Com. v. Allen, K. (memorandum)

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J.S43043/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. KORAN ALLEN, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2834 EDA 2013 Appeal from the Judgment of Sentence September 17, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0011047-2009 BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JULY 11, 2014 Appellant, Koran Allen, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following a jury trial and his convictions for, inter alia, persons not to possess firearms,1 carrying a firearm without a license,2 and carrying firearms in public in Philadelphia.3 Appellant challenges the sufficiency and weight of the evidence. We affirm. * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 6105. The court, and not the jury, convicted Appellant of this crime. 2 18 Pa.C.S. § 6106 3 18 Pa.C.S. § 6108. J. S43043/14 In response to a radio call, on May 30, 2009, around 10:20 p.m., two plainclothes police officers in an unmarked car arrived to a crowd of fifty to eighty people, with some people fighting and others running or walking away. The officers saw Appellant, who was about five feet away from them, hand grabbing his waistband and fidgeting several times. N.T. Trial, 1/23/13, at 52. As that officer exited the vehicle, he saw Appellant lift his shirt slightly toward the right side of his waist and heard an object fall to the Id. at 32-33. The officer saw the object was a revolver, picked it up, and pursued Appellant, who was apprehended by other officers. Id. at 33. Another officer also saw Appellant fidgeting in his waistband area in a icated Appellant was carrying a firearm. N.T. Trial, 1/24/13, at 30. The police tested the firearm, which has a barrel length of 1¾ inches, and stated that it was intermittently operable because it was missing a component.4 Appellant was arrested, charged, and tried by a jury. After the jury convicted him, the court sentenced Appellant on March 8, 2013, to an 4 The parties dispute whether the firearm was operable. Our standard of review, however, requires us to state the facts in the light most favorable to the Commonwealth. See Commonwealth v. Matthew, 909 A.2d 1254, 1256-57 (Pa. 2006) (citation omitted). -2- J. S43043/14 Appellant timely filed a post-sentence motion challenging, inter alia, the weight of the evidence, and a motion for reconsideration of sentence. On March 19, 2013, the court scheduled a hearing on both motions. For various reasons, the hearing was not held until September 17, 2013.5 On September 17, 2013, the court denied Appell -sentence imprisonment. Appellant appealed and filed a non-court ordered Pa.R.A.P. 1925(b) statement. The trial judge did not file a Rule 1925(a) decision as he had left the bench. Appellant raises the following issues on appeal: Is [Appellant] entitled to an arrest of judgment on all charges where the Commonwealth did not prove beyond a reasonable doubt, and did not establish by sufficient 5 Under Pa.R.Crim.P. 720(B), the motion was denied by operation of law on July 16, 2013. The clerk of courts, however, did not enter an order on -sentence motion by operation of law. See Pa.R.Crim.P. 720(B)(3)(c). where the clerk of courts does not enter an order indicating that the postsentence motion is denied by operation of law and notify the defendant of same, a breakdown in the court system has occurred and we will not find an Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (citations omitted). Further, on May 16, 2013, the court granted an oral motion to vacate sentence pending a shall not vacate sentence pending decision on the postSee Pa.R.Crim.P. 720(B)(3). Thus, even if the clerk of courts had entered an order on July 16, 2013, Appellant could not appeal as the court had erroneously vacated the judgment of sentence on May 16, 2013. See id. appeal from the September 17, 2013 judgment of sentence is timely. -3- J. S43043/14 evidence, that the weapon recovered had ever been possessed by [Appellant] and, in the alternative, where the weapon recovered was not operable? Is [Appellant] entitled to a new trial where the verdict is not supported by the greater weight of the evidence and where the greater weight did not establish that [Appellant] possessed the weapon, nor did it establish that the weapon was operable? Appellant contends the Commonwealth never proved he possessed or constructively possessed the gun. Furthermore, he suggests that because the gun was inoperable, he could not have been convicted of the instant crimes. Appellant also opines that the verdict was against the weight of the evidence. We hold Appellant is due no relief. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict. Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most -4- J. S43043/14 favorable to the Commonwealth as verdict winner, are sufficient to establish Id. at 1237 (citations omitted). ntrary to he decision to grant or deny a motion for a new trial on the ground that the verdict is against the weight of the evidence is committed to the sound discretion of Commonwealth v. Pronkoskie, 445 A.2d 1203, 1206 (Pa. 1982). To obtain a conviction under 18 Pa.C.S. § 6105, the Commonwealth must prove that a defendant is a person who has previously been convicted of one of several enumerated offenses and that he possessed, used, controlled, sold, transferred or manufactured the firearm. 18 Pa.C.S. § which are designed to or may readily be converted to expel any projectile by the action of an explos Pa.C.S. § 6105(i). With respect to whether the firearm must be operable, in Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973), the Pennsylvania Supreme Court reversed a conviction for illegal possession of a firearm under 18 P.S. § 4628(d), the precursor statute to Section 6105, because the handgun in question was inoperable. Layton, 307 A.2d at 845. Section 4628(d) did not explicitly require this finding of operability, but the Layton -5- J. S43043/14 Court found that the legislative intent of the statute Id. 844. Section 4628(d) was later repealed and recodified at Section 6105. See Commonwealth v. Gainer, 7 A.3d 291, 297 (Pa. Super. 2010) (discussing statutory history). Critically, in 1995, the legislature amended the definition of firearm under Section 6105 to include any projectile by the action of an explosive or the frame or receiver of any In Commonwealth v. Thomas, 988 A.2d 669 (Pa. Super. 2009), the defendant possessed a fully loaded seven-shot revolver that was unable to fire due to a missing spring. Id. at 672. This Court observed: The statutory language [in section 6105(i)] is clear, and it does not require proof that the weapon was capable of expelling a projectile when it was seized; on the contrary, the fact that a person can be prosecuted simply for possessing a semiautomatic pistol frame refutes this notion because the frame requires additional parts, e.g., a slide and barrel, in order to fire a bullet. Thus, the use of the demonstrates that the legislature sought to eliminate the operability requirement articulated in Layton for purposes of [section 6105]. Id. at 672 (footnote omitted and emphasis added). The Thomas Court thus held the defect of a missing spring was irrelevant because the statutory language did not mandate a finding of operability. Id. The Court therefore -6- J. S43043/14 Id.; see Pa.C.S. § 6105(i) (including within definition of firearm 6 Section 6106 defines the offense of firearms not to be carried without a license as follows: (a) Offense defined. (1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree. 18 Pa.C.S. § 6106(a)(1). The Commonwealth can convict a defendant of rifle or shotgun at any time upon the public streets or upon any public Pa.C.S. § 6108. Unlike Section 6105, Sections 6106 and 6108 generally7 employ the 6 The Court in Commonwealth v. Stevenson, 894 A.2d 759 (Pa. Super. 2006), applied the Layton operability factors to a case under Section 6105. Id. at 775-76. However, in Thomas, the Court observed that the Stevenson Court erred in applying these factors and that it had failed to review the pertinent statutory language. Thomas, 988 A.2d at 672. The Thomas Court noted further that the Stevenson Layton factors had no effect on the outcome of the case. Id. -7- J. S43043/14 Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable. 18 Pa.C.S. § 6102; see Gainer, 7 A.3d at 297 (employing Section 6102 in construing whether firearm was required under Section 6106). Following Layton, when presented with the issue of whether the evidence was sufficient to sustain a conviction under Section 6106, the appellate courts have applied the rules regarding operability as enunciated in Layton. For instance, most recently, in Commonwealth v. Stevenson, 894 A.2d 759 (Pa. Super. 2006), the appellant contended the evidence was insufficient to support his conviction under, inter alia, Section 6106. In finding the evidence to be sufficient, this Court, citing to Layton sustain convictions under [this] section, the firearm in question must have been operable or capable of being Stevenson, 894 A.2d at 775 (citing Layton, supra; Commonwealth v. Berta, 356 Pa. Super. 403, 514 A.2d 921 (1986) (construing Section 6106); Commonwealth v. Siiams, 260 Pa. Super. 409, 394 A.2d 992 (1978) (construing Section 6106)). See also Commonwealth v. Thomas original definition of the term firearm, which is codified at 18 Pa.C.S.A. § 6102, focuses solely on barrel length or the overall length of the weapon. The Uniform Firearms Act continues to utilize that definition, unless otherwise noted, 7 may readily be converted to expel any projectile by the action of an explosive or the fr -8- J. S43043/14 and therefore certain sections retain the requirement in Layton Gainer, 7 A.3d at 298 (footnote omitted). does not have actual possession over the illegal item but has conscious dominion over it. In order to prove evidence to show that the defendant had both the power to control the firearm and the intent to exercise such control. These elements can be inferred from the totality of the circumstances. Commonwealth v. Heidler, 741 A.2d 213, 215-16 (Pa. Super. 1999) (citations omitted). Instantly, Section 6105 imposes no obligation on the Commonwealth to establish operability of a firearm. See Thomas, 988 A.2d at 672. The statutory requirements. See id. have been operable or was intermittently operable is not pertinent to the n of proof for Section 6105. See id.; see also 18 Pa.C.S. § 6105. With respect to Sections 6106 and 6108, the record viewed in the light most favorable to the Commonwealth established that the revolver was intermittently operable. See Gainer, 7 A.3d at 298. Thus, the Commonwealth met its burden of proof to sustain a conviction under Sections 6106 and 6108. See 18 Pa.C.S. §§ 6106(a)(1), 6108. establish he constructively possessed the revolver, we disagree. As set forth -9- J. S43043/14 above, from five feet away, the police saw Appellant fidgeting around his waist several times, heard an object fall, and flee. See N.T. Trial, 1/23/13, at 32-33. The police immediately saw the object was a revolver. See id. The record and all reasonable inferences therefrom viewed in the light most favorable to the Commonwealth possessed the firearm. established Appellant constructively See Heidler, 741 A.2d at 215-16; see also Ratsamy, 934 A.2d at 1235-37. For these reasons, we also discern no against the weight of the evidence. See Pronkoskie, 445 A.2d at 1206. Accordingly, having discerned no error of law, we affirm the judgment of sentence. See Ratsamy, 934 A.2d at 1235. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/11/2014 - 10 -

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