J-S46027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN KNIGHT
Appellant No. 2745 EDA 2014
Appeal from the Judgment of Sentence August 26, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003563-2013
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED October 13, 2015
Appellant, Brian Knight, appeals from the judgment of sentence
entered on August 26, 2014, following his bench trial convictions for one
count each of unlawful restraint, carrying a firearm without a license,
carrying a firearm on public streets in Philadelphia, possessing an instrument
of crime (PIC), terroristic threats, simple assault, and indecent assault.1
Upon review, we affirm Appellant’s convictions as set forth in the written
verdict and sentencing order, but vacate his sentence for indecent assault as
illegal. Hence, we remand the case for resentencing.
We briefly summarize the facts and procedural history of this case as
follows. Appellant and the victim were previously involved romantically and
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1
18 Pa.C.S.A. §§ 2902, 6106, 6108, 907, 2706, 2701, and 3126,
respectively.
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have a daughter together. Their daughter, two years old at the time of the
incident, has cystic fibrosis. On January 28, 2013, the victim asked
Appellant to go to the pharmacy to pick up medicine for their ill daughter.
Appellant went to the victim’s house and then Appellant asked a friend to
drive him to the pharmacy and back to the victim’s house. Thereafter, the
victim asked Appellant to stay at her residence in case the medicine did not
take effect and the child required hospitalization.
Later in the evening, Appellant entered the victim’s bedroom and
placed his hat, jacket, and hooded sweatshirt on a chair. Appellant grabbed
the victim by her leg and dragged her out of bed. Appellant removed a
small knife from one of his pockets and cut the victim’s underwear from her
body. Despite her protestations, the victim claimed Appellant inserted his
penis into the victim’s anus and attempted to penetrate her vagina.
Appellant told the victim that, if he could not have her, nobody else could.
Ultimately, Appellant allowed the victim to use the bathroom. When she
returned, the victim removed Appellant’s clothing from the chair in her
bedroom to encourage Appellant to leave. As she did do, she saw a gun.
Appellant refused to leave, took the gun, and placed it underneath his
jacket. Appellant left the following morning.
The victim called the police and reported the assault. The victim
provided police with a formal statement. Police took the victim to the
hospital where medical personnel performed a rape kit examination.
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Pursuant to a warrant, police recovered a firearm and ammunition from
Appellant’s residence. Appellant did not have a license to carry a firearm.
Police arrested Appellant on February 12, 2013. Appellant provided
them with a formal statement wherein he admitted to bringing a firearm and
knife to the victim’s house. Appellant averred that he brought the firearm to
the victim’s residence, which he claimed he found while cleaning someone’s
house, because the victim’s cousin was interested in purchasing it. He
claimed that he had consensual relations with the victim, but unintentionally
inserted his penis into the victim’s anus. Appellant also stated that it was
probable he ripped the victim’s underwear in a playful manner.
On April 8, 2014, following a four-day bench trial, the trial court found
Appellant guilty of the aforementioned charges. The trial court ordered a
presentence investigation report. On August 26, 2014, the trial court
sentenced Appellant to an aggregate term of 16 to 44 months of
incarceration (with credit for time served) and an additional aggregate term
of 40 months of probation. This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
1. Was not the evidence insufficient to convict [A]ppellant
of firearms not to be carried without a license under 18
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2
Appellant filed a notice of appeal on September 19, 2014. On September
22, 2014, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on October 9, 2014. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on October 21, 2014.
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Pa.C.S.A. § 6106 beyond a reasonable doubt because
[A]ppellant’s statement admitting to possessing a gun
does not establish that it was unlawfully transported in a
car or carried and concealed about his person?
2. Is not the sentence of forty (40) months[’] probation on
count 13, indecent assault under 18 Pa.C.S.A.
§ 3126(a)(1) an illegal sentence because the offense is
properly graded as a misdemeanor of the
second[-]degree and the verdict form and sentencing
order control?
Appellant’s Brief at 3.
In his first issue presented, Appellant contends that the
Commonwealth failed to present sufficient evidence to support his conviction
for carrying a firearm without a license under 18 Pa.C.S.A. § 6106. Id. at
19-23. More specifically, Appellant argues that the Commonwealth failed to
present evidence that he concealed a firearm on his person or that he
transported the gun in a vehicle. Id. at 20. Appellant claims that the record
evidence shows that he brought the firearm to the victim’s house and left it
there before going back out for medicine. Id. at 22. Appellant avers that
he lives two blocks from the victim’s house, making it “less likely that the
gun was transported by vehicle” and there was no evidence “that the gun
was concealed instead of [] being carried openly the two blocks.” Id.
Appellant further maintains it was trial court error to find concealment based
in part on the victim’s testimony that Appellant hid the firearm under his
jacket after she discovered it in her residence. Id. at 23.
Our standard of review for challenges to the sufficiency of evidence is
well-settled:
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Whether, viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth as the verdict
winner, there is sufficient evidence to enable the fact-finder
to find every element of the crime beyond a reasonable
doubt. In applying the above test, we may not weigh the
evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's
guilt may be resolved by the fact-finder unless the evidence
is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(citation and brackets omitted).
The legislature has defined carrying a firearm without a license as:
[A]ny 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.A. § 6106(a) (emphasis added).
This Court has previously determined:
The offense defined by the Act is carrying a firearm without
a license except in one's own place of business or abode.
The essence of the offense is the ‘concealed carrying’ of a
weapon, whether it is in a vehicle or on the person. The
means by which the gun is transported - car or person - is
only detail to describe the method of concealment in which
the gun is carried.
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Commonwealth v. Walker, 280 A.2d 590, 591 (Pa. Super. 1971) (footnote
omitted; emphasis added).3
Here, the trial court concluded:
The complainant’s testimony about [Appellant] concealing
the gun under his jacket, [Appellant’s] statement admitting
that he owned a gun and took it with him, outside his home,
to complainant’s home before later traveling in a vehicle to
pick up medicine for his daughter and returning to the
complainant’s home, and the certificate of non-licensure is
more than sufficient, with reasonable inferences drawn from
that evidence in a light most favorable to the
Commonwealth, for [the trial court] to find beyond a
reasonable doubt that each element of Section 6106 was
proven.
Trial Court Opinion, 10/21/2014, at 5.
Based upon our examination of the record and our standard of review,
we agree. In his statement to police, Appellant admitted that he brought a
firearm to the victim’s residence. In particular, when asked by a detective if
Appellant were carrying a gun on the night of the incident, Appellant replied:
I used to sell scrap metal. [The victim’s] cousin wanted to
buy the gun. She wanted to keep the gun at the start. […]
I brought the gun that night to show her. Her cousin
wanted to buy the gun. […] He wasn’t there. The gun
came from a clean-out job; I was cleaning somebody’s
basement. I brought the gun there that night. It didn’t
even have a clip, the clip in there. She had the gun all
night. When I wake up, I asked her where the gun was at,
and she gave it to me.
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3
While Walker dealt with 18 P.S. § 4628, now repealed, the statutory
language of § 6106 is substantially similar.
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N.T., 1/13/2014, at 62 (emphasis added). Appellant also stated that he
went to the victim’s residence until a friend picked him up in a car and took
him to the pharmacy. Id. at 58. The victim stated to police that she did not
see the firearm until later in the evening, after the assault, when “she went
to grab his jacket and [] noticed a gun in the white chair” in her bedroom.
N.T., 11/1/2013, at 76. She “didn’t see it until then[,]” “[a]fter everything
happened; after [she] came out of the bathroom.” Id. at 76, 86. Appellant
put the jacket on the chair in the victim’s room just prior to the assault. Id.
at 63. When the victim told Appellant “to get [the firearm] out of [her]
house,” Appellant “hid it under his jacket.” Id. at 81, 27. The following
morning, Appellant left. Id. at 27. Police eventually recovered a firearm
from a bedroom where Appellant was residing. N.T., 1/13/2014, at 73-74.
Appellant admitted that he brought the firearm to the victim’s
residence on the evening in question. The victim, however, testified that she
did not see the firearm until much later that night. Therefore, based upon
the circumstantial evidence presented, the trial court was free to infer that
Appellant concealed the weapon on his person when he was walking to the
victim’s residence or, later, when he rode with a friend to the drugstore.
There is simply no evidence that Appellant openly carried the weapon to the
victim’s house or left the weapon there before riding in a vehicle to the
pharmacy. The victim did not see the gun until much later, after those
events transpired. Thus, the trial court was free to infer that Appellant
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concealed the weapon on the way to the victim’s residence and/or,
subsequently, in a vehicle while running errands.
Viewed in the light most favorable to the Commonwealth, the evidence
was not so weak and inconclusive that no probability of concealing the
firearm could be inferred from the circumstances. The Commonwealth did
not need to disprove that Appellant openly carried the firearm since it is not
the Commonwealth’s burden to disprove every possibility of evidence.
Moreover, the fact that Appellant hid the weapon under his jacket when the
victim confronted him about it further evidences Appellant’s intent to conceal
it. The carrying of a firearm without a license statute prohibits carrying “a
firearm concealed on or about [a defendant’s] person, except in his place
of abode or fixed place of business.” 18 Pa.C.S.A. § 6106(a)(emphasis
supplied). Testimony revealed that Appellant hid the firearm in his jacket
when the victim confronted him. At that time, Appellant was in the victim’s
place of abode, not his own. Therefore, when he concealed the firearm on
his person in the victim’s bedroom, he was in violation of Section 6106 for
this additional reason. Accordingly, we discern no abuse of discretion or
error of law in the trial court’s determination there was sufficient evidence to
support Appellant’s conviction under Section 6106.
Next, Appellant contends that his sentence of forty months of
probation for indecent assault is an illegal sentence because the offense
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should have been graded a second-degree misdemeanor.4 Appellant’s Brief
at 24-29. Appellant argues that the trial court rendered an ambiguous
verdict on the record by merely stating it found Appellant guilty of indecent
assault without specifying the count upon which it relied. Id. at 24.
Appellant contends that the trial court then “issued, signed, and docketed a
clear and unequivocal written verdict finding [Appellant] guilty of a
misdemeanor of the second degree and not guilty of the first degree
offenses.” Id. Appellant further contends that the sentencing order also
stated as such. Id. Appellant posits that the Commonwealth did not move
to amend the written determinations and the trial court did not correct the
error. Id. at 24, 28-29. Appellant contends that the written directives
control. Id. at 25. Thus, Appellant contends that the trial court’s
subsequent imposition of a forty-month period of probation is beyond the
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4
As the trial court noted, Appellant “was charged with several crimes,
including three counts of indecent assault.” Trial Court Opinion,
10/21/2014, at 6. “Count 13 was indecent assault without the consent of
the complainant. 18 Pa.C.S.A. § 3126(a)(1).” Id. “Count 14 was indecent
assault by forcible compulsion. 18 Pa.C.S.A. § 3126(a)(2).” Id. “And count
15 was indecent assault by threat of forcible compulsion. 18 Pa.C.S.A. §
3126(a)(3).” Id. Indecent assault is graded as follows:
(1) An offense under subsection (a)(1) or (8) is a misdemeanor
of the second degree.
(2) An offense under subsection (a)(2), (3), (4), (5) or (6) is a
misdemeanor of the first degree.
18 Pa.C.S.A. § 3126(b)(1) and (2).
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two-year maximum for a misdemeanor of the second-degree. Id. at 24,
citing 18 Pa.C.S.A. § 106.
This Court has previously determined:
A court has no authority to change a previously recorded
guilty verdict if the change is based on a post-verdict factual
redetermination. It is well-settled, however, that a court
possesses the inherent power to correct clerical errors
appearing either in the record or in its orders. Moreover,
the power to correct errors extends to improperly recorded
verdicts; thus, a court may correct a recorded verdict if the
verdict does not reflect the obvious intention of the trier of
fact. Under Pennsylvania's Rules of Appellate Procedure,
the trial court retains its power to correct such errors even
after an appeal has been taken:
If any difference arises as to whether the record
truly discloses what occurred in the lower court, the
difference shall be submitted to and settled by that
court after notice to the parties and opportunity for
objection, and the record made to conform to the
truth. If anything material to either party is omitted
from the record by error or accident or is misstated
therein, the parties by stipulation, or the lower court
either before or after the record is transmitted to the
appellate court, or the appellate court, on proper
suggestion or of its own initiative, may direct that
the omission or misstatement be corrected, and if
necessary that a supplemental record be certified
and transmitted.
Commonwealth v. Williams, 519 A.2d 971, 973 (Pa. Super. 1986)
(citations omitted).
Our decision in Commonwealth v. Farinella, 887 A.2d 273 (Pa.
Super. 2005) provides additional guidance. In Farinella, following a bench
trial, the trial court issued a verdict from the bench finding Farinella guilty of
aggravated assault, but not guilty of attempted murder. “Notably, in
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announcing its verdict from the bench, the court did not specify the grade of
aggravated assault upon which it was returning a verdict of guilty.”
Farinella, 887 A.2d 273, 274 (Pa. Super. 2005). “Although the court did
not specify the grading of the offense at the time of announcing its verdict,
[] the verdict slip contained in the record [] contain[ed] the handwritten
notation ‘adjudged guilty’ underneath the typewritten description of the
offense ‘aggravated assault 2702 F1’” as well as a handwritten date of
disposition. Id. at n.1. Thereafter, the following events transpired:
When [Farinella] did appear for sentencing, [his] counsel
noted that although the court had found [Farinella] guilty of
aggravated assault, the court had not placed on the record
the grading of aggravated assault upon which it had entered
a verdict. [Defense] counsel then asked the court to grade
the offense as a [second-degree felony (F-2)]. The
Commonwealth objected to this suggestion noting that it
had moved only on [first-degree felony] aggravated assault.
Despite the Commonwealth's objection, the court
announced that it was grading the conviction as an F-2
aggravated assault. This announcement sparked additional
objection from the assistant district attorney (ADA) and a
back-and-forth debate between the ADA and the court
ensued in which the ADA argued the facts of the case with
the court and tried to pin the court down on its specific
findings of fact to support the court's newly announced
verdict.
After this exchange between the ADA and the court had
continued for awhile, the court announced that it was
finding [Farinella] guilty of simple assault and not guilty of
aggravated assault. When the court made this
announcement, the ADA then objected on the basis that the
court had already rendered a verdict of guilty on aggravated
assault at the close of the non-jury trial.
Id. (footnote omitted).
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On appeal, this Court vacated Farinella’s judgment of sentence and
remanded for the reinstatement of the guilty verdict for aggravated assault
and remanded the case for resentencing. Therein, we determined:
Pursuant to Pa.R.Crim.P. 621, when a case proceeds non-
jury the court must render a verdict which shall have the
same force and effect as a verdict of a jury. Thus, once
announced in open court, and certainly once entered
upon the docket, the court's verdict was the same as if
rendered by a jury. The fact that it was the court that
reached the verdict did not make the verdict less firm than
a jury verdict, nor did it make it malleable and capable of
later revision by the court. Consequently, unless the verdict
was flawed in some fashion that relegated it subject to
attack, the court had no more power to change the verdict
than it would have had in a jury trial.
Commonwealth v. Farinella, 887 A.2d 273, 275 (Pa. Super. 2005)
(citations and quotations omitted) (emphasis added). We rejected the trial
court’s reasoning that its “original verdict was tainted by an improper
emphasis on the seriousness of the injury to the complainant coupled with
sympathy for the complainant.” Id. at n.3. This Court determined that such
an evaluation amount to rethinking the verdict and then substituting a new
verdict prior to sentencing. Id. Ultimately, the Farinella Court concluded
“once announced in open court, there was no basis for ‘looking behind’ the
verdict to the factfinder’s reasoning or specific findings of fact, nor was there
a basis for correcting what was, upon its face, a perfectly valid verdict.” Id.
at 276.
Here, the trial court explained:
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At the conclusion of [Appellant’s] trial [the trial] court found
[Appellant] guilty of several charges, including indecent
assault. When [the] court gave its ruling, it stated the
named crimes for which it found [Appellant] guilty, it did
not state on which counts [Appellant] was found guilty.
[The parties requested clarification, however, a]t no time
during the proceedings on April 8, [2014] did [the] court
announce on which count or under which subsection it
[found Appellant guilty].
At [Appellant’s] sentencing, on August 26, 2014, both the
[C]ommonwealth and defense counsel sought to clarify
under which subsection [Appellant] was to be sentenced.
[The trial court] was very clear, on the record, that
[Appellant] was being convicted and sentenced for indecent
assault as an “M1” (misdemeanor of the first degree) based
on the crime being committed with the use of a knife.
The sentencing order, entered on August 26, 2014 indicates
that [the] court found [Appellant] guilty of count 13,
indecent assault as a misdemeanor [of] the second degree
– the only count of the three indecent assault charges not
graded as a misdemeanor of the first degree. This is clearly
a clerical error and does not override the expressly
communicated, unambiguous, judgment of [the] court,
made on the record during the sentencing hearing, that
[Appellant] was found guilty of indecent assault with the
use of a knife – a misdemeanor of the first degree.
At [Appellant’s] sentencing hearing, while discussing the
grading of the indecent assault charge, [the trial court]
stated “well, because of the testimony about the knife
used to cut the clothing, I now rule it’s an M1.” [The
trial court] went on to clearly state that the sentence for the
indecent assault was going to be 40 months[’] probation.
This shows a clear and unambiguous intention by [the]
court to convict [Appellant] of the charge of indecent
assault as a first degree misdemeanor and sentence him to
a term of probation conforming with that conviction. The
sentencing order indicating conviction for indecent assault
as a misdemeanor of the second degree must yield to [the]
court’s expressed and unambiguous ruling at [Appellant’s]
sentencing.
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Trial Court Opinion, 10/21/2014, at 6-8 (record citations omitted) (emphasis
added).
Appellant argues that there was no ambiguity in the verdict. Upon
review of the record, we agree. At the conclusion of the bench trial, the trial
court stated it found Appellant “guilty of these charges: simple assault,
unlawful restraint, possessing an instrument of crime, indecent assault,
[and] terroristic threats.” N.T., 4/8/2014, at 39. Counsel for both
Appellant and the Commonwealth asked for clarification,5 because there
were three counts of indecent assault lodged against Appellant. Id. at 40-
41. The trial court only named the crimes of conviction, did not specify which
counts the convictions rested upon, and did not list the crimes of conviction
by statutory section. Id. at 41. The trial court did not clarify the verdict in
open court. The trial court then ordered a pre-sentence investigation report.
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5
The Commonwealth contends that Appellant waived this issue by failing to
object to the grading. Commonwealth’s Brief at 20. However, upon review
of the record, Appellant specifically questioned the court about grading and
the trial court did not respond. Thus, we conclude that the issue was
properly before the court and it had an opportunity to clarify the issue.
The Commonwealth avers Appellant improperly recasts his claim as an illegal
sentence to avoid waiver. Id. at 20-21. We reject the Commonwealth’s
reliance on Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013) as that
case is distinguishable. Spruill argued at trial that she had not been charged
with aggravated assault as a second-degree felony. On appeal to this Court,
however, Spruill argued that the Commonwealth abandoned the second-
degree felony charge and the trial court entered an illegal sentence. Here,
by contrast, Appellant claims that the trial court made a new factual
determination after the verdict was entered and essentially elevated the
offense grade at sentencing. Appellant has steadfastly maintained that the
trial court’s grading was unclear and, thus, has preserved the issue.
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Id. at 41-42. Thereafter, according to the docket, on the same day that the
verdict was announced in open court, the trial court prepared a trial
disposition and dismissal form, wherein it listed all of the counts lodged
against Appellant and individually specified whether Appellant was guilty, not
guilty, or the Commonwealth had withdrawn the charge. With regard to
count 13, indecent assault without consent, 18 Pa.C.S.A. § 3126(a)(1), the
trial court listed Appellant as “Guilty.” Trial Disposition and Dismissal Form,
4/8/2014, at 3. The form identified the crime as a second-degree
misdemeanor. Id. Correspondingly, the dismissal form listed counts 14 and
15 (indecent assault - forcible compulsion, and indecent assault - threat of
forcible compulsion, 18 Pa.C.S.A. §§ 3126(a)(2) and 3126(a)(3),
respectively) as “Not Guilty.” Id.
It was not until right before sentencing that the trial court specifically
stated that it convicted Appellant of a first-degree misdemeanor indecent
assault. N.T., 8/26/2014, at 19. The trial court noted there was indecent
assault with a threat of compulsion because Appellant used a knife to cut off
the victim’s underwear. Id. Accordingly, the trial court concluded the crime
was properly graded a first-degree misdemeanor. Id. In particular, the trial
judge stated “the fear of the gun is not as persuasive as fear of the knife,
which was actually used. Not to cut [the victim] in any way, but cutting her
clothing, so I guess I’m compelled to say it’s an M1.” Id. These statements
lead us to conclude that the trial court impermissibly reconsidered its verdict
at, or shortly before, Appellant’s sentencing hearing.
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Similar to Farinella, in this case, while rendering the verdict in open
court, the trial court did not specify which count in the indictment, which
statutory subsection, or which variant of indecent assault Appellant
committed. Thereafter, the trial court issued a written verdict that declared
Appellant guilty of indecent assault without consent, 18 Pa.C.S.A. §
3126(a)(1). That verdict was entered on the docket. It was not until
sentencing that the trial court revisited its decision. While there was initial
confusion at the end of trial, the trial court never clarified its oral decision.
The first time Appellant received a definitive verdict was when the trial court
clearly signed the trial disposition and dismissal forms that explicitly state
Appellant’s indecent assault fell under Section 3126(a)(1), a misdemeanor of
the second-degree. This is not a situation where the trial court clearly
communicated an oral guilty verdict in open court and then issued a non-
conforming written verdict. Like in Farinella, just prior to sentencing, the
trial court reevaluated the facts of the case to conclude that indecent assault
with the use of a knife constituted a more serious offense.
Finally, we note that the Philadelphia Court of Common Pleas docket
sheet and the sentencing order both specify that Appellant was convicted of
count 13, indecent assault without consent, 18 Pa.C.S.A. § 3126(a)(1). See
Philadelphia County Docket # CP-51-CR-0003563-2013, at 7; Sentencing
Order, 8/26/2014, at 2. Once the verdict was entered on the docket, the
court had no power to change a perfectly valid verdict by reevaluating the
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facts. Farinella, 887 A.2d at 275-276. Thus, Appellant’s sentence for a
first-degree misdemeanor crime was erroneous.
Judgment of sentence vacated. Case remanded for reinstatement of a
verdict of guilty as to indecent assault without consent pursuant to 18
Pa.C.S.A. § 3126(a)(1). Resentencing to follow. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2015
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Com. v. Knight, B.
Combined Opinion