J-S57023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT FULLER
Appellant No. 62 EDA 2014
Appeal from the Judgment of Sentence December 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003251-2013
BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 10, 2014
Appellant, Vincent Fuller, appeals from the December 4, 2013
aggregate judgment of sentence of five to ten years’ imprisonment followed
by five years’ probation, imposed after the trial court found him guilty of
possession of firearms prohibited, firearms not to be carried without license,
and carrying firearms public in Philadelphia.1 After careful review, we
reverse.2
The trial court has set out the relevant procedural history of this case
as follows.
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1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
2
We note the Commonwealth was granted an extension to file its brief by
July 29, 2014, with no further extensions. Per Curiam Order, 6/2/2014. The
Commonwealth filed its brief on September 24, 2014 and is thus untimely.
J-S57023-14
On October 19, 2012, [Appellant], … was
arrested and was charged with VUFA-former
conviction, firearms not to be carried without a
license, and carrying firearms public street/place for
events that occurred on October 18, 2012, in the
vicinity of the 5200 Block of N. 15th Street in the
City and County of Philadelphia. A [bench] trial was
conducted before [the trial court] on October 7,
2013.
At the conclusion of the trial, [Appellant] was
found guilty of all charges. … On December 4,
2013, [the trial court] imposed a sentence of five (5)
to ten (10) years of incarceration on the conviction
for VUFA-former conviction, followed by a five (5)
year period of probation on the conviction for
carrying firearms without a license. No further
penalty was imposed on the conviction for firearms
public street/place.
Trial Court Opinion, 3/18/14, at 1-2 (footnotes omitted). Appellant did not
file a post-sentence motion. On January 2, 2014, Appellant filed a timely
notice of appeal.3
On appeal, Appellant raises the following issue for our review.
[1] Was the evidence sufficient to sustain the
convictions for violation of the uniform firearms act?
Appellant’s Brief at 5.
Our standard of review on a claim challenging the sufficiency of the
evidence is well settled.
There is sufficient evidence to sustain a conviction
when the evidence admitted at trial, and all
____________________________________________
3
Appellant and the trial court have timely complied with Pa.R.A.P. 1925.
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reasonable inferences drawn therefrom, viewed in
the light most favorable to the Commonwealth as
verdict winner, are sufficient to enable the fact-finder
to conclude the Commonwealth established all of the
elements of the offense beyond a reasonable doubt.
Commonwealth v. Morales, 91 A.3d 80, 87 (Pa. 2014) (citation omitted).
“The Commonwealth can meet its burden by wholly circumstantial
evidence and any doubt about the defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.
2013) (en banc) (internal quotation marks and citation omitted), appeal
denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the
entire record … and all evidence actually received[.]” Id. “[T]he trier of fact
while passing upon the credibility of witnesses and the weight of the
evidence produced is free to believe all, part or none of the evidence.”
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation
omitted). “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth
v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted). A successful
sufficiency of the evidence challenge warrants discharge. Commonwealth
v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012) (citation omitted).
With these principles in mind, we turn to Appellant’s challenge to the
sufficiency of the evidence supporting his convictions in the instant case.
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The relevant statutes under which Appellant was convicted provide as
follows.
§ 6105. Persons not to possess, use,
manufacture, control, sell or transfer firearms
(a) Offense defined.--
(1) A person who has been convicted of an
offense enumerated in subsection (b), within
or without this Commonwealth, regardless of
the length sentence or whose conduct meets
the criteria in subsection (c), shall not possess,
use, control, sell, transfer or manufacture or
obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this
Commonwealth.
…
(i) Firearm.—As used in this section only, the term
“firearm” shall include any weapons which are
designed to or may readily be converted to expel any
projectile by the action of an explosive or the frame
or receiver of any such weapon.
…
18 Pa.C.S.A. § 6105.
§ 6106. Firearms not to be carried without a
license
(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.
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…
Id. § 6106(a)(1).
§ 6108. Carrying firearms on public streets or
public property in Philadelphia
No person shall carry a firearm, rifle or shotgun at
any time upon the public streets or upon any public
property in a city of the first class unless:
(1) such person is licensed to carry a firearm;
or
(2) such person is exempt from licensing under
section 6106(b) of this title (relating to
firearms not to be carried without a license).
Id. § 6108.
Appellant asserts that “[t]he evidence is insufficient to sustain all three
convictions for Violation of the Uniform Firearms Act.” Appellant’s Brief at 9.
Specifically, Appellant contends that the Commonwealth did not prove the
possession element of the offenses beyond a reasonable doubt “because the
only evidence against him was the weak, inconclusive, and uncorroborated
testimony of a witness.” Id. at 11.4
Viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we conclude there is insufficient evidence
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4
The trial court found the testimony of the witnesses credible at trial. Trial
Court Opinion, 3/18/14, at 5. After reviewing the trial transcript, however,
the trial court now concludes that the evidence presented at trial “is not
sufficient to sustain the conviction.” Id. The trial court further concludes
“the guilty verdicts on all charges should be vacated and the case remanded
for dismissal.” Id. at 6.
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to support Appellant’s convictions for possession of firearms prohibited,
firearms not to be carried without license, and carrying firearms public in
Philadelphia.
[E]vidence sufficient to implicate an accused in a
crime must be something more than evidence
showing remote connection between the accused and
the crime, or evidence that merely raises a suspicion
of guilty intention…. An accused is entitled to an
acquittal if his guilt of the crime charged is not the
only reasonable interpretation of which the facts
adduced against him are susceptible. Guilt must be
proved and not merely conjectured.
Commonwealth v. Barker, 70 A.3d 849, 854-855 (Pa. Super. 2013) (en
banc) (citations omitted), appeal denied, 87 A.3d 814 (Pa. 2014). “[A]
verdict of guilt may not be based upon surmise or conjecture. … [W]here
evidence offered to support a verdict of guilt is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, a jury
may not be permitted to return such a finding.” Commonwealth v.
Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).
At trial, the Commonwealth presented the testimony of an eyewitness,
Timothy Bonds, and Philadelphia Police Detective Robert Hassel. 5 During his
direct examination at trial, Bonds testified that, while walking home on the
5200 block of North 15th Street in Philadelphia, he saw “a couple people
____________________________________________
5
The only other evidence presented by the Commonwealth was a certificate
of non-licensure. N.T., 10/7/12, at 49. This element is not contested by
Appellant.
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arguing.” N.T., 10/7/12, at 17-18. Bonds testified that the argument was
between a woman and Appellant’s brother, and as Bonds walked by the
argument, Appellant asked Bonds “…was [Appellant’s] brother up the
street[?] I answered yeah.” Id. at 18. Bonds continued to walk home
when he heard “a loud smack.” Id. Bonds testified that when he turned
around, “… the crowd that was with [Appellant’s] brother … was dispersing,
and I saw [a woman] running up the street waiving a gun and shooting.”
Id. Bonds heard “a couple more shots,” and saw smoke coming from
Appellant’s hands. Id.
Bonds testified he did not remember what type of gun he thought
Appellant possessed, but he heard “altogether maybe nine or ten shots.”
Id. at 19. The Commonwealth then attempted to refresh his recollection
with a prior written statement made by Bonds. Id., Commonwealth’s
Exhibit, C-1, Statement of Timothy Bonds, Jr., 10/18/12; see also Pa.R.E.
612 (permitting, under certain circumstances, the use of a writing to refresh
a witness’s memory).
[Commonwealth:]
Q. Sir, if I showed you your statement, would that
help you refresh your recollection, your memory?
[Bonds:]
A. Maybe, yes, ma’am.
…
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Q. Does that help you remember what type of gun
it was in his hand?
A. It says here a silver revolver.
Q. ... And how many shots did he fire?
A. At least six.
Q. And where did [Appellant] go after you heard
the shooting?
A. I don’t know. I don’t know.
N.T., 10/7/12, at 17-18 (emphasis added).
On cross-examination, Bonds testified approximately six people were
in the crowd where the argument between Appellant’s brother and the
woman was occurring. Id. at 25. He saw the woman chasing people and
“pull out her gun and start shooting.” Id. at 26-27. Counsel for Appellant
admitted into evidence the same statement as the Commonwealth’s C-1, to
impeach Bonds’ testimony. Id. at 30, 53, Defense’s Exhibit, D-2, Statement
of Timothy Bonds, Jr., 10/18/2012; see also Pa.R.E. 613 (permitting, under
certain circumstances, the use of a witness’s prior inconsistent statement for
impeachment). When asked why his prior statement did not indicate the
woman shot first, Bonds answered, “I must have misunderstood the
question, but I saw who fired first.” N.T., 10/7/12, at 30. He further
testified the statement was typed wrong, and that he told detectives he saw
the woman “pull a gun out and start shooting.” Id. at 32-33. The cross
examination continued, and Bonds testified he did not remember if he saw a
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gun. Id. at 36. He then testified, “I heard gunshots and I turned around. I
didn’t actually see [Appellant] shooting, but I heard gunshots.” Id.
On re-direct examination, the Commonwealth again approached Bonds
with his prior statement. Id. at 38. Bonds acknowledged the statement
read, “I actually saw [Appellant] pull his gun out and start shooting[,]” but
continued “[t]hat’s what it says on there. I never saw him pull a gun.” Id.
at 38-39. The Commonwealth asked him about another portion of his
statement which read, “I saw [Appellant] pull his gun out and start shooting.
… I heard the shots, and I saw [Appellant] pull his gun out and start
shooting.” Id. at 40. Bonds responded that he did not remember saying
that. Id. We note the Commonwealth never sought admission of this
statement as substantive evidence. See Pa.R.E. 803.1(1) (permitting,
under certain circumstances, the admission of a witness’s prior inconsistent
statement as substantive evidence as an exception to the hearsay rule).
The Commonwealth next called Detective Hassel who testified Bonds
identified Appellant from a photo array. N.T., 10/7/12, at 46-47. On cross-
examination, Detective Hassel testified that the investigation never
recovered a gun nor was any evidence against Appellant recovered through
a search of Appellant’s residence. Id. at 47-48.
After reviewing the entire record, and viewing all evidence actually
received in the light most favorable to the Commonwealth, we conclude that
insufficient evidence was produced at trial to find Appellant possessed a
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firearm beyond a reasonable doubt. During his direct and cross-
examinations, Bonds testified that he merely heard shots fired, but he never
saw Appellant with a gun. We recognize that Bonds provided different and
more detailed information in his prior written statement. However, Bonds
did not endorse that version of events when confronted with the statement
during his trial testimony and, as noted, the Commonwealth never sought
the admission of the statement as substantive evidence.
Thus, the trial testimony Bonds provided, establishes there was an
argument involving Appellant’s brother, a crowd of approximately six people
were in the immediate area, and a woman began shooting. Bonds identified
Appellant as arriving at the scene about the same time as himself. Bonds
related that the woman produced a gun and started shooting. He heard
other shots and saw smoke but never saw Appellant with a gun. The
Commonwealth produced no other evidence of Appellant’s alleged
possession of a firearm.
Such evidence compels us to conclude that no probability of fact can
be drawn in favor of meeting the element of possession. See Watley,
supra at 113. Moreover, to find Appellant possessed a firearm based on the
testimony of Bonds that he saw smoke coming from Appellant’s hands, but
never saw Appellant pull or shoot a gun would require the factfinder to
engage in conjecture and merely surmise possession, which is insufficient to
support a finding of guilt. See Karkaria, supra at 1170. While
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circumstantial evidence may be sufficient to prove the element of
possession, the evidence adduced against Appellant arguably supporting an
inference of possession of a firearm is not the only reasonable interpretation
to which the evidence is susceptible. Therefore, guilt has not been proved.
See Barker, supra at 855.
Based on the foregoing, we conclude the Commonwealth set forth
insufficient evidence to prove Appellant guilty of possession of firearms
prohibited, firearms not to be carried without license, and carrying firearms
public in Philadelphia beyond a reasonable doubt. See Morales, supra at
86. Accordingly, the trial court’s December 4, 2013 judgment of sentence is
reversed and we order Appellant discharged.
Judgment of sentence reversed. Appellant discharged. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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Com. v. Fuller, V.
Combined Opinion