J-A06022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

KADEEM R. SMITH

                            Appellant                  No. 454 EDA 2014


            Appeal from the Judgment of Sentence January 7, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000962-2011


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 16, 2015

       Kadeem R. Smith appeals from the judgment of sentence imposed on

January 7, 2014, in the Court of Common Pleas of Philadelphia County,

made final by the denial of post-sentence motions on February 26, 2014.

On November 18, 2013, a jury convicted Smith of carrying a firearm without

a license and carrying a firearm on public property in Philadelphia. 1    The

court sentenced Smith to an aggregate term of four to eight years’

imprisonment.       On appeal, Smith raises the following three issues:   (1)

whether Smith waived the merits of his Pa.R.A.P. 1925(b) concise statement

issue; (2) whether he failed to properly raise a motion for judgment of

acquittal; and (3) whether there was sufficient evidence to support his
____________________________________________


1
    18 Pa.C.S. §§ 6106(a)(1) and 6108, respectively.
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firearm possession conviction. After a thorough review of the submissions

by the parties, the certified record, and relevant law, we affirm the judgment

of sentence.

      The trial court set forth the facts as follows:

             On December 3, 2010, at approximately 12:44 a.m., police
      responded to a report about gunshots on the 3100 block of
      Reach Street. There was no one at this location. However, upon
      surveying the scene and responding to screams coming from
      approximately two blocks away, police located Lamar Wilkins
      lying on the ground at G and Allegheny Streets. Wilkins had two
      gunshot wounds in his left leg. He reported to police that he had
      withdrawn money from an ATM located at Kensington and
      Allegheny Streets.     As he was walking away, Wilkins was
      approached from the side and from behind by two armed men
      who demanded his money. They went through his pockets and
      took his keys, a wallet containing five dollars ($5.00), a cell
      phone, and an iPod. A struggle ensued, and Wilkins was struck
      in the head with the butt of a gun and, ultimately, shot twice in
      his left leg. The offenders fled northbound on the 3200 block of
      G Street. Wilkins provided a description of both offenders.
      These descriptions were dispatched over police radio.
      Thereafter, he was taken by ambulance to Temple University
      Hospital to be treated for the gunshot wounds.

            Based upon the radio information, police located and
      pursued [Smith] and his co-conspirator Julius Bailey. [Smith]
      was pursued through an alley and apprehended near G and
      Madison Streets. [Smith] was transported to Temple University
      Hospital where he was positively identified by Wilkins as one of
      the men who shot him.

            Police searched the vicinity of G and Allegheny Streets for
      evidence of a robbery.       They found a .40 caliber Taurus
      semiautomatic handgun in the backyard of a house in the alley
      where [Smith] had been pursued by police. A DNA examination
      of that handgun was performed, and it revealed that [Smith]’s
      DNA was on the handgun.




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Trial Court Opinion, 8/25/2014, at 2-3 (footnote and record citations

omitted).

       Smith was arrested on December 3, 2010, and charged with

aggravated assault, robbery, conspiracy, carrying a firearm without a

license, carrying a firearm on public property in Philadelphia, and possessing

an instrument of crime. Smith and Bailey were tried together, and their jury

trial began on November 12, 2013.                On November 18, 2013, the jury

convicted Smith of carrying a firearm without a license and carrying a

firearm on public property in Philadelphia. The jury found Smith not guilty

of the remaining charges. On January 7, 2014, the court sentenced him to a

term of three-and-a-half to seven years’ incarceration for carrying a firearm

without a license and a consecutive term of six to 12 months’ incarceration,

followed by four years’ probation, for carrying a firearm on public property in

Philadelphia.

       On January 16, 2014, Smith filed a motion for reconsideration of

sentence, requesting to modify and reduce the sentence. However, prior to

the resolution of the post-sentence motion, Smith filed a pro se notice of

appeal on February 5, 2014.2              Appellate counsel was appointed.   On

February 12, 2014, the trial court ordered Smith to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Smith
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2
  Because Smith filed the notice of appeal, the motion for reconsideration
was denied by operation of law on February 26, 2014.



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failed to file a concise statement. On June 19, 2014, the court sent a letter

to Smith’s counsel again requesting a concise statement.3      On August 18,

2014, Smith filed a statement.

       Smith now raises the following issues on appeal:

       A. Did [Smith] waive the merits of his [Rule] 1925(b) statement
          issues, under the circumstances?

       B. Did [Smith] waive, or fail to raise, a motion for judgment of
          acquittal?

       C. Did the Commonwealth submit sufficient evidence to prove
          the necessary element of “concealment” beyond a reasonable
          doubt, in its prosecution of the charge of violating 18
          Pa.C.S.A. §6106(a)[, carrying a firearm without a license,]
          against [Smith]?

Smith’s Brief at 2.

       In his first issue, Smith asserts he did not waive the merits of his

concise statement issues for failure to timely file. Id. at 6. Specifically, he

states the trial court inadvertently sent the concise statement order to trial

counsel, but not to appellate counsel. Moreover, he avers that while a copy

of the order was sent to Smith, himself, “the Docket record does not show if

the document was ever actually received by [Smith] who was incarcerated

somewhere in the Pennsylvania prison system at that time.”                 Id.

Furthermore, he indicates appellate counsel was also having difficulty

____________________________________________


3
   The court indicated that it considered a delay in receiving the notes of
testimony before making the second request for the concise statement.
N.T., 8/25/2014, at 2 n.4.



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locating and obtaining the trial transcripts and it was not until counsel

contacted the court requesting assistance to obtain those transcripts that

counsel was then informed of the Rule 1925(b) order.

      We find this first issue moot as the trial court did not waive Smith’s

issues.   Based on the procedural history, it appears there was a judicial

breakdown and/or clerical error when the court sent the Rule 1925(b) order

to trial counsel and not to appellate counsel. Nevertheless, the trial court

did send the order again to the proper counsel and permitted Smith to file a

concise statement.     Furthermore, in its August 25, 2014, Rule 1925(a)

opinion, the court addressed the issues raised in Smith’s concise statement.

Therefore, we need not address this issue further.

      In his second argument, Smith contends the court erred in finding that

he never submitted a motion for judgment of acquittal with respect to the

carrying a firearm without a license offense. Smith’s Brief at 9. He states

he did make an oral motion at trial, and the court denied that motion,

finding there was enough evidence for the case to go to the jury with respect

to all of the charges. Id.

      With regard to this issue, the trial court stated:

      After carefully reviewing the record, the Court finds that
      [Smith]’s counsel never submitted a Motion for Judgment of
      Acquittal. Therefore, the Court did not erroneously deny this
      motion. However, even if the court had denied the defense’s
      Motion for Judgment of Acquittal, the Court’s decision would not
      have constituted error in this case.

Trial Court Opinion, 8/25/2014, at 3.

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      Our   review    of   the   record     indicates    that   at    the   end    of   the

Commonwealth’s case-in-chief, Smith’s counsel did, indeed, make an oral

motion for judgment of acquittal. Trial counsel stated:

            I would make a motion for judgment of acquittal for
      Kahdeem Smith [sic] on all charges. My argument is brief in
      that no reasonable jury, based on the evidence they have heard,
      would be able to find beyond a reasonable doubt that my client
      committed aggravated assault, robbery, conspiracy, and the
      VUFA charge of possessing an instrument of crime.

N.T., 11/15/2013, at 67. The Commonwealth then requested the court deny

the motion. Id. The court responded, “Thank you. I recognize the two of

you have done your jobs by making the appropriate motion for judgment of

acquittal, but I think there is enough evidence for the case to go to the jury

with all those charges.” Id. at 68.

      We conclude that while Smith did not make a specific argument as to

the proof of the element of concealment when he made the motion for

judgment    of   acquittal,   his   oral    motion      did   encompass     that    issue.

Nevertheless, as will be discussed below, the trial court properly denied the

motion.

      In his third argument, Smith argues there was insufficient evidence for

the case to go to the jury on the charge of carrying a firearm without a

license   because    the   Commonwealth          did    not   prove   the   element      of

“concealment.”       Id. at 10.       Smith admits that while the evidence

demonstrated he “was at some time and place in possession of the firearm”

that was found by police on the night in question, the evidence did not

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establish that he concealed the weapon.       Therefore, he states there was

insufficient evidence to support the conviction.

             A motion for judgment of acquittal challenges the
      sufficiency of the evidence to sustain a conviction on a particular
      charge, and is granted only in cases in which the Commonwealth
      has failed to carry its burden regarding that charge.

             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
      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. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)

(citations omitted), appeal denied, 926 A.2d 972 (Pa. 2007).

      The crime of carrying a firearm without a license is defined as follows:

      [A]ny 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).


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     Here, the record reveals the following:    On the early morning of

December 3, 2010, the victim, Lamar Wilkins, testified he was coming from

an ATM machine, when two men came up to him and put a gun to his side,

asking for money. N.T., 11/12/2013, at 150-151. The victim stated both

men had guns, and he “believed” Smith and co-defendant Bailey removed

their guns from “inside their jackets” when they approached him.    Id. at

151. Police Officer Patrick Keck responded to a radio dispatch regarding a

shooting, and saw two males walking in the vicinity of the incident that

matched the description of the perpetrators. Id. at 93. He indicated that

before he exited his vehicle, Smith and Bailey took off running in the

direction of an alleyway on G Street. Id. A foot chase ensued with Police

Officer Joseph Guinan responding to the scene. N.T., 11/14/2013, at 146.

Officer Guinan followed Smith while Officer Keck pursued Bailey.   Officer

Guinan observed Smith come out of the G Street alley and then go into

another alley between Madison and Willard Streets. Id. at 148. The officer

ran behind Smith and told him to stop. Id. Smith stopped about half-way

up the alley. Id. Officer Guinan did not see Smith discard anything during

the chase. Id. at 159.

     Later that morning, Detective Gilberto Ortiz recovered a loaded .40

caliber Taurus semiautomatic handgun from a rear yard of one the homes

that abutted the alleyway between the 800 block of Willard and Madison

Streets. See N.T., 11/14/2013, at 58-59. Forensic testing of the recovered


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gun was subsequently completed. Benjamin Sapir Levin, of the Philadelphia

Police Department DNA Laboratory, testified he analyzed DNA samples taken

from the gun as well as samples taken from Smith and Bailey. Smith was

found to be a contributor of DNA tested from swabs of the gun’s tripper

grips, trigger guard, and ammunition magazine. Id. at 81-98. Lastly, it was

stipulated at trial that Smith did not have a valid license to carry a firearm.

Id. at 49.

      Viewing   the   evidence    in   the   light   most   favorable   to   the

Commonwealth, as the verdict winner, and drawing all reasonable inferences

therefrom, we conclude, as did the trial court, that there was sufficient

evidence to support Smith’s carrying a firearm without a license conviction.

The element of concealment was established circumstantially by the

Commonwealth, which is permissible. See Andrulewicz, 911 A.2d at 165.

The facts demonstrated that when Smith fled down the alleyway, the officer

did not observe him brandishing a gun. Nevertheless, a gun was recovered

from that same alleyway and Smith’s DNA was found on the weapon.

Additionally, the victim testified that he saw Smith and his co-defendant

remove the guns from inside their jackets. The jury could reasonably infer

that Smith concealed the weapon on his person before throwing it into a

backyard while fleeing down the alley.           Therefore, we conclude the

Commonwealth presented sufficient circumstantial evidence to support

Smith’s firearm conviction under Section 6106(a), and the trial court did not


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err in denying his motion for judgment of acquittal.   Accordingly, Smith’s

final argument also fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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