam’s apartment, and a magazine2 for a semiautomatic firearm
on the carpet near [Mr.] Calhoun’s body.
2
Commonwealth Exhibit 19, which was admitted at trial, is
a photograph taken contemporaneously at the crime
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scene, which depicts the inside of the apartment. The
loaded magazine is clearly visible in the living room near
the futon.
Detective Dale Canofari testified that he is familiar with Ruger
semiautomatic handguns and that the Ruger would only fire one
round if its magazine was not properly inserted. He also stated
that the clip release is located near the trigger and one could
easily release the magazine accidentally, particularly in a high
stress situation.
Detective John Klaczak testified that he was present when the
crime scene was processed and photographed by his partner,
Detective Pat Moffatt. Of note regarding the charge for which
Appellant was convicted, the photograph admitted as Exhibit 29
depicts the front of [Mr.] Beam’s apartment building. In a small
grassy area, alongside the concrete steps leading up from the
sidewalk, the photograph clearly shows a black pistol laying in
the grass. Another photograph depicts Appellant’s bloody
clothes and a towel on the concrete landing. Other photographs
depict blood on the landing and the steps. Detective Klaczak
collected the firearm recovered from the grassy area and
determined that it was a black Ruger P95 model with a silver
slide, black frame, with no magazine in it, and no round in the
chamber. Detective Klaczak testified that the pistol recovered in
the grass was reported stolen out of Pitcairn Police Department.
Detective John Adams testified that he recovered a bullet on the
floor of the bedroom/dining room area of the apartment. He
also testified that he observed and photographed a mark in the
brick on the lower left of the fireplace that he believed was
caused by a bullet. The Detective clarified that the bullet was
recovered from the same room as the fireplace. Detective
Adams further testified that no fingerprints were recovered from
the Ruger firearm.
Detective Robert Shaw testified that he interviewed [Mr.] Beam
after the shooting, and [Mr.] Beam told the Detective a
substantially similar story to his testimony at trial. [Mr.] Beam
told Detective Shaw that Appellant and [Mr.] Calhoun forced
their way into [Mr.] Beam’s apartment and Appellant pulled a
gun out of his waistband. Appellant pointed the gun at [Mr.]
Beam and attempted to rob him, but Appellant got distracted by
a disagreement with [Mr.] Calhoun. [Mr.] Beam obtained a
shotgun from the bedroom and racked it to convince the
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intruders to leave. Appellant shot at [Mr.] Beam through a large
tapestry separating the two rooms and [Mr.] Beam returned fire.
The Commonwealth then produced the tapestry and displayed
the bullet hole in the fabric to the jury. Detective Shaw testified
that the on-scene evidence including the ballistic evidence, the
locations of the firearm, the blood trail, locations of the actors
and the tapestry all corroborate [Mr.] Beam’s account of the
events that evening.
Appellant called Heather Antonelli, [Mr.] Beam’s neighbor, who
testified that she heard what she thought were fireworks. She
looked out her window and saw a man stumbling down the stairs
as if he was drunk. She and her roommate, Michael Chorney[,]
went to help him. Appellant was on the ground, bleeding, and
Appellant told her to call 911 because he had been shot. She did
not see a firearm anywhere near Appellant. [Mr.] Chorney
testified similarly, specifically, that he did not see a gun lying on
the front lawn.
Frederick Wentling testified as an expert for the defense in the
field of firearms and toolmarkings. He reviewed crime scene
photographs, one of which was of the handgun. He testified that
the photograph is insufficient to determine the ejection pattern,
specifically where the cartridge casing would have landed.
Trial Court Opinion (TCO), 12/14/2016, at 2-6 (internal citations omitted).
As mentioned supra, Appellant filed a post-trial motion, in which he
challenged, inter alia, whether the verdict was against the weight of the
evidence. The trial court subsequently denied Appellant’s weight claim.
Appellant then timely filed a notice of appeal and timely complied with the
trial court’s instruction to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
Presently, Appellant raises a single issue for our review:
Was [Appellant’s] verdict of guilty for Carrying a Firearm Without
a License rendered against the weight of the evidence?
Appellant’s Brief at 5 (unnecessary emphasis omitted).
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Initially, we set forth our standard of review:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict…. An allegation that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court.
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….
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 court’s determination that the verdict is against the weight
of the evidence.
Commonwealth v. Brown, 48 A.3d 426, 432 (Pa. Super. 2012) (citation
omitted).
In the case sub judice, the jury convicted Appellant of carrying a
firearm without a license pursuant to 18 Pa.C.S. § 6106(a)(1). That statute
states, in relevant part, the following:
[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).
Appellant concedes that, at trial, he “stipulated to the operability of
the firearm found near his person and did not contest the Commonwealth’s
evidence regarding [his] lack of license to carry a firearm.” Appellant’s Brief
at 15 (citation omitted). In addition, Appellant admits that “the evidence at
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trial clearly showed that [he] was not, at the time in question, in his home
or place of business.” Id. Thus, according to Appellant, “the only element
of the crime that was contested was whether [he] concealed the firearm on
or about his person.” Id.
In determining that the verdict was not against the weight of the
evidence and denying Appellant’s request for a new trial, the trial court
explained:
This verdict is not so contrary to the evidence as to require a
new trial. The physical evidence in this case, as well as [Mr.]
Beam’s testimony, strongly support the jury’s conclusion that
Appellant possessed the Ruger handgun. First, the gun itself,
without the magazine, was recovered a short distance from
Appellant. Although neither [Ms.] Antonelli nor [Mr.] Chorney
observed the gun, their focus was on ensuring [that] Appellant
receive adequate medical care for his gunshot wound just as the
first responding officer who also initially failed to notice the gun.
A trail of blood led from Appellant to [Mr.] Beam’s apartment. A
bullet and a magazine matching the Ruger were recovered inside
the apartment, and a strike mark was observed on the fireplace,
which corroborate [Mr.] Beam’s version of events. [Mr.] Beam’s
testimony regarding a home invasion gone wrong, with Appellant
not only possessing a gun but shooting at [Mr.] Beam, as well as
[Mr.] Beam’s subsequent statements, are supported by the
physical evidence. This verdict does not shock one’s conscience
and Appellant’s claim of error is without merit.
TCO at 6-7.
Despite the trial court’s reasoning, Appellant claims that Mr. Beam’s
testimony is “dubious” and “should have been disregarded.” See Appellant’s
Brief at 21-22. Appellant explains that “[t]he principal evidence presented
by the Commonwealth to establish that [he] concealed a firearm on or about
his person was the testimony of [Mr.] Beam[,]” which Appellant argues
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“should not have been credited as it was clearly self-serving and was
contradicted by several items of tangible evidence as well as the testimony
of other witnesses.” Id. at 14, 16 (footnote omitted). Appellant contends
that “[i]n the absence of [Mr.] Beam’s testimony, there is simply no
evidence to indicate that [Appellant] ever carried a firearm in a concealed
manner.” Id. at 22. As a result, Appellant says his conviction “is shocking
to one’s sense of justice, and it was thus an abuse of discretion for the trial
court to deny [his] motion for a new trial.” Id. at 23.
Our review of the record shows that Mr. Beam gave the following
testimony at trial:
[The Commonwealth:] And you opened the door, and do you get
to see the faces of the two individuals that you described?
[Mr. Beam:] Yes.
[The Commonwealth:] What happens next?
[Mr. Beam:] I get rushed backwards into my hallway area that
leads into the living room. And that is when [Appellant] pulled
out his gun and said, “Drop everything you have.” You know,
“Give me everything you got.” And I kind of just froze right
there.
***
[The Commonwealth:] Did you take a look at the weapon that
you are describing?
[Mr. Beam:] I did not see it at the point before [Appellant]
pulled it out, but it was a semiautomatic pistol.
[The Commonwealth:] Did you actually see him pull it out?
[Mr. Beam:] Yes, he pulled it out of his front waistband.
[The Commonwealth:] And do you see it then when it is out?
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[Mr. Beam:] Yes.
N.T. Jury Trial, 1/5/2016-1/13/2016, at 85-86.
Further, Detective Robert Shaw explained that Mr. Beam gave a
consistent description of the pistol’s concealment during an interview
conducted in the early morning hours, shortly after the incident occurred:
[The Commonwealth:] Detective, did [Mr. Beam] talk to you
about where [Appellant] produced this pistol from?
[Detective Robert Shaw:] Yeah, it’s one of the things we asked
[during the interview]. [Appellant] pulled it out of his waistband
from a concealed position.
N.T. Jury Trial, 1/5/2016-1/13/2016, at 370; see also id. at 361.
Appellant claims that Mr. Beam’s testimony must be discounted in its
entirety, including the portion supra, as “the many contradictions between
[Mr.] Beam’s testimony and the other evidence at trial, combined with [Mr.]
Beam’s own admission to lying on the stand, left the fact-finder with no
manner in which to distinguish between which [portion] of [Mr.] Beam’s
testimony was true and which was false.” See Appellant’s Brief at 22.
Specifically, Appellant states that portions of Mr. Beam’s testimony were
contradicted by the physical evidence, citing the single bullet hole found in
the tapestry, the lack of blood on Mr. Beam following his alleged struggle
with Mr. Calhoun, and the locations of where certain evidence relating to the
Ruger was recovered by detectives. Id. at 18-20. Furthermore, Appellant
lists multiple ways in which Mr. Beam’s testimony was inconsistent with his
own statements and the testimony of other witnesses, pointing toward
discrepancies pertaining to Mr. Beam’s involvement with selling marijuana,
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where police detained him after the incident, and if he had known Mr.
Calhoun prior to the night in question. Id. at 20-21. Because of these
purported discrepancies, Appellant maintains that “no rational trier of fact
could have credited [Mr. Beam’s] testimony as truthful.” Id. at 21-22.
In short, Appellant attacks the credibility of Mr. Beam. However,
“[w]hen the challenge to the weight of the evidence is predicated on the
credibility of trial testimony, our review of the trial court’s decision is
extremely limited. Generally, unless the evidence is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, these
types of claims are not cognizable on appellate review.” Commonwealth v.
Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004) (citation omitted;
emphasis added). Further, it is well-established that “[t]he 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
witnesses.” Commonwealth v. Cox, 72 A.3d 719, 722 (Pa. Super. 2013)
(citation omitted). We reiterate that “[o]ur purview … is confined to whether
the trial court abused its discretion in finding that the jury verdict did not
shock its conscience. Thus, appellate review of a weight claim consists of a
review of the trial court’s exercise of discretion, not a review of the
underlying question of whether the verdict is against the weight of the
evidence.” Id. (citation omitted).
Here, we conclude that the trial court did not abuse its discretion in
finding that the jury verdict did not shock its conscience. The jury
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considered the evidence presented at trial, and determined that Appellant
was guilty of carrying a firearm without a license. Although there may be
some inconsistencies with respect to Mr. Beam’s testimony, various aspects
of the “on-scene evidence … corroborate [Mr.] Beam’s account of the events
that evening.” TCO at 5 (“Detective Shaw testified that the on-scene
evidence including the ballistic evidence, the locations of the firearm, the
blood trail, locations of the actors and the tapestry all corroborate [Mr.]
Beam’s account of the events that evening.”); see also id. at 7 (“[Mr.]
Beam’s testimony regarding a home invasion gone wrong, with Appellant not
only possessing a gun but shooting at [Mr.] Beam, as well as [Mr. Beam’s]
subsequent statements, are supported by the physical evidence.”).
Accordingly, we do not deem the evidence, namely Mr. Beam’s testimony, to
be “so unreliable and/or contradictory as to make any verdict based thereon
pure conjecture[.]” Rossetti, 863 A.2d at 1191 (citation omitted). We
therefore determine that the trial court did not abuse its discretion in
denying Appellant’s weight claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2017
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Com. v. Thomas, C.
Combined Opinion