J-A12023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL BATTAGLIA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 809 WDA 2021

Appeal from the Judgment of Sentence Entered March 23, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0011924-2019

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: MAY 20, 2022

Michael Battaglia (Appellant) appeals from the judgment of sentence 

entered in the Allegheny County Court of Common Pleas following his nonjury convictions of prohibited offensive weapon and restrictions on alcoholic 

beverages (possessing an open container in a vehicle).

1

 On appeal, he 

complains the verdict was against the weight of the evidence for his offensive 

weapon conviction and that his sentence is illegal for failing to comply with 

this Court’s recent decision in Commonwealth v. Koger, 255 A.3d 1285 (Pa. 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 908(a) and 75 Pa.C.S. 3809(a), respectively.
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Super. 2021), appeal granted, 270 WAL 2021 (April 5, 2022).2 For the 

following reasons, we affirm. 

The underlying offenses stem from an August 21, 2019, incident in West 

Mifflin Borough, Allegheny County, Pennsylvania. On that date, Appellant 

went to the residence of Mary Jo Kelly and her son, Anthony Petosi, on 

Everlawn Drive. Kelly asked Appellant to leave twice and when he did not, 

she and her son contacted police. N.T. Habeas & Suppression Motion & NonJury Trial, 3/23/21, at 6, 8-9. After police arrived, they conducted a pat down 

search of Appellant’s person and found brass knuckles in his pocket. Id. at 

16. Appellant was subsequently charged with possession of a prohibited 

offensive weapon, possessing an open container in a vehicle, criminal 

trespass, resisting arrest, and disorderly conduct.

3

Appellant filed an omnibus pretrial motion seeking habeas corpus relief, 

dismissal of his charge for resisting arrest, and suppression of the brass 

knuckles. Appellant’s Omnibus Pretrial Motion, 3/6/20, at 4-6 (unpaginated). 

On March 23, 2021, the trial court held an omnibus pretrial and habeas corpus

hearing where the Commonwealth presented the following evidence relevant 

to Appellant’s claims that are before us.

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2 We note the author of the Koger decision is the same as in this 

memorandum.

3 18 Pa.C.S. §§ 3503(b.11)(i), 5104, 5503(a)(1). 
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West Mifflin Borough Patrolman Ryan Sabol testified that on the day of 

the incident, he and Officer Hanes4responded to a call about an “unwanted 

male at the [Everlawn Drive] house refusing to leave the property.” N.T., 

3/23/21, at 13, 17. Patrolman Sabol approached Appellant and while they 

spoke, Appellant “kept reaching into his pockets and pulling” on his clothing. 

Id. at 14. Patrolman Sabol “asked him several times to stop . . . because [he] 

wasn’t sure if [Appellant] had any weapons on him.” Id. at 14-15. After 

asking him “two or three times” to stop placing his hands in and out of his 

pockets, the officer told Appellant he was going to “pat him down” and asked 

“if [Appellant] had anything on him that [the officers] needed to know about.” 

Id. Appellant admitted he “had a set of brass knuckles in his back pocket.” 

Id. at 15. He then told them he owned the weapon “because he live[d] in 

Wilkinsburg[, Pennsylvania] and needed them for his protection.” Id. at 17. 

Patrolman Sabol conducted a pat down of Appellant, “immediately recognized 

the brass knuckles in his [right] back pocket[,]” and removed them. Id. at 

16. 

At the hearing, Appellant made an oral motion to withdraw his motion 

to suppress, which the trial court granted. N.T., 3/23/21, at 22, 26. The trial 

court denied Appellant’s habeas petition. Id. at 26. Appellant then elected 

to move forward to a non-jury trial that same day. Id. Appellant agreed to 

incorporate the evidence presented at the omnibus pre-trial and habeas

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4 Officer Hanes’s first name is not apparent from the record.
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hearings for the purposes of the non-jury trial. Id. at 32. The Commonwealth 

recalled Patrolman Sabol to the stand, where he testified about the 

circumstances that led to Appellant’s open container charge. N.T., 3/23/21, 

at 33.

Appellant took the stand and stated he “purchased [the brass knuckles] 

not as a weapon, but as” a belt buckle “at least six months” before the incident

because he was “into weird things.” N.T., 3/23/21, at 35. He testified that 

prior to the incident, the brass knuckles “had come off” the belt because “the 

screw came out.” Id. at 36. He indicated he put them in the back pocket of 

his pants and “just forg[o]t” the weapon was still there when he put the pants 

on that day. Id. 

Appellant testified that on the day in question, he drove to Kelly and 

Petosi’s home with his friend, Brandon Garter, to use Petosi’s computer after 

Garter informed him they had “permission” to be there. N.T., 3/23/21, at 41, 

47. Appellant stated he willingly left Petosi’s home after Kelly told him to 

leave. Id. at 43-44, 49-50. Appellant also testified that when Patrolman

Sabol arrived, he was standing by his truck. Id. at 44. When the officer asked 

Appellant for his ID, he “started to check [his] pockets” and “felt the weight 

in [his] back pocket[.]” Id. at 43. Appellant testified he “sarcastically” told 

Patrolman Sabol he had “a paperweight” in his back pocket. Id. at 53. 

Contrary to Patrolman Sabol’s testimony, Appellant stated the officer did not 

ask him to stop reaching in his pockets. Id. at 52. Appellant admitted two 

photos into evidence, one of him wearing the brass knuckles as a belt buckle 
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prior to the incident and another photo of the brass knuckles attached to the 

belt. Id. at 37-39.

At the conclusion of the non-jury trial, the trial court found Appellant 

guilty of possessing a prohibited offensive weapon and possessing an open 

container in a vehicle, and not guilty of the remaining charges. N.T., 3/23/21, 

at 70. The trial court proceeded immediately to sentencing where it imposed

an aggregate term of four to eight months’ incarceration, a consecutive term 

of 18 months’ probation, and a fine of $25. Id. at 70, 77-78. The trial court 

identified the following conditions for Appellant’s probation:

Conditions of [Appellant’s] probation are that [he] undergo a drug 

and alcohol assessment and comply with any recommended 

treatment that the probation office requires, and otherwise 

comply with all the conditions of probation.

Id. at 77. 

Appellant filed a post-sentence motion challenging the weight of the 

evidence for his conviction of prohibited offensive weapon, which the trial 

court denied on June 10, 2021. Appellant then filed the present, timely 

appeal.5

Appellant raises the following claims for our review:

1. Where the evidence established that Mr. Battaglia possessed a 

belt buckle, an item with a common lawful purpose, did the trial 

court abuse its discretion in denying [Appellant’s] post-

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5 Appellant also timely complied with the trial court’s order to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 
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sentence motion for a new trial because the verdict was against 

the weight of the evidence?

2. Where the trial court failed to specifically advise [Appellant] of 

the conditions of his probation at the time of his sentencing, 

did the trial court impose an illegal sentence by failing to 

articulate the conditions it deemed necessary to his probation?

Appellant’s Brief at 6. 

In his first claim, Appellant argues his conviction for prohibited offensive 

weapon was against the weight of the evidence.6 Appellant’s Brief at 17. 

This Court’s standard of review of a weight of the evidence claim is wellsettled:

A weight of the evidence claim concedes that the evidence is 

sufficient to sustain the verdict, but seeks a new trial on the 

ground that the evidence was so one-sided or so weighted in favor 

of acquittal that a guilty verdict shocks one’s sense of justice. On 

review, an appellate court does not substitute its judgment for the 

finder of fact and consider the underlying question of whether the 

verdict is against the weight of the evidence, but, rather, 

determines only whether the trial court abused its discretion in 

making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations 

omitted). Further, the fact finder is free to believe all, some, or none or the 

evidence presented. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 

2003) (citation omitted). 

This Court will not find an abuse of discretion

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6 Appellant properly preserved his weight of the evidence claim in his postsentence motion pursuant to Pa.R.Crim. 607. Appellant’s Post-Sentence 

Motion, 3/29/21, at 2 (unpaginated).
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based on a mere error of judgment, but rather . . . where the 

[trial] court has reached a conclusion which overrides or 

misapplies the law, or where the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will. 

Importantly, [this C]ourt should not find that a trial court abused 

its discretion merely because [we] disagree[ ] with the trial court’s 

conclusion. Indeed, “when reviewing the trial court’s exercise of 

discretion, it is improper for [this C]ourt to ‘step[ ] into the shoes’

of the trial judge and review the evidence de novo.” In other 

words, [this C]ourt “may not disturb a trial court’s discretionary 

ruling by substituting its own judgment for that of the trial court.”

Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019) (citations and some 

quotation marks omitted).

Preliminarily, we note it is necessary to set forth the elements of the 

crime of prohibited offensive weapon and the “curio” defense as defined in 18 

Pa.C.S. § 908(b)(1) to understand Appellant’s argument. The statute states 

an individual commits the crime at issue when they, inter alia, “use” or 

“possess” “any offensive weapon[,]” and explicitly lists “metal knuckles” in its 

definition of “offensive weapons.” 18 Pa.C.S. § 908(a), (c). An individual may 

assert, and prove by a preponderance of the evidence, the defense that they 

owned the offensive weapon “solely as a curio . . . or under circumstances 

similarly negativing any intent or likelihood that the weapon would be used 

unlawfully.” 18 Pa.C.S. § 908(b)(1). Neither the statute for prohibited 

offensive weapon nor Black’s Law Dictionary defines “curio,” so we turn to the 

Merriam-Webster Dictionary, which defines “curio” as “something (such as a 

decorative object) considered novel, rare, or bizarre.” Merriam-Webster’s 

Online Dictionary, https://www.merriam-webster.com/dictionary/curio (last 

visited May 5, 2021).
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Here, Appellant contends “the evidence established that [he] possessed 

the belt buckle under circumstances which showed he did not intend to use 

[it] in an unlawful manner.” Id. at 15. He asserts that he “testified credibly 

that he bought the belt buckle six months prior in the South Side neighborhood 

of Pittsburgh, and possessed the item not as a weapon, but as a weird item. 

[Appellant states his] possession meets the definition of a curio, as it is 

commonly defined.” Id. at 22-23. Furthermore, he alleges “the 

circumstances of this case demonstrate that there was no intent or likelihood 

that the weapon would be used unlawfully[ because he] never threatened 

anyone and, indeed, did not even remember that he had the belt buckle on 

his person until [Patrolman] Sabol indicated he would search [him].” Id. at 

23. Appellant insists that “[w]hen properly weighed,” the evidence, his 

testimony, and the photos of the brass knuckles as a belt buckle, supported 

his affirmative defense that he owned the item “as a curio” and “would not be 

used unlawfully.” Id. at 21, 25-26 (footnote omitted). 

In denying Appellant’s weight claim, the trial court pointed out that 

Appellant’s argument “can be reduced to a single proposition, that [it] should 

have given Appellant’s testimony more weight than” Patrolman Sabol’s. Trial 

Ct. Op. 9/10/21, at 6. The court “reject[ed]” Appellant’s testimony regarding 

the defense that he owned the brass knuckles as a curio, stating it “did not 

find Appellant’s testimony credible.” Trial Ct. Op. at 8. It detailed the 

following reasons in support of its conclusion: 
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It defies common experience to believe that a person can walk 

around with the weight of brass knuckles in one’s back pocket, 

much less sit on them, as Appellant would have done during the 

drive to . . . Everlawn Drive and be unaware of their existence. 

[Appellant’s photos] appear[ ] to demonstrate that [he] has used 

brass knuckles as a belt buckle in the past, the question at trial 

was how Appellant possessed them on August 21, 2019. 

Appellant’s characterization of the brass knuckles was inconsistent 

at best. He offered they are a “weird” item as to qualify as a curio 

but admitted on cross that he described them as a “paper weight” 

to [Patrolman] Sabol. Moreover, Appellant’s testimony that he 

went to [Kelly and Petosi’s home with] permission was 

contradicted by the fact that [they] did not allow him in and called 

the police to have him removed from the property. There was no 

corroboration regarding the presence of a third-party, Brandon 

[Garter]. Of equal importance, it is inconceivable to this [c]ourt 

that a police officer would permit a person who is currently subject 

to questioning to repeatedly put his hands in and out of his [ ] 

pockets.

Id. at 8. 

We agree with the trial court’s conclusion that Appellant’s argument 

amounts to a request to reweigh the evidence in his favor – a request that is 

beyond our scope of review. We point out that the trial court, sitting as the 

finder of fact, was entitled to believe all part or some of the evidence 

presented at trial. See Champney, 832 A.2d at 408. The court specifically 

found that Appellant was not credible. See Trial Ct. Op. at 8. The court heard 

from the witnesses, viewed the exhibits, and listened to the parties’ 

arguments. As we cannot substitute the trial court’s credibility determinations 

for our own and we detect no abuse of discretion, we conclude no relief is due. 

See Champney, 832 A.2d at 408; Lyons, 79 A.3d at 1067. Accordingly, 

Appellant’s first claim fails.
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Next, we address Appellant’s legality of sentencing claim, which we 

review by the following standard:

[A] claim that implicates the fundamental legal authority of the 

court to impose a particular sentence constitutes a challenge to 

the legality of the sentence. If no statutory authorization exists 

for a particular sentence, that sentence is illegal and subject to 

correction. Issues relating to the legality of sentence are 

questions of law, and thus, our standard of review is de novo and 

our scope of review is plenary. 

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (quotation 

marks and citations omitted). Further, a claim pertaining to the legality of 

sentence may be raised for the first time on appeal and is not subject to 

waiver. Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008). 

In Appellant’s second claim, he argues the trial court imposed an illegal 

sentence when it told him to “comply with all the conditions of probation.” 

Appellant’s Brief at 28. Appellant maintains that the court “did not explain” 

the conditions of his probation, “did not ask [him if he] had any questions 

about these conditions,” and did not “specifically advise[ him] of his conditions 

of probation and parole at sentencing[,]” thus violating Commonwealth v. 

MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) (stating “the legislature [in 

the Sentencing Code] has specifically empowered the court, not the probation 

offices and not any individual probation officers, to impose the terms of 

probation.”) (citation and emphasis omitted), and Koger, 255 A.3d at 1291 

(holding the sentencing court must advise a defendant of the terms of their 

probation before finding a violation of any such condition). Id. at 28-30. 

Appellant insists the trial court “defer[ed] authority to impose the specific 
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terms of probation to the probation officer.” Id. at 29. Appellant also rejects 

the trial court’s reasoning that Koger is inapplicable to the present facts 

because his claim is not ripe for review since Appellant is appealing his initial 

conviction and not a violation of probation. Id. at 30. He concludes that “only 

the court has the authority to impose the terms of probation and . . . must 

advise the defendant of those conditions at sentencing.” Id. (emphasis 

omitted). 

Preliminarily, we distinguish the present matter from Koger based on 

the procedural posture of the two cases. In Koger, the appellant pled guilty 

to possession of child pornography and criminal use of a communication 

facility. Koger, 255 A.3d at 1287. After sentencing, the appellant was 

immediately paroled and sentenced to a consecutive term of three years’ 

probation. Id. The trial court imposed the following terms on the appellant’s 

sentence:

As special conditions of this sentence, [the appellant] shall have 

no contact with any victims or persons displayed in the images. 

[the appellant] shall submit to a drug and alcohol evaluation and 

complete any recommended treatment; perform 100 hours of 

[c]ommunity [s]ervice and complete sexual offender counseling.

Id. Subsequently, the trial court revoked the appellant’s probation and parole 

after he stipulated to the following violations:

Condition 7, [relating to refraining] from any assaultive, 

threatening, or harassing behavior[,] Condition 1, [failing] to 

permit a [probation officer] to visit [him at his] residence [ ] and 

submit to warrantless searches of [his] residence, vehicle, 

property, and/or [his] person[,] and Condition 2, [relating to 

violations of] criminal laws or ordinances.
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Id. (quotation marks omitted). The trial court then resentenced him to serve 

the balance of his maximum sentence. Koger, 255 A.3d at 1288. 

Appellant challenged, inter alia, the legality of his sentence stating the 

Commonwealth failed to prove he violated any actual terms of his probation 

or parole. Id. at 1288-89. A panel of this Court determined the trial court 

“did not advise [the appellant] of the general conditions of his probation or 

parole at the time of sentencing” but instead “the probation and parole 

conditions were explained to [the appellant] after sentencing, by an adult 

probation officer.” Koger, 255 A.3d at 1288 (emphasis in original). Because 

the trial court did not impose the conditions the appellant was alleged to have 

violated, it could not then find the appellant had violated any such terms. See 

id. at 1291. see also Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa. 

2012) (stating: (1) probation offices may “impose conditions of supervision 

that are germane to, elaborate on, or interpret any conditions of probation 

that are imposed by the trial court[;]” and (2)“a trial court may impose 

conditions of probation in a generalized manner, and the [office of probation] 

may impose more specific conditions of supervision pertaining to that 

probation, so long as those supervision conditions are in furtherance of the 

trial court’s conditions of probation.”). The panel concluded “the trial court 

erred in failing to specifically advise [the a]ppellant of the conditions of his 

probation and parole at the time of his initial sentencing” and that because 

the trial court did not impose the alleged violated conditions at the time of 

sentencing, “the court could not have found he ‘violated one of the ‘specific 
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conditions’ of probation [or parole] included in the probation order[.]” Koger, 

255 A.3d at 1290-91. The panel further opined that, “a sentencing court may 

not delegate its statutorily proscribed duties to probation and parole offices 

and is required to communicate any conditions of probation or parole as a 

prerequisite to violating any such condition.” Id. at 1291.

Turning to the present matter, the trial court stated:

Koger is inapplicable to Appellant’s claim. First, the holding in 

Koger did not deem the initial sentence by the trial court illegal 

based on the conclusion that the probation department, not the 

sentencing court, informed the defendant of his conditions. 

Second, the issue in Koger, the ability of the trial court to 

determine a violation of probation, is not ripe inasmuch as 

Appellant is appealing his initial conviction. Third, [the trial court] 

properly advised [Appellant] of his probation conditions[.]

Trial Ct. Op. at 10. 

We agree with the trial court that Koger is not applicable to the present 

facts for several reasons. First, in Koger, the panel never held that the 

underlying sentence was illegal. Rather, the case concerned the inability of 

the Commonwealth to prove that the appellant violated a condition of the 

probation when those conditions were not imposed by the trial court. Second,

because Appellant has not committed any alleged probation violation, the 

issue as to whether the court has the ability to determine a violation occurred

is not ripe for review. See Trial Ct. Op. at 10. To grant Appellant relief under 

the current circumstances would have this Court engage in speculation that 

at an unspecified time in the future, Appellant will commit some act that both 

the office of probation and the trial court agree is a violation of his probation, 
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without the trial court having imposed the condition on him at sentencing. 

While we understand Appellant’s concerns about committing a violation of the 

terms of his probation, we cannot just presume that he will do so.

The trial court imposed the following conditions on Appellant regarding 

his probation:

Conditions of [Appellant’s] probation are that [he] undergo a drug 

and alcohol assessment and comply with any recommended 

treatment that the probation office requires, and otherwise 

comply with all the conditions of probation.

N.T., 3/23/21, at 77. Appellant acknowledged these terms when he replied in 

the affirmative after the trial court asked him, “Do you understand your 

sentence, sir?” Id. 

We note the phrase “otherwise comply with all the conditions of 

probation[,]” does not, under the present facts, render Appellant’s sentence 

illegal. While only a court may impose the terms of probation, the office of 

probation “may impose conditions of supervision that are germane to, 

elaborate on, or interpret any conditions of probation that are imposed by the 

trial court.” Elliott, 50 A.3d at 1292 (Pa. 2012). “[A] trial court may impose 

conditions of probation in a generalized manner, and the [office of probation] 

may impose more specific conditions of supervision pertaining to that 

probation, so long as those supervision conditions are in furtherance of the 

trial court’s conditions of probation.” Id.

In the present case, the trial court ordered Appellant to undergo a drug 

and alcohol assessment “and comply with any recommended treatment that 
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the probation office requires, and otherwise comply with all the conditions of 

probation.” N.T., 3/23/21, at 77. Unlike Koger, the office of probation did 

not impose unrelated terms of probation on Appellant nor did the trial court 

attempt to delegate its sentencing duties. Under Elliott, the office of 

probation would be well within the confines of the law to dictate more specific 

conditions that “are in furtherance of the trial court’s” already imposed 

conditions. See Elliott, 50 A.3d at 1292. No relief is due and Appellant’s 

second claim is unavailing.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/20/2022