J-A12007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FRANK TARR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 914 WDA 2021

Appeal from the Judgment of Sentence Entered August 3, 2021

In the Court of Common Pleas of Fayette County

Criminal Division at CP-26-CR-0002504-2019

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

MEMORANDUM BY MURRAY, J.: FILED: MAY 11, 2022

Frank Tarr (Appellant) appeals from the judgment of sentence imposed 

after a jury convicted him of aggravated assault and person not to possess a 

firearm.1 Upon review, we affirm.

The trial court recited the facts presented at trial as follows:

On August 24, 2019, Robert Yoder[s] received a telephone 

call and went to the residence of his grandfather, Rick Chiovitti. 

The Appellant and his girlfriend, Lacy Lingis, who is the 

granddaughter of Rick Chiovitti, resided with [Mr. Chiovitti].

Initially an argument had occurred inside the residence between 

the Appellant and his girlfriend. When Robert Yoder[s]

(hereinafter “the victim”) arrived, the Appellant and Robert Grow 

were arguing on the porch. Other individuals, Samuel Close, his 

wife, and Edgar Yoder[s], who were also family members, arrived 

at the grandfather’s residence. When the Appellant was verbally 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(4) and 6105(a)(1).
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confronted about his abusive behavior toward his girlfriend, he 

went into the residence and came out with a baseball bat. He 

began swinging the bat at Robert Grow and the other people

there. Robert Yoder[s] grabbed the Appellant from behind to stop 

his actions. The Appellant then swung the bat behind his head, 

hitting Robert Yoder[s] in his face. When the bat was finally taken

from the Appellant, he threatened to come back with a gun and 

kill everyone. He then ran down the road and was observed 

entering a vehicle. Sometime later, the victim and another family 

member heard four or five gunshots fired from the wooded area 

near the residence.

The victim, Robert Yoder[s], testified that he observed the 

Appellant exiting the woods with a silver firearm in his hand. The 

Appellant placed the handgun in the center console area of his 

girlfriend’s vehicle. Then the victim and his father, Edgar 

Yoder[s], went to the car and tried to get the gun [] from the 

Appellant. A struggle ensued. When the police arrived, the 

Appellant fled the scene.

The Appellant was subsequently located but no gun was 

found on his person and [it] was never located. The Appellant

was handcuffed and his hands were placed in sterile paper bags

when he was apprehended. At the station, swabs of the 

Appellant’s hands were taken to determine if there was any 

gunshot residue on them. A forensic scientist, from the Harrisburg 

Regional Laboratory of the Pennsylvania State Police, testified that 

gunshot residue was found on the Appellant’s right palm, left 

palm, and the back of his left palm. (N.T. at pg. 164). The 

forensic scientist testified that he could only state that the 

Appellant may have recently handled or discharged a firearm or

was in close proximity when it was discharged. (N.T. at 166).

After the trial by jury ended on August 3, 2021, the 

Appellant was convicted of Possession of a Firearm Prohibited--

loaded, 18 Pa.C.S. § 6105(a)(1) and Aggravated Assault, 18

Pa.C.S. § 2702(a)(4). ... [O]n August 3, 2021, the Appellant was

sentenced at the charge of Possession of a Firearm Prohibited with 

his prior record score, that of a repeat felon (RFEL), [because] he 

had prior convictions for two burglaries and two robberies. The 

court sentenced him at the low end of the standard range to a

term of incarceration of eighty-four (84) to one hundred and sixtyeight (168) months.
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Trial Court Opinion, 11/3/21, at 1-3 (unnumbered).

Appellant filed a timely appeal, and complied with the trial court’s order 

directing him to file a concise statement pursuant to Pa.R.A.P. 1925(b). 

Appellant raises the following issues for review:

1. DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT 

EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT 

THE APPELLANT POSSESSED A FIREARM?

2. DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT 

EVIDENCE TO DISPROVE BEYOND A REASONABLE DOUBT 

THAT APPELLANT ACTED IN SELF DEFENSE?

Appellant’s Brief at 7.

In both issues, Appellant assails the sufficiency of the evidence. When 

reviewing a sufficiency challenge, we determine “whether the evidence at trial, 

and all reasonable inferences derived therefrom, when viewed in the light 

most favorable to the Commonwealth as verdict winner, are sufficient to 

establish all elements of the offense beyond a reasonable 

doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation 

omitted). “Further, a conviction may be sustained wholly on circumstantial 

evidence, and the trier of fact—while passing on the credibility of the witnesses 

and the weight of the evidence—is free to believe all, part, or none of the 

evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) 

(citation omitted). “In conducting this review, the appellate court may not 

weigh the evidence and substitute its judgment for the fact-finder.” Id.
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In his first issue, Appellant argues the Commonwealth failed to prove he 

possessed a firearm as required to sustain his conviction of person not to 

possess a firearm. See 18 Pa.C.S.A. § 6105. The Commonwealth must prove 

a defendant possessed a firearm, and was previously convicted of an 

enumerated offense prohibiting him from possessing, using, controlling, or 

transferring a firearm. Id.

Appellant asserts his person not to possess firearms conviction cannot 

be sustained because “the physical evidence, or lack thereof, is in direct 

contradiction to the testimony presented at trial.” Appellant’s Brief at 

13. Appellant claims “no one saw Appellant in possession of a firearm,” yet 

he also twice states that “[o]nly one individual present testified to witnessing 

a firearm in Appellant’s possession.” Id. at 11, 13. Appellant emphasizes 

that a firearm “was never recovered from Appellant’s person or the vehicle.” 

Id. at 11. He also attributes gunshot residue taken from his hands to him

“playing with fireworks earlier in the day.” Id. at 12. We are not persuaded 

by Appellant’s argument. 

After reviewing the record, we agree with the Commonwealth’s 

assertion that there was “ample direct and circumstantial evidence . . . that 

showed [Appellant] did, in fact, have possession of a pistol during the subject 

incident[.]” Commonwealth Brief at 5. The parties stipulated at trial that 

Appellant is “in a class of persons not permitted to possess a firearm”, and
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the court admitted supporting documentation into evidence as Commonwealth 

Exhibit 7. N.T., 8/3/21, at 180-81.

As to possession, Robert Yoders testified that after Appellant hit him 

with the baseball bat, Appellant “ran down” the road while Robert Yoders 

remained at his grandfather’s home. N.T., 8/2/21, at 17. Fifteen minutes 

later, Robert Yoders heard “about four or five gunshots” coming from the field 

next to the home. Id. at 18. Mr. Yoders then saw Appellant “emerging from 

field” with a pistol. Id. at 19. Consistent with this testimony, the trial court 

explained:

The Commonwealth presented the testimony of Robert 

Yoder[s] who observed the Appellant in physical possession of a 

gun. In addition, the forensic scientist testified that the Appellant

had gun powder residue on his hands. At trial, the Appellant 

argued that transfer from being in the police car was a reason why 

his hands tested positive for gun powder residue. However, the 

Appellant’s hands were covered with paper bags to maintain any 

evidence that might have been on his hands prior to his placement 

in the vehicle.

. . . The totality of the evidence presented, including the 

[parties’] stipulation [that Appellant was not permitted to possess 

a firearm], was sufficient for the jury to make a determination that 

the Appellant was guilty beyond a reasonable doubt of this charge.

Trial Court Opinion, 11/3/21, at 5 (unnumbered).

As there was sufficient evidence for the jury to convict Appellant of 

illegal possession of a firearm, no relief is due.
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In his second issue, Appellant assails his aggravated assault conviction.

2

 

Appellant was convicted under 18 Pa.C.S.A. § 2702(a)(4), which provides that 

a person is guilty of aggravated assault if he “attempts to cause or 

intentionally or knowingly causes bodily injury to another with a deadly 

weapon[.]” The Commonwealth may establish intent to cause serious bodily 

injury by circumstantial evidence, and a jury “may infer intent from attendant 

circumstances or the defendant’s acts or conduct.” Commonwealth v.

Holley, 945 A.2d 241, 247 (Pa. Super. 2008). A jury may infer intent to 

cause serious bodily injury when the defendant fires a gun. Commonwealth

v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001).

Appellant maintains he was wrongly convicted because he acted in selfdefense. He argues the Commonwealth, “failed to present evidence sufficient 

to disprove beyond a reasonable doubt that Appellant acted in self-defense.” 

Appellant’s Brief at 14. Appellant asserts he struck Mr. Yoders with the

baseball bat to defend himself. Id. at 10. He argues:

It is clear that self-defense was placed in issue based upon 

the testimony presented by the Commonwealth. The three 

witnesses presented by the Commonwealth testified that they, 

along with other individuals, attacked the Appellant at his 

residence. The Appellant did not have a duty to retreat as the

incident occurred in [the] dwelling in which the Appellant was 

residing. T.T. 9: 21-22. Prior to being struck with the baseball 

bat, [Robert Yoders] placed the Appellant in a choke hold. T.T. 

77: 19-21. It was then that the Appellant struck [Robert Yoders]

with the baseball bat causing minor bruising.

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2 The jury acquitted Appellant of simple assault. N.T., 8/3/21, at 185; see 

also 18 Pa.C.S.A. § 2701(a)(2).
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The evidence and testimony presented shows that the 

Appellant acted out of an honest and bona fide belief that he was 

in imminent danger and that the belief was reasonable under the 

circumstances. The testimony showed that the Appellant was 

placed in a chokehold by [Robert Yoders] while being attacked by 

three other individuals. During the commotion, [Robert Yoders]

was struck in the head with a baseball bat. This all occurred at 

the Appellant’s residence, and the Appellant was justified in 

protecting himself against the dangers imposed by the four 

individuals who attacked him.

Appellant’s Brief at 17-18.

Pertinent to Appellant’s argument, the Pennsylvania Supreme Court has 

explained,

a claim of self-defense (or justification, to use the term employed 

in the Crimes Code) requires evidence establishing three 

elements: (a) [that the defendant] reasonably believed that he 

was in imminent danger of death or serious bodily injury and that 

it was necessary to use deadly force against the victim to prevent 

such harm; (b) that the defendant was free from fault in provoking 

the difficulty which culminated in the slaying; and (c) that the 

[defendant] did not violate any duty to retreat. Although the 

defendant has no burden to prove self-defense ... before the 

defense is properly in issue, there must be some evidence, from 

whatever source, to justify such a finding. Once the question is 

properly raised, the burden is upon the Commonwealth to prove 

beyond a reasonable doubt that the defendant was not acting 

in self-defense. The Commonwealth sustains that burden of 

negation if it proves any of the following: [1] that the [defendant] 

was not free from fault in provoking or continuing the difficulty 

which resulted in the [injury]; [2] that the [defendant] did not 

reasonably believe that he was in imminent danger of death or 

great bodily harm, and that it was necessary to kill in order to 

save himself therefrom; or [3] that the [defendant] violated a 

duty to retreat or avoid the danger.

 

Commonwealth v. Mouzon, 53 A.3d 738, 740-741 (Pa. 2012) (citations 

omitted; some brackets in original); see also 18 Pa.C.S.A. § 505. “If the 
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Commonwealth establishes any one of these three [negation] elements 

beyond a reasonable doubt, then the conviction is insulated from a defense 

challenge to the sufficiency of the evidence where self-protection is at 

issue.” Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000) 

(citation omitted). Before self-defense “is properly at issue at trial, there must 

be some evidence, from whatever source, to justify a finding of selfdefense. If there is any evidence that will support the claim, then the issue is 

properly before the fact finder.” Commonwealth v. Smith, 97 A.3d 782, 

787 (Pa. Super. 2014) (citation omitted).

Upon review, we discern no error in the trial court’s determination that 

the Commonwealth met its burden of disproving Appellant’s claim of selfdefense. Citing Smith, supra, the trial court observed that neither Appellant 

nor his girlfriend testified at trial. See Trial Court Opinion, 11/3/21, at 6 

(unnumbered). The court concluded — from the testimony of Robert Yoders, 

Edgar Yoders and Samuel Close — that while Appellant engaged in a verbal 

argument with these individuals, Appellant “was not confronted with any level 

of physical force.” Id. The court continued:

The uncontradicted evidence presented showed that the Appellant 

provoked the encounter. After a verbal argument, he went into 

the residence, [and] returned outside to confront his girlfriend’s 

relatives while holding a baseball bat. He then began swinging 

that baseball bat at some of the people on the porch. When 

[Robert Yoders] put the Appellant in a bearhug to prevent him 

from hurting anyone with the bat, the Appellant swung the bat 

over his head and hit [Robert Yoders] in the face and head. The 

use of [a] deadly weapon, such as a baseball bat, to a vital part 

of the body, is sufficient to establish that the Appellant attempted 
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to use deadly force, when no force or weapon was used against 

him by anyone on the porch. After hitting [Robert Yoders] in the 

head with the bat, he fled but returned later with a gun.

Id.

The record supports the trial court’s reasoning. Robert Yoders testified 

about the conflict on the porch, and stated that he was attempting to “break 

it up” when Appellant “swung the bat back as far as he could” and hit him. 

N.T., 8/2/21, at 15. Edgar Yoders also testified, describing Appellant as the 

aggressor, stating that Appellant “went after Sam,” and that Robert Yoders

“got between them.” Id. at 63. Likewise, Sam Close testified Appellant “was 

really mad and the way that he walked and acted and, you know, some of the 

language he was using wasn’t [] normal[.]” Id. at 94. Mr. Close repeated, 

“The way he walked and he was still saying stuff that, you know, an angry 

person would say.” Id. at 96-97. As this evidence was sufficient to disprove 

Appellant’s claim of self-defense, we discern no error.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/11/2022