J-S35023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ANTHONY BROWN
Appellant No. 724 EDA 2018
Appeal from the Judgment of Sentence October 27, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0001633-2017
BEFORE: OLSON, J., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 27, 2019
Appellant, Anthony Brown, appeals from his judgment of sentence of
two to four years’ imprisonment plus three years’ probation for carrying
firearms without a license, carrying firearms in public streets in Philadelphia
and possession of an instrument of crime (“PIC”).1 Appellant argues that (1)
the evidence was insufficient to sustain his convictions on the two firearms
convictions, (2) the verdicts on the firearms charges were against the weight
of the evidence, and (3) the trial court erroneously admitted evidence of a
prior incident in which Appellant choked a witness and stole her phone. We
affirm.
The trial court summarized the factual history of this case as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6106, 6108, and 907, respectively.
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On December 26, 2016, at approximately 7:55 p.m., the Appellant
picked up his girlfriend, Carol Marchetti, from work at the
McDonald’s on 120 Oregon Avenue. While leaving, Brown and
Marchetti had an argument over the contents of Marchetti’s cell
phone. Brown took Marchetti’s cell phone and placed his hands
around her neck. Shortly thereafter, Marchetti left the McDonald’s
and walked towards her sister’s home. The Appellant followed
her. After arriving at her sister’s house, Marchetti told her sister
(Rita Brown) and her sister’s husband (Jojuan Brown) what had
happened and asked for bus fare to get to her mother’s house.
Marchetti’s sister suggested that her next-door neighbor (Jeffrey
Labarr) drive her instead of taking the bus. While waiting for
Labarr, Marchetti saw the Appellant calling out for her to come
home, but she eventually left with Labarr to go to her mother’s.
After arriving at her mother’s residence on 80th Street and
Lindbergh Boulevard, Marchetti went inside while Labarr stayed
outside in his vehicle. Meanwhile, the Appellant pulled into the
driveway in a white Nissan Altima behind Labarr’s vehicle. Neither
Labarr nor the Appellant got out of their vehicles to talk to one
another. After a couple of minutes, Marchetti’s brother (Michael)
walked to the Appellant’s driver’s side window. Michael and the
Appellant started arguing, and Michael punched the Appellant
through the car window. The Appellant then got out of the car,
and both men fought for ten to fifteen seconds before Labarr broke
up the fight. After Labarr intervened, he and the Appellant then
fought for another thirty seconds. When the fight ended, both
men walked back to their respective vehicles.
As the Appellant walked away, he said to Labarr “I got you!”
Labarr then drove to Marchetti’s brother’s residence where he saw
Rita Brown, their sons, and Jojuan Brown outside waiting for him.
Ten minutes later, Labarr saw the Appellant drive around the block
in the same white Nissan Altima. At that point, Rita Brown called
the police, who responded around 10:30 p.m. After the police
left, the Appellant was seen driving around the 2300 block of
Beulah Street. He eventually parked his car three houses from
Labarr’s residence. After the Appellant parked, Jojuan Brown
approached the parked car with his hands raised and identified
himself before requesting the Appellant to leave. While
approaching the car from the rear, Jojuan saw the Appellant
leaning toward the right as if he were removing an object from
the glovebox. After he approached, Jojuan was able to see inside
the Appellant’s car because there was a street light in the vicinity
of the vehicle. Jojuan initially noticed a “gleam of metal” in the
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Appellant’s right hand. He subsequently saw that the Appellant
had a gun in his right hand (on the Appellant’s lap). Jojuan
described the gun as a black semiautomatic pistol. Jojuan and the
Appellant conversed for two minutes. During this time, the
Appellant waved around his left hand but kept the hand with the
gun on his lap. After several minutes, the Appellant told Jojuan
that he was going to “pop Jeff.” The Appellant subsequently drove
away from the scene with the firearm still in his lap.
On December 27, 2016, at approximately 5:10 a.m., the police
located the white Nissan Altima at 500 Greenwood Street,
Philadelphia. After acquiring a search warrant, the police
recovered Carol Marchetti’s cell phone from the car. No firearm
was recovered.
Trial Court Opinion, 9/14/18, at 3-5. We further observe that Jojuan Brown
referred to the weapon as a “handgun” and a “pistol.” N.T., 9/5/17, at 99-
100, 117.
Appellant was convicted of the foregoing offenses following a non-jury
trial. On October 27, 2017, the trial court imposed concurrent terms of two
to four years’ imprisonment on the firearms charges and a consecutive term
of three years’ probation on the PIC charge. On November 2, 2017, Appellant
filed timely post-sentence motions. On March 2, 2018, the post-sentence
motions were denied by operation of law. On March 7, 2018, Appellant filed
a notice of appeal to this Court. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises four issues in this appeal:
1. Was the evidence insufficient to sustain a conviction for
Firearms Not to be Carried Without a License?
2. Was the evidence insufficient to sustain a conviction for
Carrying a Firearm in Public Streets of Philadelphia?
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3. Were the verdicts for the Violation of the Uniform Firearm Act
offenses against the weight of the evidence?
4. Did the trial court err by admitting evidence of a prior bad act
alleging that [Appellant] choked a witness and stole her phone?
Appellant’s Brief at 5.
In his first two arguments, which we review together, Appellant
challenges the sufficiency of the evidence underlying his firearms convictions
under 18 Pa.C.S.A. §§ 6106 and 6108. When reviewing the sufficiency of the
evidence, we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, were sufficient to prove every element
of the offense beyond a reasonable doubt. Commonwealth v. Diamond, 83
A.3d 119, 126 (Pa. 2013). “[T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.”
Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–26 (Pa. Super. 2016).
It is within the province of the fact-finder to determine the weight to be
accorded to each witness’s testimony and to believe all, part, or none of the
evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–93 (Pa. Super.
2015). The Commonwealth may sustain its burden of proving every element
of the crime by means of wholly circumstantial evidence. Commonwealth
v. Crosley, 180 A.3d 761, 767 (Pa. Super. 2018). As an appellate court, we
may not re-weigh the evidence and substitute our judgment for that of the
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fact-finder. Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super.
2015).
Section 6106 and Section 6108 are part of the Pennsylvania Uniform
Firearms Act, 18 Pa.C.S.A. §§ 6101-6128. Section 6106, entitled “Firearms
Not To Be Carried Without A License,” provides in pertinent part that, subject
to exemptions not relevant here, “any person who carries a firearm in any
vehicle or any person who carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business, without a valid and
lawfully issued license under this chapter commits a felony of the third
degree.” 18 Pa.C.S.A. § 6106(a)(1).
Section 6108, entitled “Carrying Firearms On Public Streets Or Public
Property In Philadelphia,” provides:
No person shall carry a firearm, rifle or shotgun at any time upon
the public streets or upon any public property in a city of the first
class unless: (1) such person is licensed to carry a firearm; or (2)
such person is exempt from licensing under section 6106(b) of
this title (relating to firearms not to be carried without a license).
18 Pa.C.S.A. § 6108.
For purposes of both Sections 6106 and 6108, a firearm is defined as
[a]ny pistol or revolver with a barrel length less than 15 inches,
any shotgun with a barrel length less than 18 inches or any rifle
with a barrel length less than 16 inches, or any pistol, revolver,
rifle or shotgun with an overall length of less than 26 inches. The
barrel length of a firearm shall be determined by measuring from
the muzzle of the barrel to the face of the closed action, bolt or
cylinder, whichever is applicable.
18 Pa.C.S.A. § 6102.
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Appellant posits four claims in support of his argument that there is
insufficient evidence to convict him under Sections 6106 and 6108. We
address each claim seriatim.
First, Appellant argues that the Commonwealth failed to prove that he
possessed any firearm at all, because the police did not recover any gun from
his person or his car. We disagree. The Commonwealth may establish
possession of a firearm solely through the testimony of a witness who
observes the defendant with a firearm, even when no firearm is recovered.
“[T]he rationale for allowing such inferences is the ease with which the most
objective proof—the weapon itself—may be discarded.” Commonwealth v.
Bond, 523 A.2d 768, 770 (Pa. Super. 1987); see also Commonwealth v.
Robinson, 817 A.2d 1153, 1162 (Pa. Super. 2013) (evidence sufficient to
establish possession of handgun under Section 6106 where victim “testified
that all three attackers possessed handguns. This is all that is necessary.
That no gun was found on Appellant a half hour or more after the robbery is
not dispositive of the sufficiency of the evidence. Appellant could have easily
discarded the gun immediately after the robbery had been effectuated”).
Here, Brown testified that he saw Appellant holding a black semiautomatic
handgun in his lap while sitting his car near Labarr’s residence. N.T., 9/5/17,
at 98-101. This was sufficient to establish the element of possession.
Robinson, 817 A.2d at 1162.
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Next, Appellant argues that there was no evidence that the firearm in
Appellant’s lap was operable. It is well-settled, however, that “[a] reasonable
fact finder may . . . infer operability . . . from an object which looks like, feels
like, sounds like or is like, a firearm . . . without direct proof of operability.”
Commonwealth v. Layton, 307 A.2d 843, 844 (Pa. 1973). As stated above,
Brown testified that he observed Appellant in possession of a black
semiautomatic handgun, an object that “look[ed] like” a firearm. Id.
Moreover, Appellant threatened to “pop” Labarr. This was sufficient to
establish the element of operability.
Third, Appellant maintains that the Commonwealth failed to present any
evidence of the firearm’s barrel length. We disagree. The Uniform Firearms
Act defines a “firearm” as “[a]ny pistol or revolver with a barrel length less
than 15 inches.” 18 Pa.C.S.A. § 6102. Like operability, the length of the
barrel may be proven by circumstantial evidence. Commonwealth v.
Jennings, 427 A.2d 231, 235 (Pa. Super. 1981) (length of weapon can be
determined from what an object “looks like, feels like, sounds like or is like”).
For example, in Commonwealth v. Rozplochi, 561 A.2d 25 (Pa. Super.
1989), during a bench trial,
[one eyewitness] testified that appellant initially concealed the
weapon inside a manila envelope. She described the envelope as
“about this high” and “not too wide”. Although the record before
us does not reveal the length of the envelope, the judge would
have been able to estimate this length by observing [the
eyewitness’s] hand motions when she described the envelope as
“about this high”. The judge could then have concluded that the
length of the gun barrel was less than the length of the envelope.
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In addition, the judge also heard [a second eyewitness] testify at
the robbery trial that appellant's weapon was a “small black gun”
...
Id. at 31. We reasoned that the evidence satisfied the Uniform Firearms Act’s
definition of barrel length:
Although the finder of fact did not observe the gun itself, the finder
of fact observed a witness who indicated the dimensions of the
envelope in which the gun was contained. The finder of fact was a
judge and as such is presumed to know the law. See
Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa. Super.
1989). Moreover, none of the evidence of record indicates that
the gun had an exceptionally long barrel length and appellant has
never offered to come forward with any evidence which would
show that the gun was not a firearm.
Id. at 31-32.
Here, as in Rozplochi, the Commonwealth introduced sufficient
circumstantial evidence of barrel length. The judge who presided over
Appellant’s bench trial did not observe the gun itself, because no gun was
recovered from Appellant or his car. Brown, however, testified that he spoke
with Appellant for two minutes while Appellant was sitting in his car. Appellant
removed the gun from the glove compartment, a relatively small space. N.T.,
9/5/17, at 98-99. He held it in one hand and placed it in his lap, evidence
that it was not large. Id. at 100. Brown called the gun a “pistol” and a
“handgun.” Id. at 99-100, 117. There was no suggestion that the gun had
an exceptionally long barrel length. This evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to establish that the barrel of
the gun was less than fifteen inches long.
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Finally, Appellant argues that the Commonwealth failed to introduce any
evidence of non-licensure. To begin with, Appellant waived this argument by
failing to assert in his Pa.R.A.P. 1925 statement of matters complained of on
appeal that the Commonwealth failed to satisfy the element of non-licensure.
Commonwealth v. Brown, 186 A.3d 985, 990 (Pa. Super. 2018) (to
preserve challenge to sufficiency of evidence, appellant’s Rule 1925(b)
statement must state with specificity the element or elements upon which he
alleges that evidence was insufficient). Furthermore, under Section 6108, the
Commonwealth is not required to prove non-licensure. Commonwealth v.
Bigelow, 399 A.2d 392, 394-96 (Pa. 1979). Instead, the defendant may
submit evidence of licensure as a defense. Id. at 396. Thus, the
Commonwealth’s failure to present evidence of non-licensure does not
preclude Appellant’s conviction under Section 6108.
In his next argument, Appellant contends that his convictions for
firearms violations were against the weight of the evidence. We disagree.
“To grant a new trial on the basis that the verdict is against the weight
of the evidence, . . . the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Commonwealth v.
Childs, 63 A.3d 323, 327 (Pa. Super. 2013). “On review, an appellate court
does not substitute its judgment for the finder of fact and consider the
underlying question of whether the verdict is against the weight of the
evidence, but, rather, determines only whether the trial court abused its
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discretion in making its determination.” Commonwealth v. Lyons, 79 A.3d
1053, 1067 (Pa. Super. 2013). The trial court heard Brown’s testimony about
the firearm and found it credible. Brown watched Appellant remove a gun
from the glove compartment and hold it in his lap. Brown was standing right
next to the open driver’s side window while Appellant held the gun in his lap
for two full minutes. Although it was nighttime, Brown and Appellant were
under a streetlight. Appellant told Brown he would “pop” Labarr.
Appellant argues that one of Brown’s statements at the preliminary
hearing undermines his trial testimony:
[Question]: Did you see the gun that [Appellant] had inside of the
vehicle?
[Brown]: No. I didn’t really look because when he pulled up, he
got the gun out of the glove compartment and I figured he would
have put it back.
N.T., 9/5/17, at 113.
We do not find the verdict so contrary to the evidence as to shock our
sense of justice and compel an award of a new trial. The trial court, as
factfinder, had the right to believe all, part, or none of Brown’s testimony, to
make credibility determinations and to resolve conflicts in testimony.
Commonwealth v. Gonzalez, 109 A.3d 711, 723-24 (Pa. Super. 2015). A
new trial is not warranted because of “a mere conflict in the testimony” and
must have a stronger foundation than a reassessment of the credibility of
witnesses. Id. Here, the trial court heard Brown’s testimony, weighed it
against his preliminary hearing testimony, and decided to credit his trial
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testimony that he saw Appellant in possession of a firearm. This decision was
within the trial court’s discretion and does not warrant relief.
In his final argument, Appellant argues that the trial court abused its
discretion by admitting Carol Marchetti’s testimony that Appellant gripped her
neck and took her phone on the evening of December 26, 2016. We conclude
that this evidence was admissible under the res gestae exception to Pa.R.E.
404(b).
We review the trial court’s evidentiary rulings for abuse of discretion.
Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007). Pennsylvania Rule
of Evidence 404(b) states that “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
Pa.R.E. 404(b)(1). However, other crimes or bad acts may be admitted for
purposes other than character or propensity. Pa.R.E. 404(b)(2); Dillon, 925
A.2d at 137. One permissible reason to introduce evidence of prior bad acts
is where the evidence is necessary to “complete the story” of the crime on
trial, the so-called res gestae exception to the proscription against other
crimes evidence. Id. This exception is applicable in situations where the
distinct crimes were part of a chain or sequence of events that formed the
history of the case and were part of its natural development. Id.
The events forming the basis of Appellant’s convictions began when he
fought with his girlfriend, Marchetti, grabbed her neck and took her phone.
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Marchetti told her family members about the fight, and two of her family
members encountered Appellant outside of Marchetti’s mother’s house and
engaged in a fight. Labarr broke up the fight. In retaliation, Appellant drove
to Labarr’s house with a gun and told Brown he would “pop” Labarr. Because
Appellant’s altercation with his girlfriend formed the basis of the events that
unfolded, the court properly admitted the evidence as part of the complete
story of the crime. In addition, the trial court considered Appellant’s
objections to the evidence and explained that it would be able to consider the
evidence for background without prejudicing Appellant. N.T., 9/5/17 at 22-
23. The trial court acted within its discretion by admitting the evidence.
Appellant also argues that the Commonwealth did not provide notice of
its intention to elicit the prior bad acts testimony. Rule 404(b)(3) provides
that “the prosecutor must provide reasonable notice in advance of trial, or
during trial if the court excludes pretrial notice on good cause shown, of the
general nature of any such [other bad acts] evidence the prosecutor intends
to introduce at trial.” Pa.R.E. 404(b)(3). “The purpose of this rule is to prevent
unfair surprise, and to give the Appellant reasonable time to prepare an
objection to, or ready a rebuttal for, such evidence. However, there is no
requirement that the ‘notice’ must be formally given or be in writing in order
for the evidence to be admissible.” Commonwealth v. Lynch, 57 A.3d 120,
125-26 (Pa. Super. 2012) (citation and quotations omitted). Where, for
example, the Commonwealth provides information of prior bad acts within a
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pre-trial affidavit of probable cause, the defendant will be deemed to have
adequate notice of prior bad acts evidence. Id. at 126 (holding that notice
was sufficient where prior bad act evidence was included in affidavit of
probable cause and testimony at a prior hearing).
Here, Appellant had sufficient advance notice of the Commonwealth’s
intent to introduce Marchetti’s testimony regarding their altercation. The
affidavit of probable cause underlying the arrest warrant filed against
Appellant on January 1, 2017 states that Marchetti told police that she “got
off work at approx. 8:00 p.m. on 12-26-16 and got into an argument with
[Appellant]. During the argument on 200 Oregon Ave . . . [Appellant] got out
of his car, choked her against a fence, and took the cell phone from [her]
jacket pocket.” Affidavit of Probable Cause. Moreover, defense counsel
objected to Marchetti’s testimony before she gave it, evidencing that counsel
expected she would testify about the prior acts. N.T., 9/5/17, at 20.
Therefore, Appellant had prior notice of the testimony, was prepared to offer
an objection to it, and suffered no unfair surprise when the Commonwealth
sought to admit it.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/19
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