Com. v. Palmer, D.

J-S84005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DARRYL PALMER,

Appellant No. 3086 EDA 2014

Appeal from the Judgment of Sentence of September 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013136-2013

BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED January 12, 2017

Appellant, Darryl Palmer, appeals from the judgment of sentence

entered on September 29, 2014 in the Court of Common Pleas of

Philadelphia County. We affirm.

At the conclusion of a three-day trial on April 11, 2014, a jury found

Appellant guilty of carrying a firearm on a street or public place in

Philadelphia (18 Pa.C.S.A. § 6108) and the trial court found Appellant guilty

of persons not to use or possess firearms (18 Pa.C.S.A. § 6105). Thereafter,

on September 29, 2014, the court sentenced Appellant to an aggregate

punishment of six to 13 years’ incarceration.1

____________________________________________

1
Appellant received five to 10 years’ imprisonment for persons not to
possess firearms and one to three years for carrying a firearm on the streets
of Philadelphia.

* Former Justice specially assigned to the Superior Court.
J-S84005-16

Appellant filed a timely notice of appeal on October 28, 2014. On

March 26, 2015, Appellant timely complied with the trial court’s order to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925. With leave of court, Appellant later supplemented his concise

statement with filings submitted on March 27, 2015 and November 10,

2015. This matter is now ripe for consideration.

Appellant raises a single question for our review:

Was not the evidence insufficient to support Appellant’s
[firearms convictions], where the verdict rests upon unreliable
evidence, speculation, and conjecture?

Appellant’s Brief at 3.

Appellant argues on appeal that his convictions rest upon insufficient

evidence that he possessed a firearm during the incident in question.

Specifically, Appellant contends that the testimony of Ronald Leach, the

Commonwealth’s eyewitness to the relevant events, was unbelievable and

that 911 recordings of Leach’s reports to police constituted unreliable

hearsay. Appellant therefore reasons that the Commonwealth needed to

prove constructive possession, which it failed to do since the evidence

merely showed Appellant in proximity to a firearm that was equally

accessible to others. These claims are meritless.

Our standard of review for a sufficiency challenge is well settled.

As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record “in the light most favorable
to the verdict winner giving the prosecution the benefit of all

-2-
J-S84005-16

reasonable inferences to be drawn from the evidence.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
“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.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.
Super. 2005). Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
2000) (“[T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence”). 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. See
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001).

The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, “[t]he fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence.” Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038–1039 (Pa. Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in
the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be upheld. See
Brewer, 876 A.2d at 1032.

Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (parallel

citations and quotation omitted).

We have carefully reviewed the certified record, the submissions of the

parties, and the opinions of the trial court. Based upon our review, we

conclude that the trial court has adequately and accurately addressed the

contentions raised by Appellant and we adopt its sufficiency analysis as our

-3-
J-S84005-16

own. In particular, we agree with the trial court’s determination that Leach’s

testimony, together with the 911 recordings, provided the jury with

sufficient proof upon which to find, beyond a reasonable doubt, that

Appellant possessed a firearm on the date in question. See Trial Court

Opinion, 6/30/15, at 10-11. Moreover, we decline Appellant’s invitation to

reconsider the weight and credibility of the evidence adduced by the

Commonwealth, as our standard of review forbids such an undertaking.

Accordingly, we direct the parties to include a copy of the trial court June 30,

2015 opinion with all future filings relating to our disposition of this appeal.

Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2017

-4-
 Circulated 01/12/2017 11:49 AM

IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
·CRIMINAL TRIAL DIVISION.

CQMM:ONWEAL TH .
...

vs.

SUPERIOR COURT
DARRYL PALMEI{ 3086 EDA- 2014

OPlNlON·

BRINKLEY, J. JUNE 30, 20.1s

Defendant Darryl Palmer was found guilty of two violations of the Uniform Firearms Act

(VUF;\): Carrying a Firearm on a Street oi· Public Place in Philadelphia, §6108; and Carrying a

Firearm as
.
a Person. Notto Use or Possess Firearms, § 6105.. This Court sentenced: Defendantto

an aggregate term of 6 to l3 years state incarceration. Defendant appealed this judgment of

sentence and raised the following issues on appeal: ( 1) whetherthe evidence was sufficient to

find.Defendant guilty of viol~tin~VUFA§ 6108 and § q 105; (2) whether the trial court properly

petmitted·the·Comi:nonwealthtointroduce inio evidence shotgun casings recovered in.a lot

adjacent to Defendant's brother's house; and (3) whether the trial court properly permitted the
Commonwealth to tell the.jury in its closing argument that lack of financial resources prevented

the police department'from conducting certain testing. This Court's judgment pf sentence ~ouJd

be affirmed.
 PROCE'lJlJRAL HISTORY

Ori· September ,5 ;: 2013 ,. 'Defendant. was arrested after a neighbor called the police and
reported an argument with a gunshot firedoutside his house. Defendant was charged with

~grava:ted..assault, po_~:sessioi;i. of aninstrument of crime (PIG); carryinga firearm on the public

streets of Ph1ladeJphh((VUFA.·§ '6i08)and carrying-a firearmas a person not to use or possess
firearms (V.UFA.§ 6'105).
On April 9, iO'J 4, Defendant .appeared before 'this .Court for a trial by Jury. On April i1,.

2.014; tnej.ur;v found Defendantguilty of carryinga firearm onthe public streets.. of Philadelphia,

vtJFA § 6l08. The. jury found him .not guilty of aggravated assault and PIC; Following the

verdict, counsel stipulated that.Defendantwas statutorily prohibited 'from carrying a.firearm; As

a::·re~ult, this Court found Defendant guilty of carrying ::i firearm as a person.not touse or possess

firearms, :VlJFA § 6105~

On Septernb er 29, 2014, afterreview of a mental heal th eval uation and presentence

jQ..Y,estig@tion report, this Courtsentenced Defendant to 5 to lP yearsstate incarceration on the

VUFA § ·61.0.5.· pharge, arid- l lo 3 years state incarceratioaon the \rtJFA:·§6~ os charge, 'to run

consecutively foran aggregate term of6 to 13 years state incarceration. Defendant Wf!.S ordered

to receive dual diagnesis and anger management treatment, earn his GED;:.ol>t~Ur job' training,
and.upon release.iseek and maintain. employment. On October 28, 2014, Defendant appealed this

Judgment of sentence to the Superior Court. On January 15, 20 is, this· Courtordered. that defense

ceunsel.file.a Concise Statement bf Errors Complained ofon Appeal in accordance with Pa.
R.A.P, 1925(b). Defense counsel'filed a Petition toExtend Time. to File Concise Statement.of"

Errorsbased upon the-stenographer' s failure to. transcribe counsel's opening and closing

.statements-as requested, All notes of testimony from the trial were completed and uploaded to

2
the CourtReporting System on March 3, 2015. On March 12, -2015, this Court granted defense

counsel' s request for-an extension of tillle· and defense counsel'filed a Statement of-Errors on

March 26, 1;015, AnAmended Statement of En ors was filed n~ncpro tune on Marth 27; 2015.

FACTS
From April9-l l, 2()14, Defendant appeared before this Court for a.jury trial. Ronald.

Leach ("Leach'i.) testified first for the Co01monwealth. Leach stated that on the morning of

September 5,..2013; he-wasasleepin.his Kensingtonhome.on the l 90Qblock ofEast Clearfield

when he was awakened bythe sounds of'rnen arguing in loud. voices outside. Leach looked

outside his-bedroom window and saw three. men, including Defendant, another black male (later

identified as Defendant's brother Dante Geary), and an unknown Latino male (later identified as

Joshua Perez), standing and-shouting nextto Leach's car. Geary and Perez had emerged from

the .house directly across the: street from Leach's. Defendant was holding a large shotgun in a

"pistol grip." Leach sawPerez retrieve anitem fromhis right .. hand pocket, stick iton the front

right-tire of Leach's car, and.then back away. A few seconds later, Perez went back, picked up
the object, andput it inside his.right' frontsock, Perez crossed the street, followed by Geary and

Defendant, Defendant approached Perez and. hit him with the. butt of the shotgun. Leach turned.

away from his window and then heard a single gunshot. He.immediately called the police and

described the Defendant, the gunman, as a'heavy-set black male wearing a.white shirt. Leach

testified-that he called the po Hee again aftcdhey hadarrived on the scene when he.noticed that

Perez hadreturned to-the area and was sitting on a bicycle at the erid 9fthe street, watching the

police activity. Leach later met with police detectives and gave a statement. He also looked at

-photographs and identified' Defendant.Geary and Perez as the men who were outside his home

arguing, Leach told detectives-that Defendanthad been holding a shotgun and that he had "butt-

} .
3.
 stroked" Perez with the gun. Leach testifiedthara few days after the shotgun incident, Geary

.. · approached him and . asked, "What did you tell the police about my brother"? Leachfurther

testified that on the morning of'trial, Geary· sat in: a parked caroutside of Leach's house and said,

"I need .to .talk to you;" as Leach walked past. Leach further testified that. he.. had seen
Geary.almost d~ily since the incident happened butthat Geary had 'spoken to him only onthose

,•

Police.Officer Phillip l;ewis ('10fficerLewi~'').testifiech1extforthe Commonwealth. He

testified that on September 5, 2013, he. wascarrying out.his duties as a, routine patrol officer with

his. partnef Officer 'Benz when they received information over the policeradio that there was a·

man on Clearfield Street with ashotguri. When they-arrived on the scene, Officer Lewis

observedtwo blackmales arguing.. Heidentified one:ofthose men as Defendant, Officer Lewis

testified.that he and Officer Benz detained the two then. Defendant told police thathe had beet}

in an.argument-with ·hjs brotherthat morning, One of the.men told ·the officers that he lived at

1916 East Clearfield-Street, so: Officer Lewiswalkedtowards
. . the house.
. Adjacentto the house,.

he·obser.ved an empty lot with a table set µp. Oi:i the·JabJ.e., heobserved drug packaging
paraphernalia: He also observed red shotgun shells on the table and. ground. As Officer Lewis

wasexamining these. items, he .stepped ona hard object on the ground covered .by a.blue plastic

tarp. He lifted the tarp and observed a shotgun sleeve marked. "Cabela's, '' .a well-known hunter 's

outfitting company. Officer 'Lewrs'testlfied 'thathe opened'the sleeve: and o bserved ~ .gray and -,

black Moss.shotgun. Insidethe gun, there were two live rounds.and
. one spent round,... meaning

that the gun .had been.fired, Defendant and.his brother were arrested and transported to the police

stationforprocessing. Officer Lewistestified.that bothDefendant and.his brother refused to

press criminal charges ·againstthctother. Officer Lewiecompleted a 75-4~ form, and in it,

4
described Defendant as a heavy-set black- mail wearing. a white shirt and blue Jeans. (N. T, 419/l 4,

p; l09Ml36). ••• •

Police Officer Christopher Benz testified next for the Commonwealth. He statedthat on

September S, 2013, h.e arid his partner, Officer Lewis, responded to a report ofa man with a

shotgun OIJ. the. 1900 block of Clearfield street. He detained Defendant, who was wearing a.white

shirt, andDefendant's brotherDonte Geary, who was wearing a blue shirt (N.T. 4/10/14, p, 4M

10).

Next, Police Officer Zhao Chen testified that QC responded to a call oh the 1900 block Of

Clearfield Street. From· underneath a bicycle next to 1916 East Clearfield Street; Officer Chen

recovered a bundle of 14 clear plastic baggies filled with smaller blue glassine paper stamped

"heat" containing a white substance, later identified as· heroin. Officer Chen detained a Hispanic

man, JoshuaPerez, wearing a black shirtand green shorts, who seemed very interested in the

situation and did not disburse when asked to do so by police. Officer Chen asked Perez afew

questions.ranhis information through the computer; and then released him without arrest. Later,

Officer Chen interviewed Mr. Leachand spoke with him about Perez. Jd. at 10:-1.8.

Police Officer Marco Padilla testified next. He stated, that he transported Defendant to the

police station-for. processing and that, as a result, he completed a 229 form. Officer Padilla stated
thatat-the time. of Defendant's arrest; he was wearing a white shirt, blue jeans and sneakers; Id .

at2s.:2s.

Next, Detective Dennis Demas testified forthe Commonwealth. He stated that he

executed a search warrant at 191 (> East Clearfield Street; searching for any additional firearms or

related evidence. He did not recover any further evidence inside the house; ho-Wever, he did

recover two spent 12-gauge
.
fired shotgun shells from. the
.
vacant Iotnext to the house. Detective

5
 Demas stated that he surveyed the area for strike marks but did not locate arty; He also looked for

--··-fonctiorring··video cameras on nearby homes-and businesses in the area but was unable to locate

any, .ll!, ~t 28~40.

Qn cross-examination, Detective Demas testified that he did not.request a gunshot

residue test on Defendant's clothing or hands because this was not a case of mistaken identity;

Leach positively identified Defendant ·a::i the man with the gun. He farther testified- that he
·decided notto have-the shotgun checked for fingerprints because it was already "contaminated"

as several people had touched it. Id. 40.:.47.

Donte Geary roeary••) testified next for.the Commonwealth; He stated that be lived at
1916 East Clearfield Street with his-child's mother and her family. Defendant visited him there

"sometimes." On the morning ofSeptember 5~ 2013, he and Defendant were arguing because

Defendant ..disrespected" Geary's child's mother-and they Were shouting at each other on the

sidewalkeutside of the house. Gearytestified thatPerezwasoutside on the sidewalk.a few

houses away, . but he, was not involved in their disagreement. Geary stated that
. he and Defendant

were about to go their separate ways when the police arrived, Geary testified that Defendant.did

not have a: firearm. and there were "no shots fired at all." He continued to deny ever hearing
gunshots that morning even after the Commonwealth played the recorded 911 calls from that

morning, wherein three separate neighbors on. Clearfield Street reported to the. police that they
heard a gunshot. Geary testified thaf he did not remember what his brother was wearing that

day, Hefurther stated tli;:t't.bothliis household and the neighbors next door use the vacant lot

. adjacent to his house. Id. at 58-95.

Next? Joshua Perez ("Pere:l') testified for the Commonwealth. He stated thathe wa~

incarcerated on an unrelatedmatter and that he had notbeen threatened or promised anything in

6.
exchange for .his ·testimony. He testified that on the morning ofSeptember 5~ '2013, he was

"outstde smoking a cigarette-on a step. about ablock away from 1900 Clearfield Street, when he

heard "a 'commotion going on" so. he. rode his bicycle uver 'to investigate. Perez stated that he

heard ·people arguing and then heard a single gunshot, When he arrived at the scene, he saw the

police, Defendant and Geary.
. Perez testified that he circled. 'the. block on his bicycle; and as f1e.
.

rode past the second time, the police detained him. Perez testified -,that the police. believed he bad

agun but released him shortly thereafter. He fnrther testified that he· Geary was his friend but

that he· only knew Defendant as "Man." He stated that-he did 'notsee anyone with. a firearm and

·he could not rememberwhat clothinganyone was wearing. Perez.denied that.anyone hit.him on

the head with a shotgun and be denied ever approaching.Leach's house. Id. 'at 98~123,

Next, counsel .intrcduced .evidence by way of stipulation by and 'between couns el. First,

.counsel stipulated that on· September 5,:2.01.J, Defendant did not havea valid license to carry.
firearms ora valid sportsman's. firearm permit. Second, counsel stipulated that the shotgun, two

shotgun rounds'and ene fired shotgun shell.were recovered ·by Officer Lewis, that these were

submitted to th~: Firearms Identification'Unitfor examination, that theshotgun was. test-fired ~11-d

was operable, and that allthree shotgun shells were.analyzed and.it was determined they were all

fired from that particular.shotgun . Third, counsel stipulated thatthe recorded ·911 calls and the

police radio transmissionsweremade on the rnoming ofSeptember 5,:2013. Last, counsel

stipulated That Officer.Chendid not observe anyinjuries on Joshua Perez when.heinteracted
withhim. At.the-conclusion of stipulations, the Commonwealth published its exhibits to the.jury,

moved its documents into· evidence, and rested; Defense counsel then . moved -its ex hibits into

evidence and. rested,

7
 After the jury was excused> defensecounsel moved for a judgment of acquittal on the

charge-ef'aggravated assault, This-C9urt·denied
. the-motion>. finding. . that the Commonwealth.had

met its minimum burden. and it was up to the jury to make a credibility determination as to which

witnesses' version of even ts to believe.
The jury returned a verdict of not guilty on the cliarge$. of aggravated assaul t and

possession ofaninstrument of crime. The jury found Defendant guilty of carryingafirearm.on

the public streets ofPhiladelphia, VUF A § 6108.

'I"bis Court then conducted a -waiver trial with respect to the. charge of carrying a firearm

as a person not to use. or possess firearms, VUF A § 6105. Counsel stipulated that Defendant WdS.

statutorily ineligible to .possess a firearm. The Court found Defendant guilty of this charge.

On September 29, 2014, Defendant appeared before this Courtfor sentencing. Defense

counsel argued that Defendant had a traumatic childhood and had entered the system at 14 years

old when he became too difficult for his grandmother to control. Defense counsel recommended

concurrent sentences. The Commonwealth argued that Defendant had a long criminal history and

that his crimes were escalating .in .serionsness. He recommended an aggregate sentence of 7 to 14

years mcarceration plus one. year reporting probation. This Court sentenced Defendant toS. to 1 Q

years state incarceration on me VUFA § 6105 charge and 1 to. 3 years state incarceration on the
VUFA.. § 6108 'charge;to run consecutively, for an aggregate sentence of 6 to 13 years state

incarceration; This Court ordered that Defendant undergo dual diagnosis treatment and anger

management treatment while in custody, earn his GED. and upon release, seek and maintain
employment. He was further ordered to pay mandatory court costs at a rate of $25 per month.

8
 ISSUES
·-··· I,, ·----WH,t.HEJ.tXHE EV-IDENCE..WAS.S.UFFICJ.ENTFO-R. . TJ,JE.JURYT..0-FIN:O ..--- ·
P.EFENO.AJIT Gl11Ll'Y QF C.ARRYING A FIREARM ON'.PUBLI(J°.STREETS
IN PHILADELPHIA; VUFA 6108. ANJ) CARRYIN'C A FIR.EA.Ri.'1.AS A
P.ERS:ON. NOT TQ JJSE OR POSSES$ FlREARMS, VUF A.§ 6105 ..

It W:iIETB,ER Tilt TRIAL COURT ERRED WHEN IT -P.ERMITTE]) THE
.COMMONWEALTH TO iNTRODUCEINTO EVIDENCE THE SHOTGlJN
CASINGS.RECOVERED BY POLlCE. lN THE VACANT LOT NEXT TO
GE;ARY~-S HOUSE ..

UL WiIETHEE- THETRIAL COURT ERRED.IN ALLOWING THE
COMMONWEALTH TO REFER IN.ITS CLOSING ARGUMENT TOTHE
:cri'Y'S·EC()NOJ.\iiic-CO.NDITIONS AS A .REASON FOR.THE POLICE.'·S·
FAILURETO CO.N.DUCTGUNSHOT RESIOtJE ANUFINGER.PlUNT
TESTING.

DISCUSSION

I.
-~~~~~1:Nc:.o~~=~~:;~!~-
§
J;>HILADEJ,PlllA/VUFA
g~~~~~~:.~;i~~~sIN.
6108 ANt>.CAMYllN:G A FIREAfu'VI AS.A ·
PtRSON .NOT TO uss OR.POSSESS· FIREARMS, VUF A·§ 6105.

The evidence adduced a~ trial 'was sufficient.fer the jury to find Defendant g\iiHy of

carrying a firearm on public streets in Philadelphia, in violation of section . .§'6.108 of the Unifonn
Firearms Act; andcarryinga firearm as a person not.tc use.or possess firearms in violation of
section § 6JQ~ of the Uniform Firearms Act
. .

A._ S.ufficiency . of the Evidence
.

A review ofthe sufficiencyofthe evidencetosupport a convictiontequlres-thatthe

evidence. be-reviewed inthe light most favorabletothe Commonwealth as the verdictwinner.
Commonwealth v. Walter, 2004 PA Super, 14t-849·A:2d 265; 26T(20.04) (citing

Goinmoriwealth v. Ro'se,. 463 Pa. Super. 2647 344'A2tt, 874, 925 {1975)). The Commonwealth is

also entitled to all favorable inferences which may be drawn from. the.evidence .. Col!l.~onwealt~

v._S_anch~z, ;2006.Pa;'LEXJS 183~ ,(2006)(cjtip.g Coggppnwealtpy. Collim;, 500 Pa. 46, 50; 703

9
 A2(1 41.8, 4 20· ( I 997)). ·with.in tqls frfu,Qework, the evidence put forth. by the Common weal th

. wil_l be.considered .su.fficlerit-if..(t establishes eaeh-material-el ement. 0£. the crime-bey ond-a-»

reasonable. doubt, evenif by wholly circumstantial.evidence ... Commonwealth v. Dargan, 200.~

PA Super, 74~:897 A.2d 496,. 503 .(2006}(citing
. . Qo,rrimonwealth
. . v. Distefano.,
. 200.1 .PA Super

238, 782 A.2d 574, 582.(2001)).

When determining whether the evidence :is sufficient to.support a ~uilty verdict, the.

appellate court must consider all bf the. evidenceactually received. at trial, id·. . However, the trier
... · .~

of facr is entitled, to believe all, part.or none of'theevidence received at trial, and the appellate

court cannot.substitute. its judgment fo.r·¢at of the. fact-finder. Commonwealth v. Fds_bie,,2006

PA Super. 430, 889 A,2d 127l;.J274 (20.0~) (citing DiSt~funo, 782A.2d at 574);

.
Coninionwealth
.
'
v.. Kim, 2005
\
i>A. Super.
.
3.8.1, ~:8.8 A.2d.. 847, 851 (200S}(citihgCommo.n.2tealth
.

. v. Champney; 574J~a 43 :,, 83i A2d.403 ,. 40.8 (2Q03))~ The facts and circumstances established

by the Commonwealth need not eliminate.any possibility of the defendant'sinnocence; rather,

any doubt is to'be-resolvedby the. fact-finder unless-the evidenceis so weak and inconclusive:

that.asa marterof.lawnoprobability of'factceuld be concloded:·.Qommonwealth v.. Lambert,

2002 PASuper .. 82, 795' A.2c_i 1010 (2002) (citing,Comm0nweaJth v. Cassidy; 447 Pa. Super.

192, 194, 668A.·241143, 1144{1,'995)).

:8. VUFA.§.610.8 and VVFA§·6:105 ..

Under Pennsylvania law, ''[n:Jo person· shall carry a firearm.zifle or .shotgun at arty time

upon the public streetsorupon anypublic property in a cityof'fhe first class unless such person

is licensed to c~ry a firearm" OJ:'·\S exempt' from licensing. 1 g· !>a.Cs.§ .61..08 .. Lack of a. license

is not an element.ofthis statutory provision. Com;momye~th v. I-io..pkins, 200·0 PA Su.per 47JI

18, 747 A.2d 910, 917 (Pa. $uper. Ct. 2000Y(citing·cornmonwea1th 'v, ·Ford1 3'1$ Pa.Super, 2Jl,
461 A.2d 1281, 1287 (1983). 11As withany crime, the factfinder may infer guiltfrom the totality

of'the circumstances, so long as the evidence-reasonably supports the factfinder's conclusion."

Id. "The factfinder's determination that a defendant carried. a weapon on a public street in

Philadelphia will be affirmed if the evidence ofrecord reasonably supports this conclusion," Jg,1_

Last,.aperson whohasbeenconvicted of any offense enumerated in 18 Pa:C.S. § 6105(b) or

whose conductmeets the. criteriaset.forth iii 18 Pa.C.S. § 6105(c) cannot/'possess, use, control,

sell, transferor manufaeture] ... ] a.flrearm in thisCommonwealth:" 18 l,a.C.S. §.6105(a)(l).

In the case at bar, Defendant was properly found guilty ofviolating two sections ofthe

U nif orm Firanns Act: carrying .a firearm op public streets in Philadelphia, §6108; and carrying a

firearm as a person not to possess a firearm, § 610~. f\.t trial, Leach testified that. in the early

· hours of September 5, 2013, he woke up to the sound pf men arguing outside his house. He

looked out his window and saw Defendant standing on the sidewalk near Leach's car, holding a

larg¢ shotgun "in a pistol grip." When he turned away from the window, he heard a gunshot and

immediately called the :police. He described the gunman.as a heavy-set blackmale wearing a

white.shirt.Later.Leach-was interviewed by detectives and identified Defendant in a photo array

as the man whohad been.holding theshotgun, Officer Lewis testifiedthat whenhe arrivedon the

scene- in response to a radio call about a gunman in the area, he observed Defendant.and his

brother arguingin front of 1916 Clearfield Street.Jn a vacant lot adjacent to the house; Officer

Lewis recovered a shotgun with two.live rounds and one spent.round, In his arrest report, Officer

Lewis described Defendant as a "hca:vy.;set black . male wearing a white shirt and.blue.jeans,"

Officer Benz testified ·that Defendant was wearinga white shirt when he. was. detained. Officer

Padilla: testified that he transported Defendant to the police station for processing. and that
Defendant was wearing a white shin, bluejeans and sneakers. Last.afterthe jury found

11
 D~fcndant guilty of carrying a firearm on public streets in Philadelphia, counsel stipulated that

Defendant wasstatutorily prohibited from carrying a firearm..

This evidence was sufficient to sustain Defendant's firearms convictions. The jury heard

Leach's eyewitness testimony that Defendant was carrying a shotgun while he was outside on the

sidewalk on Clearfield Street. Leach 's description. of Defendant as a heavy-set black male in a

white shirt was recorded repeatedly in written reports by the arresting officers-that day .

. . Additionally, although Perez denied seeing anyone With a firearm, he testified that he heard

people arguing, followed by a gunshot; and that when he rode his bike over to see what was

. goingon, he saw Defendant-and his brother Donte on the sidewalk. From .the totality ofthe

clrcumstanocs.the jury properly inferred that Defendant was carrying a firearm on a public street

in.Philadelphia, and, as a result, found him guilty of this charge. Since the jury found himguilty

of carrying a firearm, "1J,d counsel stipulated that Defendant. was statutorily prohibited from

carrying firearms, this CorntproperJyfpurrdpefe~dant .guilty of carrying a firearm, as a perso~

notto~ use or possess. firearms. Accordingly,. . . Defendant's convictions should be affirmed..

II. THIS COURT PROPERLY PERi'11TTED THE COMMONWEALTH TO
INTRODUCE INTO EVID.ENC~ TWO SHOTGUN CASINGS RECOVERED
· BY POLICE IN THE VACANT LOT; ·

This Court properly allowed the Commonwealth tcintroduce into evidence shotgun

casings recovered by police in the vacantJot next to 1916 East Clearfield Street Defendant

argued that the shotgun casings should have been excluded because they "had no probative value

and Were unduly prejudicial" to Defendant's case: This claim is Without merit.

It is Well established that the admissibility of evidence is solely within the discretion of

the trial. court and its decision will not be disturbed on appeal absent an abuse of that discretion .

. An abuse of discretion is notmerely an error of judgment, but is rather the overriding cir

12
 misapplication :oftfie law or an exercise of'judgmentthat is.manifestly unreasonable, orthe res-ult

of bias, prejudice, ill-w.Ui or' partiality, as shown by the evidence of record .. Commonwealth v:

. . 2005 PA Super 272, 880 A.2d ·68.2, 685. (2005). (quoting Commonwealth
Watfley,.
. . .
v. Dent,. 837
A..2d 571, 577' (J;>A Super, 20Q3))i Wherethe trialcourt hasstated a'~'reason·forits decision, the

scope of review is limited tp an.examinaticn'of the stated. reason." Gornmmi\.vealth. v, Q'·Brien,

2003 PA S.uper.425, 836 A.2d 96~, 96.8: (20Q3)(q.u,oting Co~mornyealth v. :Horvath, 2·00JPA

Super227,)81.A.2d 1243,12.46:(20'01)). "A discretionary rule cannot be overturned simply

because areviewing court disagrees with 1p~ trial court's conclusion:" Id. (quoting

Comh1.onwealthv. Cohen; 519:P~·. 55?, 60~ A.2d. 1212, 12is (1992)), To constitute reversible

error, a.;1 evidentiary ruling must not only be .erroncous, but also harmful or prejudicial to the

complaining party, Cornmorrwealthv. Lopez;.2'012 PA:Super 16'1, 57 AJd 74., 8-l (20'q) (citing·

McN'an.amori v. Washko, 906 A.2d 1259.; 1268~69. (Pa.Super,2006)). An evidentiary error of the

trial court will 'be deemed 'harmless on appeal where the appellate court is.convinced, 'beyond a

reasonable . doubt.
. . .. . 'that. the error.could
'. . . . . not . have contributed to the. verdict. Commonwealth
' . v.

DeJf!sus.• 584 Pa. 29, 88.0' A.2d 60&, 614 (2005).(cifing Commoiiwe~th v. s·t6ry, 476 Pa. 39l,

383 A.2d 155, 194-66 (l979)).

It iswell settled that all relevant evidence is admissible, except JIB otherwise providedby

Jaw. Pa:R.R402. 'Evidence is relevantif it has any tendency to make a fact more or Jess probable
than it would be withoutthe evidence arid the factis of.consequence in determining the action.

Pa.R.E. 40 I. Tue 'court niay exclude relevant evidence ifits probative value is outweighed by a

danger. of one or · moreef ~QC following: unfair prejudice, confusing the. issues, misleading the

Jury, undue delay, wastin~ time, or needlessly presenting cumulative evidence. Pa.RI{ 403.

n
 In the case.at
. .
bar.. this Court.properly allowed the Commonwealth to introduce the

shotgun casings into evidence. At trial, Detective Demas testified that he recovered two spent 12-

gauge Winchester shotgun shells from the vacant ]ot next to 1916 East Clearfield Street. One of

the shells was on the table; the other was in the grass. This was the same vacantlot where

officers recovered the loaded shotgun itself The Commonwealth showed Detective Demas

photographs of the. area and be. confirmed where helocated each shell casing. Defense counsel

objected, arguing thatthe shotgun casings recovered were "irrelevant," "not probative of

anything," and "certainly prejudicial." The Commonwealth. responded that the defense's theory

of the case was that thepolicefailedto adequately investigate this matter, To the contrary, these

spell casings were recovered after the police executed a search warrant and were indicative of the

police properly conducting their investigation. The Commonwealth further argued that theshell

casings wcre.importani because.ballistic analyses indicated that they were fired from the very

same ~hotgun found: in the vacant lot, This Court ruled in favor of the Commonwealth, stating

that defense counsel failed to object when a prior witness, Officer Lewis, testified regarding the

shell casings, Moreover, the Court.found that there was no prejudice because the fired shotgun

casings) along with the shotgun and other items recovered in tlrc vacant lot, were all recovered

concurrently and in connection with the same investigation. (N.T. 4/10/14, p. 32~26).

The Court did not abuse. its discretion when it allowed 'Commonwealth.to introduce

evidence of the spent shotgun casings because they were relevant to the Commonwealth's case

and were not unduly prejudicial-to Defendant. First, the spent shotgun casings were relevant as

Defendant was charged with carrying a firearm on the public streets of Philadelphia. Leach

testified that he saw Defendant brandishing a shotgun.and then striking Perez with it ..Leach

further testified that he heard a gunshot after he turned away.from the window, Police later

14
'recovered ashotgunand spent: shell Casings in thevacant lot in close proximity to where

-Defendant-hadbeenarguing withPerez and-Geary, Thus; the recovered shell.casings were

relevant evidence to t]ie case at bar.
Second, as discussed.above, defense counsel argued that the police did not conduct, a.

thorough investigation: into thfo matter. She questioned both Detective Demas and Police. Officer

Lewis as JQ why they"~ld not request gunshot residuetests on Defendant's clothing and 'hatids.

'She wanted'to.know J.4y the polite did not tryto recover fingerprints from the shotgun, Defense

counsel also -inquired as to.whether they" thoroughly canvassed the· neighborhood for additional.

witnesses . and.suspects, (l'{T. 4/9/14, 143-1.45, 147.,.i48~N.T. 4110114, 4'0:-47). Since defense
. l . . .
counsel drew into question the police Investigation itself, the Commonwealth properly countered

with evidenceof'the.investigatorytools employed bythepolice, including-the search for and
I • • • ' '

recovery of evidence. ·

Last, there was no prejt1dice to Defendant. Priot to . Detective Demas' testimony

regarding the shell casin~s, and the Cornmonwealta's introduction ofphotographs of the vacant

1ot~.:Offic~r Lewis already bad testified about.discovering the shotgun shells on the table and

wound in-the vacantlot. Officer Lewis further-testified regarding the shotgun itself in the

···cabeh{s'; shotgun sleeve, and told .thejury that Inside thegun there 'were two Jive-rounds an.d

'one spentround, meaning that the gt1n hadbeen fired. Defense counsel didnot object.to any of

this testimony. (N; T. 4/9/14, p. l) 8-121 ). Additionally, counsel actually stipulated.to the.

ballistics report. At the conclusion of the Commonwealth's case-in-chief the jury was told:
Stipulation is furtherthatthe shotgunwastest-fired.end itwas
operable. Also, the shotgun and allthree fired shotgun shells were
microscopicallyexamined. Through examination -and the
comparison of the shotgun and the· three fired shotgun shells, 'if was
determined that all three shotgun shells'had been fired from-that
particular shotgun. The shotgun is apumpaction shotgun, which

15
 means thafafter the. trigger is pulled, ·the projeetiveor-bullet comes
out of'the front -of the shotgun, and the shotgun sh~ll remains in the
shotgun, The.fired shotgun shell is ejected from the . shotgun only·
after the shotgun i.s pumped again'. The factthat there is one fired
shotgun shell recovered in (sic) the shotgun indicates that the
.shctgunwas not pumped: after it had last been fired. Ms. Zeccardi
:_[def~n_sG counsel] and 1 both signed those stipulations,

(N .T. 4/l0/14,_._p. 129-BO~. thus·,"the Commonwealth' s introduction of the

shotgur; shells Into evidence was cumulative and. did not prejudice.Defendant in.

anyway.
.
Since this Court.'c()'tnmitted noerror,
..
thejury's
' ..
finding.ofguilt should be

affirmed.

III.. IT WAS l'l(JTJMPROPER :F9R THE:-COMMONWE:ALTH ro REJ<'ER TO
THE CIT°V'.S 13;CON'QMIC·:coNDITlONS IN ITS CLOSI-NG ARGUMENT.

The Commonwealth did not commit proseoutorial.misconduct when it referenced the dty

of Philadelphia's poor economic conditions in its closing argument, Defendant.argues that the

Commonwealth should not.have been permitted to. "explain that the economic conditions in

Philadelphia were the reason why the police department failed to conduct certain testing"

because the Commonwealth ·''did.'.not present any evidence-to. support-this conclusion. ,,_ This.

claim is withoutmerit,

Whil¢."~fdoslng-argum.ent must. be based upon evidence in the record Of reasonable
inferences therefrom, a prcsec utor J.S permitted to. respond to defense evi dence and enaa~e in

oratoricalflair. C9nimonwecilth v. Culver; 2012.PA Super 172, 51 A3d 8-86, 87·8 (2012) (cit-ihg
. l • .. • ' ..

(Jommonwealth-v. Basemore, 5J:5 Pa,. 512, 582 .A.2d 8.61.; 8.69 ( 1990)). Allegedly improper

remarks. of a prosecutor during closing arguments must be viewed in the context of the closing

-argument as a whcle,.. Comrnomyealth v;_.Srr:iitb~ 604Pa. 126, 985 A.2d 886, 907 (2009) (quoting

Coil;lmonw,ealth.v. 'W,·ashin,zj~n, 549-oPa. ).2, 700 A..2d·400,·4@?-08.(t9.97)). However, even an

otherwise improper
. comment maybe
.
appropriate
.
if it is in fair response todefense counsel's

16
remarks, Comm·onwea!Jlrv. Burno, 96 A.~d 956, 974 (~a: Super. 2014) (quoting,Comm...Q.n.wi:alth

v: Elli:ott;
. . 80 .2d 415,443
. (Pa.·2013). Furthermore.a prosecutor's comments do notconstitute
'

reversible error unless their unavoidable.effect was to prejudice the jury, forming in: their minds a:

fixed bias andhestilitytewards.the defendant so that they could not weigh the evidence

objectivelyand render a true verdict.Jd.
in the case at bar, the. AssistantDiatrict Attorney.did not engagein prosecutorial
misconduct whert he explained to the.jurythatDefendant's clothinghad not been tested'for

gunshot residueandtheshotgunhad not. 'been checked for fingerprints due.to the city's limited

economic resources. Specifically, he stated:

if I had: fingerprints, they .could say, well} What aboutthe DNA .
.And then, I'd have.fingerprints.and DNA., and theycould say.
where' s the video? I've got all of'that, and. then they could s~y1
well, why don't you have mote evidence? That's their right.

But at the beginning oftais trial, M.s{ Z~ccardL[c;lef~n:s.e counsel]
said, this: is Commonwealth versus Darryl Palmer and I .have all the.
resources .of the Commonwealth to: bring: .Let' s talk about that. All
the resources of the Commonwealth. What does that mean?
" • •' ,' , I , ,

You .all when you' were-selected, y9u said. you're from
Philadelphia. The Judge told you touse your common sense. You
know this .. The entire economy is struggling. 'Our city· has. a deficit.
We close schools, We. fire teachers; _pay freezes, We close libraries.
This is reality.

·1 wish I had police officers orapolicedepartment that-could just
do everysingle test regardless of cost, regardless of expense, on
every single case, 'they can't, ·

Lprosecute in Philadelphia, I'm proud.of'thai, This is reality .. It's
not a 'TV'ehow. Ifs not some movie.' It'a reality. There. are costs.
Our ",city has to make choices. They determine when· to. do these
things and when not to do. these things. And: like Detective Demas
said, sometimes you try to. get fingerprints arid you can't get 'em.

17
 (N:l. 4/11/14.~ .P: 28-29). This· explanation for the. police failure to conduct these tests was in

direct response to the defense's theory ofthe ease, specifically that the police conducted a less

than thorough investigation into this matter; Ai trial, defense counsel Ms. Zeccardi. questioned ·

Detective Demas on cross-examination regarding. the police officers.' failure to request gunshot

residue tesis on.Defendant' s clothing .and·.hands·ro prove· 'that he-actually had fired the. shotgun

that day. She further pressed him as to why he chose not to . have theshotgun.checked for

fingerprints. Detective.Demas testified 'that he. did not request-gunshot residue tests nor did he

have the firearm fingerprinted because there was an, eyewitness, 'Mr, Leach, who had. positively

identified Defendantas the.shooter. Ms .. Zeccardiasked Officer Lewis the same questions; he

testified thathe did not.attempt to preserve the fingerprints on the firearm because it was already

containinatedand that he did not guard the. Defendant's clothing or. hands for a gunshot residue .

rest.,

In addition, in her own closing argument, Ms, Zeccardi argued that the police had failed

to do "basic police work" by failing' fo conduct tests thatwould produceI'neutral 'evidence."

(N.T.4111/14, p. 15-16) ..'~he told the.jury:

There are very few things 'in a trial thatare neutrai.Medical
records, injurtes caused, that's neutral. There 's gunshot residue on
the· T-shirt and jeans. Thaf·s neutral .. The defendants' [sicjprints
are or arenot on the gun, That's neutral.
Not one piece of neutral evidence wasput before you, not because
· they couldn't have it, but because DetectiveDemas who is not-it
is not his job to call [Defendantj.guilty.. That's not his job.

That's your job. But he elected not.to do. thevery things that would
have.either buttressed the Commonwealth's case or knocked it.out
of the park, Either. there'sgunshot residue or there's not, But they
didn't give you tpiit because I knew: I had a witness. ·

18
 The Commonwealth's closing remarks regarding the police. officers' decision not to

conduct a gunshot residue test or check for fingerprints on the shotgun directly respond to

defense counsel's closing arguments about allegedly shoddy police work.and "neutral evidence,"

as well as hercross-examinations of Detective Demas and Officer Lewis; Moreover, it reiterates

Detective Demas' testimony regarding his reason for declining to request these tests; specifically

that there was a positive identification by an eyewitness so these tests would have been

superfluous and a waste of resources, These comments were all infair response to defense

arguments arid were riot improper when viewed in the context of counsel's closing arguments as

a whole. Furthermore, there was no harmto Defendant. As.stated above, "a prosecutor's

comments do not constitute reversible error unless their unavoidable effect was to prejudice the.

jury, forming in their minds a fixedbias andhostility ~ow~rds the defendant so that they could

not weigh the evidence objectively and render a trueverdict," This is notthe case here; The
Commonwealth's closing arguments regarding the economic ·hardshipsfacirig Philadelphia in no

way -prejudiced Defendant or prevented the j'ury from rendering a true verdict based upon the

evidence. Thus, the Commonwealth did not make improper remarks in its closing argument and

the jury's verdict should be affirmed ..

19
... .,• ...

.CONCLUSION
After reviewing the. applicable case· law, statutes, and testimony, this Court committed no

erron Thejury properly: found Defendant.guilty of carrying a firearm on the public streets of

Philadelphia; VUFA § 61.08. This Court..p.i:operly found Defendant ~ii ty.of carrying a firearm as

a: pets.oil nctto-usccr possess firearms, VUFA § (i:10$. In addition, this Court properlj; permitted
the Commonwealth to introduce into evidence the spen,t.shot~tm. casings recovered along. with

the shot&11n in the vacant lot. f.,a:st, the Commonwealthdid not improperly · reference the city of
Philadelphia's financial dlfficulties in its closing argument. Accordingly, this-Court's.judgment

of sentence should be affirmed.

BY THE COURT:·

~,~;~

20·