J-S25023-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES D. HEFFELFINGER, JR.

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1786 MDA 2018

Appeal from the Judgment of Sentence Entered October 11, 2018

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

No(s): CP-54-CR-0000532-2017

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED JUNE 11, 2019

Charles D. Heffelfinger, Jr. (Appellant) appeals from the judgment of 

sentence imposed after a jury found him guilty of simple assault, aggravated 

assault, and recklessly endangering another person (REAP).

1

 On appeal, 

Appellant claims that the evidence was insufficient to support his aggravated 

assault and REAP convictions.2 Upon review, we find that Appellant’s issues 

are waived, and therefore affirm the judgment of sentence.

____________________________________________

1 18 Pa.C.S.A. §§ 2701, 2702 and 2705.

2 Although this Court granted Appellant’s request for an extension of time to 

file a brief, he filed his brief one day late. However, the Commonwealth has 

not objected. See Pa.R.A.P. 2188 (if appellant fails to file a brief within the 

time prescribed by these rules, or within the time as extended, appellee may 

move for dismissal of the matter).
J-S25023-19

- 2 -

At trial, the Commonwealth presented evidence that on February 12, 

2017, Gary Riedel (the victim), his wife Melissa Riedel, and their friends Troy 

and Lisa Meckes, were socializing at the Pine Street Pub. While there, Troy 

Meckes saw his neighbors, Appellant and Appellant’s father, Charles 

Heffelfinger, Sr. Mr. Heffelfinger, Sr. was subsequently asked to leave the bar 

due to his high level of intoxication. Troy Meckes offered to drive him home, 

and the victim rode in the car with them.

When the three men arrived at the home of Mr. Heffelfinger, Sr.,

Appellant, who also was intoxicated, was at the home and confronted Troy

Meckes and the victim about not offering him a ride home as well. A heated

argument ensued between Appellant and the victim. Troy Meckes attempted 

to get the victim back into the car, and Mr. Heffelfinger, Sr. attempted to 

intervene and “break things up.” N.T. Trial, 8/22/18, at 72 (testimony of Troy

Meckes). The victim then took off his shirt and approached Appellant, who in 

turn brandished a gun. The victim turned to run but Appellant fired the gun 

twice, hitting the victim in the back. The bullet exited the victim’s torso and 

he survived. The other bullet hit the tire of a car parked across the street. 

Appellant’s mother, Yvonne Heffelfinger, testified that she was home at the 

time and was awakened by the skirmish.
J-S25023-19

- 3 -

Appellant was charged with attempt to commit murder,3 aggravated 

assault-serious bodily injury, aggravated assault-deadly weapon,4 simple 

assault-bodily injury, simple assault-deadly weapon,5 and REAP — all with 

respect to the victim. Appellant was also charged with two additional counts 

of REAP with respect to his father and Troy Meckes.

The case proceeded to a jury trial on August 22 and 23, 2018. The 

Commonwealth presented the testimony of the victim, the victim’s wife, Troy

Meckes, and two police officers, consistent with the factual summary set forth 

above.

Appellant, who was represented by current counsel, Kent Watkins, 

Esquire, of the Schuylkill County Public Defender’s Office, testified in his 

defense. He also offered the testimony of both of his parents. The trial court 

summarized:

Both [of Appellant’s] parents were present and witnessed the 

shooting. The father, who was highly intoxicated at the time of 

the incident, testified that the victim was the aggressor. The 

mother seemed to suggest the shooting was accidental while the 

victim and [Appellant] were struggling for [Appellant’s] gun, which 

had been knocked to the ground. [Appellant’s] testimony seemed 

to characterize the shooting as both accidental and in selfdefense.

____________________________________________

3 18 Pa.C.S.A. §§ 901(a), 2502. The Commonwealth initially charged 

Appellant with attempt to commit third-degree murder, but was subsequently 

granted leave to amend the charge to attempt to commit first-degree murder.

4 18 Pa.C.S.A. § 2702(a)(1), (4).

5 18 Pa.C.S.A. § 2701(a)(1), (2).
J-S25023-19

- 4 -

Trial Court Opinion, 11/28/18, at 3.

The jury found Appellant guilty of the two counts of aggravated assault, 

which, as noted above, arose under different subsections of the aggravated 

assault statute; two counts of simple assault, which likewise arose under 

different subsections of the simple assault statute; and three counts of REAP. 

On October 11, 2018, the trial court sentenced Appellant to an aggregate term 

of 6 to 12 years of imprisonment.

Appellant did not file a post-sentence motion, but took this timely 

appeal. In a timely response to the trial court’s order to file a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal, Appellant filed a 

statement which set forth, inter alia, the following issues:6

1. The Commonwealth did not provide sufficient evidence to 

support a conviction for aggravated assault.

2. The Commonwealth did not provide sufficient evidence to 

support a conviction for recklessly endangering another person as 

to any persons other than the victim.

Appellant’s Concise Statement of Matters, 11/19/18.

The trial court issued an opinion on November 28, 2018, stating that it 

could not respond to Appellant’s sufficiency issues because Appellant failed to

specify “the element or elements for which [Appellant] contends the evidence 

____________________________________________

6 Appellant’s Rule 1925(b) statement raised a third issue, alleging that the 

trial court erred in allowing the Commonwealth to amend the attempt-tocommit murder charge. See n.3, supra. However, Appellant has abandoned 

this issue in his brief.
J-S25023-19

- 5 -

was insufficient.” Trial Court Opinion, 11/28/18, at 1.

On appeal, Appellant restates his sufficiency claims as follows:

1. Did the Commonwealth fail to provide sufficient evidence to 

support a conviction for aggravated assault?

2. Did the Commonwealth fail to provide sufficient evidence to 

support a conviction for recklessly endangering another person as 

to any persons other than the victim?

Appellant’s Brief at 4.

At the outset, we consider the trial court’s suggestion that Appellant has 

waived both of his sufficiency claims due to a deficient Rule 1925(b) 

statement. This Court has stated:

when challenging the sufficiency of the evidence on appeal, the 

Appellant’s 1925 statement must “specify the element or 

elements upon which the evidence was insufficient” in order to 

preserve the issue for appeal. Such specificity is of particular 

importance in cases where, as here, the Appellant was convicted 

of multiple crimes each of which contains numerous elements that 

the Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations 

omitted). This Court has found waiver to be appropriate even when the 

Commonwealth did not object to a deficient sufficiency-of-the-evidence Rule 

1925(b) claim, and the trial court proceeded to address the appellant’s issues. 

We explained:

[t]he Commonwealth’s [lack of objection] and the presence of a 

trial court opinion [addressing the merits] are of no moment to 

our analysis because we apply Pa.R.A.P. 1925(b) in a predictable, 

uniform fashion, not in a selective manner dependent on an 

appellee’s argument or a trial court’s choice to address an 

unpreserved claim. Thus, we find 1925(b) waiver where 

appropriate despite the lack of objection by an appellee and 
J-S25023-19

- 6 -

despite the presence of a trial court opinion.

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(citation omitted).

We note, however, that in Commonwealth v. Laboy, 936 A.2d 1058 

(Pa. 2007), our Supreme Court allowed broad Rule 1925(b) claims of 

insufficient evidence in a “relatively straightforward drug case.” Id. at 1060. 

In that case, the Commonwealth alleged that the defendant “acted as a 

lookout and money handler” in multiple drug sales. Id. at 1058. Following 

his conviction, the defendant appealed and in his Rule 1925(b) statement 

averred:

I. Evidence of drug trafficking and conspiracy was insufficient.

II. Evidence of conspiracy was insufficient.

Id. at 1060. Our Supreme Court declined to hold that this statement was so 

deficient as to warrant waiver, stating:

In the present, relatively straightforward drug case, the 

evidentiary presentation spans a mere thirty pages of transcript. 

It may be possible in more complex criminal matters that the 

common pleas court may require a more detailed statement to 

address the basis for a sufficiency challenge. Here, however, the 

common pleas court readily apprehended [the defendant’s] claim 

and addressed it in substantial detail.

Id. This Court has applied LaBoy in similarly straightforward cases. See 

Commonwealth v. Smyser, 195 A.3d 912, 915, 916 (Pa. Super. 2018) (Rule 

1925(b) claim “that the Commonwealth failed to present sufficient evidence 

for the fact-finder to be convinced beyond a reasonable doubt of [Appellant’s] 
J-S25023-19

- 7 -

guilt” was acceptable where the appellant was convicted of 12 counts of sexual 

abuse of children “and his sufficiency challenge present[ed] a question of law 

that the trial court readily apprehended”); Commonwealth v. Richard, 150 

A.3d 504, 517-518 (Pa. Super. 2016) (although appellant’s Rule 1925(b) 

statement conflated weight and sufficiency of evidence, statement was 

sufficient to preserve a challenge to the sufficiency of evidence); Interest of 

T.L.B., 127 A.3d 813 (Pa. Super. 2015) (although Commonwealth’s Rule 

1925(b) claim, “The juvenile court erred when it denied the petition to 

adjudicate [the juvenile] delinquent after [he] was found to have committed 

a felony graded indecent assault upon a minor victim . . . could have 

specifically challenged the finding that [the juvenile] was not in need of 

treatment, supervision, or rehabilitation,” the juvenile had admitted he 

committed the delinquent acts, and thus the sole question before the court 

was whether he was in need of treatment, supervision, or rehabilitation).

In opining that Appellant’s Rule 1925(b) failed to state Appellant’s

sufficiency claims with specificity, the trial court pointed out that Appellant’s 

counsel, Attorney Watkins, has been cautioned against this practice:

[Attorney Watkins] has been advised on several occasions that a 

challenge to the sufficiency of the evidence requires specificity. A 

panel of the Superior Court admonished him on this subject in the 

non-precedential decision in Commonwealth v. Donella, [1330 

MDA 2017 (Pa. Super. June 25, 2018) (judgment order).7] This 

____________________________________________

7 This Court’s judgment order in Donella found the defendant’s sufficiencyof-the-evidence issue to be waived because the argument section of his brief 
J-S25023-19

- 8 -

Court has also asked the Chief Public Defender to address this 

issue with him; however, he continues to cite non-specific claims 

of insufficient evidence as a ground for new trial.

Trial Court Opinion, 11/28/18, at 1-2 n.1. Attorney Watkins has not, in 

Appellant’s brief or otherwise, acknowledged or addressed the trial court’s 

commentary.

The Commonwealth suggests that although Appellant’s “sufficiency 

claims may be waived due to his unspecific Rule 1925(b) statement,” this 

Court should exercise discretion, apply Laboy, and address the merits. 

Commonwealth Brief at 6-7. The Commonwealth reasons that a finding of 

waiver could eventually lead to a second direct appeal by Appellant, which 

“could dissipate limited judicial resources.” Id. at 8.

After careful review of the record, Laboy, and other relevant decisional 

law, we agree with the trial court that Appellant’s sufficiency issues are waived 

____________________________________________

contained no discussion on the sufficiency issue. Instead, the brief “argue[d] 

only that the trial court should have suppressed the evidence gathered during 

the traffic stop” — an issue that was waived because the defendant had not 

filed a suppression motion. Donella, 1330 MDA 2017, at 2. The panel stated:

We are deeply troubled at the performance of Kent D. Watkins, 

Esq. in this case. The deficiencies evident on the face of 

Appellant’s brief are unacceptable for a public defender. Attorney 

Watkins must furnish a copy of this judgment order to the 

Schuylkill County Commissioners and the Disciplinary Board of the 

Supreme Court of Pennsylvania forthwith.

Id. at 3 n.4.
J-S25023-19

- 9 -

because Appellant’s Rule 1925(b) statement is deficient. See Laboy, 936 

A.2d at 1060. Although Appellant was convicted under two different 

subsections of the aggravated assault statute, his Rule 1925(b) statement did 

not identify which sub-section or elements he wished to address. Instantly, 

Appellant was convicted of a total of seven counts relating to three victims —

more than the defendants in Laboy and Smyser, 195 A.3d 912 — and unlike 

the 30-page trial presentation of evidence in Laboy, the presentation of 

evidence at Appellant’s trial spanned two days and approximately 208 pages 

of trial transcript.8 Furthermore, unlike the trial courts in Laboy and T.L.B., 

which addressed the merits of the appellants’ sufficiency issues, in this case, 

the trial court specified that it “cannot respond” to Appellant’s issues.9 See

____________________________________________

8 The entire trial transcript is 287 pages.

9 As the deficiencies in Attorney Watkins’ Rule 1925(b) statement resulted in 

the failure to preserve particular claims, and not in the waiver of all possible 

claims, we decline to find ineffective assistance of counsel per se. See 

Commonwealth v. Rosado, 150 A.3d 425, 431 (Pa. 2016) (“We 

distinguished counsel’s failure to file a Pa.R.A.P. 1925(b) statement, 

occasioning waiver of all claims for purposes of appeal, from a failure to 

preserve particular claims; we held the first constitutes ineffectiveness per se, 

while the second does not[.]”), citing Commonwealth v. Halley, 870 A.2d 

795, 801 (Pa. 2005).

Furthermore, we observe that the argument in Appellant’s brief is so 

undeveloped that we would find waiver. See Commonwealth v. Phillips, 

141 A.3d 512, 522 (Pa. Super. 2016) (issues raised in a brief’s statement of 

questions involved but not developed in the argument section will be deemed 

waived). As noted, the statement of questions presented raises two claims:

insufficient evidence for aggravated assault and insufficient evidence for REAP 

“as to any persons other than the victim.” Appellant’s Brief at 4. The 
J-S25023-19

- 10 -

____________________________________________

argument section for aggravated assault, spanning a little more than two 

pages, generally cites to legal authority, but fails to address or mention — at 

all — Appellant’s convictions, aside from the heading which broadly states:

“The Commonwealth did not provide sufficient evidence to support a 

conviction for aggravated assault.” Appellant’s Brief at 8. 

Appellant’s second issue, concerning his REAP convictions, arguably 

includes some reference to his case. His argument states: “Appellant’s second 

issue challenges the evidence supporting his REAP conviction as insufficient 

on two grounds: putting another person at risk and lack of a reckless mens 

rea.” Appellant’s Brief at 10. In another paragraph, Appellant contends: “No 

evidence was offered showing either [Appellant’s] father or [Troy Meckes] 

were in the line of fire or the bullets passed in their direction.” Id.

Nevertheless, we decline to extend Rosado to find ineffective assistance 

per se for the deficient appellate brief. In Rosado, the defendant’s attorney 

filed a Rule 1925(b) statement, which challenged the imposition of sentence, 

the exclusion of certain evidence, and a juror’s alleged concealment of bias. 

Rosado, 150 A.3d at 426. Counsel then filed an appellate brief which 

abandoned these issues and instead raised an “unpreserved sufficiency claim.” 

Id. This Court affirmed the judgment of sentence upon concluding the 

sufficiency issue was waived. Id. The defendant subsequently filed a petition 

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, claiming his 

attorney’s conduct constituted ineffective assistance of counsel per se. Id. at 

426-427. Ultimately, our Supreme Court agreed, and held “that the filing of 

an appellate brief which abandons all preserved issues in favor of unpreserved 

ones constitutes ineffective assistance of counsel per se.” Id. at 425.

The Rosado Court noted: “The recognized instances of per se

ineffectiveness entitling a defendant to automatic relief are extremely 

narrow.” Rosado, 150 A.3d at 427. Neither our Supreme Court nor this Court 

has found ineffective assistance counsel per se based on the particular facts 

presented in this appeal: (1) the defendant’s counsel files a Rule 1925(b) 

statement, which raised only sufficiency-of-the-evidence issues that are 

deemed waived due to the failure to specify the elements of the crimes 

challenged; and (2) counsel then files an appellate brief which purports to 

raise, but fails to develop argument on, those same sufficiency issues. We 

recently reiterated:

[O]ur role as an intermediate appellate court is clear. “It is not 

the prerogative of an intermediate appellate court to enunciate 
J-S25023-19

- 11 -

Trial Court Opinion, 11/28/18, at 1.

Finally, we consider the Commonwealth’s argument regarding the 

“dissipation of limited judicial resources.” See Commonwealth Brief at 8. In 

certain circumstances, such as Laboy, Richard, and T.L.B., where the theory 

of the case and/or the facts are relatively simple and straightforward, a

deficient Rule 1925(b) statement may not impede appellate review. However, 

such circumstances do not exist in this case, where both the trial evidence 

and the quantity and diversity in Appellant’s convictions lead us to agree with 

the trial court that we “cannot respond” to Appellant’s sufficiency claims, 

where Appellant has failed to specify “the element or elements for which [he] 

contends the evidence was insufficient.” Trial Court Opinion, 11/28/18, at 1. 

Given the pointed discussion of Attorney Watkins’ conduct by the trial 

court in this appeal, as well as the trial court’s reference to the Superior 

Court’s judgment order in Donatella, supra, we direct our Prothonotary to 

forward a copy of this memorandum to the chief public defender in Schuylkill 

____________________________________________

new precepts of law or to expand existing legal doctrines. Such is 

a province reserved to the Supreme Court.” It is well-settled that 

“the Superior Court is an error correcting court and we are obliged 

to apply the decisional law as determined by the Supreme Court 

of Pennsylvania.”

Matter of M.P., ___ A.3d ___, 2019 WL 850581 at *2 n.2. (Pa. Super. 2019)

(citations omitted). Accordingly, we emphasize that any expansion of the 

range of attorney conduct that constitutes ineffective assistance per se must 

originate from our Supreme Court.
J-S25023-19

- 12 -

County.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/11/2019