Com. v. Young, D. (memorandum)

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J.S36040/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DEMETRIUS YOUNG, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3460 EDA 2013 Appeal from the Judgment of Sentence July 22, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0003197-2012 BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JULY 07, 2014 Appellant, Demetrius Young, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas.1 He contends the evidence was insufficient to convict him of firearms not to be carried without a license2 and carrying firearms on public streets or public property in Philadelphia.3 We affirm. * Former Justice specially assigned to the Superior Court. 1 We note that a review of the docket reveals that Appellant filed a pro se Post Conviction Relief Act petition prior to the denial of his post sentence motions, while he was represented by counsel. When represented by counsel, pro se filings are legal nullities. Commonwealth v. Glacken, 32 A.3d 750, 752 (Pa. Super. 2011). 2 18 Pa.C.S. § 6106. J. S36040/14 The trial court summarized the facts of this case as follows: On February 25, 2012 at around 1:00 a.m., Officer Timothy Dunne along with other officers entered a bar called Mali Enterprises located at 741 North 37th Street in the city and county of Philadelphia to check for the liquor license, occupancy license, and also for underage drinkers in the bar. Officers of the 16th District routinely check this establishment on Friday and Saturday nights to curb the violence that usually occurs when the bar lets out on the weekends. As Office[r] Dunne, in plain clothes, entered the bar behind four or five uniformed officers, he observed [Appellant] attempting to remove a firearm from his waistband with his right hand. Officer Dunne testified that he did not see the firearm at first but assumed [Appellant] had his right hand on the butt of a firearm[4] as he had 3 4 18 Pa.C.S. § 6108. Officer Dunne testified, inter alia, as follows: [The Commonwealth]: When you say that he was attempting to remove a firearm from his waistband, can you describe the motions that he was doing for the Judge? A: He used his right hand, went towards his waistband. I my assumption at the time, that he had his right hand on the butt of the weapon, the handle of the weapon. * * * Q: Officer Dunne, when you saw [Appellant] reaching for his waistband, what did you think you saw? A: A butt of a weapon; a gun. Q: When you first entered into [Appellant], did you see the firearm? A: I saw the handle of it. -2- the bar and saw J. S36040/14 made over fifty firearm arrests over nine years and in over half of those arrests, the firearm was located in over to [Appellant] and grabbed both of his hands, putting them over his head. At this time, [Appellant] attempted to pull away from Officer Dunne, but he was apprehended by other officers. Trial Ct. Op., 2/20/14, at 1-2 (citations to the record omitted). Instantly, Appellant waived his right to a jury trial. N.T. at 7. Prior to trial, Appellant made an oral motion to suppress the gun. Id. at 8. The motion was denied. Id. at 18. At the time of trial, the parties stipulated Wesson, and it was fully operable at the time [Appellant] possessed Id. at 19, 20. Id. The Court found Appellant guilty of Firearms Not to be Carried Without a License, Carrying Firearms on Public Streets or Public Property in Philadelphia, and Possession of a Firearm A: No. Q: That was tucked into his waistband. A: Correct. N.T., 6/13/13, at 13, 16. -3- J. S36040/14 Prohibited.5 Appellant filed a post-sentence motion and a motion to reconsider sentence which were denied. This timely appeal followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court filed a responsive opinion. Appellant raises the following issues for our review: I. Whether the evidence was insufficient to convict Appellant of Violating the Pennsylvania Uniform Firearms concealed carrying of weapons, in which there was no evidence as to any attempt by [Appellant] to conceal any weapon? II. Whether (sic) evidence was insufficient to convict Appellant of VUFA 6108. [Appellant] was only ever seen inside of the bar and was not on the streets of Philadelphia? First, Appel indicates that he saw the butt or handle of the gun, the firearm was not concealed. Because the firearm was not concealed, Appellant contends the evidence was insufficient to convict him of carrying a concealed weapon. Appellant argues concealment requires total concealment. We find no relief is due. 5 18 Pa.C.S. § 6105. -4- J. S36040/14 The standard of review for a challenge to the sufficiency of the evidence is de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007). [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. Id. at 1235-36 (quotation marks and citation omitted). Our Crimes Code defines the offense of firearms not to be carried without a license as follows: (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. In order to convict a defendant of violating Section 6106, the Commonwealth must present evidence at trial to prove beyond a reasonable at the weapon was a firearm, (b) that the firearm was unlicensed, and (c) that where the firearm was concealed on or about the Commonwealth v. Coto, 932 A.2d 933, 939 (Pa. Super. 2007) (citation omitted). Our Pennsylvania Supreme Court in Commonwealth v. Duncan, 321 A.2d 917 (Pa. 1974), addressed the issue of whether penal statutes have to -5- J. S36040/14 be strictly construed. The Duncan that the following statute does not cover indoor prowling and loitering. dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor. . Id. at 918 (citation omitted). The Duncan Court opined: In arguing that the statute does not cover indoor prowling and loitering, the appellant has relied heavily on the [principal] of strict construction of penal statutes. In so doing, however, he has ignored the complementary words of a criminal statute (be) given their narrowest Another illustration of the principle modifying the rule of strict construction is the case of Commonwealth v. Butler, 189 Pa. Super. 399, 150 A.2d 172 (1959). There, the appellant had been convicted of carrying a firearm even at the time. 189 Pa. Super. at 401, 150 A.2d at 173. The appellant argued that the word Concealed as used in the statute was speaking of total concealment. The court conceded that some jurisdictions with similar statutes had adopted such an interpretation and that there were no Pennsylvania cases on point. Nevertheless, stating that intent is not thwarted by a construction which is unr which the act sought to prevent was the carrying of unlicensed weapons rather than their concealment, the Superior Court opted for the broader reading. 189 Pa. Super. at 402 403, 150 A.2d at 173. Id. at 919 (some citations omitted). -6- J. S36040/14 In Commonwealth v. Berta, 514 A.2d 921 (Pa. Super. 1986), this Court found the defendant concealed his gun based upon the testimony of a he] no Id. at 922 n.2 (citations omitted). This Court concluded the partially hidden weapon was Id. at 923. Instantly, the trial court found the evidence was sufficient to convict gun was visible, the evidence was sufficient to convict him of carrying a concealed firearm. See Duncan, 321 A.2d at 919; Berta, 514 A.2d at 923. Lastly, Appellant contends the evidence was insufficient to convict him of carrying a firearm in public in Philadelphia under Section 6108 because he was never seen in public with the firearm nor was he seen outside a private shotgun at any time upon the public streets or upon any public property in a city o either in [§] 6108 or anywhere else in the Crimes Code. Hence the phrase must be interpreted using its common and approved usage. The following definition appears in Black's Law Dictionary, (4th ed. 1968): -7- J. S36040/14 designation of those things which are publici juris, (q. v.,) the entire state or community, and not restricted to the dominion of a private person. It may also apply to any subject of property owned by a state, nation, or municipal used in two senses. In one sense the term may refer to the character of the use of the property, who has access to the property, and whether or not private individuals have greater dominion over the property than the general public. In another sense, the term reflects the character of ownership of the property. Commonwealth v. Goosby, 380 A.2d 802, 805-06 (Pa. Super. 1977) (footnote omitted). Although Section 6108 does not define public place, in construing a public drunkenness statute, this Court in Commonwealth v. Meyer, 431 A.2d 287 (Pa. Super. 1981) noted: The term does appear, however, in two places in the Crimes Code: in the section dealing with prostitution, section 5902, and in the section dealing with disorderly place to which the public or any substantial group thereof Section 5503(c) defines public places as, inter alia prem Id. at 289 (footnotes omitted). In Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000), the appellant argued the Commonwealth failed to present sufficient evidence -8- J. S36040/14 that he violated Section 6108 when he struck the victim with the butt of his Id. at 918. This Court found the argument to be sufficient to support the reasonable inference that [the defendant] traveled at least some distance on a public street in order to be able to access the Id. In the case sub judice considered public property and therefore, there was sufficient evidence to Op. at 5. We agree. It is undisputed that the bar was open to the public. See Meyer, 431 A.2d at 289. Instantly, even if the bar were not a public place, Appellant traversed the public streets of Philadelphia, carrying the gun, to reach the bar. See Hopkins, 747 A.2d at 918. Therefore, the evidence was sufficient to convict him of carrying a firearm in public in Philadelphia, under Section 6108. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/7/2014 -9-

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