J-S13041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KEITH NICHOLSON Appellant No. 1589 WDA 2014

Appeal from the Judgments of Sentence entered Septe mber 19, 2014

In the Court of Common Pleas of Fayette County Criminal Division at Nos: CP-26-CR-0002109-2013,

CP-26-CR-0002110-2013

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED APRIL 13, 2015 Appellant, Keith Nicholson, appeals from the judgm ents of sentence entered following his conviction of burglary and ot her crimes. He challenges the sufficiency of the evidence supporting his conv ictions. We affirm. On October 11, 2013, between 3:30 a.m. and 4:00 a. m., Martin Halfhill, owner of Martin Auto Wreckers in Connells ville, Fayette County, was alerted by his son that someone was breaking into t he shop. 1 Halfhill took a handgun and went to the shop, approximately 1,000 y ards from his house. Outside, he saw a parked all-terrain vehicle (ATV) with its engine running.

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1 We take the factual summary from the Trial Court R ule 1925(a) Opinion, 10/28/14, at 2-4.J-S13041-15

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The office door to the shop was open. Halfhill wen t inside, and encountered Appellant, who was coming out of the shop office. Appellant was wearing a camouflaged, hooded sweatshirt with the hood up and drawn tight about his face, pajama pants, and gloves. Appellant was hold ing two large wrenches in one hand, and a flashlight and screwdriver in th e other hand. Halfhill told Appellant he was armed and ordered h im to stop. Appellant instead raised his wrench-holding hand an d advanced on Halfhill. Halfhill responded by grabbing Appellant’s arm, pus hing him into the wall, and wrestling him to the ground. Appellant struggl ed and grabbed a fire extinguisher, which discharged its contents. Appel lant asked to be let go and told Halfhill to shoot him, but made no other s tatements. Police arrived, having been alerted by Halfhill’s son, and arrested Appellant. Halfhill noticed that Appellant gained entry to the shop by damaging the doorjamb and latch. He also saw a set of his crow wrenches, som e line wrenches, and a set of titanium drill bits in the saddlebags of the ATV. Halfhill did not leave the premises until about 5: 00 a.m., but he opened for business as usual later that morning, a Friday, at 8:30 a.m. At noontime, Halfhill noticed a white Chevy pickup tru ck repeatedly drive past his shop, slow down, and honk its horn. Halfhill w as later informed that the truck was Appellant’s. Later that same day, at abo ut 6:00 p.m., Halfhill answered his home telephone, and the caller told hi m, “if you want me, I am ready for you.” The caller clarified that he was w aiting on Rich Hill. Halfhill realized that Appellant lived on Rich Hill, and ask ed the caller if he was theJ-S13041-15

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man who was in his garage earlier that day. Appell ant admitted he was, and hung up the phone. Two months later, on the Saturday before Christmas , 2013, Appellant approached Halfhill in a local store. He asked Hal fhill about going to jail and admitted he was sorry, but not sorry enough to have returned Halfhill’s tools if he was not caught. As a result of the above incidents, at Case No. CP -26-CR-0002109- 2013, Appellant was charged with burglary, criminal trespass, receiving stolen property, theft by unlawful taking, possessi ng instruments of crime, simple assault, criminal mischief, harassment, oper ating a snowmobile or ATV on a street or highway, and carelessly operatin g a snowmobile or ATV. 2 At Case No. CP-26-CR-0002110-2013, Appellant was ch arged with retaliation against a witness or victim and harassm ent. 3 The cases were consolidated for jury trial. At the close of the e vidence, the trial court granted Appellant’s motion for judgment of acquitta l on the charge of retaliation against a witness or victim, and it acq uitted Appellant of carelessly operating a snowmobile or ATV. Appellan t was convicted of all other charges. The trial court sentenced Appellant to 1 year and 45 days to

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2 18 Pa.C.S.A. §§ 3502(a)(3), 3503(a)(1)(ii), 3925(a ), 3921(a), 907(a), 2701(a)(3), 3304(a)(5), and 2709(a)(1); and 75 Pa.C .S.A. §§ 7721(a)(1) and 7726(a)(2), respectively.

3 18 Pa.C.S.A. §§ 4953 and 2709(a)(1).J-S13041-15

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2 years and 90 days in prison. Appellant filed a n otice of appeal. He and the trial court complied with Pa.R.A.P. 1925. Appellant presents three questions for our review:

1. Was the evidence produced at trial sufficient to su stain the [Appellant’s] conviction of burglary, criminal tres pass, receiving stolen property, theft by unlawful taking and possessing instruments of crime? 2. Did the Commonwealth prove beyond a reasonable doub t that the [Appellant] attempted by physical menace to put Martin Halfhill in fear of imminent serious bodily injury? 3. Did the Commonwealth prove beyond a reasonable doub t that the [Appellant] harassed Martin Halfhill? Appellant’s Brief at 7. All of Appellant’s issues challenge the sufficienc y of the evidence supporting his convictions. A challenge to the suf ficiency of the evidence is a question of law. Commonwealth v. Orie , 88 A.3d 983, 1013 (Pa. Super. 2014) (quotation omitted). In challenges to the sufficiency of the evidence, “ our standard of review is de novo , however, our scope of review is limited to considering the evidence of record, and all reasona ble inferences arising therefrom, viewed in the light most favorab le to the Commonwealth as the verdict winner.” Commonwealth v. Rushing , 99 A.3d 416, 420-21 (Pa. 2014). Evidence is sufficient if it can support every element of the c rime charged beyond a reasonable doubt. Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014). The evidence d oes not need to disprove every possibility of innocence, an d doubts as to guilt, the credibility of witnesses, and the weight of the evidence are for the fact-finder to decide. Id. We will not disturb the verdict “unless the evidence is so weak and inconcl usive that as a matter of law no probability of fact may be drawn from the combined circumstances.” Id. (quotation omitted).J-S13041-15

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Commonwealth v. Forrey , 108 A.3d 895, 897 (Pa. Super. 2015). In addition, when challenging the sufficiency of t he evidence, an appellant’s Rule 1925(b) statement must state wi th specificity the element or elements upon which the appellant al leges that the evidence was insufficient. “Such specificity i s of particular importance in cases where, as here, the appellant w as convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonabl e doubt.” Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013) (quoting

Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009); see also

Commonwealth v. Veon , --- A.3d ---, 2015 PA Super 26, 2015 WL 500887, at *15-16, 2015 Pa. Super. LEXIS 36, at *38 -40 (filed Feb. 6, 2015) (concluding Rule 1925(b) statement “[t]he evi dence was insufficient to prove beyond a reasonable doubt that Mr. Veon co mmitted any crime whatsoever” waived review of sufficiency of the evi dence). Instantly, Appellant’s Rule 1925(b) statement on h is first issue is identical to his general, non-specific question pre sented: Was the evidence produced at trial sufficient to su stain the [Appellant’s] conviction of burglary, criminal tres pass, receiving stolen property, theft by unlawful taking and posse ssing instruments of crime? Appellant’s Concise Issues, 10/8/14, ¶ 1. We are constrained to find Appellant’s first issue waived. Appellant failed to specify on which elements of which crimes he believes the evidence is insufficient. Although Appellant’s Rule 1925(b) is not as general as the

statements in Garland and Veon (which did not mention crimes), hisJ-S13041-15

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statement is far too non-specific to be preserved. Appellant provides a laundry list of six crimes with disparate elements for which he claims the evidence is insufficient. It is not the duty of th is Court to scour the record and make Appellant’s arguments for him. Accordingl y, we are constrained to find that Appellant has waived review of his fir st issue. Even if we could review this issue, Appellant’s ar gument is meritless. Appellant offers an alternative, exculpatory versio n of the facts. 4 He claims he was merely retrieving digital memory cards from trail cameras in the woods surrounding Martin Auto Wreckers. Appellant, an avid hunter, states he could not have committed burglary or criminal tr espass, because Halfhill forced him into the shop at gunpoint. He also disa vows knowing that the tools in the ATV saddlebags were stolen. Appellant does not acknowledge the standard that applies to the sufficiency of the evidence. We cannot

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4 Appellant failed to set forth the facts of this ca se in the section of his brief entitled “statement of the case.” Instead, he prov ided a six-sentence summary of procedural history irrelevant to the iss ues raised. Appellant’s brief violates Rule 2117(a)(4), which requires an a ppellant to set forth “[a] closely condensed chronological statement, in narra tive form, of all the facts which are necessary to be known in order to d etermine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substa ntiating the fact relied on may be found .” Pa.R.A.P. 2117(a)(4) (emphasis added); see also Commonwealth v. Maris , 629 A.2d 1014, 1016 (Pa. Super. 1993) (quashing appeal because, among other reasons, appe llant’s statement of the case “only attempts to provide some minimal inf ormation regarding the procedural and factual history of the case”). Neve rtheless, we decline to find waiver on this basis.J-S13041-15

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weigh the evidence, and we must accept as true the facts supporting the verdict-winner, i.e. , the Commonwealth’s version of events. Therefore, we must accept as true the testimony of Halfhill and h is son: that they caught Appellant burglarizing Martin Auto Wreckers, that H alfhill confronted Appellant, that a struggle ensued, and that Appella nt stole Halfhill’s tools. In essence, Appellant argues his testimony is more cre dible than that of Halfhill and his son. Credibility disputes, however, concer n the weight of the evidence, not its sufficiency. See Vogelsong , 90 A.3d at 719. In his second argument, Appellant challenges the s ufficiency of evidence of simple assault. He contends the Common wealth failed to prove that he attempted by physical menace to place Marti n Halfhill in fear of imminent serious bodily injury. We disagree. As charged in this case, a person is guilty of sim ple assault if he “attempts by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A. § 2701(a)(3); see also Commonwealth v.

Eckrote , 12 A.3d 383, 386 (Pa. Super. 2010) (finding suffi cient evidence of simple assault where defendant charged at victim, g rabbed her, and forced her into car against her will). The evidence shows that Halfhill encountered Appel lant in the middle of the night inside his business. Appellant was we aring a hoodie drawn about his face, and was holding two large wrenches in his hand. Even though Halfhill was armed, Appellant advanced on hi m brandishing the wrenches. Appellant struggled with him and grabbed a fire extinguisher thatJ-S13041-15

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discharged. While it is true that Halfhill had a f irearm and Appellant did not, it is reasonable to infer that Appellant could have gained control of the firearm during the struggle. Moreover, it is reaso nable to infer that Halfhill was in fear of serious bodily injury given that App ellant could have caused serious bodily injury by using the wrenches or the fire extinguisher as weapons. Viewing all the evidence, and all reasona ble inferences derivable therefrom, in a light most favorable to the Commonw ealth, we conclude sufficient evidence supports Appellant’s conviction of simple assault. In his final argument, Appellant contends the Commo nwealth presented insufficient evidence of harassment. As charged in this case, “[a] person commits the crime of harassment when, with i ntent to harass, annoy or alarm another, the person . . . strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts o r threatens to do the same.” 18 Pa.C.S.A. § 2709(a)(1); see also Commonwealth v. Emler , 903 A.2d 1273, 1279 (Pa. Super. 2006) (finding suff icient evidence of harassment where defendant “grabbed [the victim] fr om behind in a choking hold, pinned him to the ground with his heavier bod y, and struggled with him for control of a loaded shotgun”). Here, Appellant advanced on Halfhill armed with tw o wrenches and had to be wrestled to the ground. The evidence rec ited above without a doubt shows that Appellant subjected, or attempted to subject, Halfhill to physical contact with the intent to harass, annoy, or alarm.J-S13041-15

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In sum, Appellant’s assignments of error are waived or without merit. We accordingly affirm the judgments of sentence. Judgments of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2015