Com. v. Williams, E.

J-S01041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ERNEST WILLIAMS

Appellant No. 3010 EDA 2014

Appeal from the Judgment of Sentence September 24, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008700-2012

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 30, 2015

Appellant, Ernest Williams, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for aggravated assault, possessing instruments of crime,

and carrying firearms on public streets in Philadelphia, and his bench trial

conviction for persons not to possess firearms.1 We affirm.

The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them.

Appellant raises the following issues for our review:

DID THE JURY IMPROPERLY CONVICT APPELLANT…OF
AGGRAVATED ASSAULT WHERE THERE WAS
INSUFFICIENT EVIDENCE TO OVERCOME THE
____________________________________________

1
18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 6108, 6105(a)(1), respectively.
J-S01041-16

COMMONWEALTH’S BURDEN TO DISPROVE APPELLANT’S
CLAIM OF JUSTIFICATION?

DID THE TRIAL COURT IMPROPERLY INSTRUCT THE JURY
ABOUT THE JUSTIFICATIONS OF SELF-DEFENSE AND
DEFENSE OF OTHERS BY: (1) FAILING TO CLARIFY THE
JURY’S DUTY TO CONSIDER THE JUSTIFICATIONS OF
SELF-DEFENSE AND DEFENSE OF ANOTHER SEPARATELY;
(2) FAILING TO INCORPORATE THE STAND YOUR GROUND
LAW; AND (3) FAILING TO DEFINE DWELLING?

(Appellant’s Brief at 3).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Charles J.

Cunningham, III, we conclude Appellant’s issues merit no relief. The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed June 11, 2015, at 7-12)

(finding: (1) various witnesses testified that fight broke up immediately

after Appellant fired first gunshots; Appellant was able to retreat without

exposing himself or his wife to additional harm; nevertheless, Appellant

continued shooting as he chased victim; no evidence suggested victim was

armed or continued to fight Appellant or his wife after Appellant’s initial

shots; Commonwealth met its burden of proof that Appellant became

aggressor when he chased unarmed victim onto porch where Appellant shot

victim at point blank range; (2) prior to instructing jury, court advised

counsel that it would issue standard justification charge with exception of

inapplicable segment; Appellant’s counsel raised no objection to jury

instructions issued by court; therefore, Appellant’s challenge to jury

-2-
J-S01041-16

instructions is waived;2 moreover, court’s instruction made clear to jury that

if it found Appellant reasonably believed he had to use deadly force to stop

beating of his wife, he would have been justified in using deadly force to

protect her).3 Accordingly, we affirm on the basis of the trial court opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2015

____________________________________________

2
Appellant’s specific claims regarding the court’s alleged failure to define
“dwelling,” and to clarify the jury’s duty to consider self-defense and defense
of others separately, are also waived because Appellant failed to include
them in his Pa.R.A.P. 1925(b) statement. See Commonwealth v. Castillo,
585 Pa. 395, 888 A.2d 775 (2005) (holding any issue not raised in Rule
1925(b) statement is waived on appeal).
3
In its opinion, the court cited the former version of Pa.R.Crim.P. 647(B)
when it stated: “No portions of the charge nor omissions from the charge
may be assigned as error, unless specific objections are made thereto before
the jury retires to deliberate.” The rule was amended on July 7, 2015,
effective October 1, 2015, and the quoted text is now found at Pa.R.Crim.P.
647(C).

-3-
 Circulated 12/22/2015 02:34 PM

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA
3010 EDA 2014
v.
CP-5 l-CR-0008700-20 I 2
ERNEST WILLIAMS

FILED
OPINION
JUN 11 2015
. Crlmin?I Appeals unit
STATEMENT OF THE CASE First JL1d1c1al District of PA
This appeal arises out of the brutal shooting of the complaining witness on June

I 5, 20 I 2. Defendant is appealing his convictions for Aggravated Assault and related gun

charges, complaining that the Court erred in its rulings relating to his defense of

justification in defense of another. Defendant's complaints are without merit.

PROCEDURAL HISTORY

On June 19, 2012, Defendant was arrested and charged with numerous offenses

including, inter alia; 1) Criminal Attempt pursuant to 18 Pa.C.S.A. 90l(a) to commit

Murder of the First Degree pursuant to 18 Pa.C.S.A. §2502; 2) Aggravated Assault

pursuant to 18 Pa.C.S.A. §2702(a); 3) Possession of Firearm by a Person Prohibited

pursuant to 18 Pa.C.S.A. §6105(a)(l); 4) Carrying Firearms on Public Streets or Public

Property in Philadelphia pursuant to 18 Pa.C.S.A. §6108; and 5) Possession of an

Instrument of a Crime with Intent pursuant to I 8 Pa.C.S.A 907(a) (PIC). On June 5,

2014, at the conclusion of his jury trial, Defendant was found guilty on the charges of
CP-51-CR-0006700-2012Comm. v. Williams, Ernest
Opinion

IIII IIIIIIIIIIIIIIIIIII
7306402721
Aggravated Assault, Carrying a Firearm in Philadelphia and PIC. The jury was unable to

reach a verdict on the charge of Attempted Murder. After the jury verdict taken,

Defendant waived his right to a jury trial and was found guilty on the charge of

Possession of a Firearm by a Person Prohibited.

On September 24, 2014, Defendant was sentenced to consecutive periods of

confinement in a state correctional facility of 7 to 14 years on the charge of Aggravated

Assault, and 3 to 6 years on the charge of Possession of Firearm by a Person Prohibited,

for a total period of confinement of 10 to 20 years. Defendant was found guilty without ·

further penalty on the two remaining weapons charges.

On October 20, 2014, Defendant timely filed the instant appeal to the Superior

Court of Pennsylvania. On November 5, 2014, this Court filed and served on Defendant

an Order pursuant to Rule l 925(b) of the Pennsylvania Rules of Appellate Procedure,

directing Defendant to file and serve a Statement of Errors Complained of on Appeal,

within 21 days of the Court's Order. On December 16, 2014, the Superior Court entered

an order permitting counsel to withdraw and remanding the matter back to the Court for

appointment of new appellate counsel. On February 11, 2015, Bobby Ochoa, III, Esq.,

was appointed to represent Defendant for the purposes of the within appeal. On February

25, 2015, this Court filed and served on Defendant a new Order pursuant to Rule 1925(b)

directing Defendant to file and serve a Statement of Errors Complained of on Appeal,

within 21 days of the Court's Order. On February 25, 2015, Defendant filed a petition

for an extension of time within which to file his 1925(b) statement of errors, which the

Court granted. On March 2, 2015, Defendant timely filed his Statement of Errors, raising

three issues, namely:

2
 1. "Justification Instruction: The trial court provided a flawed instruction to
the jury regarding the justification of self-defense and defense of others.
The trial court's instruction did not address 18 Pa.C.S. § 506(b) regarding
the use of force for the protection of other persons, which states that the
actor is not obliged to retreat to any greater extent than the person whom
he seeks to protect. The prosecutor argued vigorously and cross-examined
Williams-and the court also questioned Williams directly on this point-
regarding the time he spent in the house to retrieve the gun and his clear
opportunity to retreat by simply locking the door. The implication that he
had sufficient time to retreat-and defeating any justification claim-was
misleading. As the statute makes clear, Williams was not obliged to retreat
to any greater extent than his wife, the person whom he sought to protect.
As a result, the instruction was flawed and legally insufficient. See N.T
06/04/2014 at 155-57, 159-63, 205-12.
· 2. Sufficiency of the Evidence-Disproving Justification: The evidence was
legally insufficient to overcome the Commonwealth's burden to disprove
Williams' use of force in defense of another claim as a justification for the
shooting, in particular rendering the evidence legally insufficient to
support the criminal intent element of the several other charges. As a
result, the trial court improperly denied Williams' oral motion for a
judgment of acquittal at the close of the Commonwealth's case-in-chief
See N. T. 06/04/2014 at 102.
3. Scope of Justification: Additionally, the trial court improperly relied on
the prosecutor's statement that a proper claim of self-defense is legally
inadequate to justify a violation of the uniform firearms act under Section
6105. This legal conclusion was incorrect. The trial court was not bound
by the jury's decisions and was free to credit Williams' self-defense claim
as justification for his violation of Section 6105. See N.T. 06/05/2014 at
17."

EVIDENCE AT TRIAL

Ms. Linesa Gunther testified that on June 15, 2012, she was living on the 5100

block of Harlan Street in the City of Philadelphia, where she got into a physical fight with

her neighbor, Ms. Millicent Williams, whom she knew from the block, but did not

socialize with. She testified that the fight arose out of an altercation between her son and

daughter and Ms. Williams' son in front of the Williams's home. (N.T., 6/3/14 pgs. 48,

3
50, 51, 54, 57, 80) At some point during the fight she was punched in the back of the

head by Defendant, at which time her brother, the complainant Hak.iem Gunther, and her

cousin began fighting with Defendant. (N.T., 6/3/14 pgs. 56, 57) Defendant then broke

away from her brother and cousin, ran into the house and returned with a gun shooting

into the crowd as he came off his porch. (N.T., 6/3/14 pgs. 57, 58, 61, 73, 74)

Ms. Gunther testified that everyone immediately fled the scene with her brother,

being chased by Defendant, ran back towards her home. ''He ran down the street after

my brother. He ran up on the porch. Hakiem, that's my brother, he couldn't get in the

house, and he started shooting. Hak.iem fell. He then stood over him and shot three or

four more times." (N.T., 6/4/14 pgs. 60, 85) Defendant's gun emptied after firing

additional shots into the house, at which point he left her porch. (N.T., 6/3/14 pgs. 62,

63)

The complainant, Mr. Hak.iemGunther, testified that at approximately 9:00 p.m.,

on June 5, 2012, as he was approaching his sister's house for a visit, he observed his

sister embroiled in a physical fight with another woman. As he drew near he observed a

male with white hair get involved in the fight. When he called out that's it's "a girl

fight," he got hit and began fighting with the white haired male. (N.T., 6/4/14 pgs. 89-90,

100, 101)

At some point, thinking everything was over, he began walking away when he

heard someone call out, "He got a gun." He next remembers being shot on the porch of

his sister's house by a figure standing over him, before he passed out. (N.T., 6/3/14 pgs.

91-94, 1 '03) He testified that he was shot three times, in the groin, thigh and back and is

now paralyzed as a result. (N.T., 6/3/14 pgs. 95, 96)

4
 Ms. Centoria Gunther testified that on June 15, 2012, she was living on the

5100 block of Harlan Street with her sister, Ms. Linesa Gunther, and her cousin. (N.T.,

6/4/14 pgs. 9, 18) At approximately 9:00 p.m. she saw her sister engaged in a fight in

front of the Defendant's house with Defendant's wife, whom she knew from the block

and also did not socialize with,. (N.T., 6/4/14 pgs. 9, 11, 12, 16, 52) While the two

women were fighting, she saw Defendant punch her sister in the back of the head, at

which point, her brother, the complainant Hakim Gunther, and her cousin began fighting

with Defendant. (N.T., 6/4/14 pgs. 17, 18, 49)

She testified that Defendant got up, after falling to the ground and being kicked,

ran into his house and, within a minute or two, came back out with a gun shooting from

the top of his steps in the direction of Mr. Gunther. (N.T., 6/4/14 pgs. 17, 19-21, 44)

Defendant then chased after Mr. Gunther, firing shots at him, as he ran towards her

house. (N.T., 6/4/14 pgs. 22, 24, 45) When Mr. Gunther re.ached the porch of her house

Defendant shot him from a distance of three feet striking him in the back, causing him to

fall to the ground. (N.T., 6/4/14 pgs. 22, 24, 31, 46) When Defendant couldn't gain

entry into the house through the locked door, he fled from the porch, running back into

his own home. (N.T., 6/4/14 pgs. 110, 111)

Mrs. Millicent Williams, Defendant's wife, testified that she got into a physical

firght with Ms. Linesa Gunther, arising out of a dispute between their children. (N.T.,

6/4/14 pgs. 108, 112, 113) She also testified that Defendant became involved in a fight

with two men during which he was able to break away and retrieve a gun from the house.

Defendant then returned and fired two shots. On hearing the two shots, the "fight

5
stopped. That's when they let me go, after I heard these two shots, everybody just --- they

started running and they let me go ... "

Philadelphia Police Officer Darnell Jessie testified that at approximately 9:00

p.m., on June 15, 2012, he was in uniform on routine patrol in a marked patrol car, and he

responded to a radio call of a shooting. (N.T., 6/3/14 pgs. 29, 30) He arrived on the call

at 5134 Harlan Street "less than two minutes later" and found Mr. Gunther lying on his

back, in a pool of blood on the front porch, with another man hovering over him calling

out, "Stay with me." (N.T., 6/3/14 pgs. 31, 32, 35) 36) Concerned for the life of the

victim, Officer Jessie placed Mr. Gunther in the back of his patrol car and immediately

transported him directly to the Hospital of the University of Pennsylvania for treatment.

(N.T., 6/3/14 pgs. 35, 36, 46)

Philadelphia Police Officer Richard Link testified that at approximately 9:00 p.m.,

on June 15, 2012, he too responded to a radio call of a shooting on the 5100 block of

Harlan Street. On arriving at 5134 Harlan Street, he observed a black male lying

unconscious on the porch. (N.T., 6/3/14 pgs. 110, 111) After securing the scene, he

recovered two 45 caliber fired shell casings and one live round from the street near the

porch where he first observed the complainant. (N.T., 6/3/14 pgs. 119, 120) He also

testified that the only blood documented at the scene was found on the porch and the

steps leading up to it. He attributed the presence of the blood on the steps to the

complainant being carried from the porch to the patrol car for transport to the hospital.

(N.T., 6/3/14 pg. 121)

6
DISCUSSION OF THE ISSUES RAISED

I. THE COURT'S CHARGE ON JUSTIFICATION WAS PROPER.

In his first statement of errors, Defendant complains, the Court erred in not

charging the jury that Defendant "was not obliged to retreat to any greater extent than his

wife, the person whom he sought to protect." Defendant's complaint misstates the record

and is without merit.

The Pennsylvania Rules of Criminal Procedure (Pa. R. Cr. P.) at Rule 647(B)

provide in pertinent part: "No portions of the charge nor omissions from the charge may

be assigned as error, unless specific objections are made thereto before the jury retires to

deliberate." In considering the application of Rule 647(B) The Supreme Court of

Pennsylvania held, "that under Criminal Procedural Rules 603 and 647(B), the mere

submission and subsequent denial of proposed points for charge that are inconsistent with

or omitted from the instructions actually given will not suffice to preserve an issue,

absent a specific objection or exception to the charge or the trial court's ruling respecting

the points." Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220, at 225 (2008).

More recently, the Superior Court of Pennsylvania held that the defendant's failure to

object to the trial court's refusal to include his request for instructions on the law of

"justification/self-defense" constituted a waiver of that issue. Commonwealth v.

Marquez, 209 PA Super 170, 980 A.2d 145 (2009).

Prior to charging the jury, the Court advised counsel, without objection, that it

would deliver the standard justification charge, Pa. SSJI (Crim.) §9.502, except for the

third segment, which the Court found to be inapplicable. (N.T., 6/4/14 pgs. 169, 170) At

the conclusion of its charge, the Court inquired twice of counsel if they had "anything

7
additional before the jury retires to deliberate?" (N.T., 6/4/14 pgs. 212, 218) Both

counsel answered in the negative. (N.T., 6/4/14 pg. 218) Having raised no.objection to

the Court's charge, Defendant's complaint is deemed waived Marquez. Id

"It is well-settled that when reviewing the adequacy of a jury instruction, we must

consider the charge in its entirety to determine if it is fair and complete. The trial court

has broad discretion in phrasing the charge and the instruction will not be found in error

if, taken as a whole, it adequately and accurately set forth the applicable law."

Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa. 2009) Moreover, "a trial court is not

obligated to instruct a jury upon legal principles which have no applicability to the

presented facts. There must be some relationship between the law upon which an

instruction is requested and the evidence presented at trial. However, a defendant is

entitled to an instruction on any recognized defense which has been requested, which has

been made an issue in the case, and for which there exists evidence sufficient for a

reasonable jury to find in his or her favor." Commonwealth v. Bohonyi, 900 A.2d 877,

883 (Pa. Super. 2006)

Defendant misstates the record when he states the Court failed to instruct the jury

pursuant to 18 Pa.C.S. § 506(b), that he "was not obliged to retreat to any greater extent

than his wife, the person whom he sought to protect." Defendant's overreaction to the

Commonwealth's vigorous cross examination, which he wrongly interprets as suggesting

"Defendant had sufficient time to retreat-and defeating any justification claim," over-

looks the Court's specific instructions regarding justification. The Court instructed the

jury that if Defendant "reasonably believed that his wife was in danger of suffering

serious bodily injury or death, then the law says he's justified in using deadly force. The

8
lawful defense of others is called justification. If the defendant's actions were justified,

you cannot find him guilty." (N.T., 6/4/14 pg. 207) The Court further instructed the jury

that if Defendant "reasonably believed he had to use deadly force to stop the beating of

his wife, then that's self-defense and he's not guilty of any of these crimes. Even if he was

wrong in that judgment but he was reasonable in thinking that, then that's self-defense

and he's not guilty of any of these crimes." (N.T., 6/4/14 pgs. 211, 212) Contrary to

Defendant's complaint, the Court's makes it clear that, if the jury believed the testimony

of Defendant and his wife, Defendant had no duty to retreat and would have been

"justified" in using deadly force to protect her.

II. DENIAL OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL

WAS PROPER.

Defendant, in his second statement of errors, appears to raise two separate issues.

Defendant first appears to complain that the evidence at trial was insufficient to sustain

his convictions and, therefore, the Court erred in denying his "oral motion for a judgment

of acquittal at the close of the Commonwealth's case-in-chief." Defendant then appears

to complain that the "evidence was legally insufficient to overcome the Commonwealth's

burden to disprove Williams' use of force in defense of another claim as a justification

for the shooting, in particular rendering the evidence legally insufficient to support the

criminal intent element of the several other charges." Defendant's complaints are

without merit.

The Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P.) at Rule606(A)

provides in part: "A defendant may challenge the sufficiency of the evidence to sustain a

9
conviction of one or more of the offenses charged in one or more of the following ways:

(1) a motion for judgment of acquittal at the close of the Commonwealth's case-in-chief."

"A claim challenging the sufficiency of the evidence is a question of law. Evidence will

be deemed sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a reasonable

doubt. Where the evidence offered to support the verdict is in contradiction to the

physical facts, in contravention to human experience and the laws of nature, then the

evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court

is required to view the evidence in the light most favorable to the verdict winner giving

the prosecution the benefit of all reasonable inferences to be drawn from the evidence."

Commonwealth v. Fisher, 47 A.3d 155, 157 (Pa. Super. 2012) citing Commonwealth v.

Widmer, 560 Pa. 308, 744 A.2d 745, 751-52 (Pa. 2000) In considering such a claim, the

Superior Court "may not weigh evidence, nor substitute the fact-finder's judgment with

this Court's ... The facts and circumstances which have been established by the

Commonwealth are not required to preclude every possibility of innocence... 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.

Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000) A court may draw inferences from the

facts so long as the inferred facts are more likely than not to flow from the proven facts.

Commonwealth v. Wodjak, 466 A.2d 991, 996 (Pa. 1983) More specifically, the intent

to kill may be proven by circumstantial evidence. Commonwealth v. Carson, 569-70,

913 A.2d 220 (Pa. 2006)

10
 At the close of the Commonwealth's case in chief, counsel for Defendant made an

oral motion for acquittal only on the charge of attempted murder, which the Court denied.

Counsel did not object to the Court's ruling, nor did he renew this motion at any other

time. In any event, the jury's inability to reach a verdict on the charge of Attempted

Murder, compelled the Court to declare a mistrial, thus rendering Defendant's complaint

regarding the denial of his motion for acquittal moot.

Furthermore, Defendant's complaint completely ignores the testimony of the Mr.

Gunther and his sisters, all of whom testified that the fight broke up immediately after

Defendant fired the first shots, and further, that Defendant continued shooting as he

chased Mr. Gunther onto his sisters' porch.

"When a defendant raises the issue of self-defense, the Commonwealth bears the

burden to disprove such a defense beyond a reasonable doubt. The Commonwealth

sustains this burden if it establishes at least one of the following: (1) the accused did not

reasonably believe that he was in danger of death or serious bodily injury; (2) the accused

provoked or continued the use of force; or (3) the accused had a duty to retreat and the

retreat was possible with complete safety. The Commonwealth need only prove one of

these elements beyond a reasonable doubt to sufficiently disprove a self-defense claim.''

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009) (Internal citations

and quotations omitted) Furthermore, "[t]he law does not require an accused to elect an

avenue of retreat where a reasonably prudent person would conclude that such a decision

would increase his or her exposure to the threatened harm. Id. at 1143-44 "Although the

Commonwealth is required to disprove a claim of self-defense ... a jury is not required to

believe the testimony of the defendant who raises the claim." Commonwealth v. Houser,

11
18 A.3d 1128, 1135 (Pa. 2011) (quoting Commonwealth v. Carbone, 574 A.2d 584, 589

(Pa.1990) "It remains the province of the jury to determine whether the accused's belief

was reasonable, whether he was free of provocation, and whether he had no duty to

retreat." Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (Internal

citation omitted)

The testimony of the Commonwealth's witnesses, as discussed above, establishes

that Defendant's initial shots effectively broke the fight up and that retreat for Defendant

was possible without exposing him or his wife to additional harm. Furthermore, there

was no evidence to suggest that Mr. Gunther was armed or continued in the fight after

Defendant's initial shots. To the contrary, it is clear from the testimony at trial, that the

Commonwealth met its burden in establishing that Defendant, instead of retreating,

became the aggressor chasing an unarmed Mr. Gunther up onto the porch where he shot

him at point blank range.

III. DENIAL OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL

WAS PROPER.

Defendant, in his third statement of errors, complains that the Court erred in

relying on "the prosecutor's statement that a proper claim of self-defense is legally

inadequate to justify a Violation of the Uniform Firearms Act under Section 6105. This

legal conclusion was incorrect. The trial court was not bound by the jury's decisions and

was free to credit Williams' self-defense claim as justification for his violation of Section

12
6105." In other words, Defendant misstates the record by implying that the Court

accepted the prosecutor's statement as legally binding. To the contrary, the Court fully

evaluated Defendant's claim of justification and found it to be lacking. Defendant's

complaint is without merit.

After the jury returned its verdict of guilty on the related assault and weapons

charges, Defendant elected to waive his right to a jury trial on the bifurcated charge of

Possession of a Firearm by a Person Prohibited and was found guilty. 18 Pa.C.S.A.

§6105(a)(l) provides that a "person who has been convicted of an offense enumerated in

subsection (b), within or without this Commonwealth, regardless of the length of

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." 18 Pa.C.S.A. §6105(c)(2)

provides in part that a "person who has been convicted of an offense under the act of

April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and

Cosmetic Act, . . . that may be punishable by a term of imprisonment exceeding two

years." At trial, counsel did not object to the entry into the record evidence that

Defendant had been convicted of a predicate offense pursuant to §6105(c)(2), to wit,

possession with intent to deliver. (N.T., 6/5/14 pg. 16)

As discussed above, although Defendant may have arguably been justified in

using force to protect his wife, he lost that justification when he and his wife had the

opportunity to safely retreat. Furthermore, 18 Pa.C.S.A. §505(2.3) provides in part that

defense of self defense is only available to an actor "who is not in illegal possession of a

firearm." Defendant, having been convicted of a predicate offense, was legally barred

13
from possessing a gun pursuant to §6105.

"The rationale for the statutory prohibition of 18 Pa.C.S.A. section 6105 is to

protect the public from convicted criminals who possess firearms ... and protecting the

public from a firearm in the possession or under the control of a convicted criminal."

Commonwealth v. Appleby, 856 A.2d 191, 195 (Pa. Super. 2004) In addressing the

issue of self defense, our Superior Court in Commonwealth v. Moore, 49 A.3d 896, 903

(Pa. Super. 2012), vacated on other grounds, 103 A.3d 1240 (Pa. 2014), held that "since

Appellant maintained control over the gun after he needed to use it in self-defense, we

need not decide whether a prohibited person who retrieves someone else's gun

momentarily and uses it solely in self-defense can be convicted under§ 6105."

It is clear that Defendant physically possessed a firearm, after the threat of harm

had ceased, in violation of §6105(a)(l), as he chased Mr. Gunther onto the porch

shooting him at point blank range. At this point, Defendant was not in possession of the

gun for the purpose of protecting his wife, but with the intention to inflict serious bodily

harm.

Possession of a prohibited item can be established by actual possession or

constructive possession. "When contraband is not found on the defendant's person, the

Commonwealth must establish constructive possession[.]" Commonwealth v. Haskins,

677 A.2d 328, 330 (Pa. Super. 1996), appeal denied, 692 A.2d 563 (Pa. 1997).

"Constructive possession is a legal fiction, a pragmatic construct to deal
with the realities of criminal law enforcement. Constructive possession is
an inference arising from a set of facts that possession of the contraband
was more likely than not. We have defined constructive possession as
conscious dominion. We subsequently defined conscious dominion as the
power to control the contraband and the intent to exercise that control. To
aid application, we have held that constructive possession may be

14
 established by the totality of the circumstances. Additionally, it is
possible for two people to have joint constructive possession of an item of
contraband."

Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013) (internal quotation

and citations omitted)

At trial, defendant's wife, Ms. Millicent Williams, testified that the gun used by

Defendant belonged to her nephew and was among his things that he had previously

brought to their house for safe keeping. (N.T., 6/4/14 pg. 138) She also testified that she

asked Defendant to put the gun in a safe place out of reach of her son and that he was the

only one in the house who knew where it was kept. (N.T., 6/4/14 pg. 139)

Defendant testified that during the fight he ran into the house to retrieve a gun and

came back out shooting into the crowd, hitting Mr. Gunther twice. (N.T., 6/4/14 pgs.

153, 154, 159, 160, 162, 163) He testified further that the gun he had used in the

shooting belonged to his nephew and that he kept it under the china closet in the house.

(N.T., 6/4/14 pgs. 153, 157)

Prior to finding Defendant guilty, the Court noted for the record that "I'm not

bound by what the jury did, I'm doing this on a waiver." The Court also noted that "there

are two types of possession. There's constructive possession with the gun in the house,

there's a simple possession of the gun in his hand. There's no question that he had it in

his hands on the street, he admits to that. He says because he was running out to defend

his wife." Considering the totality of the circumstances, Defendant also had constructive

possession of the gun; he not only knew it was in his house but he was the only one who

knew its location in the house. It is clear that, as Moore noted, any possible justification

for his possessing the gun on the street ended when the fight broke up and that both his

15
prior possession, to which he admits, and his possession on the street constitute a clear

violation of §6105.

CONCLUSION

The Court finds that any merit Defendant's defense of justification may have had

was lost when he pursued an unarmed Mr. Gunther to his front porch and deliberately

shot him at point blank range.

BY THE COURT:

June 11, 2015

16