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

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
BRANDON BAGBY                          :
                                       :
                     Appellant         :   No. 1511 EDA 2016

           Appeal from the Judgment of Sentence March 21, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0013076-2014


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 17, 2018

     Brandon Bagby appeals from the judgment of sentence of eight and

one-half to seventeen years imprisonment that the trial court imposed after

a jury convicted Appellant of three violations of the Uniform Firearms Act.

We affirm.

     At a joint trial with Shannon Dukes, Appellant was convicted of

carrying an unlicensed firearm, carrying a gun on public property in

Philadelphia, and carrying a firearm by a prohibited person. The trial court

provided a complete and cogent description of the evidence presented

against Appellant.

        At about 12:50 AM on November 4, 2014, Santino Nunez, the
     complainant, was returning to his home at 404 West Raymond
     Street in North Philadelphia. Mr. Nunez parked on Annsbury
     Street and saw four men walking down 4th Street. Mr. Nunez
     turned the corner and walked up to the porch of his residence
     when he saw the group of men walking in his direction. As he
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     was unlocking his front door, Mr. Nunez noticed two of the men
     were now directly in front of his porch. These two men were
     identified as Appellant and his co-defendant, Shannon Dukes.

         Mr. Nunez testified that Dukes pulled out a gun and
     approached him, telling him to move to the side. Dukes said
     "what do you have? Who lives in the house?" and told Mr. Nunez
     to "shut up." [Notes of Testimony ("N.T."), 11/10/2015,] at 38.
     Mr. Nunez testified that Dukes held the gun within a foot of his
     face during the encounter. Mr. Nunez testified that while Dukes
     held the gun in his face, he was afraid and thought he was going
     to die.

         Mr. Nunez stated that after a few minutes Dukes said to him
     "You know what, you're a young bull, forget it. It's okay, You're
     good." Id. at 39. Dukes then jumped off the porch and both he
     and Appellant ran down the street. After they ran off, Mr. Nunez
     went inside and told his family what had happened. He went
     back outside with his father-in-law to see where the two men
     had gone but did not see them. Mr. Nunez then called the
     police.

         Officer Kyle Cross of the Philadelphia Police Department
     responded to a radio call at about 12:50 AM on November 4,
     2014, and arrived at 403 West Annsbury Street. There he spoke
     with a woman who stated that she had called because several
     men had approached her as she walked from her vehicle to her
     house and tried to force their way into the house. She had given
     a description when she initially called the police, and two other
     officers stopped suspects matching the description. A short
     while after, the woman decided she did not want to go forward
     with police involvement.

         After leaving the woman's house, Officer Cross received
     another radio call and responded to 404 West Raymond Street,
     which was around the corner. There he spoke to Mr. Nunez who
     described how two men had followed him from his car and
     threatened him with a gun. Officer Cross took Mr. Nunez to
     where Officers Lynch and Hough had stopped several men to
     determine if they were the same individuals.

        Officer Richard Hough testified that he was in a marked
     patrol car with his partner, Officer Lynch, when they received a
     radio call regarding an attempted robbery on West Annsbury

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      Street. On their way to the address, they saw three men
      matching the description provided in the area of Fourth and
      Bristol Streets. They stopped alongside the men and Officer
      Lynch told them to stop. Officer Hough testified that as he exited
      the vehicle and approached the men, Appellant began walking
      away. Officer Hough started to follow until Appellant changed
      directions and ran back past the police vehicle. Officer Lynch was
      still seated in the driver's seat of the vehicle. Officer Lynch
      pursued Appellant while Officer Hough remained with the other
      two men who had been stopped.

          Officer William Lynch testified that Appellant ran east on
      Bristol Street, then north on Fisher. Officer Lynch followed
      Appellant in his vehicle. According to Officer Lynch, the street
      was well lit and he had a direct view of Appellant. As Appellant
      was running, Officer Lynch observed him pull a silver handgun
      from his waistband and discard the gun in front of 4322 North 46
      Street. Officer Lynch's vehicle was approximately ten feet away
      from Appellant when he discarded the handgun. He continued
      running past about five houses before stopping. Once stopped,
      Officer Lynch exited the vehicle and apprehended Appellant.
      Another officer, Sergeant Melia, arrived on the scene and stayed
      with Appellant while Officer Lynch recovered the handgun.
      When Officer Lynch retrieved the gun, he removed the magazine
      and observed three live rounds inside.

          Appellant was brought back to where Officer Hough was
      waiting with Dukes and a third man, David Flipper. Mr. Nunez
      then arrived and was able to positively identify the Appellant,
      and Dukes, as the two men that had approached him at his
      house. A stipulation was made at trial that Appellant was not
      licensed to carry a firearm. It was also stipulated that Dukes
      was similarly not licensed to carry a firearm.

Trial Court Opinion, 1/23/16, at 2-4.

      Following imposition of the above-described sentence, Appellant filed a

post-sentence motion, wherein he raised a challenge to the weight of the

evidence. That motion was denied, and this appeal, wherein he raises the

following contentions, ensued:



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      1. Was the evidence presented at trial by the [C]ommonwealth
         insufficient to sustain defendant's conviction for Firearms not
         to be Carried w/o License, 18 Pa.C. S.A. § 6106 §§ A1 and
         Carry Firearms in Public in Philadelphia, 18 Pa.C.S.A. § 6108?

      2. Was the verdict against the weight of the evidence in regard
         to the charges of Firearms not to be Carried w/o License 18
         Pa.C.S.A. § 6106 §§ A1 and Carrying Firearms Public in
         Philadelphia 18 § 6108?

      3. Should the jury have been instructed in regard to PA-JICRIM
         12.908B (Crim) Prohibited Offensive Weapon Defense?

      4. Was the consolidation of defendant Brandon Bagby's case with
         defendant Shannon Dukes' case in error?

Appellant’s brief at 4.

      Appellant complains that the evidence was not sufficient to sustain his

convictions of 18 Pa.C.S. §§ 6106 (a)(1) and 6108. Since a challenge to the

sufficiency of the evidence raises a question of law, our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Giron, 155

A.3d 635, 638 (Pa.Super. 2017).

             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
      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 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

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       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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(citation omitted).

       Section 6106(a)(1) of the Crimes Code states that, with exceptions

herein inapplicable, “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.

§ 6106(a)(1). Section 6108 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 [i.e., Philadelphia] unless” that person “is licensed

to carry a firearm” or is “exempt from licensing[.]” 18 Pa.C.S. § 6108(1),

(2).

       In this case, Appellant does not claim that he had a license to carry

the firearm that was viewed in his possession by Philadelphia Police Officer

William Lynch; instead, he notes that Dukes, rather than he, aimed the

firearm at Mr. Nunez. Appellant claims that he removed the gun from the

custody of his co-defendant Dukes in order to prevent Dukes from carrying

out any further crimes with it.        The stated claim is unrelated to the

sufficiency of the evidence for the crimes in question. Officer Lynch plainly

stated that Appellant was carrying a gun and discarded it under a vehicle.

That testimony was sufficient to establish that Appellant was carrying a

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weapon on or about his person and that he was carrying a firearm in

Philadelphia.   As Appellant was not licensed to do so, the evidence was

sufficient to sustain the convictions in question.

      Appellant next avers that his conviction is against the weight of the

evidence since he did not point the weapon at Mr. Nunez. Appellant was not

convicted of assaulting Mr. Nunez. His convictions rest upon the fact that

Officer Lynch saw him wielding the weapon just before he and Dukes were

apprehended. A challenge to the weight of the evidence prevails when the

trial court determines that the evidence was such that a guilty verdict shocks

the trial court’s sense of justice. Commonwealth v. Diaz, 152 A.3d 1040

(Pa.Super. 2016).    This Court does not review a weight claim in the first

instance, but merely examines whether the trial court abused its discretion

in rejecting the defendant’s position. Id.     The factfinder is the arbiter of

credibility and is free to reject or accept all, part, or none of the evidence

presented. Id. Herein, the jury found Officer Lynch credible, and, in light of

Appellant’s argument on appeal, we ascertain no abuse of discretion in the

trial court’s decision to refuse to set aside the verdict based on the

Appellant’s position that it was against the weight of the evidence.

      Appellant next avers that the trial court should have disseminated the

following instruction, in pertinent part:

      1. It is a defense to a charge contained in count that the
         defendant [possessed] the weapon:

            ....


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            d. possessed the weapon briefly:

                  In consequence of having found it; or

                  in consequence of having taken it from an aggressor;
                   or

                  under circumstances negating any intent or
                   likelihood that the weapon would be used unlawfully.

     2. The defendant has the burden of proving this defense by a
        preponderance of the evidence. A preponderance of evidence
        means that it is more likely than not that the defense does
        apply.

     3. Thus, even though you may believe the defendant otherwise
        committed the crime charged, you must find [him] [her] not
        guilty if you are satisfied by a preponderance of the evidence
        that the defendant has established the defense I just outlined
        for you.

Pa. SSJI (Crim.), §12.908B (2016) (some brackets omitted).

      This jury instruction pertains to a defense to the crime of prohibited

offensive weapons, which states that a person commits “a misdemeanor of

the first degree if, except as authorized by law, he makes repairs, sells, or

otherwise deals in, uses, or possesses any offensive weapon.” 18 Pa.C.S. §

908(a).   The flaw in this third argument is, of course, that Appellant was

neither charged with nor convicted of carrying a prohibited offensive

weapon.    The charges at issue herein consisted of carrying an unlicensed

weapon, carrying a weapon on a public street or property in Philadelphia,

and possession of a firearm by a prohibited person. The defenses outlined in

the outlined suggested jury instruction relate to the crime defined in § 908,




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and not the ones at issue in this case. Thus, the trial court properly refused

to instruct the jury under its precepts.

      Appellant’s final position, articulated in four sentences, is that his trial

should not have been consolidated with that of Dukes. Appellant provides

not a single citation to support his position, and he provides no developed

argument that he should not have been tried jointly with Dukes when

Appellant and Dukes were together during the entire episode in question. We

find this final position waived. Commonwealth v. Wilson, 147 A.3d 7, 22

(Pa.Super. 2016) (waiving argument “presented in a conclusory fashion

without argument or citation to authority”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/18




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