J-S59009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALLAN E. SAUERBAUM :
:
Appellant : No. 3682 EDA 2017
Appeal from the Judgment of Sentence June 13, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004362-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 02, 2018
Appellant, Allan E. Sauerbaum, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial convictions for simple assault, possessing an instrument of crime (“PIC”),
and recklessly endangering another person (“REAP”).1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we will only summarize
them here. After a night out drinking on April 9, 2016, Appellant and his wife
argued. During the course of the argument, Appellant held a gun to his wife’s
head, threatened to shoot her if she did not leave the house in two seconds,
and then fired a shot. Following a bench trial, the court convicted Appellant
____________________________________________
1 18 Pa.C.S.A. §§ 2701(a), 907(a), 2705, respectively.
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of simple assault, PIC, and REAP on March 30, 2017. On June 13, 2017, the
court sentenced Appellant to four (4) years’ probation. Appellant timely filed
post-sentence motions on June 23, 2017, challenging the sufficiency and
weight of the evidence, which the court denied on October 11, 2017.
Appellant timely submitted a notice of appeal on November 6, 2017. On
November 13, 2017, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant
timely complied on December 4, 2017.
Appellant raises the following issues for our review:
IS [APPELLANT] ENTITLED TO AN ARREST OF JUDGMENT
ON THE CHARGES OF SIMPLE ASSAULT, PIC, AND
RECKLESSLY ENDANGERING ANOTHER PERSON AND ALL
OF THEM WHERE THE EVIDENCE IS INSUFFICIENT TO
SUSTAIN THE VERDICT?
IS [APPELLANT] ENTITLED TO A NEW TRIAL ON THE
CHARGES OF SIMPLE ASSAULT, PIC, AND RECKLESSLY
ENDANGERING ANOTHER PERSON WHERE THE VERDICT
ON ALL CHARGES WAS AGAINST THE WEIGHT OF THE
EVIDENCE?
(Appellant’s Brief at 3).
Appellant first argues he did not fire the gun, and there was no evidence
to prove he did. Appellant alleges there were no bullet holes or cartridge
casings discovered in the home. Appellant asserts his wife was uninjured and
did not have any gunshot residue on her person. Appellant maintains that
even if the gun was fired, there was no proof his wife was ever in danger of
any harm. Appellant contends there was insufficient evidence to sustain his
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convictions for simple assault, PIC, and REAP. For the same reasons,
Appellant also submits the weight of the evidence did not support the
convictions. Appellant concludes he should be granted an arrest of judgment
on all charges or, alternatively, a new trial. We disagree.
Appellate review of a claim challenging the sufficiency of the evidence
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
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
[finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).
The following principles apply to a weight of the evidence claim:
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. An appellate court cannot substitute its
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judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
The Pennsylvania Crimes Code defines simple assault as:
§ 2701. Simple Assault
(a) Offense defined.—Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a
deadly weapon;
(3) attempts by physical menace to put another in fear
of imminent serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic
needle on his person and intentionally or knowingly
penetrates a law enforcement officer or an officer or an
employee of a correctional institution, county jail or
prison, detention facility or mental hospital during the
course of an arrest or any search of the person.
* * *
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18 Pa.C.S.A § 2701(a). Possessing instruments of crime is defined as:
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.―A person
commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally.
* * *
18 Pa.C.S.A. § 907(a). Section 2705 of the Crimes Code provides:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.
18 Pa.C.S.A. § 2705.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Donna M.
Woelpper, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed March 1, 2018, at 3-5) (finding:
(1) Commonwealth presented evidence that Appellant pointed loaded gun at
his wife and fired shot; even if Appellant did not fire shot, act of holding gun
to his wife’s head while threatening to shoot her was still sufficient to prove
simple assault by physical menace; Appellant’s act of placing cocked and
loaded gun within inches of his wife’s head and firing was also sufficient to
sustain Appellant’s REAP and PIC convictions; (2) court found wife’s testimony
credible that Appellant held loaded gun to her head while warning her that she
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had only two seconds to get out of house; verdict does not shock one’s sense
of justice; Appellant’s weight claim fails). Accordingly, we affirm on the basis
of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/18
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FILED
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,. IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTR1CT OF PENNSYLVANIA 2018 HAR - I PH 3: 32
CR1MTNAL TRIAL DIVISION
OFFICE OF ,JUDICf /J.L RECORDS
CRIMllli\L fJiVl510H
FIRST Jl!DtCl/\l. DISTRICT
COMMONWEALTH OF CP-51-CR-0004362-20 I 6f PEHHSYl.VAHIA
PENNSYLV ANJA
v.
SUPERIOR COURT
ALLAN E. SAUERBAUM 3682 EDA 2017
OPINION
WOELPPER, J. MARCH I, 2018
I. PROCEDURAL & FACTUAL BACKGROUND
On March 30, 2017, following a waiver trial, this Court found Allan E. Sauerbaum
("defendant") guilty of simple assault, 1• recklessly endangering another person ("REAP''),2 and
possessing an instrument of crime ("P[C").3 Defendant appeals his judgments of sentence,
challenging the sufficiency and weight of the evidence.
In the early morning hours of April 9, 2016, defendant and his wife, Kathleen Sauerbaurn,
were at a bar in the Bridesburg neighborhood of Philadelphia. The two had been married for
approximately seventeen years but would occasionally separate. Worried that defendant had had
too much to drink, Mrs. Sauerbaum took the car keys. Rather than drive home with his wife,
defendant threatened to report her as having stolen the car and began to walk home. N.T. 3/27/17,
21-24, 32.
CP·51-CR-0004:J62-2016 Comm, v. s.uarDaum. Allen E
Opinion
1
18 Pa.C.S. § 270 l. Ill 11111111111111111 II Ill
2
18 Pa.C.S. § 2705. 8076201871
3
18 Pa.C.S. § 907.
Mrs. Sauerbaum arrived at their home on Walker Street approximately one hour before
defendant. As she was getting ready to go to sleep, it occurred to her to take defendant's loaded
9-mm gun from where he kept it on the nightstand and hide it under her side of the bed. When
defendant came home, he asked Mrs. Sauerbaum where his gun was. She initially urged that he
did not need the gun, but after he persisted, she told him where it was. Defendant pulled the gun
out from under the bed, cocked it, held it to Mrs. Sauerbaum's forehead, and told her she had two
seconds to get out of the house. When Mrs. Sauerbaum tried to get dressed and gather her
belongings, defendant repeated that she had only two seconds to get out. Mrs. Sauerbaum then
heard the sound of a gunshot "whizzing" by her right ear. She ran down the steps and out of the
house. Id. at 25-28, 37.
During this time, Teresa Romero, who lived with her husband next door to the Sauerbaums,
awoke to a loud noise. She looked out the window assuming there had been an accident, but did
not see anything. The next thing she heard was someone ringing her doorbell. When she went
downstairs, she saw Mrs. Sauerbaum in her pajamas. When Mrs. Romero opened the door, Mrs.
Sauerbaum said that defendant was trying to kill her and asked if she could use the phone to call
the police. Id. at 47-49.
Philadelphia Police Officer David Smith responded to the 7000 block of Walker Street for
the report of a man with a gun. He first encountered Mrs. Sauerbaum at the Romero residence,
where he asked her some questions. Then he and his fellow officers went next door to the
Sauerbaums' home. Defendant answered the door with his 9-millimeter Sig Sauer protruding from
his waistband. Police recovered the loaded handgun and took him into custody. It was loaded
with one round in the chamber, and the hammer was cocked into the rear. Id. at 9-20.
2
After finding defendant guilty of the above charges, the Court deferred sentencing for
completion of a presentence report. On June 13, 2017, the Court sentenced defendant to an
aggregate term of 4 years of probation. Defendant filed a post-sentence motion on June 23, 2017,
raising challenges to the weight and sufficiency of the evidence. The court denied the motion on
October 11, 201 7. This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant first claims the evidence at trial was insufficient to sustain the convictions. On
sufficiency review, all evidence is viewed in the light most favorable to the verdict winner to
determine whether "there is sufficient evidence to enable the fact-finder to find every element of
the crime beyond a reasonable doubt." Commonwealth v. Antidormi, 84 AJd 736, 756 (Pa. Super.
2014), appeal denied, 95 A.3d 275 (Pa. 2014). The reviewing court "may not weigh the evidence
and substitute [its] judgment for the fact-finder." Id.
Defendant claims the evidence that he held a loaded gun to his wife's head and fired a shot
was insufficient to sustain his simple assault conviction. Statement of Errors, 12. One is guilty
of simple assault if he "attempts to cause ... bodily injury to another" or "attempts by physical
menace to put another in fear of imminent serious bodily injury." 18 Pa.C.S. § 2701 (a)(3).
Evidence that defendant pointed the loaded gun at Mrs. Sauerbaum and fired a shot was certainly
sufficient evidence to sustain the conviction. Even if defendant had not fired the gun, holding it
to his wife's head while threatening her was alone sufficient to prove simple assault by physical
menace. See, e.g., In re Maloney, 636 A.2d 671, 674 (Pa. Super, 1994)(defendant guilty of simple
assault where driver pointed gun at another driver while saying, "Get the f*** out of here").
3
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Defendant also claims the evidence was insufficient to sustain his REAP conviction.
Statement of Errors, 13. A conviction under 18 Pa.C.S. § 2705 requires that the Commonwealth
prove that the defendant has "recklessly engage[ d] in conduct which places or may place another
person in danger of death or serious bodily injury." Placing a cocked and loaded gun within an
inch of another person's head and firing it certainly places that individual's life in danger.
Finally, based on the above, defendant's claim that the evidence was insufficient to sustain
his PIC conviction because it failed to establish that he possessed the cocked, loaded gun for
criminal purposes is equally meritless.
B. Weight of the Evidence
Defendant next claims that this Court erred in denying his weight of the evidence claim.
A defendant is not entitled to a new trial based on a weight of the evidence claim unless the verdict
"is so contrary to the evidence as to shock one's sense of justice.', Commonwealth v. Diggs, 949
A.2d 873, 879 (Pa. 2008). Appellate review is limited to whether the trial judge palpably abused
its discretion in denying the appellant's motion for a new trial. Id. As such, a "trial court's denial
of a motion for a new trial based on a weight of the evidence claim is the least assailable of its
rulings." Id. at 879-80.
Defendant claims that "the greater weight of the evidence did not establish that [he] had a
handgun; fired a handgun;.or fired a handgun in such a fashion as to cause a threat to the purported
victim, or fear for the purported victim." Statement of Errors, 14. Here, the Court, sitting as fact-
finder, found Mrs. Sauerbaum' s testimony that defendant held a loaded gun to her head while
warning her that she had only two seconds to get out credible. Because the verdict did not shock
one's sense of justice, the Court did not abuse its discretion in denying defendant's weight of the
evidence claim.
4
Ill. CONCLUSION
For the reasons herein, defendant's judgments of sentence should be affirmed.
BY THE COURT:
!JmrwlJ/t�
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRlAL DIVISION
COMMONWEALTH OF CP-5l-CR-0004362-2016
PENNSYLVANIA
v.
SUPERIOR COURT
ALLAN E. SAUERBAUM 3682 EDA 2017
PROOF OF SERVICE
I hereby certify that I am this L day of March, 2018, serving the foregoing Opinion on the
persons indicated below:
By First Class Mail
Andrew G. Gay, Esq.
1518 Walnut Street, Ste. 807
Philadelphia, PA 19101
By Interoffice Mail
Lawrence Goode, Interim Supervisor
Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Anna Dillon
Secretary to the Honorable Donna M. Woelpper
6
Com. v. Sauerbaum, A.
Combined Opinion