J-S46031-17
2017 PA Super 263
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JORDAN ANTHONY BATTY : No. 275 MDA 2017
Appeal from the Order Entered January 10, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002942-2015
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 16, 2017
The Commonwealth appeals the January 10, 2017, order entered in
the Court of Common Pleas of York County granting Appellee Jordan
Anthony Batty’s post-sentence motion and ordering a new trial.1 Following a
careful review, we reverse the order granting a new trial and reinstate
Appellee’s October 27, 2016, judgment of sentence.
The relevant facts and procedural history are as follows: On
September 11, 2015, a jury convicted Appellee, who was represented by
counsel, of receiving stolen property, firearms not to be carried without a
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*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth is permitted to appeal as of right from an order
awarding a new trial to a defendant. See Pa.R.A.P. 311(a)(6).
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license, and possession of a firearm prohibited.2 On October 29, 2015, at
the sentencing hearing, the lower court indicated that it believed Appellee’s
trial counsel had been ineffective during his closing argument and/or the
court erred in issuing its jury instructions. Accordingly, the lower court
suggested Appellee should waive his direct appeal rights and make an oral
motion for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546.
The lower court then sentenced Appellee to five to ten years in prison
for possession of a firearm prohibited, a concurrent three and one-half to
seven years in prison for possession of a firearm without a license, and a
consecutive two and one-half to five years in prison for receiving stolen
property. Immediately thereafter, despite the Commonwealth’s objection,
the lower court explained that an agreement had been reached whereby
Appellee was waiving his direct appeal rights and making an oral motion for
PCRA relief. The lower court indicated it was granting the oral PCRA motion
and directing that a new trial be held.
The Commonwealth filed a timely notice of appeal to this Court
arguing that the lower court had erred in bypassing the proper procedures
and rules for appellate and post-conviction review. In an unpublished
memorandum filed on June 29, 2016, we agreed with the Commonwealth,
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2
18 Pa.C.S.A. §§ 3925(a), 6106(a)(1), and 6105(a)(1), respectively.
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thus vacating the lower court’s order, vacating Appellee’s judgment of
sentence, and remanding for resentencing. See Commonwealth v. Batty,
No. 1961 MDA 2015 (Pa.Super. filed 6/29/16) (unpublished memorandum).
Upon remand, the lower court3 appointed Appellee new counsel, and
on October 27, 2016, Appellee proceeded to a sentencing hearing at which
the lower court imposed the following sentence: three and one-half years to
seven years in prison for receiving stolen property, a concurrent three and
one-half years to seven years in prison for carrying a firearm without a
license, and a consecutive five to ten years in prison for possession of a
firearm prohibited. Thus, the lower court imposed an aggregate sentence of
eight and one-half to seventeen years in prison. The lower court properly
provided Appellee with his post-sentence and direct appeal rights.
On November 1, 2016, counsel filed on behalf of Appellee a motion to
permit counsel to file a post-sentence motion nunc pro tunc due to counsel’s
recent appointment, and on November 3, 2016, the lower court granted the
petition, expressly giving Appellee until November 23, 2016, to file his post-
sentence motion.4
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3
We note that the judge who presided over Appellee’s jury trial and October
29, 2015, sentencing hearing is not the same judge who presided over
Appellee’s October 27, 2016, sentencing hearing and post-sentence motion
proceedings.
4
We note the lower court properly permitted Appellee to file a post-sentence
motion nunc pro tunc. It is well-settled that:
(Footnote Continued Next Page)
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On November 23, 2016, Appellee filed a counseled post-sentence
motion nunc pro tunc, to which the Commonwealth filed a motion to dismiss.
By order and opinion filed on January 10, 2017, the lower court granted
Appellee’s request for a new trial. Specifically, the lower court agreed with
Appellee that the court’s jury instruction on the charge of possession of a
firearm prohibited was erroneous and “usurped the function of the jury to
determine a verdict in a criminal case[.]” Lower Court Opinion, filed
1/10/17, at 5. Specifically, the lower court held as follows:
The defense stipulated that [Appellee] was a person not to
possess. [Appellee] was found in possession of the weapon.
The only issue left for [the] defense to argue was the operability
of the weapon. A long line of case law requires the
Commonwealth to prove that the “firearm” was operable or that
[Appellee] at least had the immediate means to make it so, in
order to sustain a conviction under [ ] Section [6105].
Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973).
***
During its instructions, the court told the jury that the
elements of the offense “...are proven beyond a reasonable
doubt.” Further, the trial court told the jurors that it did not
_______________________
(Footnote Continued)
To be entitled to file a post-sentence motion nunc pro tunc, a
defendant must, within 30 days after the imposition of sentence,
demonstrate sufficient cause, i.e., reasons that excuse the late
filing....When the defendant has met this burden and has shown
sufficient cause, the trial court must then exercise its discretion
in deciding whether to permit the defendant to file the post-
sentence motion nunc pro tunc. If the trial court chooses to
permit a defendant to file a post-sentence motion nunc pro tunc,
the court must do so expressly [within thirty days after the
imposition of the sentence].
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa.Super. 2003) (en
banc) (footnote omitted).
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matter whether the firearm was operable, which is contrary to
the statute and case law[.] The effect of the court’s instructions
was to instruct the jury that two of the necessary elements of
the offense are proven beyond a reasonable doubt and that the
Commonwealth did not have to prove the third. While it is not
disputed that a judge can render an opinion concerning the
evidence in the case, and there is even case law permitting a
judge to comment on guilt or innocence, the failure to give an
accurate instruction concerning the law is reversible error. The
combined effect of the court’s instructions on this matter was to
direct a verdict in favor of the Commonwealth, which usurped
the jury’s function, and deprived the defendant of his right to
have this offense decided by a jury.
Id. at 4-6 (citations to record, internal citation, and footnote omitted).
The Commonwealth filed this timely notice of appeal, and all Pa.R.A.P.
1925 requirements have been met.
On appeal, the Commonwealth contends the lower court erred in
granting Appellee’s post-sentence motion and ordering a new trial.
Specifically, the Commonwealth argues (1) the lower court erred in
concluding the court’s instruction was legally inaccurate on the basis the
instruction failed to inform the jury as to a necessary element for the charge
of possession of a firearm prohibited (i.e., that the Commonwealth was
required to prove the firearm was operable in order for the jury to convict
Appellee of this offense), and (2) the lower court erred in concluding the
court’s instructions usurped the role of the jury by directing the jury to
render a guilty verdict with regard to the offense of possession of a firearm
prohibited.
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Our standard of review in assessing a trial court’s jury instruction is as
follows:
When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that [ ] it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014).
In charging the jury in the case sub judice, the trial court relevantly
stated the following:
We start with the fundamental principle of our system of
criminal law that [Appellee] is presumed to be innocent. The
mere fact that he is arrested and accused of a crime is not
evidence against him.
Furthermore, [Appellee] is presumed innocent throughout
the trial and unless and until you conclude based upon careful
and impartial consideration of the evidence that the
Commonwealth has proved him guilty beyond a reasonable
doubt.
I’ll define reasonable doubt in just a moment. That means
that it is not [Appellee’s] burden to prove that he is not guilty.
Instead, it is the Commonwealth that always has the burden of
proving each and every element of the crime charged and that
[Appellee] is guilty of the crime beyond a reasonable doubt.
A person accused of a crime is not required to present
evidence or prove anything in his own defense. If the
Commonwealth’s evidence fails to meets its burden, then your
verdict must be not guilty.
On the other hand if the Commonwealth’s evidence does
prove beyond a reasonable doubt that [Appellee] is guilty, then
your verdict should be guilty.
***
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A reasonable doubt is defined as a doubt that would cause
a reasonably careful and sensible person to hesitate before
acting upon a matter of importance in his or her own affairs.
***
So as the jury is the judge of the facts; therefore, the jury
judges and is the sole judge of the credibility of the witnesses
and their testimony. And this means you must judge the
truthfulness and accuracy of each witness’ testimony and decide
whether to believe all, part, or none of that testimony.
***
You may find that there was conflicting information given
to you. If there was a conflict in the testimony, then the jury
has the duty of deciding which testimony to believe. But first
you should try to reconcile; that is, to fit together any kind of
conflicts if you can do so.
***
All that is necessary is whatever type of evidence you use
be sufficient to convince you beyond a reasonable doubt.
***
Now let’s turn to the actual charges. There are three
charges. One is that [Appellee] possessed a firearm when he is
a person who is prohibited from possessing a firearm. The
second is that he possessed it without a license. Third is that he
possessed recently stolen property.
And so you’ll actually have three verdicts. One verdict for
each of those three counts. So it will be guilty or not guilty of
charge one, guilty or not guilty of charge two, guilty or not guilty
of charge three.
In order to prove that [Appellee] has committed the
offense of possessing a weapon when prohibited, the following
elements have to be proven by the Commonwealth. They are
proven beyond a reasonable doubt.
First, that [Appellee] was a person who was prohibited by
law to possessing a weapon. Normally, that would be part of the
testimony that would have been provided to you. In this case,
it’s not disputed. Counsel agreed we’ll just skip that stage in the
proceedings. We will stipulate that it is agreed and, in fact,
[Appellee] is prohibited. So that’s a given for you in the case
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and you need not question any further as to that particular
element.
The next element is that it was more likely than 60 days
from the time that he became a person prohibited by law. So in
effect, if you become prohibited and you own a weapon at that
time that you reached the status, you have a grace period of 60
days to get rid of the weapon without being guilty of a violation.
The question you have to ask yourself is, when did he
become prohibited? That date was stipulated. That date that
was stipulated to was more than 60 days. So again, you have to
go through and apply the stipulation and make your finding.
And in regard to that specific offense, the term firearm
includes any weapon that is designed or may be readily
converted to expel a projectile by means of an explosive. It also
includes the frame or receiver of such weapon. So even if the
weapon would not be operable, it still would be illegal for
[Appellee] to possess it because of his prohibited status.
So defense counsel raised an issue of operability in regard
to the second charge, that of carrying the weapon without a
license. And the issue of operability is present as to that charge.
It is not present as to possessing it by a person who is
prohibited.
So whether it was operable or not matters not if he
possessed a gun as I’ve just defined it for that Section. He
would be guilty of the crime.
For a person to possess a firearm, that person must have
the intent to control and power to control the firearm. So it is up
to you to determine if, in fact, there was—this gun that was put
into evidence was, in fact, taken from [Appellee’s] waistband;
and if he was carrying it around in his waistband, if he possessed
it as is required for this offense.
***
Some final concluding instructions. It is the Court’s
responsibility to decide questions of law. Therefore, you must
accept and follow my rulings and my instructions regarding
matters of law.
However, the judge is not to determine the facts of the
case. The jury is the sole judge of the facts. So it is your
responsibility to consider the evidence, to find the facts, and to
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apply the law as I’ve given it to you to determine if [Appellee]
has been found guilty beyond a reasonable doubt.
N.T., 9/11/15, at 125-26, 130, 132, 136, 138-41, 149.
In the case sub judice, as indicated supra, in granting Appellee’s post-
sentence motion and awarding a new trial, the lower court first determined
that the instant jury instruction inaccurately and incorrectly defined the
elements necessary for a conviction under Section 6105, possession of a
firearm prohibited. Specifically, citing to Commonwealth v. Layton, 452
Pa. 495, 307 A.2d 843 (1973), the lower court determined that the court’s
instruction should have informed the jury that the Commonwealth was
required to prove that the firearm was operable, or Appellee had the means
to make it operable, in order to convict Appellee of possession of a firearm
prohibited. Accordingly, since the instruction informed the jury that
operability was not an element of the crime, the lower court determined that
the court’s jury instruction constituted reversible error requiring a new trial
as to that charge. For the reasons discussed infra, we agree with the
Commonwealth that the trial court’s jury instruction accurately and clearly
set forth the elements for the jury’s consideration as to the crime of
possession of a firearm prohibited, and therefore, a new trial was not
required on this basis.
In Commonwealth v. Thomas, 988 A.2d 669 (Pa.Super. 2009), this
Court held the following:
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In order to obtain a conviction under [Section] 6105, the
Commonwealth must prove beyond a reasonable doubt that the
defendant possessed a firearm and that he was convicted of an
enumerated offense that prohibits him from possessing, using,
controlling, or transferring a firearm. The term “firearm” is
defined in that [S]ection as any weapon that is “designed to or
may readily be converted to expel any projectile by the action of
an explosive or the frame or receiver of any such weapon.” 18
Pa.C.S.[A.] § 6105(i).
***
[Thomas] does not dispute that the revolver was designed
to expel bullets or that he attempted to destroy it in the
presence of the arresting officer; he simply maintains that a
defendant cannot be convicted under [S]ection 6105 unless the
weapon is found to be operable. In leveling this argument,
[Thomas] relies upon [Layton, supra], and Commonwealth v.
Stevenson, 894 A.2d 759 (Pa.Super. 2006). [W]e reject this
claim[.]
In Layton, supra, our Supreme Court reversed a
conviction for illegal possession of a handgun because the
weapon was inoperable, and the record failed to establish why
the gun would not fire. However, that case was decided under a
provision of the Uniform Firearms Act, 18 P.S. § 4628, which has
been repealed and replaced by [S]ection 6105. The current
statute applies to any weapon that is designed to fire
ammunition containing an explosive charge, whereas [S]ection
4628 contained much narrower language and defined a firearm
as “any pistol or revolver with a barrel less then twelve inches,
any shotgun with a barrel less than twenty-four inches or any
rifle with a barrel less than fifteen inches.” Thus, contrary to
[Thomas’] position, Layton is neither controlling nor instructive
because that decision is based upon statutory language that was
rewritten in 1995.
[Thomas’] reliance on Stevenson, supra, is similarly
misplaced. In that case, [Stevenson] was convicted of
[possession of a firearm prohibited] after police officers
recovered a Beretta handgun from his person during an
investigatory detention. [Stevenson] challenged his conviction
on the basis that the gun was inoperable, citing evidence that
the firing pin fell out while the weapon was being test-fired. This
Court upheld [Stevenson’s] conviction under Layton, reasoning
that the Beretta was “clearly operable” for purposes of [S]ection
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6105 because it functioned normally during the initial test-firing
session and continued to function after the firing pin was
reinserted. Id. at 776.
[Thomas] argues that Stevenson is significant because it
“interpreted the current version of the Uniform Firearms Act, and
[the Stevenson Court] clearly reasoned that operability remains
an element for the offense at issue [in his case].” While we
agree that Stevenson was decided after the current version of
the Act became effective, we are not persuaded that operability
is an essential element of [S]ection 6105 based upon that case.
Layton and the other firearm possession cases cited in
Stevenson were published several years before the legislature
materially altered the definition of a firearm for purposes of
[S]ection 6105 and certain enumerated [S]ubsections of
[S]ection 6106. Under the revised definition, an individual is
subject to criminal prosecution if he unlawfully possesses: (1)
any weapon that is specifically designed to or may readily be
converted to expel a projectile by means of an explosive; or (2)
the frame or receiver of such a weapon. See 18 Pa.C.S.[A.] §
6105(i)[.] The statutory language is clear, and it does not
require proof that the weapon was capable of expelling a
projectile when it was seized; on the contrary, the fact that a
person can be prosecuted simply for possessing a semiautomatic
pistol frame refutes this notion because the frame requires
additional parts, e.g., a slide and barrel, in order to fire a bullet.
Thus, the use of the terms “frame” and “receiver” in [S]ection
6105(i) demonstrates that the legislature sought to eliminate the
operability requirement articulated in Layton for purposes of
this [S]ection.
The Stevenson Court did not review the pertinent
statutory language and proceeded to analyze [Stevenson’s]
claims in accordance with Layton, which was no longer
applicable to a conviction under this [S]ection. Nevertheless, it
correctly denied relief on the basis that [Stevenson] possessed a
handgun that was specifically designed to shoot bullets.
Accordingly, that decision does not preclude us from reviewing
[Thomas’] argument under the appropriate standard.
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Thomas, 988 A.2d at 670-72 (citations and footnote omitted). See
Commonwealth v. Miklos, 159 A.3d 962, 967 (Pa.Super. 2017) (“To
sustain a conviction for the crime of persons not to possess a firearm, 5 the
Commonwealth must prove that ‘[the appellant] possessed a firearm and
that he was convicted of an enumerated offense that prohibits him from
possessing, using, controlling, or transferring a firearm.’”) (quoting
Thomas, 988 A.2d at 670 (Pa. Super. 2009) (footnote added)).
Based on the aforementioned, we agree with the Commonwealth that
the trial court’s charge in the instant case adequately conveyed to the jury
the correct elements for the offense of possession of a firearm prohibited.
Specifically, the trial court informed the jury that the elements of the crime
are that the person was prohibited by law from possessing a firearm and
that Appellee’s possession of the firearm had to be more than sixty days
after he became prohibited from so doing. N.T., 9/11/15, at 139-41.
Further, the trial court properly defined the term “possession” as well as
“firearm.” Id. Moreover, contrary to the lower court’s ruling on Appellee’s
post-sentence motion, the trial court properly clarified for the jury that the
Commonwealth was not required to prove that the firearm was “operable” in
order to convict Appellee of possession of a firearm prohibited. See
Thomas, supra.
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5
Case law refers to the offense codified at 18 Pa.C.S.A. § 6105 as persons
not to possess a firearm and/or possession of a firearm prohibited.
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The next reason provided by the lower court in granting Appellee’s
post-sentence motion and awarding a new trial is that the trial court’s jury
instruction “direct[ed] a verdict in favor of the Commonwealth, which
usurped the jury’s function, and deprived [Appellee] of his right to have this
offense decided by a jury.” Lower Court Opinion, filed 1/10/17, at 6. In so
concluding, the lower court focused on the following portion of the trial
court’s charge:
In order to prove that [Appellee] has committed the offense of
possessing a weapon when prohibited, the following elements
have to be proven by the Commonwealth. They are proven
beyond a reasonable doubt.
N.T., 9/11/15, at 139 (emphasis added).
We note:
It is well-established that an accused in a criminal case is
entitled to presumption of innocence; the Commonwealth is the
party that must come forward with the evidence to establish
guilt. An accused is not required to disprove his alleged guilt of
an element of an offense. In all criminal cases, the
Commonwealth must establish the defendant's guilt beyond a
reasonable doubt.
Commonwealth v. Gearhart, 384 A.2d 1321, 1323 (Pa.Super. 1978) (en
banc) (citations omitted).
Our jurisprudence denounces instructions which direct a verdict of
guilt. “Directed verdicts of guilt in criminal cases negate the presumption of
innocence and, as such, are never permissible.” Id. (footnote and citation
omitted).
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Here, the Commonwealth argues that, while the trial judge may have
misspoken in the isolated sentence highlighted by the lower court in ruling
on Appellee’s post-sentence motion,6 when read in its entirety, the trial
court’s jury instruction fairly conveyed the appropriate legal principles and
did not direct a verdict of guilt as to the offense of possession of a firearm
prohibited. We agree.
For instance, with regard to the instant offense, the trial court properly
instructed the jury that Appellee stipulated to the fact he was prohibited
from possessing a weapon, as well as stipulated to the date his prohibition
began. The trial court then informed the jury that, even though Appellee
had so stipulated, the jury still had to “go through and apply the stipulation
and make your finding.” N.T., 9/11/15, at 140. The trial court further
informed the jury of the correct definition for “firearm.” Id. The trial court
specifically instructed the jury to make factual and credibility determinations
as to whether Appellee possessed such an item. Id. at 141.
Moreover, the trial court repeatedly instructed the jury throughout its
charge that the jury was the finder of fact and the Commonwealth was
required to prove Appellee’s guilt as to each offense beyond a reasonable
doubt. The trial court explained Appellee was charged with three offenses
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6
We note that Appellee did not object to this portion of the jury instruction
at trial. Thus, the trial court was never given the opportunity to clarify to
the jury whether it had misspoken and intended to say “they are to be
proven beyond a reasonable doubt.”
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and, for each offense, the jury had to render a verdict of guilty or not guilty.
Id. at 139.
Thus, viewing the instruction as a whole, we agree with the
Commonwealth that the general effect of the charge accurately and fairly
conveyed the legal principle at issue, did not compel the jury to render a
particular verdict, and did not usurp the jury’s function. Commonwealth v.
Bracey, 831 A.2d 678, 684 (Pa.Super. 2003) (“In reviewing a challenged
jury instruction, we must review the charge as a whole and not simply
isolated portions, to ascertain whether it fairly conveys the required legal
principles at issue.”) (citation and quotation omitted)); Commonwealth v.
Clark, 683 A.2d 901, 904 (Pa.Super. 1996) (“Error will not be predicated on
isolated excerpts. Instead, it is the general effect of the charge that
controls.”) (citation omitted)).
For all of the aforementioned reasons, we reverse the lower court’s
order granting Appellee a new trial and we reinstate Appellee’s October 27,
2016, judgment of sentence.
January 10, 2017, order for new trial REVERSED; October 27, 2016,
judgment of sentence REINSTATED; jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
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Commonwealth v. Batty
Combined Opinion