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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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