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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD CHARLES HIXON
Appellant No. 306 MDA 2016
Appeal from the Judgment of Sentence September 29, 2015
In the Court of Common Pleas of Fulton County
Criminal Division at No(s): CP-29-CR-0000192-2014
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 31, 2017
Edward Charles Hixon appeals from the judgment of sentence, entered
in the Court of Common Pleas of Fulton County, following his jury trial
conviction of possessing a firearm as prohibited because of a prior conviction
of an offense as set forth by 18 Pa.C.S. § 6105(a).1
The trial court summarized the relevant facts of this matter as follows:
Raymond [R]oy Fisher, Jr.[,] testified that on October 28, 2014,
he was playing horseshoes with his wife[,] Rhonda Lynch, his
neighbor Katherine Cifollili, [Hixon], and others. [Hixon] and Mr.
Fisher got into an argument, during which [Hixon] went into his
home and came out with a gun. Rhonda Lynch corroborated this
account[, testifying] that “but the next thing I know [Hixon], I
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The jury acquitted Hixon of making terroristic threats, 18 Pa.C.S. §
2706(a)(1), simple assault, 18 Pa.C.S. § 2701(a)(3), and recklessly
endangering another person (REAP), 18 Pa.C.S. § 2705.
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seen him go in the house. Then when he came back out he had
a gun in his hand and [he] fired.” . . . Katherine Cifollili testified
that she was talking with Rhonda Lynch and “heard [Fisher and
Hixon] arguing outside so we both went to the window and
looked and that’s when we saw [Hixon] pointing a gun right at
[Fisher] and he held it there for [a while] and then he shot. He
fired.” Ms. Cifollili further testified that she saw the gun in
[Hixon’s] hands.
Additionally, Trooper Kenneth Falkosky of the Pennsylvania State
Police testified that after obtaining a warrant for [Hixon’s]
arrest[,] he went to [his] residence. Upon entering the
residence[,] Trooper Falkosky
observed that there were green shotgun shells on a table
surface not far inside the door . . . and Mr. Hixon [stated]
that there was a shotgun underneath the couch in the
room to the right of the doorway. At that point Trooper
Garner lifted the couch and I observed that there was a
long gun laying on the ground underneath the couch.
Trooper Falkosky further testified that on January 19, 2015, the
shotgun and shells were removed from the evidence room in
order to do a function test. The parties stipulated that “the
brake action and action lock worked, that the shotgun fired both
shotgun shells that were tested, that the extractor is functional
and that overall the shotgun is [in] working function order
capable of firing.”
The jury heard multiple witnesses testify that they observed
[Hixon] in possession of a firearm in the instant matter.
Furthermore, the jury heard testimony that a firearm was found
in [Hixon’s] residence on October 30, 2014, when Hixon was
arrested by Trooper Falkosky.
Trial Court Opinion, 1/22/16, at 5-7 (citations omitted).
Following his jury trial conviction, Hixon was sentenced on September
29, 2015, to five to ten years’ incarceration. Hixon filed a timely post-
sentence motion, which the court denied on January 22, 2016. Thereafter,
Hixon filed a timely notice of appeal and court-ordered concise statement of
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hixon raises
the following issues for our review:
1. Whether the evidence did not suffice to prove [Hixon] guilty
of violating 18 Pa.C.S. § 6105(a)(1), failing to prove that, on
the date asserted in the information, viz, on (or about)
October 28, 2014, [Hixon] possessed a firearm, nor that
[Hixon] had the requisite culpability, or mens rea, of acting
knowingly (as the term “knowingly” is defined at 18 Pa.C.S. §
103 and used at 18 Pa.C.S. § 302), so that the [t]rial [c]ourt
erred in denying the motion for judgment of acquittal?
2. Whether the verdict of guilty of violating 18 Pa.C.S. §
6105(a)(1)[] was against the weight of the evidence,
inasmuch as the Commonwealth’s evidence as to the events
on (or about) October 28, 2014, was disbelieved, resulting in
not guilty verdicts on the other counts, and so polluted the
case as to depreciate the weight of the Commonwealth’s
other evidence on those events other than that there was not
reliable evidence, direct or circumstantial, that [Hixon]
possessed a firearm on (or about) October 28, 2014, and that
other, unpolluted Commonwealth witnesses did not place
[Hixon] in possession of a firearm on (or about) October 28,
2014, so that such guilty verdict shocked the conscience and
required a new trial?
3. Whether the [t]rial [c]ourt erred by denying the motion in
arrest of judgment inasmuch as, in violation of the Due
Process Clause of the United States Constitution, as well as
the due process protections of Article I, Section 9, of the
Pennsylvania Constitution and/or the requirements for
informations at Article I, Section 10, of the Pennsylvania
Constitution, the Commonwealth did not amend the
information to charge [Hixon] with possessing a firearm inside
his residence discovered by the police in violation of 18
Pa.C.S. § 6105(a)(1), on October 30, 2014, which was
separate and distinct from the offense charged in the
information, which was alleged to have occurred on October
28, 2014, which the jury, by their not guilty verdicts as to the
events alleged to have occurred on October 28, 2014,
disbelieved?
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4. Whether the trial court abused its discretion in imposing a
sentence of total confinement of not less than 60 months nor
more than 120 months for conviction of 18 Pa.C.S. §
6105(a)(1), which was excessive and unreasonable inasmuch
as (i) it was predicated on an incorrect calculation of the
“offense gravity score” of “10” under the Sentencing
Guidelines, rather than the correct “offense gravity score” of
“9”, because the evidence at trial did not show “loaded/ammo
available” as to the firearm, and (ii) the sentence did not
account for the mitigating circumstance that [Hixon] operated
under a mistake of law, believing, based on information from
his Bedford County probation officer, that he was permitted to
possess the firearm in question?
Brief for Appellant, at 6-7.
Hixon asserts that the evidence produced at trial was insufficient to
prove that he knowingly possessed a firearm on the date alleged by the
Commonwealth, and that even if it were sufficient, the verdict was against
the weight of the evidence. In considering sufficiency of the evidence
claims,
we must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. . . . Where
there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
Of course, the evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part or none of the evidence presented.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).
The Commonwealth can satisfy its burden via wholly circumstantial
evidence. Id.
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As to weight of the evidence claims, we may not “re-weigh the
evidence and substitute our judgment for that of the fact-finder.” Id.
The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. . . . Thus we may
reverse the lower court’s verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the claim.
Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013).
Hixon was convicted pursuant to 18 Pa.C.S. § 6105(a)(1), which
prohibits a person from possessing a firearm if he or she has been convicted
of one of a number of certain offenses; Hixon stipulated to having such a
prior conviction in his record. However, Hixon argues that the
Commonwealth presented insufficient evidence that he knowingly possessed
a gun, since his mother owned the shotgun police recovered from her cabin,
where he resided, and that he admitted only to knowing that the shotgun
was under the couch. Hixon also argues that the police recovered the gun
on October 30, 2014, but no witness identified it as the particular gun
involved in the events of October 28, 2014.
Hixon’s argument as to the sufficiency of the evidence utterly ignores
the fact that three witnesses testified at trial that they observed him with a
firearm and watched him fire it on October 28, 2014. Additionally, the
shotgun recovered from Hixon’s residence provides ample circumstantial
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evidence for the jury to infer that the shotgun was the one he used during
the incident on October 28, 2014. Watley, supra.
Next, Hixon argues that his conviction is against the weight of the
evidence since it is an inconsistent verdict; because the jury acquitted him
as to the other charges in the information, they could not have convicted
him of possessing a firearm. However, the evidence in this matter
overwhelmingly indicated that Hixon had a gun in his hands and fired it on
October 28, 2014. Moreover, inconsistent verdicts “are not considered
mistakes and do not constitute a basis for reversal. . . . [T]his Court will not
disturb guilty verdicts on the basis of apparent inconsistencies as long as
there is sufficient evidence to support the verdict.” Commonwealth v.
Talbert, 129 A.3d 536, 545 (Pa. Super. 2015). Accordingly, the trial court
did not abuse its discretion and this claim is without merit. Serrano, supra.
In his next issue, Hixon asserts that he was deprived of due process of
law, arguing that he was actually convicted of possession of a firearm at the
time of his arrest on October 30, 2014, rather than on October 28, 2014, as
specified in the criminal information. Hixon again makes this claim on the
basis that the recovered shotgun was not specifically identified as the gun
that was used at the October 28 incident. This claim is without merit, since,
as noted above, the recovery of the shotgun on October 30 provided
circumstantial evidence in support of the direct evidence of eyewitnesses
who testified to observing Hixon fire a gun on October 28. Watley, supra.
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Finally, Hixon asserts that the trial court used the incorrect offense
gravity score at the time of sentencing. However, this issue implicates the
discretionary aspects of sentencing, and is not appealable as of right.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,
before we can address such a discretionary challenge, an appellant must
comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Id. (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Here, Hixon filed a post-sentence motion raising his sentencing claim,
followed by a timely notice of appeal to this Court. He has also included in
his appellate brief a concise statement of reasons relied upon for allowance
of appeal with respect to the discretionary aspects of his sentence pursuant
to Rule 2119(f). We must now determine whether Hixon has raised a
substantial question that the sentence appealed from is not appropriate
under the Sentencing Code. We have previously held that a claim that the
sentencing court used the incorrect offense gravity score raises a substantial
question. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super.
2012). Accordingly, Hixon has raised a substantial question.
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At sentencing, the court applied an offense gravity score of 10, which
indicates that the firearm was loaded or ammunition was available. Hixon
argues that a score of 9 should have been used, which indicates that the
firearm was unloaded and ammunition was not available. See 204 Pa. Code
§ 303.15 (offense gravity score is dependent upon whether firearm is
loaded/ammunition is available or is unloaded/ammunition is not available).
Based upon the testimony at trial that Hixon fired the gun on October 28,
2014, the gun in Hixon’s possession was loaded. Accordingly, we discern no
error on the part of the trial court in using the offense gravity score of 10.
Hixon also baldly argues that the court should have sentenced him in
the mitigated range since a probation officer told him he was allowed to
possess a shotgun. Hixon provides no legal support for this claim, and we
find that the trial court did not err in not sentencing Hixon to a standard
range sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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