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[U] Commonwealth v. Shamberger

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANTHONY SHAMBERGER Appellant

NON-PRECEDENTIAL DECISION

Appeal From The Judgment Of Sentence October 30, 2008 In The Court of Common Pleas of Philadelphia County Criminal Division At No(s): CP-51-MD-0302741-2006

BEFORE: ALLEN, JENKINS, and FITZGERALD [*] , JJ.

MEMORANDUM

JENKINS, J.

A jury found Anthony Shamberger guilty of terroristic threats[1]and carrying a firearm without a license[2]. Because he had a prior felony that made it unlawful for him to possess a firearm, the trial court found him guilty of persons not to possess firearms[3]. The trial court imposed an aggregate sentence of 7 ½ - 15 years imprisonment.

In this direct appeal, Shamberger contends that the evidence was insufficient to sustain his convictions for terroristic threats and carrying a firearm without a license. We affirm.

The trial court summarized the evidence as follows:

Complainant Kimberly Bannon and [Shamberger] were in a romantic relationship which produced two children. After they began their relationship[, ] Complainant purchased a house at 2552 Massey Street, Philadelphia, PA[, ] and [Shamberger] moved in with her. Complainant testified that [Shamberger] lived with her on and off for a number of years during which they constantly fought[, ] and that [Shamberger] was abusive. She explained that she made multiple attempts to resolve their conflicts for the sake of their children.
At trial, Complainant testified of three incidents during which [Shamberger] assaulted her. The [third] incident[4] giving rise to the instant appeal. . .occurred on June 20, 2004. At that time, Complainant was in a new relationship with Maurice Jordan. On that date[, ] [Shamberger] broke into Bannon's house, entered her locked bedroom where she was with Jordan and ordered him to leave. Jordan refused and an argument ensued. The three went downstairs and eventually [Shamberger] left the house. [Shamberger], however, returned shortly thereafter, threatened to kill Complainant and Jordan, retrieved a firearm from his waist, pointing it at the pair. Jordan testified that [Shamberger] slid the firing mechanism back to load the firearm and again ordered Jordan to leave[, ] whereupon Jordan exited the house and called police. Police Officer Carl Drew responded, however [Shamberger] fled before Drew arrived. A warrant was later issued for [Shamberger's] arrest.

Trial Court Opinion, pp. 2-3 (citations omitted).

As stated above, on October 24, 2008, the trial court sentenced Shamberger to 7 ½ - 15 years imprisonment. Shamberger did not file a direct appeal, but on August 24, 2009, Shamberger filed a timely PCRA petition seeking leave to file a direct appeal nunc pro tunc. On January 12, 2012, the trial court granted the petition and reinstated Shamberger's right to file a direct appeal. Shamberger filed a timely notice of appeal but failed to file a timely concise statement of errors complained of on appeal ("concise statement"). The trial court issued a Pa.R.A.P. 1925 opinion stating that all issues were waived due to the lack of a concise statement. This court remanded the case with leave for Shamberger to file a concise statement. On July 12, 2012, Shamberger filed a concise statement raising eight issues.

Shamberger's brief in this court raises only two of the eight issues in his concise statement:

(1) Was the evidence insufficient to find that [Shamberger] possessed a firearm?
(2) Was the evidence insufficient to find [Shamberger] guilty of the offense of terroristic threats?

Our standard of review regarding challenges to the sufficiency of the evidence is well-settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa.Super.2011) (citing Commonwealth v. Mullett, 5 A.3d 291, 313 (Pa.Super.2010)).

We conclude[5] that the evidence was sufficient to support his conviction for being a felon in possession of a firearm. 18 Pa.C.S. § 6105 provides in relevant part:

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.

18 Pa.C.S. § 6105(a)(1). Shamberger does not dispute that he has a prior conviction for burglary, an offense enumerated in subsection (b) of § 6105. He claims, however, that there was insufficient evidence that he was in possession of a firearm, because the police never recovered any weapon. We disagree. Recovery of a weapon is not a prerequisite for establishing a violation of § 6105. Commonwealth v. Robinson, 817 A.2d 1153, 1162 (Pa.Super.2003). In Robinson, as in this case, the defendant argued that the evidence did not establish a firearms violation because no firearm was recovered when he was stopped. We responded that

[the victim] testified that all three attackers possessed handguns. This is all that is necessary. That no gun was found on Appellant a half-hour or more after the robbery is not dispositive of the sufficiency of the evidence. Appellant could have easily discarded the gun immediately after the robbery had been effectuated.

Id. at 1162. Shamberger's argument fails for the same reasons. Two witnesses, Ms. Bannon and Mr. Jordan, testified that Shamberger pointed a gun at them. Ms. Bannon described the object as a black gun and identified it as the same gun that Shamberger used to strike her one month before. Mr. Jordan testified that the gun was black and appeared to be a semi-automatic, and that Shamberger cocked the gun.

Shamberger also argues that the testimony of Ms. Bannon and Mr. Jordan was inconsistent and contradictory "because during the incident [Shamberger] was seen three times and only once did he have an alleged gun which was never recovered by the police." Brief for Appellant, p. 7. Inconsistent evidence does not render the evidence insufficient unless the Commonwealth's case becomes "so unreliable and/or contradictory as to make any verdict based thereon pure conjecture." Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545, 550 (1976). We see no such inconsistency in this case. Both witnesses testified that Shamberger entered Ms. Bannon's bedroom on the morning of June 20, 2004 without a gun, then left the house and returned shortly thereafter with a gun which he pulled out of his waistband.

The evidence also was sufficient to sustain Shamberger's conviction for terroristic threats. A defendant is guilty of this offense if, inter alia, he "communicates, either directly or indirectly, a threat to. . .commit any crime of violence with intent to terrorize another." 18 Pa.C.S. § 2706(a)(1). "[T]he Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror." Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597, 600 (1996). "Neither the ability to carry out the threat, nor a belief by the person threatened that the threat will be carried out, is an element of the offense." In re J.H., 797 A.2d 260, 262 (Pa.Super.2002). "Rather, the harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another's sense of personal security." Tizer, 684 A.2d at 600.

Shamberger pointed a gun at Ms. Bannon and Mr. Jordan and threatened to kill them, a direct threat to commit a crime of violence with intent to terrorize them. This evidence clearly is sufficient to sustain Shamberger's conviction for terroristic threats. Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super.2003) (evidence was sufficient to support conviction for terroristic threats, where defendant confronted victim outside of bar and uttered threats while pointing gun at patron's face); Commonwealth v. McCalman, 795 A.2d 412, 418 (Pa.Super.2002) (evidence supported conviction for terroristic threats; although defendant made no specific verbal threat, he pointed gun in faces of two victims and told one to "go the f---away"); In re Maloney, 431 Pa.Super. 321, 636 A.2d 671, 676 (1994) (prima facie case of making terroristic threat was stated by motorist's allegations that tailgating driver pointed gun at motorist as he approached tailgating driver and said "get the fuck out of here"; words spoken and pointing of gun suggested threat that motorist would have been shot if he did not leave).[6]

Judgment of sentence affirmed.

Judgment Entered.


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