J-A15020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM GARY
Appellant No. 1576 EDA 2014
Appeal from the Judgment of Sentence April 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005530-2013
BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 29, 2015
Appellant, William Gary, appeals from the April 15, 2014 aggregate
judgment of sentence of six-and-one-half to 13 years imprisonment, plus
five years’ probation, imposed after he was found guilty of one count each of
robbery, possession of firearms prohibited, firearms not to be carried
without a license, theft by unlawful taking, receiving stolen property,
carrying firearms in public in Philadelphia, possession of an instrument of a
crime (PIC), terroristic threats, and simple assault.1 After careful review, we
vacate and remand for resentencing.
The trial court summarized the relevant facts of this case as follows.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6105(a)(1), 6106(a)(1), 3921(a), 3925(a),
6108, 907(a), 2706(a)(1), and 2701(a), respectively.
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The complaining witness, Steven Parker,
testified that on October 31, 2012, he was robbed at
gunpoint by [Appellant]. Mr. Parker stated that on
that day, at about nine o’clock in the morning, he
was at E&H Pawn Shop “to pay for his old lady’s
ring.” Before going to the pawn shop, he stopped by
the cash-checking [sic] place on Broad and Girard
and got his check cashed. When he got to the pawn
shop, he had over [$600.00] from the cashed check
in his pocket.
Mr. Parker testified that altogether, he spent
about two hours at the pawn shop where he “paid
down” on the ring. He stated that he gave
[$100.00] to “J,” the owner of the shop. He
indicated that [Appellant], too, was at the pawn
shop, and that [Appellant] observed Mr. Parker pay
on the ring. Mr. Parker positively identified
[Appellant] in the courtroom as the person he had
seen in the pawn shop.
Mr. Parker stated that at the time he left the
pawn shop, [Appellant] was already gone. When Mr.
Parker left the shop and started walking up 27th
Street, [Appellant] walked right behind him, put a
gun to his head, and demanded his money. Mr.
Parker testified that [Appellant] threatened to “blow
[Mr. Parker’s] head off” if he did not give him the
money. Mr. Parker said that he cried for help but
that there was no one around to help him.
[Appellant] grabbed all of Mr. Parker’s money and his
ID out of his pocket.
Mr. Parker gave a description of [Appellant]’s
gun. He stated that it was black in color and looked
like an “average police gun.”
Mr. Parker said that [Appellant] then fled on
foot. He followed [Appellant]. [Appellant],
meanwhile, ran down the block and then ran inside
someone’s house.
Mr. Parker was at the corner of 27th and
Cambria when he called [the] police. He stated that
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it took the police just a minute to arrive. Mr. Parker
said that the police officer suggested that he go to
the corner, sit right there, and wait. The police then
proceeded to the house which Mr. Parker had pointed
out. Shortly thereafter, they brought [Appellant] out
of the house. Mr. Parker saw that the police
recovered his ID from [Appellant]’s pants pocket.
Also in the [Appellant]’s pocket was a paper showing
how much money [Mr. Parker] paid every month for
his wife’s ring.
Trial Court Opinion, 9/11/14 at 3-4 (internal citations omitted).
On May 8, 2013, the Commonwealth filed an information, charging
Appellant with the above-mentioned offenses, as well as one count of
aggravated assault and recklessly endangering another person (REAP).2
Appellant proceeded to a bench trial, at the conclusion of which on
December 30, 2013, the trial court found Appellant guilty of one count each
of robbery, possession of firearms prohibited, firearms not to be carried
without a license, theft by unlawful taking, receiving stolen property,
carrying firearms in public in Philadelphia, PIC, terroristic threats, and simple
assault. The aggravated assault and REAP charges were nolle prossed. On
April 15, 2014, the trial court imposed an aggregate sentence of six-and-
one-half to 13 years imprisonment, plus five years’ probation.3 On April 23,
____________________________________________
2
18 Pa.C.S.A. §§ 2702(a) and 2705, respectively.
3
Specifically, the trial court sentenced Appellant to six-and-one-half to 13
years’ imprisonment for robbery, along with a concurrent five to ten year
prison sentence for possession of a firearm prohibited, and a consecutive
five-year probationary term for PIC. The trial court imposed no further
(Footnote Continued Next Page)
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2014, Appellant filed a timely post-sentence motion, which the trial court
denied on April 28, 2014. On May 27, 2014, Appellant filed a timely notice
of appeal.4
On appeal, Appellant raises two issues for our review.
1. Was not the evidence insufficient to convict
[A]ppellant under sections 6106 and 6108 of
the Uniform Firearms Act where the
Commonwealth failed to prove an essential
element of both offenses, namely, the required
barrel length or overall length of the alleged
firearm?
2. Must not [A]ppellant’s sentence be vacated
where it was imposed pursuant to a mandatory
minimum sentencing statute, 42 Pa.C.S.
§ 9712 [Sentences for offenses committed with
firearms], that has been held unconstitutional,
non-severable, and therefore entirely
unenforceable by this Court in
Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc)?
Appellant’s Brief at 3.
Appellant’s first issue challenges the sufficiency of the
Commonwealth’s evidence for two of his firearms convictions. We begin by
_______________________
(Footnote Continued)
penalty on the remaining charges. In addition, as we discuss infra, the trial
court relied in part on the mandatory minimum sentence provision at Section
9712 of the Sentencing Code, even though the parties agree the standard
range of the guidelines was higher than the mandatory minimum provision.
See generally Trial Court Opinion, 9/11/14 at 3-4 (internal citations
omitted).
4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925(b).
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noting our well-settled standard of review. “In reviewing the sufficiency of
the evidence, we consider whether the evidence presented at trial, and all
reasonable inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury’s verdict beyond
a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.
Ct. 1400 (2015). “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.
(internal quotation marks and citation omitted). “[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.” Id. (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), cert. denied,
Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
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Instantly, Appellant challenges the sufficiency of the evidence for his
convictions for firearms not to be carried without a license, and carrying
firearms in public in Philadelphia. Appellant’s Brief at 8. The governing
statutes for these offenses provide, in relevant part, as follows.
§ 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.
…
§ 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).
18 Pa.C.S.A. §§ 6106(a)(1), 6108. Furthermore, the Crimes Code defines
“firearm” in the following manner.
§ 6102. Definitions
Subject to additional definitions contained in
subsequent provisions of this subchapter which are
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applicable to specific provisions of this subchapter,
the following words and phrases, when used in this
subchapter shall have, unless the context clearly
indicates otherwise, the meanings given to them in
this section:
…
“Firearm.” 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.
…
Id. § 6102.
The parties agree, and our review of the record confirms, that the only
evidence admitted to show the barrel length of the weapon used in this case,
was from the Parker’s testimony, as no actual weapon was ever recovered
by the police. On direct examination, Parker testified as follows.
Q: Why did you say help?
A: I was robbed.
Q: Who was robbing you?
A: [Appellant] robbed me. He had a gun to my
head, if you don’t give me the money, I’ll blow your
head off.
Q: Did you give him money?
A: No. He went into my pocket. I saw the gun.
What would you do? When I --
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Q: What did it look like?
A: An average police gun.
Q: What color was it?
A: It was black.
Q: Do you know whether it was a revolver, a
semiautomatic?
A: Miss, I don’t know what kind of gun it was. It
looked like a police gun.
Q: The kind the police carry on their hip?
A: Yes.
N.T., 12/30/13, at 25-26.
The Commonwealth relies on our decision in Commonwealth v.
Rozplochi, 561 A.2d 25 (Pa. Super. 1989), appeal denied, 571 A.2d 381
(Pa. 1989). In Rozplochi, we discussed Section 6102’s definition of a
firearm and the proof of barrel length as follows.
Appellant next argues that counsel was
ineffective for failing to contest the sufficiency of the
evidence of the crime of former convict not to own
firearm. Section 6105 of the Crimes Code provides,
“No person who has been convicted in this
Commonwealth or elsewhere of a crime of violence
shall own a firearm, or have one in his possession or
under his control.” Section 6102 of the Crimes Code
defines “firearm” as “[a]ny pistol or revolver with a
barrel less than 12 inches, any shotgun with a barrel
less than 24 inches, or any rifle with a barrel less
than 15 inches.” The barrel length specified by
section 6102 is an essential element of the offense
proscribed by section 6105. Commonwealth v.
Todd, 384 A.2d 1215 (Pa. 1978). Appellant
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contends that the judge that convicted him could not
have found that this element had been established
beyond a reasonable doubt. We do not agree.
…
At the robbery trial, Ms. Cavaliere testified that
appellant initially concealed the weapon inside a
manila envelope. She described the envelope as
“about this high” and “not too wide”. Although the
record before us does not reveal the length of the
envelope, the judge would have been able to
estimate this length by observing Ms. Cavaliere’s
hand motions when she described the envelope as
“about this high”. The judge could then have
concluded that the length of the gun barrel was less
than the length of the envelope. In addition, the
judge also heard Ms. DeJesse testify at the robbery
trial that appellant’s weapon was a “small black gun”
(emphasis added).
In Commonwealth v. Jennings, 427 A.2d
231 (Pa. Super. 1981), we found that counsel was
not ineffective for failing to seek an arrest of
judgment following a conviction under section 6105
where the jury observed the gun in question and was
properly instructed as to the statutory gun barrel
length requirement. Under such circumstances, we
presumed that the defendant’s weapon had a barrel
length of under 12 inches in the absence of any
evidence to the contrary. Therefore, we reasoned
that a challenge by counsel based upon barrel length
would not have had arguable merit. This reasoning
applies with equal force to the case sub judice.
Although the finder of fact did not observe the gun
itself, the finder of fact observed a witness who
indicated the dimensions of the envelope in which
the gun was contained. The finder of fact was a
judge and as such is presumed to know the law.
See Commonwealth v. Hunter, 554 A.2d 550, 558
(Pa. Super. 1989). Moreover, none of the evidence
of record indicates that the gun had an exceptionally
long barrel length and appellant has never offered to
come forward with any evidence which would show
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that the gun was not a firearm. We find that this
sufficiency claim is without arguable merit and that
the trial counsel was not ineffective for failing to
argue this issue.
Id. at 31-32.5
As noted above, in Rozplochi, the evidence was sufficient because the
witness was able to use an envelope for the specific purpose of explaining
the dimensions of the gun, which the factfinder was able to see, perhaps
even measure. Although Parker did not use an envelope or other object to
explain the approximate dimensions, in our view, his elaboration that it was
similar to guns that police officers typically carry on their hip was sufficient
for the trial court, as the factfinder to make a reasonable inference regarding
its barrel length. Based on these considerations, we conclude the
Commonwealth provided sufficient evidence to prove beyond a reasonable
doubt that the barrel length of the gun was less than 15 inches.
In Appellant’s second issue, he avers that that trial court erred in
applying the mandatory minimum provision at Section 9712 of the
Sentencing Code. Appellant’s Brief at 11-12. Section 9712 reads as follows.
§ 9712. Sentences for offenses committed with
firearms
(a) Mandatory sentence.--Except as provided
under section 9716 (relating to two or more
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5
We note that Section 6105 has since been amended to include its own
special definition of “firearm.” We only discuss Rozplochi for the purposes
of the definition of “firearm” in the context of Section 6102.
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mandatory minimum sentences applicable), any
person who is convicted in any court of this
Commonwealth of a crime of violence as defined in
section 9714(g) (relating to sentences for second
and subsequent offenses), shall, if the person visibly
possessed a firearm or a replica of a firearm,
whether or not the firearm or replica was loaded or
functional, that placed the victim in reasonable fear
of death or serious bodily injury, during the
commission of the offense, be sentenced to a
minimum sentence of at least five years of total
confinement notwithstanding any other provision of
this title or other statute to the contrary. Such
persons shall not be eligible for parole, probation,
work release or furlough.
(b) Proof at sentencing.--Provisions of this section
shall not be an element of the crime and notice
thereof to the defendant shall not be required prior
to conviction, but reasonable notice of the
Commonwealth’s intention to proceed under this
section shall be provided after conviction and before
sentencing. The applicability of this section shall be
determined at sentencing. The court shall consider
any evidence presented at trial and shall afford the
Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall
determine, by a preponderance of the evidence, if
this section is applicable.
…
42 Pa.C.S.A. § 9712. Appellant relies heavily on this Court’s decision in
Newman. A previous panel of this Court summarized Newman’s analysis
and conclusion as follows.
The Newman Court first concluded that the
defendant’s sentence was illegal in light of Alleyne
[v. United States, 133 S. Ct. 2151 (2013)] and
required this Court to vacate and remand for
resentencing. Id. at 98. However, this Court noted
that Alleyne issues are subject to harmless error
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analysis, but nevertheless concluded that the
Alleyne issue in Newman was not harmless. Id. at
98-100. … Finally, this Court rejected the
Commonwealth’s argument that, if the error was not
harmless, the appropriate remedy would be to
remand to the trial court to empanel a second
sentencing jury. Specifically, in rejecting this
argument, the Newman Court concluded that
Section 9712.1 in its entirety must be struck down
as unconstitutional in light of Alleyne, concluding
that its subsections were not severable. … Id. at
102.
Commonwealth v. Cardwell, 105 A.3d 748, 752-753 (Pa. Super. 2014)
(footnotes omitted). Subsequent to Newman, the statute at issue here,
Section 9712, was also declared unconstitutional on its face by this Court.
Commonwealth v. Valentine, 101 A.3d 801, 811 (Pa. Super. 2014).
Recently, our Supreme Court agreed with Newman and Valentine’s
conclusions. See Commonwealth v. Hopkins, --- A.3d ---, 2015 WL ------
- (Pa. 2015) (slip op. at 2, 19, 22, 23) (concluding that 18 Pa.C.S.A. § 6317
is facially unconstitutional because its various subsections could not be
severed from each other under 1 Pa.C.S.A. § 1925). As a result, there is no
set of circumstances in which the statute can be constitutionally applied.6
See generally United States v. Salerno, 481 U.S. 739, 745 (1987);
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6
Although Appellant was convicted at a bench trial, this Court has recently
pointed out that “under the Due Process Clause, [a defendant is] still entitled
to have the extra element of the aggravated offense found by the factfinder
beyond a reasonable doubt pursuant to Alleyne and In re Winship, 397
U.S. 358 (1970).” Commonwealth v. Fennell, 105 A.3d 13, 17 (Pa.
Super. 2014), citing Alleyne, supra at 2156.
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accord Commonwealth v. McKown, 79 A.3d 678, 687 (Pa. Super. 2013),
appeal denied, 91 A.3d 162 (Pa. 2014).
The trial court acknowledges that Section 9712 was applied to
Appellant. Trial Court Opinion, 9/11/14, at 17-22. However, the
Commonwealth argues that the statute was not applied to Appellant.
Commonwealth’s Brief at 7. This assertion is belied by the record. At
sentencing, the Commonwealth told the trial court that a mandatory
minimum sentence was before it for its consideration, specifically a
mandatory minimum of five to ten years’ imprisonment. N.T., 4/15/14, at 8.
The trial court even asked defense counsel if the mandatory minimum
applied in this case. Id. at 6.
We acknowledge that the standard range of the sentencing guidelines
was higher than the five-year mandatory minimum. Id. at 3. Although
Newman correctly stated that Alleyne errors are subject to harmless error
analysis, this Court has not opined as to whether Newman errors can be
harmless as well.
Even if we were to hold that a Newman error is subject to harmless
error analysis, we would conclude that it was not harmless in this case.
Here, the trial court repeatedly acknowledges that the mandatory minimum
played some role in its sentencing determination. Trial Court Opinion,
9/11/14, at 17-22. The Commonwealth recommended seven to 14 years’
imprisonment to cover all charges. N.T., 4/15/14, at 8. However, the trial
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court noted that it was generally inclined to sentence Appellant lower than
that, because Appellant had waived his right to a jury trial. Id. at 11.
Nevertheless, the trial court imposed a sentence of six and one-half years’
imprisonment. Further, the trial court has not clearly stated what weight
was given to the Section 9712 fact, or what sentence it would have imposed
in the absence of the mandatory minimum. For these reasons, we cannot
conclude that the Newman error in this case was harmless beyond a
reasonable doubt. See generally Commonwealth v. Green, 76 A.3d 575,
582 (Pa. Super. 2013) (stating, “an error is harmless only if we are
convinced beyond a reasonable doubt that there is no reasonable possibility
that the error could have contributed to the verdict … [and t]he
Commonwealth bears the burden of establishing the harmlessness of the
error[]”), appeal denied, 87 A.3d 318 (Pa. 2014).
Based on the foregoing, we conclude the Commonwealth presented
sufficient evidence for firearms not to be carried without a license and
carrying firearms in public in Philadelphia. However, we further conclude the
trial court imposed an illegal sentence when it applied Section 9712 to
Appellant. Accordingly, the trial court’s April 15, 2014 judgment of sentence
is vacated, and the case is remanded for resentencing, without consideration
of the mandatory minimum provision, consistent with this memorandum.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2015
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Com. v. Gary, W.
Combined Opinion