J-S10021-19

                                  2019 PA Super 164



    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL HILL

                             Appellant                  No. 551 EDA 2018


            Appeal from the Judgment of Sentence January 23, 2018
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0001445-2017

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J.*

OPINION BY STABILE, J.:                                    FILED MAY 22, 2019

        Appellant, Michael Hill, appeals from his judgment of sentence of 27½-

55 years’ imprisonment following a jury trial for forty convictions arising from

a gun trafficking enterprise. We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

        The Commonwealth alleged that [Appellant] was the principal in
        the corrupt organization he created to straw-purchase guns and
        sell them to ineligible buyers. The case proceeded to a jury trial.
        Alcohol, Tobacco, Firearms, and Explosives (ATF) Agent Patrick
        Smith testified to having experience as a police officer, state fire
        arms instructor, ATF training, Interstate training with Nexus, and
        experience examining over a thousand firearms. Part of Agent
        Smith’s job consisted of assisting local law enforcement with
        firearms tracing, or tracing a firearm from the manufacturer to
        distributor to gun store to the original purchaser of the firearm.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S10021-19


     [He] has been involved in over 200 investigations involving the
     illegal transfer of firearms. [He] was qualified as an expert in the
     area of legal and illegal transfer of firearms.

     Agent Smith explained that firearms trafficking is the illegal
     procurement and dissemination of firearms. In order to legally
     purchase a firearm, a federal firearms licensed dealer, or FFL, sells
     an individual a firearm. A FFL is an individual who has “been
     deemed by the authority of the ATF to conduct in the business of
     selling, purchasing, and transferring firearms.” These FFL’s, or
     firearm venders, must have a physical business location, but can
     conduct business in other locations such as a gun show. An
     original purchaser is the person who buys a firearm directly from
     a FFL, and they must fill out paperwork to have the firearm
     transferred to them. Federally, a purchaser would fill out an ATF
     Form 4473, and in Pennsylvania, a buyer fills out a record of sale
     from the Pennsylvania State Police. A background check is
     performed, and based on the results of the background check, the
     firearm will be transferred or it will not. A FFL must retain the ATF
     4473 for 20 years, but common practice among FFL’s is to keep
     the paperwork for the entire life of the FFL. The forms contain
     information about the original purchaser and the firearm
     purchased.

     Question 11A on the ATF 4473 asks: “Are you the actual
     transferee/buyer of the firearm or firearms listed on this form?
     Warning: if you are not the actual transferee/buyer, if you are
     acquiring a firearm on behalf of other persons, if you are not the
     actual transferee/buyer, licensee cannot transfer the firearms to
     you. Exception: if you are picking up a firearm for another person,
     you are not required to answer 11A and may proceed to question
     B.” Box 33 on the State form also asks: “Are you the actual buyer
     of the firearm?” Both forms contain a certification that the buyer
     has read and understood the form, and understand that if they
     are not the actual transferee/buyer, that is a crime punishable as
     a felony under federal law and may violate state law. The buyer
     also certifies that he understands making a false oral or written
     statement is a crime punishable as a felony under federal law and
     may violate state law.

     Agent Smith explained that a straw purchase occurs when a
     firearm is purchased through illegal means. An individual who is
     legally allowed to purchase a firearm goes to a FFL and buys a
     firearm with the intention of not purchasing it for [himself].

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     Agent Smith identified a firearm recovered by the Philadelphia
     police that he was asked to investigate, a Springfield XDS 45,
     Serial Number 53202131 .45 caliber pistol which he traced back
     to the original purchaser of Philippe DeJohnette on March 27,
     2015. The investigation became a joint investigation with the
     Montgomery County Detective Bureau after they recovered a
     Ruger P-90 Serial Number 62248810 .45 caliber pistol which
     Agent Smith traced back to the original purchaser of Corey
     DeJohnette. Agent Smith also identified paperwork which he used
     as part of his investigation that revealed purchasers of other
     weapons, including a Smith & Wesson Serial Number purchased
     by Jared Martz, and a Glock model 20 Serial Number YLV688 also
     purchased by Jared Martz.

     Philippe DeJohnette testified that he was friends with [Appellant],
     and the first discussion he had with [Appellant] was about
     firearms. [Appellant] wanted to know if Philippe DeJohnette was
     able to legally purchase firearms, which he was.           Philippe
     DeJohnette agreed to buy firearms for [Appellant] because he
     needed money for his mother who was sick. They went to the
     Oaks gun show on February 15, 2015, and [Appellant] drove
     Philippe DeJohnette there. If [Appellant] liked a gun, he would
     indicate that with a nod of his head, and Philippe DeJohnette
     would get that gun. [Appellant] also said that if the police ever
     contacted Philippe about the gun, he could get it back from
     [Appellant]. At the gun show, Philippe purchased guns with
     money from [Appellant]. Philippe DeJohnette then took one gun
     home and left the other with [Appellant]. Philippe DeJohnette also
     went to another gun show with [Appellant] on March 21, 2015 and
     bought another gun for [Appellant] and another for himself.
     Philippe DeJohnette then went with [Appellant] to another gun
     show on March 27, 2015, and [Appellant] offered drugs in
     exchange for purchasing guns.          [Appellant] gave Philippe
     DeJohnette money to purchase two more guns.

     There was a stipulation by and between counsel that [Appellant]
     was statutorily prohibited from possessing a firearm.
     [Appellant]’s house was searched, and a black Glock gun box was
     recovered with serial number XXM241, [as well as] a Glock 21 .45
     serial number XXM241, Glock 20 .10 serial number VLE688,
     ammunition, a Glock .45 magazine, an extended magazine, a XP-
     2022 firearm with a bullet in the chamber, a firearm with
     obliterated serial number, a holster, and a box with more

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J-S10021-19


     ammunition. Police also found cell phones and a pay stub for
     [Appellant] in the same area as the weapons and paraphernalia.
     Police likewise recovered a Smith & Wesson gun box serial number
     SAF0428, and another gun box serial number 53202131 with 98
     live rounds of ammunition. A nylon gun case with magazine and
     ammunition, two empty magazines with pistol attachments, a
     scope, a gun grip, and a gun stock (frame) were recovered as
     well. Agent Smith identified some of the items recovered from
     [Appellant] like the scope, grip, certain ammunition, and
     attachments as only being used on long guns, specifically for an
     SKS variant.

     Corey DeJohnette testified that on December 18, 2015,
     [Appellant] picked him up and took him to the Oaks gun show.
     They walked around the gun show, and [Appellant] picked out a
     few guns. [Appellant] provided the money to purchase the guns,
     a P-Ruger 90 serial number 662488 and a Phoenix HP25 serial
     number 4451219.       Corey DeJohnette left both guns with
     [Appellant].

     Chad Hill testified that he knew [Appellant] as “Kevin,” and that
     Kevin was his drug dealer. Chad also knew an individual, Jared
     Martz, as “Face.” Face also sold drugs for [Appellant]. Chad’s
     brother Andrew or “Drew” Person also sold drugs for [Appellant].
     Chad was asked by [Appellant] if he could get anyone to buy him
     firearms, as Chad was not able to buy firearms legally, but he
     talked to Mr. Martz, and Mr. Martz went with [Appellant] to buy
     guns. On August 6, 2016, Chad went to the Eagle Arms Gun Show
     in Philadelphia with [Appellant] and Mr. Martz. [Appellant] paid
     the entrance fee, and then Mr. Martz got a gun, however he didn’t
     have any of his own money on him that day. [Appellant] then
     took the gun with him when they dropped him off at this house.
     Chad Hill also went with Mr. Martz and [Appellant] to French Creek
     Outfitters on October 25, 2016. Mr. Martz and Chad got drugs,
     and [Appellant] got another gun.        The Commonwealth also
     presented cell phone call detail records that corroborated the
     locations of Chad Hill with [Appellant] during various straw
     purchases.

     Jennifer Bender went with [Appellant] to a gun show on December
     18, 2016, who[m] she knew as “Kev.” Ms. Bender was to report
     the gun she bought as stolen. They went to the Philadelphia Expo
     Center with “Tech”, or Anthony Walker, who Ms. Bender had not
     met before. Tech paid the fee to get in, and both men selected a

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J-S10021-19


     gun. Tech added two more guns while Ms. Bender was filling out
     the paperwork. The system flagged Ms. Bender, so she could not
     purchase the guns there until further investigation was done.
     Anthony paid the fees for the guns.

     Lieutenant Echevarria was qualified as an expert in the field of
     jargon and code or language interpretation. The Commonwealth
     also presented cell phone call detail records that corroborated the
     locations of the various co-defendants with [Appellant] during
     various straw purchases. Lieutenant Echevarria testified to text
     conversations that he interpreted as negotiations for a SK long
     gun for $700. [Appellant] also states in his text messages that he
     has an HK gun for an unknown individual, but that gun was never
     recovered.    ATF Agent Smith then testified that all of the
     purchases by Mr. DeJohnette, Mr. Person, Ms. Bender, and Mr.
     Martz had indicators of straw purchasing.

     [Appellant] gave a written statement where he told police that
     Face gave him a few guns to hold onto. [Appellant] also admitted
     to having someone else buy him another gun on three occasions,
     two with “Face” and one with “some other guy.” [Appellant’s] co-
     defendant, Anthony Walker, testified in his own defense, and
     [stated that he] had known [Appellant] for more than 20 years.
     On December 18, 2016, Mr. Walker testified that he believed he
     and [Appellant] were going to the gun show in Oaks so that he
     could buy himself a gun. Mr. Walker claimed to pay for his own
     admission to the gun show, and testified that he purchased an
     extra magazine, bullets, and target paper. Mr. Walker testified
     that [Appellant] made his own purchases and Ms. Bender
     attempted to make a purchase. Mr. Walker testified that he did
     not assist anyone in filling out paperwork, returned to
     [Appellant]’s home, watched a game, played with [Appellant]’s
     children, and then left the home before being pulled over by
     police.

     [Appellant] was found guilty of Corrupt Organizations, Criminal
     Conspiracy-Unlawful Sale or Transfer of a Firearm, Criminal Use
     of a Communication Facility, Unsworn Falsification-Glock 21, serial
     number XXM241, 6 counts of Dealing in Proceeds of Unlawful
     Activity, 6 counts Unlawful Sale or Transfer of a Firearm-Makes
     Any Materially False Written Statement, Unsworn Falsification-
     Springfield XDS, serial number 53202131, Glock 34, serial
     number XVL654, 3 counts of Unsworn Falsification, Unsworn
     Falsification-Ruger P90, serial number 66248870, Phoenix HP25,

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J-S10021-19


     serial number 4451219, Unsworn Falsification-Smith & Wesson
     99, serial number SAF0428, Unsworn Falsification-Glock 20SF,
     serial number YLV688, Unsworn Falsification-Ruger P95 DAO,
     serial number 31507796, Ruger P95 DAO, serial number
     31508952, and 2 counts of Criminal Attempt-Unlawful Sale or
     Transfer of a Firearm-Makes Any Materially False Written
     Statement.

     Thereafter, the Commonwealth presented evidence to the jury of
     a stipulation that [Appellant] was convicted on October 3, 2013 of
     Possession with the Intent to Deliver. The jury was then charged
     on Person Not to Possess. [Appellant] was found guilty of 8 counts
     of Person Not to Possess for possession of the following weapons-
     HK 9MM, Sig Sauer SP2022 with obliterated serial number, Glock
     21 serial number XXM241, Springfield XDS serial number
     S3202131, Glock 34 serial number XVL654, Ruger P90 serial
     number 66248870, Phoenix HP25 serial number 4451219, Smith
     & Wesson 99 serial number SAF0428, and a Glock 20SF serial
     number YLV688. [Appellant] was also found guilty of 2 counts of
     attempted Person Not to Possess for the following weapons-Ruger
     P95 DAO serial number 31507796, and a Ruger P95 DAO serial
     number 31508952.

     At sentencing, the Commonwealth presented evidence, over
     defense objection, of where two of the illegally sold firearms ended
     up. This case began on August 20, 2016 when a robbery with a
     shooting occurred in West Pottsgrove, Montgomery County. Police
     recovered a Ruger P90 .45 caliber gun which they traced back to
     Corey DeJohnette. In the robbery, Darrell Johnson was convicted
     of trying to rob Anthony Gibbons and then shooting him in the foot
     and back as he tried to flee. Another firearm was recovered from
     Jeremy Harris, who is a Person not to Possess. Four guns
     attributable to [Appellant] had not been recovered at the time of
     sentencing, and remained on the street. This court specifically
     acknowledged that [Appellant] “did not do the shooting; did not
     do the conduct that resulted in the injury directly. The court will
     weigh the evidence as it relates to any nexus between your client
     and the guns and how they reached the end user for those
     purposes only, and I will give it the proper weight.” [Appellant]
     presented two character witnesses, and had family members
     present.

     This Court sentenced [Appellant] to 2½ to 5 years of incarceration
     on Count 1 Corrupt Organizations, a concurrent 2½ to 5 years of

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J-S10021-19


      incarceration on Count 2 Conspiracy-Corrupt Organizations, no
      further penalty on counts 12-20 Unsworn Falsification, 2½ to 5
      years of incarceration on Counts 21-27 Dealing in Proceeds of
      Unlawful Activities running concurrent to each other and all other
      sentences, a concurrent 2½ to 5 years of incarceration on count
      28 Conspiracy to Unlawful Transfer, a concurrent 2½ to 5 years
      of incarceration on count 38 Making Materially False Written
      Statements, a consecutive 5 to 10 years of incarceration on each
      of counts 39-42 Making Materially False Written Statements
      running consecutive to each other and the prior sentence, a
      concurrent 5 to 10 years of incarceration on counts 43-44 Making
      Materially False Written Statements, Counts 54-55 Attempted
      False Statements merged with Count 28 Conspiracy-False
      Statements, a concurrent 1 to 2 years of incarceration on count
      58 Criminal Use of a Communication Facility, a concurrent 5 to 10
      years of incarceration on Counts 65-67, 69-71, and 73-74 Person
      Not to Possess, counts 75-76 attempt-Person Not to Possess
      merged, and a consecutive 5 to 10 years of incarceration for
      Possession of a Firearm with an Altered Manufacturers Number.
      In total, [Appellant] was sentenced to 27½ to 55 years with credit
      dating to December 19, 2016.

      On February 13, 2018, [Appellant] filed a timely Notice of Appeal.
      [Appellant] and the Montgomery County Public Defender’s Office
      requested that new counsel be appointed to represent him in his
      appeal. This court granted that request, and appointed new
      counsel for direct appeal. This court then granted a lengthy
      extension for counsel to file a concise statement so that the
      transcript could be prepared and counsel for [Appellant] could
      familiarize himself with the record. Thereafter, a timely concise
      statement was filed on August 15, 2018.

Trial Court Opinion, 9/12/18 (“Trial Ct. Op.”), at 1-9 (citations to record

omitted; some capitalization omitted).

      Appellant raises the following issues in this appeal:

      1. Whether the evidence was insufficient to sustain a conviction
      for Dealing in Proceeds of Unlawful Activities, 18 Pa.C.S.A. § 5111,
      inasmuch as there was no evidence of a financial transaction with
      proceeds of illegal activity.




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      2. Whether the evidence was insufficient to sustain a conviction
      for Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(1), inasmuch as
      [Appellant] was merely an organized criminal, and there was no
      evidence that he received income from a pattern of racketeering
      activity in the acquisition, establishment or operation of any
      enterprise.

      3. Whether the evidence was insufficient to sustain a conviction
      for Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(4), when there
      was no evidence of a conspiracy to violate the provisions of that
      statute.

      4. Whether the evidence was insufficient to sustain a conviction
      for Possession of Firearm with Altered Manufacturer’s Number,
      18 Pa.C.S.A. § 6110.2, inasmuch [as] there was no evidence that
      [Appellant] knew that the number had been obliterated.

      5. Whether the Trial Court erred in its charge to the jury regarding
      Corrupt Organizations by referring to “Michael Hill’s organization.”

      6. Whether the trial court’s sentence of total confinement for a
      period of not less than 27½ years nor more than 55 years [of
      imprisonment] was manifestly unreasonable and excessive.

Appellant’s Brief at 5-6.

      In his first four issues on appeal, Appellant challenges the sufficiency of

the evidence underlying his convictions for dealing in proceeds of unlawful

activities, two subsections of corrupt organizations, and possession of firearms

with altered manufacturer numbers. 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


                                      -8-
J-S10021-19


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

fact-finder.   Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super.

2015).

      We first address Appellant’s conviction for dealing in unlawful proceeds

under 18 Pa.C.S.A. § 5111, which provides in relevant part:

      (a) A person commits a felony of the first degree if the person
      conducts a financial transaction under any of the following
      circumstances:

      (1) With knowledge that the property involved, including stolen or
      illegally obtained property, represents the proceeds of unlawful
      activity, the person acts with the intent to promote the carrying
      on of the unlawful activity.

18 Pa.C.S.A. § 5111(a)(1).

      Section 5111(f) defines “financial transaction” as “a transaction

involving the movement of funds by wire or other means or involving one or

more monetary instruments. The term includes any exchange of stolen or

illegally obtained property for financial compensation or personal gain.” Id.

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J-S10021-19


The same subsection defines “unlawful activity” as “any activity graded a

misdemeanor of the first degree or higher under Federal or State law.” Id.

“Section 5111 thus presents explicit language which clearly defines unlawful

activity as any felony or first degree misdemeanor, and targets the dealing in

proceeds      derived   from   any   of   those   various   illegal     activities.”

Commonwealth v. Barnhart, 722 A.2d 1093, 1096 (Pa. Super. 1998).

      The evidence satisfies Section 5111’s element of “unlawful activity.”

Appellant gave money to other persons (Corey DeJohnette, Phillippe

DeJohnette, Jared Martz, and Jennifer Bender) that they used to make straw

purchases of firearms. The straw purchasers carried out this scheme through

unsworn falsifications on ATF 4473 forms that they were purchasing the

firearms for themselves when in fact they were purchasing the firearms for

Appellant. See 18 Pa.C.S.A. § 4904. Appellant unlawfully transferred these

firearms to other individuals in violation of 18 Pa.C.S.A. § 6111. Appellant

concedes that he committed all of these crimes. See Appellant’s Brief at 30

(“the Commonwealth proved that [Appellant] aided his straw purchasers in

committing unsworn falsification, conspiracy and unlawful transfer of

firearms”).

      Further, the evidence demonstrates that Appellant engaged in “financial

transactions” involving the “proceeds of unlawful activity.”          The financial

transactions were Appellant’s transfers of money to the straw purchasers for

the purpose of purchasing firearms. The proceeds of unlawful activity was the


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J-S10021-19


money that Appellant gave the straw purchasers. Appellant stated in a text

message that he could not purchase any more guns until he sold the firearms

already in his possession. The inference thus arises that the funds Appellant

furnished to straw purchasers were proceeds from his illegal sales of firearms.

        For these reasons, we reject Appellant’s challenge to the sufficiency of

the evidence underlying his conviction for dealing in proceeds of unlawful

activity.

        Next, we address Appellant’s two convictions for corrupt organizations

under 18 Pa.C.S.A. § 911. His first conviction was for violating subsection

911(b)(1), which provides in relevant part:

        It shall be unlawful for any person who has received any income
        derived, directly or indirectly, from a pattern of racketeering
        activity in which such person participated as a principal, to use or
        invest, directly or indirectly, any part of such income, or the
        proceeds of such income, in the acquisition of any interest in, or
        the establishment or operation of, any enterprise.

18 Pa.C.S.A. § 911(b)(1).           Section 911(h) defines several terms within

subsection (b)(1).       “Racketeering activity” constitutes “an act which is

indictable under any of the following provisions of this title: . . . Chapter 49

(relating to falsification and intimidation) . . . [and] section 5111[.]”

18 Pa.C.S.A. § 911(h)(1)(i). “Pattern of racketeering activity” consists of “a

course of conduct requiring two or more acts of racketeering activity one of

which occurred after the effective date of this section.”1          18 Pa.C.S.A.


____________________________________________


1   Section 911 became effective in 1972.

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§ 911(h)(4). Finally, “enterprise” means “means any individual, partnership,

corporation, association or other legal entity, and any union or group of

individuals associated in fact although not a legal entity, engaged in commerce

and includes legitimate as well as illegitimate entities and governmental

entities.” 18 Pa.C.S.A. § 911(h)(3).

      Here, Appellant’s multiple convictions for unsworn falsification under

Section 4904, which he declines to challenge on appeal, are alone sufficient

to prove a “pattern of racketeering activity.” Additional proof of this pattern

arises from Appellant’s convictions for dealing in the proceeds of unlawful

activities, the sufficiency of which we have confirmed above. Finally, Appellant

does not challenge the evidence of an “enterprise.” Nor can he, since the

evidence demonstrates that he and the straw purchasers formed an

association in fact to carry out illegal purchases of firearms.

      Appellant’s second corrupt organizations conviction was for violating

Section 911(b)(4), which provides: “It shall be unlawful for any person to

conspire to violate . . . paragraph[] (1) . . . of this subsection.” The evidence

reflects that Appellant conspired with the straw purchasers to engage in a

pattern of racketeering acts, specifically, a series of unsworn falsifications

made for the purpose of purchasing firearms.

      Accordingly, we reject Appellant’s challenge to the sufficiency of the

evidence underlying his corrupt organizations convictions.




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      Next, Appellant argues that the evidence was insufficient to sustain his

conviction for possession of a firearm with an altered manufacturer’s number

under 18 Pa.C.S.A. § 6110.2. To prove this offense, the Commonwealth must

demonstrate that the defendant possessed a firearm “which has had the

manufacturer’s number integral to the frame or receiver altered, changed,

removed or obliterated.”       Id.    “The Crimes Code requires that the

Commonwealth prove that a defendant acted intentionally, knowingly, or

recklessly with respect to the obliterated manufacturer’s number on the

firearm.”   Commonwealth v. Jones, 172 A.3d 1139, 1145 (Pa. Super.

2017).

      In Jones, this Court reasoned as follows:

      In Commonwealth v. Shore, [] 393 A.2d 889 ([Pa. Super.]
      1978), while interpreting a related statute [18 Pa.C.S.A. § 6117,
      Altering or obliterating marks of identification], this Court held
      that the defendant’s possession of a firearm with an altered serial
      number, and his subsequent attempt to get rid of it, was sufficient
      evidence of his guilty knowledge of its altered condition, and, thus,
      sustained the defendant’s conviction.

      In the instant case, Appellant conceded he possessed the gun with
      an obliterated serial number, and did so long enough to use it to
      shoot the victim. The evidence also showed that Appellant
      continued to possess the gun long enough to secret it away under
      garbage bags of clothing in the back of a closet. Moreover, the
      Commonwealth’s firearms expert testified that that the gun’s
      serial number had been tampered with to such a degree that the
      serial number's full restoration was impossible.

      Considering all of the evidence of record in the light most
      favorable to the Commonwealth as the verdict-winner, we
      conclude that the Commonwealth presented sufficient direct and
      circumstantial evidence of Appellant’s mental culpability to sustain
      his jury conviction. From the evidence presented, the jury was

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         free to infer that, like the defendant in Shore, Appellant had
         knowledge of the gun’s altered condition. Additionally, based on
         the jury’s observations of the degree of serial number’s
         obliteration and the length of time during which he possessed the
         gun, it was reasonable for the jury to infer that Appellant knew
         that the serial number had been obliterated. For the same reason,
         it is likewise reasonable for the jury to conclude that, in the time
         he possessed, used, and hid the weapon, Appellant would have
         felt the damage to the weapon caused by the extensive
         obliteration.

Id. at 1145-46.

         The trial court herein concluded that this case is virtually the same as

Jones.

         Here, almost identically to Jones, in [Appellant’s] statement he
         admits to possessing the gun with the obliterated serial number.
         That gun [was] found in the hamper of his bedroom, and the
         Commonwealth’s expert was unable to restore the serial number,
         concluding that it had been completely obliterated. [Appellant]
         was in possession of the gun long enough to get it to his home
         and secret it away in his hamper. The gun also was so altered
         that the Commonwealth’s expert was unable to restore the serial
         number. Consistent with Jones and Shore, this is sufficient
         evidence of [Appellant’s] mens rea to support the jury’s guilty
         verdict.

Trial Ct. Op. at 21.         We agree with this analysis.        Additionally, the

Commonwealth accurately points out that Appellant knew the firearm’s serial

number because he kept this particular firearm among his personal clothing

items, loaded with a round in the chamber, and with his holster. Accordingly,

Appellant’s challenge to the sufficiency of the evidence underlying his

conviction for possession of a firearm with an altered manufacturer’s number

fails.




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      In his fifth issue on appeal, Appellant contends that the trial court

prejudiced the jury during jury instructions by stating that the Commonwealth

“has charged that Michael Hill’s organization is an enterprise. You must

ask whether the entity that the Commonwealth has charged fits the definition

of ‘enterprise’ under the law.” N.T., 10/23/17, at 229. Appellant argues that

this language constituted an expressed opinion by the trial court that Appellant

in fact had an “organization,” and that the only question was whether the

organization constituted an enterprise. This argument does not warrant relief.

      We review jury instructions for abuse of discretion. Commonwealth

v. Soto, 202 A.3d 80, 98 (Pa. Super. 2018). We must read the charge as a

whole;   error   will   not   be   predicated   upon   an    isolated   excerpt.

Commonwealth v. Batty, 169 A.3d 70, 78 (Pa. Super. 2017).

      Here, the trial court charged the jury as follows:

      The Commonwealth has the burden of proving the defendant
      guilty beyond a reasonable doubt. If it meets that burden, then
      the defendant is no longer presumed innocent and you should find
      him guilty. On the other hand, if the Commonwealth does not
      meet its burden, then you must find the defendant not guilty. Do
      not draw any inference because of repetition. Do not single out
      any individual rule or instruction and ignore the others . . . .

      Consider all of the instructions as a whole and each in light of the
      others.

                                     ***

      The next element involves a term that has a particular meaning
      under the corrupt organizations law. The term is enterprise. In
      this case, the Commonwealth has charged that Michael Hill’s
      organization is an enterprise. You must ask whether the entity
      that the Commonwealth has charged is an enterprise and that it

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          fits the definition of enterprise under the law. This term can mean
          a variety of things, some of which are very easy to understand.
          Under the law, an enterprise can mean an individual; an
          enterprise can be engaged in legitimate or illegitimate activities.
          The defendant does not need to know everyone who is proven to
          be a part of the enterprise. Finally, the enterprise must be
          engaged in some sort of commerce, that is, must be engaged in
          buying or selling some products or services, legal or otherwise.
          Unless you find beyond a reasonable doubt that Michael Hill’s
          organization is an enterprise, you must find the defendant not
          guilty of the corrupt organizations offense. If you find Michael
          Hill’s organization is an enterprise, consider the next element . . .

Notes of Testimony, Trial, 10/23/17 at 211-12, 229-30.

          These instructions adequately presented the applicable law. The trial

court informed the jury that the Commonwealth bore the burden of proving

its case beyond a reasonable doubt, including the element of an “enterprise.”

The court did not direct the jury to find that an enterprise existed; it merely

defined this term for the jury and instructed the jury to decide whether the

Commonwealth proved its existence. Neither did the court direct the jury to

find that Appellant had an “organization.” The court merely advised that the

Commonwealth alleged Appellant had an “organization.” Thus, Appellant’s

claim of error fails.

          Finally,   Appellant   argues   that   his   sentence   of   27½-55   years’

imprisonment is unreasonable and excessive.              Appellant is not entitled to

relief.

          Appellant’s claim that the trial court considered an impermissible factor

at sentencing is a challenge to the discretionary aspects of sentencing. It is

well-settled that “[t]he right to appeal a discretionary aspect of sentence is

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not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.

2011). Rather, where an appellant challenges the discretionary aspects of a

sentence, we should regard his appeal as a petition for allowance of appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we

stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e 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).

Id. at 170. We evaluate on a case-by-case basis whether a particular issue

constitutes a substantial question about the appropriateness of sentence.

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

      Here, Appellant timely appealed from his judgment of sentence, argued

that his sentence was excessive at the time of sentencing, and included a

Pa.R.A.P. 2119(f) statement in his brief.      Further, he raised a substantial

question, namely whether his sentence was excessive in conjunction with an

assertion that the trial court failed to consider mitigating factors such as his

non-violent history and difficult childhood.    Therefore, we will address the

substance of Appellant’s argument.




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        “When imposing a sentence, a court is required to consider the particular

circumstances     of the   offense   and the     character   of the   defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,

the court should refer to the defendant's prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Id. Where the

sentencing court had the benefit of a presentence investigation report (“PSI”),

we can assume the sentencing court “was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988). Further, where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code. Moury, 992 A.2d at 171 (combination of PSI and standard

range     sentence,   absent   more,    cannot   be   considered   excessive   or

unreasonable).

        Here, the trial court reviewed Appellant’s PSI, so it was presumably

aware of relevant information concerning his character and weighed this

information along with mitigating statutory factors. The trial court explained

its reasons for Appellant’s sentence as follows:

        The Court imposed consecutive sentences on 6 counts. This Court
        imposed no further penalty on eight counts, and concurrent
        sentences on 21 counts. Additionally, all sentences imposed were
        standard range sentences. Considering the conduct at issue, and
        the number of illegal firearms that [Appellant] put out into the
        community in the hands of people deemed unfit to possess them,
        the sentence was reasonable. This Court considered [Appellant’s]
        history, the guidelines, the nature of the offenses, and the effect

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     of the community.       There is no abuse of discretion, and
     [Appellant’s] sentence should be affirmed.

Trial Ct. Op. at 34-35.   We conclude that the trial court acted within its

discretion in fashioning this sentence. The jury convicted Appellant of forty

criminal offenses in connection with a gun trafficking enterprise that placed

multiple illegal firearms on the streets and in the hands of individuals who

were not permitted to have them.

     Judgment of sentence affirmed.

     Judge Colins joins the opinion.

     President Judge Emeritus Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/19




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