J-S74028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                               Appellee

                        v.

    HANSON LOWERY

                               Appellant                 No. 3474 EDA 2017


      Appeal from the Judgment of Sentence imposed September 29, 2017
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0012832-2014

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                           FILED FEBRUARY 21, 2019

        Appellant, Hanson Lowery, appeals from the judgment of sentence of

11½-23 months’ imprisonment plus five years’ probation with immediate

parole to house arrest for possession of a firearm with altered manufacturer

number (“firearm offense”),1 possession of an instrument of crime (“PIC”)2

and other offenses.          Appellant argues that the evidence is insufficient to

sustain his convictions for the firearm offense and PIC. We affirm.

        The trial court accurately summarized the evidence as follows:

        On September 12, 2014, Police Officer Joseph Domico, assigned
        to the Narcotics Field Unit of the Philadelphia Police Department,
        went to the area of Cedar and Ann Streets in Philadelphia after
        receiving information from a confidential informant that drug
        activity was occurring there.       Upon arrival, Officer Domico
        searched a confidential informant and after determining that the
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1   18 Pa.C.S.A. § 6110.2.

2   18 Pa.C.S.A. § 907.
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     informant had no money or drugs in his possession, he gave the
     informant $20.00 in U.S. currency, the serial numbers of which
     had been recorded by the officer, to use as “buy money” to
     purchase drugs. Officer Domico then watched as the informant
     approached a woman, later identified as Brianna Binz (ph.), and
     spoke to her briefly. The officer also saw the informant hand the
     buy money to Binz who then walked over to a black male who was
     standing nearby on the corner and received an object from him
     that she handed to the informant after walking back to him. Upon
     getting the item from Ms. Binz, the informant returned to Officer
     Domico and gave him a bag containing what testing revealed to
     be marijuana and a pink pill later determined to be Oxycodone.
     The informant also informed the officer of the name “Bree” and a
     telephone number associated therein.

     Officer Domico returned to that same location on October 3, 2014,
     with the confidential informant to whom he gave $20.00 in pre-
     recorded “buy money” and had call the number the informant had
     relayed to the officer three weeks earlier. During the call, the
     informant had a drug-related conversation with a female who
     directed him to go to the intersection of Cedar and Memphis
     Streets.

     After the call ended, the informant went to the intersection
     mentioned during the phone call where he met Ms. Binz, who,
     after speaking to the informant, went to a residence located at
     2115 Orleans Street and knocked on the door.              Appellant
     answered the door and Ms. Binz went inside with him. She exited
     the property about two minutes later and handed the informant
     two jars filled with marijuana, which the informant thereafter gave
     to Officer Domico.

     On October 15, 2014, Officer Domico again had the informant call
     the number received on September 12, 2014. The informant
     again spoke to a woman, after which the informant, having
     received $120.00 in “buy money” from Officer Domico, who
     searched him with negative results, went to the same area where
     the two previous transactions occurred.       Ms. Binz met the
     informant there, who, after speaking with the informant, went to
     2115 Orleans Street and knocked on the door. When no one
     answered, Ms. Binz made a phone call. A short time later, the
     male who gave Ms. Binz an item on September 12, 2014, and who
     was wearing the same sweatshirt he had on that day, walked up


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     to Ms. Binz and the informant, where he gave Ms. Binz an object
     in exchange for U.S. currency.

     After that transaction occurred, Appellant drove up in a Ford
     Expedition and parked it in a vacant lot across the street. When
     Appellant exited the Expedition, Ms. Binz walked up to him, and
     after a brief conversation, handed him U.S. currency in exchange
     for an object, which she gave the informant. The informant then
     returned to Officer Domico a clear bag containing 12 grams of
     marijuana a one Oxycodone pill.

     Officer Domico returned to his office and prepared and obtained
     search warrants for the Expedition, 2983 Cedar Street, and 2115
     Orleans Street. He returned to the location where the previous
     transactions occurred on October 16, 2014, and set up a
     surveillance. The officer observed Ms. Binz and a Hispanic woman,
     last name Lugo, with her who was braiding Ms. Binz’s hair. A
     white male came onto the block and Ms. Lugo directed the male
     to go to the corner. Ms. Binz then removed an object from her
     bra and gave it to Ms. Lugo who walked up to the white male and
     gave him the object in exchange for U.S. currency. The white
     male then left the area.

     After the white male departed, Officer Domico had members of his
     back-up team apprehend Ms. Binz and Ms. Lugo. Incident thereto,
     police recovered from Ms. Lugo a cell phone, an identification card
     in her name, and $155.00. Police seized a plastic bag containing
     eleven packets of marijuana, seventeen packets of crack cocaine,
     and a key to 2983 Cedar Street. Officer Domico and other officers
     then executed the search warrants. When police went to 2115
     Orleans Street, Appellant answered the door and was placed
     under arrest. Police recovered $1,350.00 from his back pocket.

     A search of the residence yielded a bag hidden behind a couch
     cushion that contained 354 grams of marijuana, four bags
     containing eight grams of marijuana on a coffee table, a bottle
     containing six Diazapam pills and an operable .32 caliber Kel-Tec
     handgun loaded with nine rounds from under a couch cushion that
     had its serial number scratched off. In addition thereto, police
     recovered a scale, new and unused plastic bags, and an electric
     bill for the residence in Appellant’s name. When police obtained
     biographical information from Appellant, he stated that he resided
     at 2115 Orleans Street.


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Trial Ct. Op., 3/13/18, at 2-5 (citations omitted). The Commonwealth also

introduced evidence that Appellant did not have a gun license. Id. at 5 n.3

(citation omitted).

      Following a bench trial, the trial court found Appellant guilty of the

firearm offense, PIC and various drug charges, including possession with

intent to deliver the marijuana found in the couch and on the coffee table in

front of the couch.   On September 29, 2014, the court imposed sentence.

Appellant filed a timely notice of appeal, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      1. Was the evidence insufficient to prove Appellant guilty of [the
      firearm offense] under 18 Pa.C.S. § 6110.2?

      2. Was the evidence insufficient to prove Appellant guilty of [PIC]
      under 18 Pa.C.S. § 907?

Appellant’s Brief at 4.

      In 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 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


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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 challenge to the sufficiency of the evidence

of the firearm offense. Section 6110.2 provides in pertinent part: “No person

shall possess a firearm which has had the manufacturer’s number integral to

the frame or receiver altered, changed, removed or obliterated.” 18 Pa.C.S.A.

§ 6110.2(a). Section 6110.2 is part of Pennsylvania's Uniform Firearms Act,

18 Pa.C.S.A. §§ 6101–6127, whose purpose “is to regulate the possession and

distribution of firearms, which are highly dangerous and are frequently used

in the commission of crimes,” Commonwealth v. Corradino, 588 A.2d 936,

940 (Pa. Super. 1991), and to “prohibit certain persons from possessing a

firearm within this Commonwealth.” Commonwealth v. Baxter, 956 A.2d

465, 471 (Pa. Super. 2008). “Firearm serial numbers are an important tool

because they help police officers identify the owner of weapons used in

criminal offenses.” Commonwealth v. Ford, 175 A.3d 985, 992 (Pa. Super.

2017).   “To ensure that serial numbers remain intact on firearms, the


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legislature has prohibited persons from defacing these markings, see 18

Pa.C.S. § 6117(a), and from possessing defaced firearms, see 18 Pa.C.S. §

6110.2.” Id.

      The evidence satisfies each element of Section 6110.2. First, construed

in the light most favorable to the Commonwealth, the evidence demonstrates

that Appellant was in constructive possession of the firearm.                The

Commonwealth may establish constructive possession through the totality of

the circumstances. Commonwealth v. Muniz, 5 A.3d 345, 349 (Pa. Super.

2010); Commonwealth v. Walker, 874 A.2d 667, 678 (Pa. Super. 2005)

(defendant exercised dominion and control over illegal drugs found in home

office along with mail addressed to defendant and closet of his clothes). Here,

Appellant resided in the house where the police discovered the firearm, as

shown by an electric bill for the house in Appellant’s name and the fact that

Appellant answered the door on the date of one of the drug purchases

(October 3, 2014) and the date of his arrest (October 16, 2014). Moreover,

the trial court found Appellant guilty of possessing, with intent to deliver, 354

grams of marijuana found hidden in the same couch as the gun and four

baggies containing 32 grams of marijuana on a coffee table in front of the

couch. Appellant has not appealed his conviction for possession of marijuana

or argued in his brief that he did not possess the marijuana. Since it is clear

that he possessed the marijuana, it is equally clear that he possessed the

firearm.


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      Next, the Commonwealth must prove that the firearm’s serial number

was “altered, changed, removed or obliterated.” 18 Pa.C.S.A. § 6110.2(a).

Natural corrosion of manufacturer’s numbers does not render them “altered,

changed, removed or obliterated” within the meaning of Section 6110.2.

Ford, 175 A.3d at 993. Appellant argues that it was more likely that the serial

number was altered by natural corrosion than by an affirmative act.            We

disagree. During trial, Appellant stipulated to the accuracy of a firearms lab

report that stated that the gun was “defaced (scratched and gouged).” These

terms connote affirmative acts rather than natural corrosion. See Webster’s

New Universal Unabridged Dictionary 475 (2nd deluxe ed. 1983) (defining

“deface” as “to destroy or mar the face or surface of . . .”); id. at 789 (defining

“gouge” as “to scoop out with . . .”); id. at 1628 (defining “scratch” as “to

tear, mark, or scrape the surface of . . .”). Thus, the evidence demonstrates

that the serial numbers on the firearm were “altered, changed, removed or

obliterated.”

      Finally, Appellant argues that he did not recklessly possess the gun in

question.       A defendant can violate Section 6110.2, however, if he

intentionally, recklessly or knowingly possesses a firearm with an altered

serial number. Commonwealth v. Jones, 172 A.3d 1139, 1145 (Pa. Super.

2017). By hiding the gun in the couch, Appellant demonstrated that he knew

the gun needed to be concealed due to its altered serial number. Id. at 1145

(fact that defendant possessed gun and secreted it under garbage bags of


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clothing in back of closet indicated that he knew its serial number had been

altered). Thus, the evidence demonstrates that Appellant had the mens rea

required for conviction under Section 6110.2.

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

evidence underlying his firearm conviction fails.3

       In his second argument, Appellant claims that the evidence was

insufficient to sustain his conviction for PIC.   We disagree.    To prove this

offense, the Commonwealth must establish that Appellant possessed an

instrument of crime with intent to employ it criminally. 18 Pa.C.S.A. § 907(a).

An instrument of crime is “anything specially made or specially adapted for

criminal use” or “anything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful uses it may

have.” 18 Pa.C.S.A. § 907(d).

       Appellant’s gun was “adapted for criminal use,” id., because the purpose

of altering or obliterating serial numbers is to prevent police from tracing guns

used in crimes back to their users. Moreover, the circumstances of this case

demonstrate that Appellant intended to use the gun for criminal purposes. He

hid the gun, whose serial numbers were altered, in the same couch as 354



____________________________________________


3 It bears mention that Appellant was not charged with actually altering or
obliterating the gun’s serial number under 18 Pa.C.S.A. § 6117. He only was
charged and convicted of possessing an altered firearm under Section
6110.2. As discussed above, the Commonwealth demonstrated beyond a
reasonable doubt that Appellant knowingly possessed an altered firearm.

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grams of marijuana and nearby another 32 grams of marijuana packaged for

sale. Viewed in the light most favorable to the Commonwealth, this evidence

shows that Appellant hid the gun in the couch so he could use it to protect his

illegal drug business, a purpose not manifestly appropriate for its lawful use.

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

evidence underlying his PIC conviction fails.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




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