J-S55011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HEZEKIAH JOHNSON :
:
Appellant : No. 1390 EDA 2017
Appeal from the Judgment of Sentence December 1, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012873-2015
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2018
Appellant, Hezekiah Johnson, appeals from the judgment of sentence
entered on December 1, 2016, following his bench trial convictions for persons
not to possess a firearm and recklessly endangering another person (REAP).1
Upon review, we affirm the convictions, but we are constrained to vacate the
judgment of sentence and remand for resentencing.
The trial court summarized the facts of this case as follows:
On October 14, 2015, [Appellant] was sitting on the front porch
of his home located [on] South Robinson Street, in the city and
county of Philadelphia. At approximately 1:00 a.m., witness
Danielle Freeman approached the front porch that was occupied
by [Appellant] and his brother, James Hart. Ms. Freeman
approached [Appellant] and Mr. Hart with the intention of asking
for a cigarette. As Ms. Freeman spoke with [Appellant], two men
approached from the corner at Ludlow Street and immediately
began firing weapons at Ms. Freeman, Mr. Hart, and [Appellant].
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1 18 Pa.C.S.A. §§ 6105(a)(a)(1) and 2705, respectively.
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The assailants did not speak or attempt to engage in any
conversation with the three people on the front porch[.]
In response to the attack, Ms. Freeman, Mr. Hart, and [Appellant]
immediately sought refuge inside the home. [Appellant’s] sister
and her two-year-old child were in the home when the three
entered from the porch. After the three ran into the home from
the porch, and approximately [60] seconds after the shots began,
[Appellant’s] sister, LaToya McLellan, called 911. Ms. Freeman,
believing herself to be injured, immediately laid down on the floor
of the home and watched [Appellant] disappear somewhere into
the interior of the home. Around the one-minute mark from when
the three entered into the home, Ms. [McLellan] dialed 911.
[…T]wo minutes after the previous gunfire had [begun],
[Appellant] exited the home through the front door back onto the
front porch. Immediately upon exiting the home onto the front
porch, at least another two or three gunshots were heard, after
which [Appellant] re-entered the house through the front door and
proceeded to the upstairs level of the home.
Philadelphia police arrived within one to two minutes from the
time the 911 call was placed. Upon arrival, officers noticed that
the front window of [the residence] had been shot out. Officers
proceeded immediately into the home and encountered three men
coming down the stairs from the upstairs level of the home into
the living room. Officers took the three males into custody due to
their profuse sweating, heavy breathing, and nervous appearance.
The officers observed spent cartridge casings on the front porch[.]
Philadelphia police searched the street and located six more
cartridges in the vicinity[.] At that time, [Appellant] was placed
under arrest and taken into custody.
Trial Court Opinion, 1/26/2018, at 1-2 (record citations omitted).
The case proceeded as follows:
On May 26, 2016, a waiver trial was conducted in front of the trial
court,[2] after which [Appellant] was subsequently found guilty of
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2 At trial, the Commonwealth presented three, recorded prison conversations
between Appellant and his mother and an unidentified third party. See N.T.,
5/26/2016, at 46-48. During those conversations, Appellant asked if the “hot”
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[the aforementioned charges]. On December 1, 2016, [Appellant]
was sentenced by the court to an aggregate term of five to ten
years[’] incarceration. [More specifically, the trial court sentenced
Appellant to five to ten years of imprisonment with a concurrent
sentence of one to two years for REAP.]
On December 6, 2016, [Appellant] filed a timely post-sentence
motion for reconsideration of his sentence. On April 6, 2017,
[Appellant’s] motion for reconsideration of his sentence was
denied by operation of law. On April 26, 2017, [Appellant] filed a
notice of appeal [to this Court]. On May 2, 2017, the trial court
issued an order pursuant to Pa.R.A.P. 1925(b) to [Appellant]
requiring a concise statement of errors complained of on appeal
within 21 days. [After receiving an extension, Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on January 26, 2018.]
Id. at 3.
On appeal, Appellant presents the following issues for our review:
1. Did not the lower court err and abuse its discretion in finding
[A]ppellant guilty of 18 Pa.C.S.A. § 6105 where there was
insufficient evidence that he possessed, used, controlled,
sold, transferred, or manufactured or obtained a license to
possess, use, control, sell, transfer, or manufacture a
firearm in Pennsylvania?
2. Did not the lower court err and abuse its discretion by
finding guilt where there was insufficient evidence that
Appellant recklessly engaged in conduct which placed or
may have placed another person in danger of death or
serious bodily injury?
3. Did not the lower court err and abuse its discretion by
imposing a sentence that is manifestly excessive and
unreasonable by failing to consider Appellant’s rehabilitative
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“jawn” had been removed from the residence. Appellant testified at trial that
he was referring to marijuana. Id. at 63. However, the Commonwealth
argued that Appellant’s use of the word “jawn” referred to a firearm, because
Appellant stated that the “jawn” was “hot,” meaning recently used during the
commission of a crime. Id. at 71.
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needs or otherwise follow 42 Pa.C.S.A. § 9721(b), [] by
imposing a sentence based entirely on the severity of the
offense?
Appellant’s Brief at 4.
In his first issue presented, Appellant claims that there was insufficient
evidence to support his firearm conviction. Id. at 15-19. More specifically,
Appellant claims that there was no eyewitness testimony that he “possessed
a gun or had fired a gun[.]” Id. at 16. Because the police did not recover a
firearm, Appellant argues the trial court erred by relying on ballistic evidence
that showed that firearms of different calibers were discharged from the street
and the porch during exchange of gunfire in this case. Id. at 17. Appellant
claims that the trial court further erred by relying upon three, recorded
conversations that Appellant had from prison, because such evidence
constituted hearsay.3 Id. at 18.
Our standard of review is as follows:
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3 Defense counsel objected to the introduction of the prison recordings,
arguing that statements made by unidentified third persons speaking to
Appellant constituted hearsay. See N.T., 5/26/2016, at 44-46. However,
because Appellant failed to raise the trial court’s admissibility ruling in his
concise statement pursuant to Pa.R.A.P. 1925(b), he has waived this aspect
of his claim. See Commonwealth v. Scott, 952 A.2d 1190, 1191 (Pa. Super.
2008) (issues not raised in a Rule 1925(b) statement are waived). Insofar as
the trial court’s evidentiary ruling relates to Appellant’s sufficiency challenge,
our Supreme Court has determined that “it is improper for a court, when
reviewing a sufficiency challenge, to eliminate from its consideration any
evidence which it deems to be inadmissible.” Commonwealth v. Sanford,
863 A.2d 428, 431 (Pa. 2004). As such, we are to consider “all of the
testimony” presented to the factfinder at trial, “without consideration as to
the admissibility of that evidence.” Id. (citation and original emphasis
omitted).
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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 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 trier 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. Hewlett, 189 A.3d 1004, 1008 (Pa. Super. 2018)
(citations omitted).
Appellant was convicted of persons not to possess a firearm, which is
defined as follows:
(1) A person who has been convicted of an offense enumerated
in subsection (b),[4] within or without this Commonwealth,
regardless of the length of sentence or whose conduct meets
the criteria in subsection (c) shall not possess, use, control,
sell, transfer or manufacture or obtain a license to possess,
use, control, sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S.A. § 6105(a)(1).
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4 At trial, Appellant stipulated that he had a prior conviction for an enumerated
offense under subsection (b) of the statute. See N.T., 5/26/2016, at 43. He
does not challenge this element of the crime on appeal.
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Here, the trial court determined that there was circumstantial evidence
that Appellant exchanged gunfire with two assailants on the street in front of
his house. The trial court first noted that although Ms. Freeman did not see
Appellant physically wielding a firearm, she witnessed Appellant flee into the
home, go into another room inside the house, and rush back on to the porch
from where he originally fled. Trial Court Opinion, 1/26/2018, at 6. Appellant
was the only person who exited the home and ran towards the gunfire. Id.
Ms. Freeman heard two or three gunshots soon thereafter. Id. The trial court
found sufficient circumstantial evidence that Appellant retrieved a firearm and
returned fire on the day in question. Id. Police found a group of 9mm
cartridges on the sidewalk in front of the residence at issue and two spent .40
caliber cartridges on the porch. Id. at 7. The trial court determined that the
ballistics evidence was consistent with Ms. Freeman’s testimony. Id. Finally,
the trial court determined that, in reviewing three recorded prison
conversations and interpreting the slang code words used, Appellant inquired
on several occasions about what happened to the weapon used in the
shooting. Id. at 8.
Upon review of the record, we conclude that there was sufficient
evidence to support Appellant’s firearm conviction. Here, the Commonwealth
presented circumstantial evidence that Appellant used a firearm on the day in
question. Appellant initially retreated into his home when gunshots erupted.
He went into a room and quickly rushed back outside, by himself, toward the
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gunfire. An eyewitness heard two or three additional gunshots while Appellant
was on the porch. Ballistic evidence confirmed that shots were fired from the
front porch toward the street. Taking all the evidence together, we conclude
it was proper for the trial court to infer circumstantially that Appellant
possessed and used a firearm despite the prohibition against him doing so.
Moreover, Appellant’s conversations from prison showed his concern with
police recovering somewhere inside his house the firearm used during the
commission of the crimes. Based upon our standard of review, we conclude
that sufficient evidence supported Appellant’s conviction for persons not to
possess a firearm.
Next, Appellant contends that the Commonwealth did not present
sufficient evidence to support his conviction for REAP. Appellant’s Brief at
20-21. More specifically, Appellant claims that because the Commonwealth
failed to present evidence that “Appellant was seen to possess or fire a gun[,]”
it did not prove his “present ability to cause harm” as statutorily required.5
Id. Having already determined that the Commonwealth presented sufficient
evidence to establish that Appellant used a firearm to support his conviction
for persons not to possess a firearm conviction, Appellant’s second issue
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5 “A person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S.A. § 2705. We have previously held
that “discharging [] a weapon numerous times in the vicinity of others
constitutes a sufficient danger to satisfy the REAP statute.” Commonwealth
v. Hartzell, 988 A.2d 141, 144 (Pa. Super. 2009).
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necessarily fails. Based upon all of the foregoing, we affirm Appellant’s
convictions.
In his final claim presented, Appellant claims that the trial court erred
by sentencing him to an excessive sentence without stating its reasons for the
sentence on record. Appellant’s Brief at 21-23. More specifically, he argues
that the trial court failed to consider his rehabilitative needs and based his
sentence entirely on the severity of the offense, without adequately stating its
reasons on the record for the imposition of the sentence. This claim implicates
the discretionary aspects of sentencing, which is not appealable as of right.
Rather, an appellant challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by satisfying a four-part test. See Commonwealth
v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).
We conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).
An appellate court will find a “substantial question” and review the
decision of the trial court only where an aggrieved party can
articulate clear reasons why the sentence imposed by the trial
court compromises the sentencing scheme as a whole.
Id. (internal case citations omitted).
Here, Appellant preserved his claim by filing a post-sentence motion,
filing a timely notice of appeal, and raising the issue in his concise statement
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pursuant to Pa.R.A.P. 1925(b). Moreover, an allegation that the trial court
failed to offer specific reasons for a sentence raises a substantial question.
See Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011);
see also 42 Pa.C.S.A. § 9721(b) (“In every case in which the court imposes
a sentence for a felony or misdemeanor [] the court shall make as a part of
the record, and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.”) (emphasis added).
Our standard of review in sentencing matters is well settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(citation omitted).
This Court has previously determined:
[T]he court must state its reasons on the record at the time the
sentence is imposed. Requiring the sentencing court to state its
reasons at that time provides a procedural mechanism for the
aggrieved party both to attempt to rebut the court's explanation
and inclination before the sentencing proceeding ends, and to
identify and frame substantive claims for post-sentence motions
or appeal. Therefore, [] it is not sufficient for the trial court to
state its reasons in a post-sentence Rule 1925(a) opinion. The
reasons must be given “in open court at the time of sentencing.”
42 Pa. C.S. § 9721(b).
[…A]lthough a sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence, ... the record as
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a whole must reflect the sentencing court's consideration of the
facts of the crime and character of the offender. A discourse on
the court's sentencing philosophy, as it applies to the defendant
before it, is not required. […T]he reasons must reflect the judge's
consideration of the sentencing code, the circumstances of the
offense and the character of the offender.
Commonwealth v. Flowers, 149 A.3d 867, 875–876 (Pa. Super. 2016)
(case citations, original brackets, and most quotations omitted).
Moreover, we have stated:
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation. Where pre-sentence reports exist,
we shall ... presume that the sentencing judge was aware of
relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory
factors. A pre-sentence report constitutes the record and speaks
for itself.
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).
Here, upon review of the certified record, the trial court did not place its
reasons for the imposition of Appellant’s sentence on the record. Instead,
when Appellant attempted to reargue the merits of his case during allocution,
the trial court cut him off and imposed sentence without any elaboration. See
N.T., 12/1/2016, at 14-15. Thereafter, while the trial court states in its Rule
1925(a) opinion that it considered the need to protect the public, the gravity
of the offense and the rehabilitative needs of Appellant, as well as Appellant’s
“numerous arrests as both an adult and juvenile, his numerous convictions,
his previous violations while under court supervision, [and] defense counsel’s
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mitigation arguments” in fashioning Appellant’s sentence, it is not sufficient
for the trial court to state its reasons in a subsequent Rule 1925(a) opinion.
See Trial Court Opinion, 1/26/2018, at 13-14. Moreover, while the docket
indicates that a presentence investigation report was requested in this matter,
it is not contained in the certified record and the trial court did not
acknowledge that it had the benefit of such a report in rendering its decision
at the time of sentencing. As such, there is no indication of record that the
trial court received, reviewed, or was aware of a presentence investigation
report and, thus, we cannot presume that the trial court was aware of all of
the relevant information when sentencing Appellant. Hence, the trial court
abused its discretion by failing to state the reasons on the record for the
imposition of Appellant’s sentence. Accordingly, we affirm Appellant’s
convictions, but are constrained to vacate Appellant’s 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: 12/14/18
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