J-S32044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRANDON KULB
Appellant No. 2262 EDA 2016
Appeal from the Judgment of Sentence June 27, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s):
CP-51-CR-0006367-2014
MC-51-CR-00011603-2014
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2017
Appellant, Brandon Kulb, appeals from the judgment of sentence of
four to eight years’ imprisonment plus fourteen years’ probation entered in
the Philadelphia County Court of Common Pleas. Appellant challenges the
sufficiency and weight of the evidence regarding his convictions for
terroristic threats,1 violations of the Uniform Firearms Act (“VUFA”),2 and
possessing an instrument of crime (“PIC”).3 We affirm.
The trial court summarized the evidence presented at the nonjury trial
as follows:
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2706.
2
18 Pa.C.S. §§ 6105, 6106, 6108.
3
18 Pa.C.S. § 907.
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On March 12, 2014, J.J. was playing basketball at the
Fishtown Recreation Center located at 1200 E.
Montgomery Ave., Philadelphia, with his friend, Z.G. At
some point, J.J. asked the Appellant . . . if he wanted to
play. J.J. and the Appellant played until J.J. fouled the
Appellant, which led to an argument. J.J. said he was
going to go get his brother. He crossed Girard Avenue and
began to walk down the street, with the Appellant
following. The Appellant lifted his shirt and pulled out
what looked to be a .38 caliber handgun from his
waistband and pointed it at J.J. J.J. and the Appellant
exchanged words and the Appellant later turned and
walked away.
The Commonwealth called Z.G. to testify. He strongly
resisted questioning and attempted to leave the court
during direct examination. A sheriff briefly detained him.
One of the investigating officers, Detective Goodwin,
testified that Z.G. had previously intended on testifying,
but was “scared to death” of possible repercussions for his
family from members of the neighborhood. In fact, Z.G.
had come to trial that morning but fled down the
courthouse hallway when he saw several of the Appellant’s
male friends arrive. Z.G. ran and “started crying, [saying]
I ain’t going in there. I’m not going to do this. I can’t go
in there,” referring to at least one of the individuals by
name.
At trial, the Commonwealth was unable to procure J.J.’s
testimony because, despite a bench warrant and personal
assurances from J.J.’s parents, he did not show up at trial
the next day and could not be located either at his
residence or at his school. Police officers attempted to
locate him at his home address and found the building
abandoned.
Trial Ct. Op., 8/24/16, at 2-3 (footnote and record citations omitted).
The trial court found Appellant guilty of the aforementioned charges on
April 22, 2016, and sentenced him on June 27, 2016. Appellant did not file
post-sentence motions. Appellant timely appealed and filed a court-ordered
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Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a responsive opinion suggesting that Appellant’s claims were
waived due to a vague Pa.R.A.P. 1925(b) statement and, in any event, were
meritless.
Appellant presents the following questions for review:
I. Is [Appellant] entitled to an Arrest of Judgment on all
charges where, as here, the evidence is insufficient to
sustain the verdict?
II. Is [Appellant] entitled to a new trial whereas here, the
greater weight of the evidence does not support the
verdict?
Appellant’s Brief at 3.
We summarize Appellant’s arguments as follows. Appellant contends
that the Commonwealth’s evidence failed to establish that he was in
possession of a firearm. Id. at 7-8. He notes the weapon was not
recovered and the Commonwealth failed to exclude the possibility that the
gun was “fake.” Id. at 7-8. Appellant further argues that the
Commonwealth failed to adduce any evidence regarding the barrel length of
the weapon. Id. at 8-9. Regarding terroristic threats, Appellant further
asserts that the Commonwealth failed to demonstrate Appellant
communicated a threat. Id. at 9. Alternatively, he suggests that any threat
was made as a result of “transitory anger.” Id. at 9-10. Appellant observes
that Z.G. refused to testify at trial and Appellant’s conviction relied on Z.G.’s
prior statements, including a signed statement to the police and his grand
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jury testimony. Id. at 12. Thus, Appellant contends that he is entitled to
discharge or a new trial on all charges. We disagree.
Preliminarily, we consider whether Appellant preserved his issues for
review. This Court has stated:
A court-ordered concise statement shall concisely
identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent
issues for the judge. Pa.R.A.P. 1925(b)(4)(ii). The
Pennsylvania Supreme Court has explained that Rule 1925
is a crucial component of the appellate process, which is
intended to aid trial judges in identifying and focusing
upon those issues which the parties plan to raise on
appeal. Moreover, it is well-settled that [i]issues that are
not set forth in an appellant’s statement of matters
complained of on appeal are deemed waived.
Commonwealth v. Proctor, 156 A.3d 261, 267 (Pa. Super. 2017)
(citations and quotation marks omitted).
Moreover, with respect to a challenge to the weight of the evidence, it
is well settled that
[a] weight of the evidence claim must be preserved either
in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Pa.R.Crim.P.
607[.] Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in its
opinion.
Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (some
citations and quotation marks omitted).
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Instantly, we agree with the trial court that Appellant’s Rule 1925(b)
statement was insufficiently concise.4 However, the issues at the nonjury
trial were relatively straightforward. Appellant argued the Commonwealth
failed to prove that he possessed a firearm or threatened J.J. See N.T.,
4/22/16, at 62-63. The trial court filed a Rule 1925(a) opinion suggesting
waiver, but addressing these arguments. See Trial Ct. Op. at 5-8.
Therefore, we will consider these issues. See Commonwealth v. Laboy,
936 A.2d 1058, 1060 (Pa. 2007).
However, Appellant also attempts to challenge the sufficiency of the
VUFA convictions based on the barrel length and the terroristic threats
conviction based on transitory anger. These claims were not fairly
suggested at trial or in his Rule 1925(b) statement. Therefore, we conclude
those arguments have been waived. See id.; Proctor, 156 A.3d at 267.
4
Appellant’s Rule 1925(b) statement read as follows:
1. The trial court abused its discretion when she ordered
the complaining witness incarcerated because he refused
to testify against [Appellant].
2. The weight of the evidence was contrary to the verdict.
The evidence presented by the Commonwealth shock the
conscience of any reasonable person.
3. The evidence was insufficient to make out any the
charges against [Appellant].
Appellant’s Rule 1925(b) statement. Appellant has abandoned his first issue
in this appeal.
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Additionally, we are constrained to conclude that Appellant waived his
challenge to the weight of the evidence. Appellant did not preserve this
issue after trial or at sentencing and did not file a post-sentence motion.
See Pa.R.Crim.P. 607. Instead, Appellant raised this challenge for the first
time in his Rule 1925(b) statement. Although the trial court considered
Appellant’s weight of the evidence challenge in its Rule 1925(a) opinion, we
may not address this issue on appeal. See Griffin, 65 A.3d at 938.
Turning to the sufficiency arguments preserved by Appellant, we note:
In evaluating a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable
to the Commonwealth together with all reasonable
inferences from that evidence, and determine whether the
trier of fact could have found that every element of the
crimes charged was established beyond a reasonable
doubt. This standard is equally applicable to cases where
the evidence is circumstantial rather than direct so long as
the combination of the evidence links the accused to the
crime beyond a reasonable doubt.
Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)
(citations and quotation marks omitted).
Appellant’s first argues that the Commonwealth failed to prove that he
possessed a firearm as was necessary to convict him under Sections 6105,
6106, and 6108, which provide:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.--
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
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Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use,
control, sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S. § 6105 (a)(1).
§ 6106. Firearms not to be carried without a license
(a) Offense defined.--
(1) Except as provided in paragraph (2), any 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).
§ 6108. Carrying firearms on public streets or public
property in Philadelphia
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public
property in a city of the first class . . .
18 Pa.C.S. § 6108. It is well settled that the testimony of a witness that the
defendant possessed firearms is sufficient to establish a VUFA offense, even
if a weapon is not recovered. Commonwealth v. Robinson, 817 A.2d
1153, 1161-62 (Pa. Super. 2003).
Instantly, the trial court heard Z.G.’s grand jury testimony that he
observed Appellant confront the complainant, J.J. According to Z.G., after
Appellant approached J.J. and they began talking, “everyone ran.” N.T.,
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4/22/16, at 29. Appellant then “lift[ed] up his shirt” and “pulled out a gun.”
Id. Z.G. described the weapon as “a back-in-the-day revolver gun, but
smaller.” Id. Z.G. stated J.J. looked like he “didn’t know what to say” and
“was in shock.” Id.
We conclude Z.G.’s prior statement was sufficient to establish that the
weapon possessed by Appellant was a firearm.5 Z.G. testified that he
observed Appellant with a pistol and was able to discern the cylinder, as well
as the tip of the barrel, of a revolver. See Robinson, 817 A.2d 1161-62.
Moreover, J.J.’s reactions to seeing the weapon provide circumstantial
evidence that the firearm was, in fact, a firearm and not a toy. Thus, no
relief is due.
As to Appellant’s arguments that the Commonwealth failed to prove
terroristic threats, Section 2706 provides:
(a) Offense defined.--A person commits the crime of
terroristic threats if the person communicates, either
directly or indirectly, a threat to:
(1) commit any crime of violence with intent to
terrorize another . . .
***
5
Appellant also suggests that Z.G.’s testimony was not worthy of belief
given his age, the passage of time between the incident and his testimony at
the grand jury proceeding, and the non-adversarial nature of a grand jury
proceeding. Appellant’s Brief at 8. However, such arguments go to the
weight of the evidence and warrant no relief in a challenge to the sufficiency
of the evidence. See Brown, 52 A.3d 1139 at 1188; Walker, 836 A.2d at
1000 n.3.
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(e) Definition.--As used in this section, the term
“communicates” means conveys in person or by written
or electronic means, including telephone, electronic
mail, Internet, facsimile, telex and similar
transmissions.
18 Pa.C.S. § 2706(a)(1). This Court has noted that
the crime of terroristic threats is committed when a person
communicates, either directly or indirectly, a threat to
commit any crime of violence with intent to terrorize
another. An express or specific threat is not necessary to
sustain a conviction for terroristic threats. Consequently,
[i]t is unnecessary for an individual 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.
[T]he 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. Martinez, 153 A.3d 1025, 1028-29 (Pa. Super. 2016)
(citations and quotation marks omitted).
In this case, the Commonwealth was unable to produce evidence
regarding the content of Appellant’s statements to J.J. However, it was
undisputed that an altercation between Appellant and J.J. occurred after J.J.
fouled Appellant in a basketball game. N.T. at 39. J.J. stated he was going
to get his brother and left the recreation center. Id. Appellant followed him
across the street and the two had a verbal exchange. Id. at 29, 39.
Although Z.G. was unable to hear the exchange, he observed people running
away before Appellant lifted his shirt and pulled out the weapon. Id. at 29.
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Appellant then drew his weapon, pointed it at J.J., and continued talking.
Id. J.J. did not respond and appeared to be in shock. Id.
Under these circumstances, we find ample evidence that Appellant
communicated a threat to commit a crime of violence with intent to terrorize
another. See Martinez, 153 A.3d at 1028-29. The fact that Appellant
pointed a revolver at J.J. establish a threat, as well as the reactions of others
before Appellant pulled out the weapon and J.J.’s reaction after seeing the
weapon, establish that Appellant threatened J.J. with the commission of a
crime of violence. See id. Accordingly, Appellant’s challenge lacks merit.
Lastly, as to Appellant’s challenge to PIC, Section 907 provides:
(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. § 907(a).
Instantly, Appellant’s argument is an amalgam of his prior arguments
that he did not possess a firearm or threaten J.J. As we have already
concluded there was sufficient evidence to find Appellant possessed a
firearm and threatened J.J. with a crime of violence, Appellant’s challenge to
the PIC conviction lacks merit.
Thus, having reviewed the arguments preserved in this appeal, we
agree with the trial court that Appellant’s challenges to the sufficiency of the
evidence warrant no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2017
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