J-S57023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    KERRY RANSOME                              :
                                               :
                       Appellant               :     No. 2268 EDA 2017


             Appeal from the Judgment of Sentence June 16, 2017
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0003919-2016


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 07, 2018

       Appellant, Kerry Ransome, appeals from the judgment of sentence

imposed following his bench conviction of aggravated assault, burglary,

criminal trespass, simple assault, possession of a firearm prohibited, firearms

not to be carried without a license, carrying a firearm in public in Philadelphia,

possession of an instrument of crime, and recklessly endangering another

person (REAP).1 We vacate Appellant’s conviction of firearms not to be carried

without a license and carrying a firearm in public in Philadelphia, and affirm in

all other respects.




____________________________________________


1 18 Pa.C.S.A. §§ 2702(a), 3502(a)(1)(i), 3503(a)(1)(ii),                2701(a),
6105(a)(1), 6106(a)(1), 6108, 907(a), and 2705, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       The trial court aptly set forth the factual and procedural background as

follows:

             At 7:30 P.M. on March 11, 2016, [Appellant] kicked open
       the door to Rashida Butler’s residence, pointed a gun at her and
       her friend, and struck Ms. Butler in the head with the firearm
       before running away. [Appellant] and Ms. Butler had dated in the
       past but were no longer dating at the time of this incident. Ms.
       Butler was taken to the hospital by ambulance for a laceration to
       her forehead.

             The [c]ourt found [Appellant] guilty of the above offenses
       and deferred sentencing for completion of a presentence
       investigation. Because [Appellant] had previously been convicted
       of robbery, he faced a mandatory minimum sentence of [not less
       than ten nor more than twenty] years of incarceration for the
       burglary conviction pursuant to 42 Pa.C.S.[A.] § 9714. On June
       16, 2017, the [c]ourt imposed the mandatory minimum sentence,
       as well as concurrent terms of [not less than five nor more than
       ten] years of incarceration for the aggravated assault conviction
       and the violation of section 6105 [(possession of a firearm
       prohibited)]. The [c]ourt ordered no further penalty on the
       remaining offenses, for an aggregate sentence of [not less than]
       ten [nor more than] twenty years. [Appellant] appeals.[2]

(Trial Court Opinion, 12/19/17, at 1-2) (record citation omitted).

       Appellant raises two questions for our review.

       [1.] Was the evidence insufficient as a matter of law to convict
       [Appellant] of the crimes of possessing a firearm without a license
       and carrying a firearm in Philadelphia as set forth in 18 Pa.C.S.A.
       §§ 6106 and 6108 of the Crimes Code where the evidence of
       record does not establish that the item allegedly used by
       [Appellant] had a barrel length or overall length which satisfied
       the definition of firearm as that term is defined in 18 Pa.C.S.A. §
       6102?
____________________________________________


2 Appellant filed a timely statement of errors complained of on appeal on
August 7, 2017. With the court’s permission, he also filed supplemental
statements on August 10, 2017 and August 29, 2017. The court filed an
opinion on December 19, 2017. See Pa.R.A.P. 1925.

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      [2.] Should the mandatory minimum sentence imposed by the
      trial court under 42 Pa.C.S.A. § 9714 be vacated, and this matter
      remanded for a new sentencing hearing, due to the fact that §
      9714 is unconstitutional as currently drafted insofar as it violates
      [Appellant’s] rights under the Fifth and/or Sixth Amendment to
      the U.S. Constitution (made applicable in this matter by the
      Fourteenth Amendment to the U.S. Constitution) and Article I, §
      9 of the Pennsylvania Constitution?

(Appellant’s Brief, at 5).

      In his first issue, Appellant maintains that the evidence was insufficient

to prove that he violated sections 6106 (firearms not to be carried without a

license) and 6108 (carrying a firearm in public in Philadelphia) of the Uniform

Firearms Act because “there is no evidence of record that [he] possessed a

‘firearm’ as that term is defined in 18 Pa.C.S.A. § 6102.” (Id. at 19). The

court and the Commonwealth agree that the convictions on these two counts

should be vacated, but maintain that the case need not be remanded for

resentencing because it does not affect the overall sentencing scheme. (See

Trial Ct. Op., at 3; Commonwealth’s Brief, at 2). We agree.

      Our standard of review of this matter is well-settled.

             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

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      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 finder 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. Davison, 177 A.3d 955, 957 (Pa. Super. 2018) (citation

omitted).

      The Crimes Code provides, in pertinent part, that a person is guilty of

firearms not to be carried without a license if: “Except as provided in

paragraph (2), [he] 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[.]”      18 Pa.C.S.A. § 6106(a)(1).

Further, “[n]o 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[.]” 18 Pa.C.S.A. § 6108(1).

Pursuant to this Firearms Act, “firearm” is defined, in relevant part, 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.” 18 Pa.C.S.A. § 6102.

      Here, as conceded by the trial court, the Commonwealth did not

establish the length of the gun possessed by Appellant. (See Trial Ct. Op., at




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3).3   After our independent review of the record, we agree. Although Ms.

Butler described the color of the weapon, the Commonwealth presented no

evidence of its size. (See N.T. Trial, 2/17/17, at 15). Accordingly, we agree

with the court and Appellant that the evidence was not sufficient to establish

that he possessed a firearm as defined by section 6102. See Davison, supra

at 957. Hence, we vacate Appellant’s conviction for violation of 18 Pa.C.S.A.

§§ 6106 and 6108. However, because the court did not impose penalties on

these convictions, our disposition does not affect the overall sentencing

scheme, and we decline to remand for resentencing. See Commonwealth

v. Demor, 691 A.2d 958, 963 n.9 (Pa. Super. 1997), appeal denied, 704 A.2d

1380 (Pa. 1997) (“[I]t is unnecessary for us to remand this case for

resentencing since our decision did not alter the lower court’s sentencing

scheme.”) (citation omitted).

       In Appellant’s second issue, he argues that the court imposed an illegal

mandatory minimum sentence on his charge of burglary “because [section]

9714 is unconstitutional as currently drafted.” (Appellant’s Brief, at 26). This

issue does not merit relief.

              The scope and standard of review applied to determine the
       legality of a sentence are well established. If no statutory
       authorization exists for a particular sentence, that sentence is
       illegal and subject to correction. An illegal sentence must be
       vacated. In evaluating a trial court’s application of a statute, our


____________________________________________


3 The Commonwealth also agrees that these convictions should be vacated.
(See Commonwealth’s Brief, at 2).

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      standard of review is plenary and is limited to determining
      whether the trial court committed an error of law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation

omitted).

      Section 9714 of the Judicial Code provides, in pertinent part:

      Any person who is convicted in any court of this Commonwealth
      of a crime of violence shall, if at the time of the commission of the
      current offense the person had previously been convicted of a
      crime of violence, be sentenced to a minimum sentence of at least
      ten years of total confinement, notwithstanding any other
      provision of this title or other statute to the contrary. . . .

42 Pa.C.S.A. § 9714(a)(1).

      Instantly, Appellant maintains that imposing a mandatory minimum

sentence pursuant to section 9714 violates Alleyne v. United States, 570

U.S. 99 (2013), in which the United States Supreme Court held that any fact

that increases a mandatory minimum sentence must be found beyond a

reasonable doubt by the fact-finder. See Alleyne, supra at 103; (see also

Appellant’s Brief, at 26-47).     However, Appellant acknowledges that, in

Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015), this Court held

that “Alleyne did not overturn prior precedent that prior convictions are

sentencing factors and not elements of offenses.” (Appellant’s Brief, at 26)

(quoting Reid, supra at 784 (record citation omitted)). In fact, he expressly

concedes that, “following Alleyne, this Honorable Court held in . . . [Reid]

that [section] 9714 is not constitutionally infirm in the wake of Alleyne.” (Id.

at 38). In spite of this concession, he urges this Court to “change [] existing


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law[,]” and conclude that section 9714 is unconstitutional. (Id. at 26; see id.

at 26-47).

      We decline Appellant’s invitation because this Court is “an error

correcting court[.]”   Commonwealth v. Snyder, 60 A.3d 165, 178 (Pa.

Super. 2013), appeal denied, 70 A.3d 811 (Pa. 2013) (citation omitted).

Therefore, “we will affirm trial court decisions which are in accord with

principles of law adopted by prior appellate court decisions.”      Id. (citation

omitted).

      Here, at the time of committing the crimes in this case, Appellant had a

prior conviction for robbery, a crime of violence. Therefore, the trial court did

not commit an error of law in imposing a mandatory minimum sentence

pursuant to section 9714 where this was “in accord with principles of law

adopted by prior appellate court decisions.” Id. (citation omitted); see also

Dixon, supra at 951; 42 Pa.C.S.A. § 9714.

      Judgment of sentence affirmed in part and vacated in part.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/18




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