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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANTONIO SAPP :
:
Appellant : No. 38 MDA 2023
Appeal from the Judgment of Sentence Entered December 7, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005733-2021
BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 5, 2024
David Antonio Sapp appeals from the judgment of sentence entered
following his conviction for firearms not to be carried without a license. 18
Pa.C.S.A. § 6106(a)(1). He challenges the sufficiency of the evidence. We
affirm.
Sapp was arrested after attempting to enter a house that was not his.
He was charged with firearms not to be carried without a license and loitering
and prowling at night.1
At trial, the owner of the home, Carol Gleaves, and Detective Christen
Batten testified. Gleaves testified that on October 7, 2021, at 3:00 a.m., she
was at home watching television. N.T., Oct. 20, 2022, at 88-89. She heard
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 5506.
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some noise outside her open window, “like, heavy breathing or something.”
Id. at 89. She testified there was a man looking in the window, stating it was
dark and she thought he was wearing a hoodie. Id. at 90. She stated he was
“half[]way up my window, which would mean he would be pretty tall.” Id.
Gleaves testified she told him to leave. Id. at 91. She returned to watching
television and shortly after got up to go to bed. Id. At that time, she heard
and saw the doorknob turning and called the police. Id. at 91-92. Gleaves
testified she did not get a good look at the person outside her house, but
identified Sapp as the perpetrator at trial. Id. at 93-94. On cross-examination,
defense counsel asked whether Gleaves had seen Sapp “brandish any
weapons,” and she responded that she had not. Id. at 99.
Detective Batten2 testified that he was on duty on the night of October
7, 2021, and responded to a dispatch for a suspicious person at Gleaves’
address, where the caller had stated a male was trying to enter her home. Id.
at 101. He stated that when he arrived at the location, Sapp was trying to
enter the home. Id. Detective Batten testified that he asked Sapp what he
was doing, and Sapp responded that he was “at home.” Id. at 102. Detective
Batten stated that when Sapp turned to face him, the detective saw a “small
portion of a handgun, a handle of a handgun protruding out of [Sapp’s]
waistband.” Id. at 102-03. He stated the firearm was in Sapp’s waistband,
near his right pocket. Id. at 103. Detective Batten testified that when he saw
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2 At the time of trial, Detective Batten was an acting detective. N.T. at 100.
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the firearm, he informed Sapp he was going to take it for his and Sapp’s
safety, and Sapp complied. Id. Detective Batten stated he knew it was a
firearm because he carries one daily and recognized it as part of his job. Id.
He testified the barrel of the gun was three and a half to four inches, and he
was unable to see that prior to removing the gun from Sapp. Id. at 105-06.
He stated the firearm was loaded and that Sapp did not have a license to carry
a concealed firearm. Id. at 106-07.
On cross-examination, Detective Batten agreed that it was dark and
stated that he was three to five feet from Sapp when he noticed the firearm.
Id. at 108. He further stated that as they continued to talk, Sapp told him
that “his peoples lived there.” Id. at 109. Detective Batten testified that
Sapp’s actual address was about six houses down from Gleaves’s home. Id.
at 110.
The jury found Sapp guilty of carrying a firearm without a license and
not guilty of loitering and prowling at night. The court sentenced him to six to
12 months’ incarceration and 12 months’ probation. Sapp filed a timely notice
of appeal.
Sapp raises the following issue:
Whether the evidence was insufficient to sustain . . . Sapp’s
conviction for carrying a firearm without a license where
there was no evidence Sapp had the requisite intent to
conceal the firearm?
Sapp’s Br. at 4.
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Sapp argues the Commonwealth presented insufficient evidence that he
intended to conceal his firearm or actually concealed his firearm, as required
by 18 Pa.C.S.A. § 6106. He points out that his firearm was visible from his
waistband, and Detective Batten “readily identified the firearm from a distance
of five feet after [Sapp] turned towards him, and [Sapp] complied with the
officer when the officer asked to take the firearm for safety purposes.” Id. at
8. Sapp claims the Commonwealth presented no evidence of intent to conceal
the firearm and no evidence it was actually concealed, because the “totality
of the circumstances indicate[s] he kept the firearm plainly visible when
spoken to by the uniformed officer.” Id. Sapp argues that he made no moves
to hide the firearm. He argues the “handle was as evident as it would have
been in any regular hip holster that covered the body of the firearm while
leaving the handle exposed.” Id. at 12. Sapp further argues that his behavior
complied with the primary purpose behind the concealed carry statute, which
is “to apprise citizens of the fact that an individual is carrying deadly force,
thereby lessening the chance that such individual could take his adversary, or
anyone else, by a fatal disadvantage.” Id. at 13 (quoting Commonwealth v.
Montgomery, 234 A.3d 523, 536 (Pa. 2020)).
The Commonwealth counters that it presented sufficient evidence to
sustain the conviction for firearms not to be carried without a license because
Gleaves testified as to what Sapp was wearing but did not mention a weapon.
It argues it “was only the trained police officer who was on alert responding
to a potential burglary call that observed the weapon in [Sapp’s] waistband
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once [Sapp] turned to face him from five feet away.” Commonwealth’s Br. at
7. It argues the jury found the evidence sufficient as Sapp “successfully
concealed his firearm from the victim/homeowner, and it was only partially
exposed when [Sapp] turned to interact with the police officer.” Id. It notes
that the test for whether a defendant concealed a firearm is fact-specific, and
relies on the fact-finder to reach a conclusion.
The Commonwealth maintains that although Detective Batten was able
to identify the firearm, that observation “is not what the statute . . . intended
to protect under ‘ordinary observation.’” Id. at 10. Rather, Detective Batten
“was a trained officer responding to a potentially dangerous situation on high
alert for something such as a firearm.” Id. at 11. The Commonwealth further
points out that Sapp does not address Gleaves’ testimony, claiming that when
asked whether Sapp displayed any weapons, “Gleaves stated she had not seen
[Sapp] with any weapons.” Id. It argues that Gleaves’ testimony is more
applicable to the ordinary observation standard. It argues that Gleaves, Sapp’s
“adversary,” did not know that he had a firearm readily available in his
waistband. Id. at 11-12. The Commonwealth argues it can prove the intent
element, that is, that Sapp acted intentionally, knowingly, or recklessly, by
circumstantial evidence. It maintains that here, Sapp’s intent was
demonstrated because he was carrying a black gun while in the dark and while
wearing a black jacket, “in such a way that the homeowner was not put on
notice that [Sapp] was armed.” Id. at 12.
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In his reply, Sapp maintains that “just because the Officer may have
had a heightened sense of awareness, it does not follow that he had to use
extraordinary vision to see the firearm.” Sapp’s Reply Br. at 1. He contends
that Detective Batten saw the handle immediately and identified it as a firearm
with ordinary observation. He further argues that Gleaves was asked whether
Sapp “brandished” a weapon, which, Sapp argues, means to “shake or wave
(something, such as a weapon) menacingly” or “to exhibit in an ostentatious
or aggressive manner.” Id. at 2 (quoting Merriam-Webster (Revised Ed.
2022)). He argues that, beyond the brandishing question, Gleaves “did not
testify at all regarding a possible firearm on [Sapp’s] person.” Id. at 3. Sapp
further contends he was not Gleaves’ adversary. Rather, he was at the wrong
house.
In its Rule 1925(a) opinion, the trial court concluded the evidence was
insufficient to support the conviction. It noted that Gleaves did not see Sapp
brandish a firearm but did describe Sapp as wearing a “hoodie or something,”
and that Gleaves and Detective Batten described the area as very dark. It
pointed out that Detective Batten did not describe what Sapp was wearing and
that Detective Batten testified that as soon as Sapp faced him, the detective
“saw a small portion of a handgun, specifically the handle, protruding out of
[Sapp’s] waistband, near his right pocket.” Trial Court Opinion, filed Mar. 7,
2033, at 7. It noted the Detective testified that he was three to five feet away
from Sapp when he saw the firearm, and that he was unable to see the barrel
portion of the handgun. Id. The court pointed out that other than Gleaves’
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testimony that Sapp was wearing a hoodie, there was no testimony regarding
his clothing and that there was no testimony Sapp used his hoodie to conceal
the firearm. It reasoned that “merely placing a firearm halfway in one’s
waistband does not give rise beyond a reasonable doubt there is intent to
conceal.” Id. It pointed out that Detective Batten was able to see the firearm
with ordinary observation and immediately recognized it as a firearm. The
court concluded that because the firearm could be seen with ordinary
observation in the dark area a “citizen would have been put on notice that
[Sapp] was carrying a firearm.” Id.
When reviewing a sufficiency challenge, we “evaluate the record in the
light most favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.” Commonwealth
v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019) (citation omitted).
Evidence is sufficient where the Commonwealth has proven each element of
the crime beyond a reasonable doubt. Id. at 337. The Commonwealth may
meet its burden “by means of wholly circumstantial evidence.” Id. (citation
omitted). Additionally, the fact finder “is free to believe all, part, or none of
the evidence.” Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011).
This Court’s standard of review is de novo and our scope of review is plenary.
Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa.Super. 2018).
“Firearms not to be carried without a license,” is defined, in relevant
part, as:
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[A]ny 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).
The Pennsylvania Supreme Court has held that a person “‘carries a
firearm concealed on or about his person’ pursuant to Section 6106 when,
viewed in the totality of the circumstances, he or she carries the firearm in
such a manner as to hide the firearm from ordinary observation; absolute
invisibility to others is not required.” Montgomery, 234 A.3d at 536. The
court stated that “it is for the finder of fact to determine whether the evidence
presented constitutes concealment for purposes of Section 6106.” Id. at 538.
Further, “to establish a violation of section 6106, the Commonwealth must
establish that a defendant acted intentionally, knowingly or recklessly with
respect to each element, including the concealment element.”
Commonwealth v. Scott, 176 A.3d 283, 291 (Pa.Super. 2017) (quotation
marks omitted). The Pennsylvania Supreme Court pointed out that the
“prohibition on carrying an unlicensed concealed weapon serves to apprise
citizens of the fact that an individual is carrying deadly force, thereby
lessening the chance that such individual could take his adversary, or anyone
else, at a fatal disadvantage.” Montgomery, 234 A.3d at 536.
In Montgomery, the Court concluded that the Commonwealth had
presented sufficient evidence at the preliminary hearing to give rise to a
permissible inference that the defendant concealed his firearm. There, the
firearm was partially tucked into the defendant’s waistband and he evaded
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police by retreating into a store. Id. at 537. When the officers observed him,
he hid the firearm on a store shelf. Id. The court noted that at trial the
defendant could offer evidence and argue that he did not intentionally conceal
the firearm in his waistband and that the firearm discovered in the store was
not his, and a jury could credit such facts. Id. at 538. It concluded that it was
for the fact finder to determine whether the evidence constituted concealment.
Id.
Here, the Commonwealth presented sufficient evidence to support the
conviction. When describing Sapp’s appearance, Gleaves did not state that
she saw a firearm. And when asked if she had seen Sapp “brandish” a firearm,
Gleaves stated she had not, and saying she saw a firearm elsewhere on his
person would have been a natural response to the question. Viewed in the
Commonwealth’s favor, Gleaves’ testimony in this regard supports the
inference that the firearm was hidden “from ordinary observation.” Id. at 536.
Although Detective Batten noticed the firearm, the jury was free to conclude
that he did not spot the gun “from ordinary observation,” but rather as a police
officer responding to an emergent situation, where he was on alert for danger.
Further, he testified that only a small portion of the handle was visible, while
the barrel was tucked into Sapp’s waistband. The gun did not have to be
utterly invisible. See id. The evidence here was sufficient for the jury to find
the concealment element beyond a reasonable doubt.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/05/2024
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