J-S01042-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

TRAVOYCE O’NEIL 

 Appellant No. 1398 WDA 2014 

Appeal from the Judgment of Sentence August 19, 2014 

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-CR-0002169-2013 

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J. 

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 21, 2015 

 Appellant, Travoyce O’Neil, appeals from the judgment of sentence 

entered in the Fayette County Court of Common Pleas, following his jury trial 

convictions for persons not to possess a firearm, firearms not to be carried 

without a license, and resisting arrest as well as the bench convictions for 

criminal mischief and public drunkenness.1 We affirm. 

 The relevant facts and procedural history of this case are as follows. 

The testimony at trial disclosed that, during the early morning hours of 

October 13, 2013, Officer Matthew Painter of the Uniontown City Police 

Department was dispatched to Mount Vernon Towers in Uniontown, Fayette 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 5104, 3304(a)(5), 5505, 

respectively 
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County, Pennsylvania, for a disturbance on the fifth floor. Pulling into the 

parking lot, Officer Painter observed Appellant and two females exiting the 

rear door to the complex. Officer Painter tried to gather some basic 

information about where they were coming from and whether they had any 

involvement in the fifth floor disturbance. Officer Painter initially interacted 

with Appellant, who was evasive and refused to give his name. Officer 

Painter described Appellant’s physical condition as emitting a strong odor of 

alcoholic beverage from his nose and mouth area. Officer Painter also 

described Appellant as having bloodshot eyes. Officer Painter concluded 

Appellant was intoxicated. 

While Officer Painter was trying to speak with Appellant, Officer 

Jonathan S. Grabiak arrived, approached Officer Painter, and also tried to 

talk with Appellant. Officer Grabiak left them to talk to the two females 

present. Without disclosing what the females said, Officer Grabiak testified 

he told Officer Painter that Appellant had a firearm. Officer Painter asked 

Appellant to turn around so he could be arrested and handcuffed for public 

drunkenness. 

Initially, Appellant complied, but suddenly he fled. Officer Painter 

chased Appellant for about 12-15 feet, while Officer Grabiak tried 

unsuccessfully to Taser Appellant. Appellant continued to run. When Officer 

Painter was finally able to tackle Appellant, they both hit the ground; but 

when Appellant popped back up, they went to the ground a second time. 
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Officer Painter had to exert significant force to subdue Appellant. Officer 

Grabiak testified he saw the firearm fall out of Appellant’s pants pocket and 

land inches away from Appellant. Officer Grabiak was able to secure the 

firearm. Both officers testified that the lights from the Mount Vernon Towers 

and the local businesses surrounding the area rendered the area absolutely 

well-lit. Meanwhile, Appellant continued to resist Officer Painter until Officer 

Grabiak successfully Tasered him; and Officer Painter was able to secure 

him. At the end of the Commonwealth’s case, counsel stipulated that 

Appellant was a member of the class of persons prohibited from possessing 

a firearm in Pennsylvania.2 The court then instructed the jury on the 

stipulation and its significance. 

 During his defense, Appellant admitted he was intoxicated on the night 

in question, but he denied possessing the gun. Appellant said Officer Painter 

asked Appellant his name, which he refused to give, until Officer Painter told 

Appellant what he had done wrong. Appellant claimed he was unfamiliar 

with the area, he ran because he was scared, he had no reason to run, and 

he had plenty of time to discard a gun if he had actually had one. Appellant 

said he did not resist Officer Painter. Appellant maintained Officer Painter 

was just being too aggressive for the situation, and Appellant was trying to 

minimize the damage. Appellant also claimed he later told Officer Painter 

____________________________________________ 

2

 Appellant had a prior conviction for second-degree aggravated assault. 

The specific prior offense and conviction was not disclosed to the jury. 
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that the gun recovered was someone else’s gun. 

 In rebuttal, Officer Painter testified that Appellant gave him no names 

of any individuals he was with that night or statements about who really had 

the gun. According to Officer Painter, when he asked why Appellant ran, 

Appellant replied: “It was his job to get away from me and my job to catch 

him.” (N.T. Trial, 7/10/14, at 22). Following the second day of trial, the 

jury convicted Appellant of the firearms offenses and resisting arrest. The 

court found Appellant guilty of criminal mischief and public drunkenness. 

 The court sentenced Appellant on August 19, 2014, to thirty (30) to 

sixty (60) months’ incarceration,3 followed by two (2) years’ probation, on 

the persons not to possess conviction, with credit for time served, plus 

costs, fees, and restitution for the broken watch. Due to the nature of the 

offenses, the court also found Appellant RRRI ineligible. The court imposed 

no further penalty on the remaining convictions. At sentencing, Appellant 

registered a complaint about the prosecution’s closing argument. 

Specifically, Appellant complained the prosecutor told the jury (1) they 

should believe the police officers because they were police officers and (2) 

the two women at the scene told Officer Grabiak that Appellant had a 

firearm, even though the court said it was hearsay. (N.T. Sentencing, 

____________________________________________ 

3

 With a prior record score of 3 and an offense gravity score of 10, the 

mitigated sentencing guidelines range was 30-42 months. Appellant’s 

sentence fell in the mitigated range. 
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8/19/14, at 4-5). The court thoroughly instructed Appellant on his postsentence motion and appeal rights and responsibilities. Appellant timely 

filed a notice of appeal on August 25, 2014, along with a voluntary concise 

statement of errors complained of on appeal, per Pa.R.A.P. 1925(b). 

 Appellant raises one issue for review: 

WHETHER THE WEIGHT OF THE EVIDENCE OUTWEIGHS 

THE GUILTY VERDICT...THUS ENTITLING [APPELLANT] TO 

A NEW TRIAL? 

(Appellant’s Brief at 5). 

 Appellant initially concedes the parties entered a stipulation at trial 

that Appellant was a member of the class of persons prohibited from 

possessing a firearm in Pennsylvania. Appellant also concedes he has no 

license to carry a firearm. Nevertheless, Appellant claims the incident 

occurred in the dark of night, he was unfamiliar with the area, and he ran 

because he was scared. Officer Painter, who chased after Appellant, did not 

see a gun fall from Appellant’s pants pocket or hear it hit the ground. Yet, 

Officer Grabiak, who was also at the scene, testified he was able to see, 

through the dark, a gun come from Appellant’s front pants pocket and fall to 

the ground as Appellant was tackled. Appellant contends there is no logical 

way the jury could conclude, based on the officers’ testimony, that Appellant 

possessed the gun, when Officer Painter (the tackling officer) did not see or 

hear a gun come from Appellant. On the same basis, Appellant challenges 

his conviction for firearms not to be carried without a license. 
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 Appellant further complains the testimony at trial demonstrated he 

was not told he was arrested until after the police chased and subdued him. 

So, Appellant maintains he was wrongfully convicted of resisting arrest. 

Regarding Appellant’s convictions for criminal mischief and public 

drunkenness, Appellant claims he did not intentionally damage Officer 

Painter’s watch, which could have been broken in some other way than in 

the take-down process. Appellant acknowledges Officer Painter and Officer 

Grabiak said Appellant had a strong odor of alcohol on his breath and glassy, 

bloodshot eyes, when they encountered Appellant. Nevertheless, Appellant 

insists he was not the reason for the disturbance call nor was he reported as 

an annoyance or causing the destruction of property. Based on the totality 

of the Commonwealth’s evidence and Appellant’s evidence, Appellant 

submits all of the verdicts should be overturned, because no jury or judge 

could logically find the Commonwealth met every element of each crime. 

Appellant concludes we should overturn all guilty verdicts based on the 

weight of the evidence and grant Appellant a new trial. We cannot agree. 

As a preliminary matter, generally, a challenge to the weight of the 

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607. 

The Rule provides: 

Rule 607. Challenges to the Weight of the Evidence 

(A) A claim that the verdict was against the weight of the 

evidence shall be raised with the trial judge in a motion for 

a new trial: 
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(1) orally, on the record, at any time before 

sentencing; 

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion. 

Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the 

purpose of this rule is to make it clear that a challenge to the weight of the 

evidence must be raised with the trial judge or it will be waived.” 

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal 

denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight 

of the evidence generally cannot be raised for the first time in a Rule 

1925(b) statement. Commonwealth v. Burkett, 830 A.2d 1034 

(Pa.Super. 2003). An appellant’s failure to avail himself of any of the 

prescribed methods for presenting a weight of the evidence issue to the trial 

court constitutes waiver of that claim, even if the trial court responds to the 

claim in its Rule 1925(a) opinion. Id. 

Instantly, Appellant failed to challenge the weight of the evidence 

before the trial court by any of the available means and ask for a new trial. 

See Pa.R.Crim.P. 607. Rather, Appellant raised his weight claim for the first 

time in his Rule 1925(b) statement. Thus, his issue on appeal is waived. 

See Pa.R.Crim.P. 607; Gillard, supra; Burkett, supra. 

Moreover, even if Appellant had properly preserved his challenge to 

the weight of the evidence for review, after a thorough review of the record, 

the briefs of the parties, the applicable law, and the reasoned opinion of the 
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Honorable Steve P. Leskinen, we would conclude the issue merits no relief. 

(See Trial Court Opinion, filed October 31, 2014, at 3-7) (finding: parties 

stipulated at trial that Appellant was in class of persons prohibited from 

possessing firearm; Officer Grabiak testified he saw firearm fall out of 

Appellant’s front pants pocket, and firearm was loaded; Appellant did not 

have license to possess firearm; when Officer Painter tried to arrest 

Appellant, Appellant fled, requiring chase for about 12-15 feet; when Officer 

Painter tackled Appellant to ground, he struggled against Officer Painter, 

which required use of Taser; Appellant created substantial risk of bodily 

injury to both officers and forced them to use substantial force to halt 

Appellant’s struggle; jury properly convicted Appellant of firearms offenses 

and resisting arrest; additionally, court found beyond reasonable doubt that 

Appellant intentionally damaged Officer Painter’s watch and caused 

pecuniary loss of $150.00 as result of brawl with Officer Painter; further, 

when officers approached Appellant in public place, they observed 

Appellant’s strong odor of alcohol and glassy, bloodshot eyes; court properly 

convicted Appellant of criminal mischief and public drunkenness; verdicts 

were not against weight of evidence). Although Appellant waived this issue, 

the record supports the court’s decision to deny Appellant a new trial on the 

grounds alleged. Accordingly, we affirm. 

Judgment of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/21/2015