Com. v. Moose, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNNY ANDREW MOOSE :
:
Appellant : No. 74 MDA 2018
Appeal from the Judgment of Sentence December 15, 2015
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000051-2015
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 30, 2018
Appellant, Johnny Andrew Moose, appeals nunc pro tunc from the
December 15, 2015, judgment of sentence entered in the Court of Common
Pleas of Perry County following his conviction on the charge of persons not to
possess a firearm, as well as four summary offenses: unlawful taking or
possession of game, unlawful devices and methods, unlawful acts concerning
licenses, and shooting on or across highways.1 After a careful review, we
affirm.
The relevant facts and procedural history are as follows: Following his
arrest, Appellant, who was represented by counsel, proceeded to a jury trial
on September 21, 2015. At trial, Michael Stoltzfus testified that, on December
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1 18 Pa.C.S.A. § 6105(a)(1) and 34 Pa.C.S.A. §§ 2307(a), 2308(a)(7),
2711(a)(1), and 2504(a), respectively.
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* Former Justice specially assigned to the Superior Court.
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13, 2014, at around noon, he was outside of his home when he noticed a
pickup truck stop at his neighbor’s house, which belonged to Appellant’s
brother. N.T., 9/21/15, at 22, 24. He observed as an individual exited the
pickup truck and then, seemingly noticing “something down the road,” the
individual returned to the vehicle and quickly pulled away. Id. at 23, 27. Mr.
Stoltzfus watched as the pickup truck drove towards the end of his driveway,
but then he was unable to view the pickup truck because it was blocked by an
unharvested field of corn. Id. at 27. However, Mr. Stoltzfus “could very
plainly hear the vehicle…coming to a stop,…and [he] heard the truck door
slam.” Id. at 27-28. Within seconds, he “heard four to five gunshots, they
were rifle shots of a large caliber.” Id. at 28.
Mr. Stoltzfus testified that, at this point, he jogged down to the end of
his driveway, and he saw Appellant, who was standing on the driver’s side of
the pickup truck and leaning over the truck’s hood. Id. at 29. Appellant was
pointing a rifle and aiming at a group of deer that were visible in a nearby
open field of harvested corn. Id. Mr. Stoltzfus testified the group of deer
were running away by the time he arrived at the end of his driveway. Id. at
30.
Mr. Stoltzfus testified that, as he approached and was within
approximately forty to fifty feet from Appellant, Appellant “opened the driver’s
side door of the truck, sat the rifle inside on the seat and then he turned
towards [Mr. Stoltzfus] and [the two men] talked.” Id. Specifically, Mr.
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Stoltzfus asked Appellant why he was hunting from the side of the road and
by his vehicle. Id. at 31, 33. Appellant did not admit that his actions were
illegal, and Mr. Stoltzfus walked back to his house. Id. Mr. Stoltzfus indicated
that the rifle had a scope on it but did not have a sling on it. Id. at 33. Also,
he testified that he noticed shell casings lying on the ground “right beside the
truck.” Id. at 33, 37.
Mr. Stoltzfus testified that, at this point, he was not sure whether
Appellant had actually shot a deer; however, as soon as he returned to his
house, he contacted the Pennsylvania Game Commission. Id. at 34-35. Mr.
Stoltzfus indicated that he saw no other vehicles coming or going on the road
during this time, and the only other possible hunter he noticed was a person
“in the distance…[and] quite a ways off” wearing fluorescent orange “on top
of the ridge.” Id. at 32. He noted that he did not hear any other gunshots
other than those to which he previously testified. Id. at 35.
Mr. Stoltzfus testified that, the next day, he went for a walk, and he
noticed an injured deer in the middle of the open harvested cornfield where
he had seen the deer running the previous day. Id. at 36. Mr. Stoltzfus did
not shoot the deer; however, he returned to his home and contacted the Game
Commission. Id. at 37-38. When a game officer arrived, he showed him
where the deer was located. Id.
Mr. Stoltzfus denied that there was “any bad blood between” him and
Appellant, and he had no “falling outs” with Appellant’s family. Id. at 38. Mr.
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Stoltzfus confirmed that, although he saw Appellant holding the rifle, leaning
across the hood of his pickup truck, and aiming the rifle in the direction of the
group of deer, he did not actually see Appellant pull the trigger of the rifle.
Id. at 43-44.
Officer Scott Hoyer, a deputy wildlife conservation officer with the
Pennsylvania Game Commission, testified that, in response to Mr. Stoltzfus’s
telephone call on December 14, 2014, he went to Mr. Stoltzfus’s residence.
Id. at 45. He indicated that Mr. Stoltzfus took him to the open harvested
cornfield where he observed a deer that was injured but alive. Id. at 46-47.
He noted that he could not tell specifically what injury the deer had sustained
but it was unable to stand. Id. at 47. Concluding the deer would not be able
to recover and that it was the “humane thing to do,” Officer Hoyer used his
shotgun to “dispatch the animal.” Id. at 48. He then transported the deer to
the Game Commission Office. Id.
Officer Stephen Hower, a wildlife conservation officer with the
Pennsylvania Game Commission, testified that “the last day of the deer rifle
season” was on December 13, 2014. Id. at 51. He testified the dispatch
center received an initial complaint from Mr. Stoltzfus on December 13, 2014,
indicating that an individual had stopped his vehicle in front of the Stoltzfus
residence and shot at deer. Id. at 53. Officer Hower testified that, under the
game and wildlife code, it is illegal to hunt through the use of a motor vehicle.
Id. at 53. That is, he testified that it is illegal “to alight from a vehicle,
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meaning you stop along the road after you see game or wildlife, it’s illegal to
get out of your vehicle and shoot at the game or wildlife unless you…get 25
yards off the traveled portion of the roadway.” Id. at 53-54. Thus, he testified
that shooting across the hood of a vehicle is illegal. Id. at 54.
Officer Hower indicated that, on December 13, 2014, he went to Mr.
Stoltzfus’s house, spoke with Mr. Stoltzfus, and recovered four spent bullet
rounds from the bottom of Mr. Stoltzfus’s driveway in the area where Mr.
Stoltzfus indicated Appellant had parked his pickup truck. Id. at 56, 59. He
testified the dirt road in front of Mr. Stoltzfus’s house is a public township
road, and he observed tire prints in the area where Mr. Stoltzfus indicated
Appellant had parked his pickup truck. Id. at 52, 59. Officer Hower confirmed
that Mr. Stoltzfus identified Appellant as the person he saw holding the
shotgun earlier in the day. Id. at 60.
Officer Hower testified that he did not go into the open harvested
cornfield to determine whether Appellant had shot a deer; however, he
confirmed that the dispatch center received a telephone call the next day from
Mr. Stoltzfus, who indicated that he had discovered an injured deer in the
field. Id. at 61. Further, Officer Hower confirmed he asked Officer Hoyer to
retrieve the deer. Id.
Officer Hower testified he skinned and examined the deer on Monday,
December 15, 2014. Id. He observed a gunshot wound to the deer’s neck,
which was inflicted when Officer Hoyer “shot the deer to put it down.” Id. at
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62. He also observed some hemorrhage around the deer’s shoulder area, but
he was unable to determine whether a bullet caused the wound. Id. He
testified that he found no bullets in the deer, but it is “very common” for
bullets to “zip right through” deer. Id.
Officer Hower indicated he sent the spent shell casings to the
Pennsylvania State Police Crime Laboratory; however, latent fingerprints
could not be developed from the shell casings. Id. at 63. He testified the
empty shell casings were from a .225 caliber rifle. Id.
Moreover, Officer Hower testified that, through his investigation, he
determined that Appellant is a person who is prohibited from possessing or
using a firearm. Id. at 66. Specifically, Appellant has a prior conviction for
aggravated assault and the probation department advised him that he was
not to possess firearms. Id. at 68-69. Further, Officer Hower discovered
that Appellant did not have a valid hunting license. Id. at 70-71.
Officer Hower testified that about a week after the incident he had a
telephone conversation with Appellant. Id. at 72. During the conversation,
Appellant admitted that he was at the scene on the day in question; however,
he denied that he was in possession of or shot a gun. Id. at 73. Rather,
Appellant told Officer Hower that he was at his brother’s house when he heard
shots, and he drove in front of the Stoltzfus residence to investigate. Id.
Appellant confirmed to Officer Hower that Mr. Stoltzfus approached him. Id.
Appellant also confirmed that he knew he was not allowed to have firearms;
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however, Appellant did not admit that he shot a deer on the day in question.
Id. at 75. After the telephone conversation, Officer Hower located Appellant’s
vehicle at his brother’s residence, and when he looked into the pickup truck
to see if there was a gun inside, he did not observe a gun. Id. at 77.
Appellant testified that, on December 13, 2014, at approximately noon,
he arrived at his brother’s house and heard “maybe four or five gunshots up
the road…by the end of the field.” Id. at 90. Appellant indicated he drove up
the road to determine who was shooting the gun. Id. As he approached the
area of the road near the end of the Stoltzfus’s driveway, he saw a cloud of
dust, but he could not see the color or type of vehicle that was causing the
dust. Id.
Appellant testified that he stopped his vehicle and looked for evidence;
however, he did not observe the shell casings or the deer in the open field.
Id. at 90-91. He indicated that he was stopped for “maybe eight, ten seconds”
when Mr. Stoltzfus approached and asked why he was “road hunting[.]” Id.
at 91. Appellant testified that he did not have a rifle in his possession at this
time, he was not hunting, and he did not put anything into his pickup truck
when Mr. Stoltzfus approached him. Id. at 91-92.
At the close of all testimony, the jury convicted Appellant on the charge
of persons not to possess a firearm, and the trial court found Appellant guilty
on the four summary offenses. On December 16, 2015, Appellant proceeded
to a sentencing hearing, at the conclusion of which the trial court sentenced
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Appellant to forty-eight months to ninety-six months in prison for persons not
to possess a firearm. Additionally, the trial court imposed fines for each
summary offense.
Thereafter, Appellant filed a post-sentence motion,2 which the trial court
denied by order entered on July 27, 2016. Appellant filed a counseled notice
of appeal to this Court on August 24, 2016. However, by per curiam order
entered on April 12, 2017, this Court dismissed the appeal due to counsel’s
failure to file a brief. On September 25, 2017, counsel filed a “Motion for
Reinstatement of Appeal Rights and Authorization to Appeal Nunc Pro Tunc,”
and by order entered on December 27, 2017, the lower court granted the
petition.3 This counseled appeal followed on January 8, 2018. The trial court
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2 The post-sentence motion is dated December 26, 2015, and attached thereto
is a certificate of service indicating Appellant’s attorney served the motion on
the clerk of courts on December 26, 2015. However, the post-sentence
motion was not time-stamped by the clerk of courts until February 2, 2016.
Moreover, we note that the trial court did not specifically provide Appellant
with his post-sentence/appellate rights or determine whether Appellant
understood such rights at the conclusion of the sentencing hearing. Thus, we
overlook any untimeliness in the filing of Appellant’s post-sentence motion.
See Pa.R.Crim.P. 720 (indicating post-sentence motion must be filed within
ten days after the imposition of sentence); Commonwealth v. Patterson,
940 A.2d 493 (Pa.Super. 2007) (holding a breakdown to have occurred where
trial court filed to advise the appellant of his post-sentence and appellate
rights).
3 Despite Appellant’s titling of his petition as a “Motion for Reinstatement of
Appeal Rights and Authorization to Appeal Nunc Pro Tunc,” we note the issue
presented therein was cognizable under the Post-Conviction Relief Act
(“PCRA”), 42 PaC.S.A. §§ 9541-9546. It is well-settled that the PCRA is
intended to be the sole means of achieving post-conviction relief. 42 Pa.C.S.A.
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directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely
complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.
In his first issue, Appellant contends the evidence is insufficient to
sustain his conviction for persons not to possess a firearm under 18 Pa.C.S.A.
§ 6105(a)(1).4 Specifically, he asserts the evidence is insufficient to
demonstrate he possessed, used, or controlled a firearm.
Our standard of review of sufficiency claims is well-settled:
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.
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§ 9542. Further, any PCRA petition, including a second or subsequent petition,
must be filed within one year of the date the judgment becomes final. 42
Pa.C.S.A. § 9545. Here, Appellant filed his petition seeking the reinstatement
of his direct appeal rights within one year of the date his judgment became
final, and thus, his petition constituted a timely PCRA petition.
4 Appellant has not presented a sufficiency of the evidence claim with regard
to his four summary convictions.
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Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa. Super. 2011) (citation
omitted). “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. Sanders, 627 A.2d 183, 185 (Pa.Super. 1993). “Although a conviction
must be based on ‘more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical certainty.’”
Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa.Super. 2010) (quotation
omitted).
18 Pa.C.S.A. § 6105 relevantly provides the following:
§ 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
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.
***
(b) Enumerated offenses.--The following offenses shall apply
to subsection (a):
***
Section 2702 (relating to aggravated assault).
18 Pa.C.S.A. § 6105(a)(1), (b) (bold in original).
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Accordingly, in the case sub judice, in order to convict Appellant under
Subsection 6105(a)(1), the Commonwealth was required to prove that
Appellant had been convicted of an offense enumerated in Subsection 6105(b)
(i.e., aggravated assault under Section 2702) and that he possessed, used, or
controlled a firearm in this Commonwealth. See Commonwealth v.
Jemison, 626 Pa. 489, 98 A.3d 1254 (2014).
Here, Officer Hower testified at trial that Appellant has a prior conviction
for aggravated assault and the probation department advised him that
Appellant is prohibited from possessing a firearm. N.T., 9/21/15, at 68-69.
Appellant concedes in his brief that he has a prior disqualifying conviction for
aggravated assault. Thus, we shall proceed to address Appellant’s argument
that the Commonwealth failed to show he possessed, used, or controlled a
firearm in this Commonwealth on December 13, 2014.
In analyzing this claim, and concluding the Commonwealth presented
sufficient evidence that Appellant actually possessed the firearm, the trial
court indicated the following:
A witness for the Commonwealth, [Mr. Stoltzfus], testified
he saw Appellant’s truck parked on the shoulder of the road [on
December 13, 2014]. The witness testified that he saw Appellant
with a rifle in his possession, leaning across the hood of his truck
holding a rifle. The witness described the rifle as having a scope,
a wooden stock, and without a sling. The witness, standing 40-
50 feet away from [] Appellant, testified to seeing [] Appellant put
the rifle in the back of the truck.
Trial Court Opinion, filed 3/15/18, at 3 (citations to record omitted).
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We find no error in this regard. Here, the testimonial evidence of Mr.
Stoltzfus, which the jury chose to find credible, established that Appellant was
in actual possession of the rifle. As noted above, the jury was free to believe
all, part, or none of the evidence presented. See Estepp, supra.In his next issue, Appellant contends the jury’s verdict that Appellant
possessed a firearm for purposes of Subsection 6105(a)(1) is clearly against
the weight of the evidence.5 Specifically, he contends “[i]t is very unlikely
that damage would not have occurred to the vehicle based upon Mr. Stoltzfus’s
testimony of where he observed [] Appellant standing after the shots had been
fired. Additionally, he never testified that he had smelled gun powder.”
Appellants’ Brief at 22-23. Moreover, Appellant contends that Mr. Stoltzfus
testified he heard four or five shots from a “high caliber” rifle; however, Officer
Hower did not find significant damage to the deer as one would expect from
such a rifle. Id. at 22. Accordingly, Appellant suggests that the record as a
whole demonstrates that Mr. Stoltzfus’s testimony was incredible.
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation
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5 Appellant presented this issue in his post-sentence motion.
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omitted). Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa.Super. 2000). It is well-settled that we cannot substitute our
judgment for that of the trier of fact. Talbert, supra.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.
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. One of the least assailable
reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (quotation marks and quotation omitted).
Appellant requests that we re-weigh the evidence and assess the
credibility of the witnesses presented at trial, a task that is beyond our scope
of review. The jury, as finder of fact, had the duty to determine the credibility
of the testimony and evidence presented at trial. See Commonwealth v.
Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013) (stating that “[a]n appellate
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court cannot substitute its judgment for that of the finder of fact”). Here, the
jury found credible Mr. Stoltzfus’s testimony that he saw Appellant in actual
possession of a rifle on December 13, 2014. The jury was free to determine
what impact, if any, the condition of the deer and Appellant’s pickup truck had
in this case. As the trial court indicated, the jury was free to believe the
Commonwealth’s witnesses and disbelieve Appellant’s theories regarding the
lack of certain evidence. Trial Court Opinion, filed 3/15/18, at 4. Simply put,
the trial court did not abuse its discretion in concluding the jury’s verdict is
not against the weight of the evidence. See Talbert, supra.
In his final claim, Appellant contends the trial court erred in failing to
bifurcate this matter so that the jury could first determine whether Appellant
had, in fact, possessed the rifle without being informed that Appellant had a
prior conviction for aggravated assault. That is, Appellant contends the trial
court should have held a trial as to possession and then, after the jury made
a determination, held a trial as to whether Appellant was prohibited from
possessing a firearm due to his prior conviction for aggravated assault. We
find this issue to be waived.
In his court-ordered6 Pa.R.A.P. 1925(b) statement, Appellant presented
his sufficiency of the evidence and weight of the evidence claims only. He did
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6 The trial court’s order complied fully with Pa.R.A.P. 1925. Specifically, the
trial court’s order provided Appellant with at least twenty-one days to file a
Rule 1925(b) statement, as well as informed Appellant that he was to file the
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not include therein his claim of bifurcation, resulting in the trial court not
having the opportunity to address the claim. Accordingly, we find Appellant’s
final issue to be waived. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2018
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statement of record and with the trial court. Further, the order specifically
informed Appellant that any issues not included in the Rule 1925(b) statement
would be deemed to have been waived. The concise statement order was
docketed, and a notation on the docket indicates that the order was served
on Appellant’s counsel on January 9, 2018.
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