J-S17027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SHAWN GEORGE                               :
                                               :   No. 858 EDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence June 28, 2016
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004157-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 06, 2018

        Shawn George appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, following his convictions of

firearms not to be carried without a license1 and person not to possess

firearms.2 We affirm.

        In May 2015, George was riding in a stolen car, driven by Danielle Raffle.

Officer David Brockway observed the stolen vehicle, followed it for about one

block and pulled the car over. When Officer Brockway approached the vehicle,

George fled from the car. Raffle told Officer Brockway that George had a gun.



____________________________________________


1   18 Pa.C.S.A. § 6106(a).

2   18 Pa.C.S.A. § 6105(b).
J-S17027-18



        Officer Brockway called for backup and George was ultimately arrested.

Police found a discarded firearm in the bushes about thirty yards away from

where the arrest took place. George was taken to the police station and given

his Miranda3 warnings. Officer William Carey then interviewed George, and

George stated that when Raffle’s car was stopped, he took the gun and “ran

with it,” and later “threw it.” N.T. Jury Trial, 3/30/16, at 121-23.

        Following his convictions, the court sentenced George to a term of

imprisonment of 3-½ to 7 years for firearms not to be carried without a

license, and to a consecutive term of 5 to 10 years for persons not to possess

a firearm.      George filed post-sentence motions, which were denied on

February 8, 2017. This timely appeal followed.

        George raises the following issues on appeal:

          1. Whether the trial court imposed an illegal sentence, where
             it sentenced [George] to a term of five (5) to ten (10) years
             for carrying a firearm without a license, 18 Pa.C.S.A. §
             6106, a felony of the third degree, which carries a maximum
             sentence of three and one-half (3-½) to seven (7) years?

          2. Whether there was sufficient evidence to support [George’s]
             conviction for carrying a firearm without a license, 18
             Pa.C.S.A. § 6106, and persons prohibited from possessing a
             firearm, 18 Pa.C.S.A. § 6105, beyond a reasonable doubt?

Appellant’s Brief, at 4.

        First, George argues the court imposed an illegal sentence when it

sentenced him to 5 to 10 years’ imprisonment for carrying a firearm without


____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

                                           -2-
J-S17027-18



a license, a felony of the third degree. See 18 Pa.C.S.A. § 6106(a). Pursuant

to section 1103 of the Crimes Code, a felony of the third degree carries a term

of imprisonment “which shall be fixed by the court at not more than seven

years.” 18 Pa.C.S.A. § 1103(3).

      Here, the sentencing order, dated June 28, 2016, states that on count

1, firearms not be carried without a license, the court imposed a 3-½ to 7-

year sentence, and on count 7, persons not to possess firearm, a felony of the

second degree, the court sentenced George to a consecutive term of

imprisonment of 5 to 10 years. See 18 Pa.C.S.A. § 6105(a.1); see also 18

Pa.C.S.A. § 1103(2) (felony of second degree carries term of imprisonment

“which shall be fixed by the court at not more than ten years.”); N.T.

Sentencing, 6/28/16 at 13-14. In his argument, George has transposed the

two sentences imposed. The court’s sentence was within the statutory limit

and, therefore, George’s claim that the sentence was illegal is meritless.

      Next, George argues that the evidence was insufficient to support his

convictions on both charges.

      The standard we apply in reviewing the sufficiency of the evidence
      is whether[,] viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for [that of] the fact-
      finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth


                                      -3-
J-S17027-18


        may sustain its burden of proving every element of the crime
        beyond a reasonable doubt by means of wholly circumstantial
        evidence. Moreover, in applying the above test, the entire record
        must be evaluated and all evidence actually received must be
        considered. Finally, the trier of fact while passing upon the
        credibility of witnesses and the weight of the evidence produced,
        is free to believe all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc)     (internal   quotations   and    citations   omitted).   Further,   the

Commonwealth may sustain its burden by means of wholly circumstantial

evidence.    See Commonwealth v. Ramtahal, 33 A.3d 602 (Pa. 2011).

        George was convicted of persons not to possess a firearm under 18

Pa.C.S.A. § 6105(a)(1). In relevant part, section 6105 provides:

        § 6105. Persons not to possess, use, manufacture, control,
        sell or transfer firearms

        (a) Offense defined.—

          (1) A person who has been convicted of an offense
          enumerated in subsection (b), within or without this
          Commonwealth, regardless of the length of sentence or
          whose conduct meets the criteria in subsection (c) shall not
          possess, use, control, sell, transfer or manufacture or obtain
          a license to possess, use, control, sell, transfer or
          manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).

Section 6106 provides, in relevant part:

        § 6106. Carrying a Firearm without a license.

        (a) Offense defined.--

        (1) Except as provided in paragraph (2), 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


                                         -4-
J-S17027-18


      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).

      In order to convict George of carrying a firearm without a license, the

Commonwealth was required to prove that: (a) George possessed a firearm,

(b) he did not possess a valid license to carry a firearm, and (c) the firearm

was carried in a vehicle or concealed about his person outside his place of

abode or fixed place of business. See Commonwealth v. Parker, 847 A.2d

745, 750 (Pa. Super. 2004). In order to convict George of persons not to

possess, the Commonwealth was required to prove that: (a) he possessed a

firearm, and (b) he was disqualified from possessing a firearm under section

6105(b) or (c). See 18 Pa.C.S.A. § 6105(a)(1).

      We point out that George challenges only the “possession” element of

the offenses. He argues that the evidence did not establish that he was ever

in physical possession of the firearm, but, rather, was merely present in the

vicinity of where the firearm was recovered.

      At trial, Raffle testified that the firearm belonged to George. She stated:

      Q: Going back a little bit to the times you have given [George]
      rides in your car and he had that gun. Did you ever ask him about
      it?

      A: I did, but he said it was for protection.

      Q: Did he ever say what type of protection?

      A: Yeah he wasn’t really well liked by certain people on the west
      side of Chester, so it was for his best interest.




                                      -5-
J-S17027-18


     Q: Okay so that is why he brought it. And when he carried it,
     where would he carry it? . . . On the 7th when he got in the
     vehicle?

     A: In his left side pocket.

     Q: Was he wearing a shirt?

     A: No.

     Q: And you saw it in his side pocket that day?

     A: Yes.

                                     ***

     Q: Okay, and so when he gets in the car is the gun still in his
     pocket or did he take it out of his pocket?

     A: It remained in his pocket.

                                     ***

     Q: Now how long were you driving before you noticed the [police]
     car behind you?

     A: Not that long . . . maybe ten minutes[.]

                                     ***

     Q: So once Officer Brockway came out and had his gun drawn, did
     Mr. George say anything?

     A: He opened the door he said he had to run. I told him to do
     what he had to do. I am not getting out and running, I am staying
     right here. That is when the cop told him to get back in the car,
     but he ran.

                                     ***

     Q: Now when Shawn George was running from the car could you
     still see the gun?

     A: I saw it when he first got out but after he got like a certain
     length away from the car I wasn’t really paying attention to him
     as he was running.

                                     -6-
J-S17027-18



N.T. Jury Trial, 3/30/16, at 75, 78-80.

       The Commonwealth also introduced Officer Carey’s interview sheet, and

Officer Carey testified that George acknowledged that he had a handgun when

he ran from the car, and that he got the gun from a “smoker.” 4 Id. at 129.

With respect to the question, “Did you toss the gun when the police were

chasing you?” George’s response was, “I wasn’t being chased but I threw it.”

Id. at 130 (emphasis added).

       Additionally, the Commonwealth entered into evidence a stipulation

wherein the parties agreed that George “was previously convicted of one or

more of the offenses enumerated in . . . [s]ection 6105(b).” N.T. Jury Trial,

3/31/16, at 72. The stipulation was admitted without objection. Id. at 73.

Thus, pursuant to section 6105(b), George was ineligible to possess, use,

control, sell, transfer, manufacture or obtain a license to possess, use, control,

sell, transfer or manufacture a firearm in Pennsylvania.

       As noted above, Raffle testified that George possessed the firearm, and

George acknowledged his possession in his statement to Officer Carey.

George claims that Raffle’s testimony is self-serving. We note this argument

goes to the weight rather than the sufficiency of the evidence. The jury, sitting

as the factfinder, “is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses.”       Ramtahal, 33 A.3d at 609

(citation omitted).      George also argues that his statement to Officer Carey
____________________________________________


4Officer Carey explained that a “smoker” is a person with a drug addiction.
N.T. Jury Trial, 3/30/16, at 129.

                                           -7-
J-S17027-18



should be discounted because he was “nervous and upset.” This claim, too,

is unconvincing. Viewing all the evidence admitted at trial in the light most

favorable to the Commonwealth as verdict winner, we conclude that there was

sufficient evidence to support George’s convictions for carrying a firearm

without a license pursuant to section 6106(a)(1) and persons not to possess

under section 6105(a)(1).     Brown, supra.      We, therefore, affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/18




                                    -8-
