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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOHN PHILIP WOLFE :
:
Appellant : No. 1236 MDA 2016
Appeal from the Judgment of Sentence June 28, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001009-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 15, 2017
Appellant, John Philip Wolfe, appeals from the judgment of sentence
entered in the York County Court of Common Pleas, following his bench trial
convictions of persons not to possess firearms and hunting without securing
a license.1 We affirm.
The relevant facts and procedural history of this case are as follows.
In the late 1990s, Appellant was convicted of involuntary deviate sexual
intercourse (“IDSI”) and burglary. Due to his convictions, Appellant cannot
possess firearms pursuant to 18 Pa.C.S.A. § 6105. On December 2, 2014,
Officer Kyle Jury encountered Appellant in a hunting tree stand located
within close proximity to two residences. Appellant was in possession of a
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1
18 Pa.C.S.A. § 6105(a)(1) and 34 Pa.C.S.A. § 2711(a)(1), respectively.
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firearm at the time. Officer Jury recognized Appellant from an incident in
2013, where Officer Jury had informed Appellant he could not possess
firearms due to his prior record. Officer Jury asked Appellant for
identification and his hunting license, which Appellant did not have on his
person. As a result, Officer Jury confiscated Appellant’s firearm, confirmed
Appellant’s criminal history, and placed Appellant under arrest. A search of
Appellant’s person at the police station revealed a marijuana pipe and a
small amount of marijuana.
On March 2, 2015, the Commonwealth charged Appellant with persons
not to possess firearms, possession of a small amount of marijuana,
possession of drug paraphernalia, unlawful hunting in a safety zone, and
hunting without securing a license. Appellant proceeded to a bench trial on
April 8, 2016. At the conclusion of testimony, the court took the matter
under advisement pending the parties’ briefs on the effect of federal case
law on the constitutionality of Section 6105 of the Crimes Code. The court
ultimately convicted Appellant on May 13, 2016, of persons not to possess
firearms and hunting without securing a license. The court deferred
sentencing pending the preparation of a pre-sentence investigation (“PSI”)
report.
On June 28, 2016, the court sentenced Appellant to an aggregate term
of two and one-half (2½) to five (5) years’ imprisonment. Appellant timely
filed a notice of appeal on July 27, 2016. On September 7, 2016, the court
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ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his Rule 1925(b)
statement on October 6, 2016.2
Appellant raises the following issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE CONVICTION OF PERSONS NOT TO
POSSESS [FIREARMS]—18 PA.C.S.A. [§] 6105—
WHERE…APPELLANT PROVIDED CREDIBLE TESTIMONY
THAT HE RECEIVED NOTICE THAT HIS FIREARMS
DISQUALIFICATION WOULD EXPIRE?
WHETHER EVIDENCE WAS INSUFFICIENT TO SUPPORT A
CONVICTION WHEREIN RECENT FEDERAL [CASE LAW]
RECOGNIZED THAT APPELLANT COULD POSSESS A
FIREARM?
(Appellant’s Brief at 4).
With respect to his first issue on appeal, a challenge to the sufficiency
of the evidence implicates the following legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
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2
To preserve claims for appellate review, an appellant must comply
whenever the trial court orders the appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005).
This Court, however, may address the merits of a criminal appeal where a
defendant files an untimely Rule 1925(b) statement, if the trial court had
adequate opportunity and chose to prepare an opinion addressing the issues
raised on appeal. Commonwealth v. Burton, 973 A.2d 428, 434
(Pa.Super. 2008) (en banc). Here, Appellant did not timely file his Rule
1925(b) statement. Nevertheless, the trial court received the statement and
prepared an opinion addressing the issues raised on appeal. Therefore, we
decline to find waiver on this basis. See id.
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is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael E.
Bortner, we conclude Appellant’s first issue on appeal merits no relief. The
trial court opinion comprehensively discusses and properly disposes of the
question presented. (See Trial Court Opinion, filed December 9, 2016, at 5-
7 (finding: at trial, Appellant stipulated to his prior convictions of IDSI and
burglary, which are disqualifying offenses pursuant to Section 6105(b);
additionally, Officer Jury testified he found Appellant with firearm on
December 2, 2014; while Appellant admitted possession of firearm on that
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date, Appellant claims evidence was insufficient to sustain conviction
because he believed his period of firearm disqualification had expired; this
mistake of law defense does not entitle Appellant to any relief; further,
Appellant failed to present any evidence to demonstrate his probation officer
misled him about his firearm disqualification; in fact, probation forms
Appellant relies on to support claim explicitly explain terms of Appellant’s
firearm disqualification; moreover, Officer Jury credibly testified to previous
encounter with Appellant in 2013, where Officer Jury informed Appellant he
could not possess firearms due to his prior convictions of IDSI and burglary;
under these circumstances, evidence was sufficient to sustain Appellant’s
conviction of persons not to possess firearms, and Appellant’s challenge to
sufficiency of evidence fails). Therefore, we affirm Appellant’s first issue on
the basis of the trial court’s opinion.
With respect to Appellant’s second issue on appeal, Pennsylvania Rule
of Appellate Procedure 2119 states in relevant part:
Rule 2119. Argument
(a) General Rule. The argument shall be divided into
as many parts as there are questions to be argued; and
shall have at the head of each part—in distinctive type or
type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). Significantly, “[a]n appellate brief must provide a
discussion of the issue raised along with citations to pertinent legal
authorities.” Commonwealth v. Vega, 754 A.2d 714, 719 (Pa.Super.
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2000). “This [C]ourt will not assume the role of advocate for an appellant
when the issues in his brief are improperly raised and undeveloped or
abandoned, lack support in the record, and are presented without reference
to legal authority.” Id. This Court will consider an issue abandoned where
an appellant has identified the claim on appeal, but failed to develop it in his
appellate brief. Commonwealth v. Rodgers, 605 A.2d 1228, 1239
(Pa.Super. 1992), appeal denied, 532 Pa. 655, 615 A.2d 1311 (1992).
Abandonment of an issue on appeal results in waiver for purposes of our
review. Id.
Instantly, Appellant does not offer any pertinent discussion or citation
to relevant authority in support of his constitutional challenge to Section
6105 of the Crimes Code. Instead, Appellant concedes the issue has no
merit and states the trial court properly disposed of the issue in its Rule
1925(a) opinion. Thus, Appellant has abandoned the issue on appeal, and it
is waived for purposes of our review. See id.
Nevertheless, even if Appellant had properly preserved this issue, a
challenge to the constitutionality of a statute is a pure question of law.
Commonwealth v. Proctor, 156 A.3d 261, 268 (Pa.Super. 2017). As
such, our standard of review is de novo and our scope of review is plenary.
Id. This Court presumes “statutes are constitutional and require[s] those
challenging the constitutionality of a statute to demonstrate that it clearly,
plainly, and palpably violates the constitution.” Commonwealth v. Felder,
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75 A.3d 513, 516 (Pa.Super. 2013), appeal denied, 624 Pa. 671, 85 A.3d
482 (2014).
“When attacking the constitutionality of a statute, an appellant can
raise two types of challenges: facial and as-applied.” Commonwealth v.
Thompson, 106 A.3d 742, 763 (Pa.Super. 2014), appeal denied, 635 Pa.
743, 134 A.3d 56 (2016), cert. denied, ___ U.S. ___, 137 S.Ct. 106, 196
L.Ed.2d 87 (2016). Significantly,
A facial attack tests a law’s constitutionality based on its
text alone and does not consider the facts or
circumstances of a particular case. An as-applied attack,
in contrast, does not contend that a law is unconstitutional
as written but that its application to a particular person
under particular circumstances deprived that person of a
constitutional right. A criminal defendant may seek to
vacate his conviction by demonstrating a law’s facial or as-
applied unconstitutionality.
Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.Super. 2011).
Here, the trial court addressed Appellant’s challenge to 18 Pa.C.S.A. §
6105 as follows:
[Appellant] has provided little, if anything, to support a
constitutional challenge to the statute at issue. This is
especially true where he has three prior felony convictions,
all of which are quite serious. And at least two of [those]
convictions, IDSI and burglary, suggest the sort of future
dangerousness that warrants barring felons from
possessing guns. There is thus nothing to distinguish
[Appellant] from other felons so as to make his conviction
unconstitutional.
Moreover, even if [Appellant] had established that he was
unlikely to commit serious crimes in the future—he did not
even attempt to make any such showing—this would do
him no good. Although [Appellant] relies on [U.S. v.
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Barton, 633 F.3d 168, 174 (3d Cir. 2011)], which found
that such a showing could restore a felon’s Second
Amendment rights, [Binderup v. Attorney General
United States of America, 836 F.3d 336, 349 (3d Cir.
2016)] overruled Barton and foreclosed this possibility….
[Appellant’s] as-applied constitutional challenge is
therefore meritless.
To the extent [Appellant] is asserting a facial challenge—
again, he does not say—this fails [because a] facial
challenge to a legislative [a]ct is…the most difficult
challenge to mount successfully…. [E]ven Barton, cited
by [Appellant], rejected a facial challenge to a similar
statute [because the] felon dispossession statutes regulate
conduct which is unprotected by the Second Amendment….
In light of [applicable] precedent…, [Appellant’s] facial
challenge is meritless. And again, his as-applied challenge
is equally meritless where he has failed to articulate any
reason—convincing or otherwise—why he should be
allowed to possess guns despite his felony convictions.
[Appellant’s] second asserted ground for appeal should
therefore also be rejected.
(See Trial Court Opinion, filed December 9, 2016, at 9-11) (some citations
omitted). We see no error in the court’s analysis. Thus, even if Appellant
had properly preserved his second issue on appeal, it would warrant no
relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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Circulated 09/05/2017 11:05 AM