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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LAMAR LEWIS
Appellant No. 3253 EDA 2015
Appeal from the Judgment of Sentence Entered October 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0010105-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 04, 2017
Appellant, Lamar Lewis, appeals from the October 23, 2015 judgment
of sentence imposing an aggregate 1½ to 3 years of incarceration for
carrying a firearm with an obliterated serial number followed by five years of
probation for carrying a firearm without a license.1 We vacate and remand
for resentencing.
On April 29, 2013, Officers Timothy Stephan and Keith White were
patrolling the 3100 block of Frankford Avenue in Philadelphia when they
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1
18 Pa.C.S.A. §§ 6110.2 and 6106, respectively. The trial court also
imposed a concurrent two years of probation for recklessly endangering
another person (18 Pa.C.S.A. § 2705). The court imposed no further
penalty for possession of a controlled substance (35 P.S. § 780-113(a)(16)),
unlawful possession of a firearm (18 Pa.C.S.A. § 6105), and carrying a
firearm in public in Philadelphia (18 Pa.C.S.A. § 6108).
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noticed a firearm protruding from Appellant’s waistband. Appellant
disobeyed Officer Stephan’s command to stop, and an altercation ensued
between Appellant, Officer Stephan, and Officer White. Back up arrived and
the police subdued Appellant. Police retrieved a .40 caliber Taurus PT840
that dropped from Appellant’s person during the scuffle. Both serial
numbers on the gun were obliterated.
On August 3, 2015, a jury convicted Appellant of the aforementioned
offenses. The trial court imposed sentence on October 23, 2015, and
Appellant filed this timely appeal on November 2, 2015. The sole issue on
appeal is the sufficiency of the evidence in support of Appellant’s conviction
for carrying a firearm without a license under § 6106. Our standard of
review is well settled:
When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in
the light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the
crime was established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to any claim
that some of the evidence was wrongly allowed. We do not
weigh the evidence or make credibility determinations.
Moreover, any doubts concerning a defendant's guilt were to be
resolved by the factfinder unless the evidence was so weak and
inconclusive that no probability of fact could be drawn from that
evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.2d 796 (Pa. 2011). Section 6106 prohibits carrying a
concealed firearm without a license. 18 Pa.C.S.A. § 6106(a).
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The Commonwealth bears the burden of proving the defendant’s
nonlicensure under § 6106. Commonwealth v. Lopez, 565 A.2d 437, 439-
440 (Pa. 1989).2 In an apparent oversight in this case, the Commonwealth
did not introduce into evidence the certificate of nonlicensure. At the
conclusion of its case, the Commonwealth moved the introduction of Exhibits
C-6, C-7, C-9, C-10, etc., but omitted C-8, which was the certificate of
nonlicensure. N.T. Trial, 7/30/2015, at 30. Prior to sentencing, Appellant
moved for judgment of acquittal on the § 6106 charge on that basis. The
trial court addressed that motion at the sentencing hearing. The
Commonwealth argued that it produced sufficient evidence to sustain the
conviction under § 6106 because it is impossible to have a license to carry a
firearm with an obliterated serial number. The trial court accepted the
Commonwealth’s reasoning and denied the motion. N.T. Sentencing,
10/23/2015, at 6-7.
We reject this line of reasoning, inasmuch as § 6106 and § 6110.2 are
separate offenses with distinct elements. Appellant’s possession of a license
would not provide a defense for possession of the altered firearm under
§ 6110.2. On the other hand, Appellant’s possession of a firearm with an
obliterated serial number neither proves nor disproves whether Appellant
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2
In this respect, § 6106 is distinct from § 6108, under which licensure is a
defense rather than an element of the offense. Commonwealth v.
Bigelow, 399 A.3d 392 (Pa. Super. 1979).
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possessed a license to carry a firearm. The Commonwealth must prove
nonlicensure to obtain a conviction under § 6106.
On appeal, the Commonwealth offers an alternative basis for
affirmance. See Commonwealth v. Truong, 36 A.3d 592, 593 n.2 (Pa.
Super. 2012) (noting that this Court may affirm the trial court on any valid
basis), appeal denied, 57 A.2d 70 (Pa. 2012). In Commonwealth v.
Woods, 638 A.2d 1013 (Pa. Super. 1994), appeal denied, 651 A.2d 5 37
(Pa. 1994), this Court held that a certificate of nonlicensure is not necessary
to prove a violation of § 6106. Rather, we accepted the testimony of the
deputy sheriff from the county in which the defendant resided. Id. at 1016.
“[E]vidence of non-licensure by the appropriate issuing authority of a
defendant’s place of residence at the time of arrest meets the
Commonwealth’s burden of proof on the element of non-licensure as
required by § 6106.” Id.
The Commonwealth notes that Appellant introduced the transcript of
his suppression hearing into evidence. In that transcript, Officer Stephan
testified that Appellant did not produce a license and had no license to carry.
N.T. Suppression Hearing, 11/25/2014, at 18. We are cognizant that Officer
Stephan is a Philadelphia police officer and that the Philadelphia Police
Department is an issuing authority for gun licenses. Nonetheless, the
Commonwealth fails to cite any portion of the trial transcript or any exhibit
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establishing Appellant’s place of residence at the time of the arrest.3 As
such, the Commonwealth cannot avail itself of the holding in Woods. We
therefore conclude the Commonwealth failed to produce sufficient evidence
to obtain a conviction under § 6106. We vacate the judgment of sentence
and remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
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3
See Pa.R.A.P. 2119(c) (requiring citation to pertinent portions of the
record).
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