J-S46031-17

                                  2017 PA Super 263


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    JORDAN ANTHONY BATTY                       :   No. 275 MDA 2017

                Appeal from the Order Entered January 10, 2017
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002942-2015


BEFORE:      BOWES, OLSON, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 16, 2017

       The Commonwealth appeals the January 10, 2017, order entered in

the Court of Common Pleas of York County granting Appellee Jordan

Anthony Batty’s post-sentence motion and ordering a new trial.1 Following a

careful review, we reverse the order granting a new trial and reinstate

Appellee’s October 27, 2016, judgment of sentence.

       The relevant facts and procedural history are as follows: On

September 11, 2015, a jury convicted Appellee, who was represented by

counsel, of receiving stolen property, firearms not to be carried without a




____________________________________________


*
 Former Justice specially assigned to the Superior Court.
1
  The Commonwealth is permitted to appeal as of right from an order
awarding a new trial to a defendant. See Pa.R.A.P. 311(a)(6).
J-S46031-17


license, and possession of a firearm prohibited.2   On October 29, 2015, at

the sentencing hearing, the lower court indicated that it believed Appellee’s

trial counsel had been ineffective during his closing argument and/or the

court erred in issuing its jury instructions.    Accordingly, the lower court

suggested Appellee should waive his direct appeal rights and make an oral

motion for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546.

        The lower court then sentenced Appellee to five to ten years in prison

for possession of a firearm prohibited, a concurrent three and one-half to

seven years in prison for possession of a firearm without a license, and a

consecutive two and one-half to five years in prison for receiving stolen

property. Immediately thereafter, despite the Commonwealth’s objection,

the lower court explained that an agreement had been reached whereby

Appellee was waiving his direct appeal rights and making an oral motion for

PCRA relief. The lower court indicated it was granting the oral PCRA motion

and directing that a new trial be held.

        The Commonwealth filed a timely notice of appeal to this Court

arguing that the lower court had erred in bypassing the proper procedures

and rules for appellate and post-conviction review.       In an unpublished

memorandum filed on June 29, 2016, we agreed with the Commonwealth,

____________________________________________


2
    18 Pa.C.S.A. §§ 3925(a), 6106(a)(1), and 6105(a)(1), respectively.



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thus vacating the lower court’s order, vacating Appellee’s judgment of

sentence, and remanding for resentencing. See Commonwealth v. Batty,

No. 1961 MDA 2015 (Pa.Super. filed 6/29/16) (unpublished memorandum).

       Upon remand, the lower court3 appointed Appellee new counsel, and

on October 27, 2016, Appellee proceeded to a sentencing hearing at which

the lower court imposed the following sentence: three and one-half years to

seven years in prison for receiving stolen property, a concurrent three and

one-half years to seven years in prison for carrying a firearm without a

license, and a consecutive five to ten years in prison for possession of a

firearm prohibited. Thus, the lower court imposed an aggregate sentence of

eight and one-half to seventeen years in prison. The lower court properly

provided Appellee with his post-sentence and direct appeal rights.

       On November 1, 2016, counsel filed on behalf of Appellee a motion to

permit counsel to file a post-sentence motion nunc pro tunc due to counsel’s

recent appointment, and on November 3, 2016, the lower court granted the

petition, expressly giving Appellee until November 23, 2016, to file his post-

sentence motion.4

____________________________________________


3
 We note that the judge who presided over Appellee’s jury trial and October
29, 2015, sentencing hearing is not the same judge who presided over
Appellee’s October 27, 2016, sentencing hearing and post-sentence motion
proceedings.
4
 We note the lower court properly permitted Appellee to file a post-sentence
motion nunc pro tunc. It is well-settled that:
(Footnote Continued Next Page)


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J-S46031-17


      On November 23, 2016, Appellee filed a counseled post-sentence

motion nunc pro tunc, to which the Commonwealth filed a motion to dismiss.

By order and opinion filed on January 10, 2017, the lower court granted

Appellee’s request for a new trial. Specifically, the lower court agreed with

Appellee that the court’s jury instruction on the charge of possession of a

firearm prohibited was erroneous and “usurped the function of the jury to

determine a verdict in a criminal case[.]”          Lower Court Opinion, filed

1/10/17, at 5.    Specifically, the lower court held as follows:

           The defense stipulated that [Appellee] was a person not to
      possess. [Appellee] was found in possession of the weapon.
      The only issue left for [the] defense to argue was the operability
      of the weapon.        A long line of case law requires the
      Commonwealth to prove that the “firearm” was operable or that
      [Appellee] at least had the immediate means to make it so, in
      order to sustain a conviction under [ ] Section [6105].
      Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973).
                                            ***
           During its instructions, the court told the jury that the
      elements of the offense “...are proven beyond a reasonable
      doubt.” Further, the trial court told the jurors that it did not
                       _______________________
(Footnote Continued)

     To be entitled to file a post-sentence motion nunc pro tunc, a
     defendant must, within 30 days after the imposition of sentence,
     demonstrate sufficient cause, i.e., reasons that excuse the late
     filing....When the defendant has met this burden and has shown
     sufficient cause, the trial court must then exercise its discretion
     in deciding whether to permit the defendant to file the post-
     sentence motion nunc pro tunc. If the trial court chooses to
     permit a defendant to file a post-sentence motion nunc pro tunc,
     the court must do so expressly [within thirty days after the
     imposition of the sentence].
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa.Super. 2003) (en
banc) (footnote omitted).



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      matter whether the firearm was operable, which is contrary to
      the statute and case law[.] The effect of the court’s instructions
      was to instruct the jury that two of the necessary elements of
      the offense are proven beyond a reasonable doubt and that the
      Commonwealth did not have to prove the third. While it is not
      disputed that a judge can render an opinion concerning the
      evidence in the case, and there is even case law permitting a
      judge to comment on guilt or innocence, the failure to give an
      accurate instruction concerning the law is reversible error. The
      combined effect of the court’s instructions on this matter was to
      direct a verdict in favor of the Commonwealth, which usurped
      the jury’s function, and deprived the defendant of his right to
      have this offense decided by a jury.

Id. at 4-6 (citations to record, internal citation, and footnote omitted).

      The Commonwealth filed this timely notice of appeal, and all Pa.R.A.P.

1925 requirements have been met.

      On appeal, the Commonwealth contends the lower court erred in

granting   Appellee’s   post-sentence   motion   and   ordering   a   new    trial.

Specifically, the Commonwealth argues (1) the lower court erred in

concluding the court’s instruction was legally inaccurate on the basis the

instruction failed to inform the jury as to a necessary element for the charge

of possession of a firearm prohibited (i.e., that the Commonwealth was

required to prove the firearm was operable in order for the jury to convict

Appellee of this offense), and (2) the lower court erred in concluding the

court’s instructions usurped the role of the jury by directing the jury to

render a guilty verdict with regard to the offense of possession of a firearm

prohibited.




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J-S46031-17


      Our standard of review in assessing a trial court’s jury instruction is as

follows:

      When evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that [ ] it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014).

      In charging the jury in the case sub judice, the trial court relevantly

stated the following:

            We start with the fundamental principle of our system of
      criminal law that [Appellee] is presumed to be innocent. The
      mere fact that he is arrested and accused of a crime is not
      evidence against him.
            Furthermore, [Appellee] is presumed innocent throughout
      the trial and unless and until you conclude based upon careful
      and impartial consideration of the evidence that the
      Commonwealth has proved him guilty beyond a reasonable
      doubt.
             I’ll define reasonable doubt in just a moment. That means
      that it is not [Appellee’s] burden to prove that he is not guilty.
      Instead, it is the Commonwealth that always has the burden of
      proving each and every element of the crime charged and that
      [Appellee] is guilty of the crime beyond a reasonable doubt.
            A person accused of a crime is not required to present
      evidence or prove anything in his own defense.        If the
      Commonwealth’s evidence fails to meets its burden, then your
      verdict must be not guilty.
            On the other hand if the Commonwealth’s evidence does
      prove beyond a reasonable doubt that [Appellee] is guilty, then
      your verdict should be guilty.
                                  ***

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J-S46031-17


           A reasonable doubt is defined as a doubt that would cause
     a reasonably careful and sensible person to hesitate before
     acting upon a matter of importance in his or her own affairs.
                                 ***
           So as the jury is the judge of the facts; therefore, the jury
     judges and is the sole judge of the credibility of the witnesses
     and their testimony.      And this means you must judge the
     truthfulness and accuracy of each witness’ testimony and decide
     whether to believe all, part, or none of that testimony.
                                 ***
            You may find that there was conflicting information given
     to you. If there was a conflict in the testimony, then the jury
     has the duty of deciding which testimony to believe. But first
     you should try to reconcile; that is, to fit together any kind of
     conflicts if you can do so.
                                 ***
           All that is necessary is whatever type of evidence you use
     be sufficient to convince you beyond a reasonable doubt.
                                 ***
          Now let’s turn to the actual charges. There are three
     charges. One is that [Appellee] possessed a firearm when he is
     a person who is prohibited from possessing a firearm. The
     second is that he possessed it without a license. Third is that he
     possessed recently stolen property.
           And so you’ll actually have three verdicts. One verdict for
     each of those three counts. So it will be guilty or not guilty of
     charge one, guilty or not guilty of charge two, guilty or not guilty
     of charge three.
           In order to prove that [Appellee] has committed the
     offense of possessing a weapon when prohibited, the following
     elements have to be proven by the Commonwealth. They are
     proven beyond a reasonable doubt.
            First, that [Appellee] was a person who was prohibited by
     law to possessing a weapon. Normally, that would be part of the
     testimony that would have been provided to you. In this case,
     it’s not disputed. Counsel agreed we’ll just skip that stage in the
     proceedings. We will stipulate that it is agreed and, in fact,
     [Appellee] is prohibited. So that’s a given for you in the case



                                    -7-
J-S46031-17


     and you need not question any further as to that particular
     element.
            The next element is that it was more likely than 60 days
     from the time that he became a person prohibited by law. So in
     effect, if you become prohibited and you own a weapon at that
     time that you reached the status, you have a grace period of 60
     days to get rid of the weapon without being guilty of a violation.
           The question you have to ask yourself is, when did he
     become prohibited? That date was stipulated. That date that
     was stipulated to was more than 60 days. So again, you have to
     go through and apply the stipulation and make your finding.
           And in regard to that specific offense, the term firearm
     includes any weapon that is designed or may be readily
     converted to expel a projectile by means of an explosive. It also
     includes the frame or receiver of such weapon. So even if the
     weapon would not be operable, it still would be illegal for
     [Appellee] to possess it because of his prohibited status.
           So defense counsel raised an issue of operability in regard
     to the second charge, that of carrying the weapon without a
     license. And the issue of operability is present as to that charge.
     It is not present as to possessing it by a person who is
     prohibited.
          So whether it was operable or not matters not if he
     possessed a gun as I’ve just defined it for that Section. He
     would be guilty of the crime.
            For a person to possess a firearm, that person must have
     the intent to control and power to control the firearm. So it is up
     to you to determine if, in fact, there was—this gun that was put
     into evidence was, in fact, taken from [Appellee’s] waistband;
     and if he was carrying it around in his waistband, if he possessed
     it as is required for this offense.
                                    ***
          Some final concluding instructions. It is the Court’s
     responsibility to decide questions of law. Therefore, you must
     accept and follow my rulings and my instructions regarding
     matters of law.
          However, the judge is not to determine the facts of the
     case. The jury is the sole judge of the facts. So it is your
     responsibility to consider the evidence, to find the facts, and to



                                    -8-
J-S46031-17


      apply the law as I’ve given it to you to determine if [Appellee]
      has been found guilty beyond a reasonable doubt.

N.T., 9/11/15, at 125-26, 130, 132, 136, 138-41, 149.

      In the case sub judice, as indicated supra, in granting Appellee’s post-

sentence motion and awarding a new trial, the lower court first determined

that the instant jury instruction inaccurately and incorrectly defined the

elements necessary for a conviction under Section 6105, possession of a

firearm prohibited. Specifically, citing to Commonwealth v. Layton, 452

Pa. 495, 307 A.2d 843 (1973), the lower court determined that the court’s

instruction should have informed the jury that the Commonwealth was

required to prove that the firearm was operable, or Appellee had the means

to make it operable, in order to convict Appellee of possession of a firearm

prohibited.   Accordingly, since the instruction informed the jury that

operability was not an element of the crime, the lower court determined that

the court’s jury instruction constituted reversible error requiring a new trial

as to that charge.    For the reasons discussed infra, we agree with the

Commonwealth that the trial court’s jury instruction accurately and clearly

set forth the elements for the jury’s consideration as to the crime of

possession of a firearm prohibited, and therefore, a new trial was not

required on this basis.

      In Commonwealth v. Thomas, 988 A.2d 669 (Pa.Super. 2009), this

Court held the following:




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J-S46031-17


           In order to obtain a conviction under [Section] 6105, the
     Commonwealth must prove beyond a reasonable doubt that the
     defendant possessed a firearm and that he was convicted of an
     enumerated offense that prohibits him from possessing, using,
     controlling, or transferring a firearm. The term “firearm” is
     defined in that [S]ection as any weapon that is “designed to or
     may readily be converted to expel any projectile by the action of
     an explosive or the frame or receiver of any such weapon.” 18
     Pa.C.S.[A.] § 6105(i).
                                    ***
           [Thomas] does not dispute that the revolver was designed
     to expel bullets or that he attempted to destroy it in the
     presence of the arresting officer; he simply maintains that a
     defendant cannot be convicted under [S]ection 6105 unless the
     weapon is found to be operable. In leveling this argument,
     [Thomas] relies upon [Layton, supra], and Commonwealth v.
     Stevenson, 894 A.2d 759 (Pa.Super. 2006). [W]e reject this
     claim[.]
            In Layton, supra, our Supreme Court reversed a
     conviction for illegal possession of a handgun because the
     weapon was inoperable, and the record failed to establish why
     the gun would not fire. However, that case was decided under a
     provision of the Uniform Firearms Act, 18 P.S. § 4628, which has
     been repealed and replaced by [S]ection 6105. The current
     statute applies to any weapon that is designed to fire
     ammunition containing an explosive charge, whereas [S]ection
     4628 contained much narrower language and defined a firearm
     as “any pistol or revolver with a barrel less then twelve inches,
     any shotgun with a barrel less than twenty-four inches or any
     rifle with a barrel less than fifteen inches.” Thus, contrary to
     [Thomas’] position, Layton is neither controlling nor instructive
     because that decision is based upon statutory language that was
     rewritten in 1995.
            [Thomas’] reliance on Stevenson, supra, is similarly
     misplaced.      In that case, [Stevenson] was convicted of
     [possession of a firearm prohibited] after police officers
     recovered a Beretta handgun from his person during an
     investigatory detention. [Stevenson] challenged his conviction
     on the basis that the gun was inoperable, citing evidence that
     the firing pin fell out while the weapon was being test-fired. This
     Court upheld [Stevenson’s] conviction under Layton, reasoning
     that the Beretta was “clearly operable” for purposes of [S]ection


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J-S46031-17


     6105 because it functioned normally during the initial test-firing
     session and continued to function after the firing pin was
     reinserted. Id. at 776.
            [Thomas] argues that Stevenson is significant because it
     “interpreted the current version of the Uniform Firearms Act, and
     [the Stevenson Court] clearly reasoned that operability remains
     an element for the offense at issue [in his case].” While we
     agree that Stevenson was decided after the current version of
     the Act became effective, we are not persuaded that operability
     is an essential element of [S]ection 6105 based upon that case.
     Layton and the other firearm possession cases cited in
     Stevenson were published several years before the legislature
     materially altered the definition of a firearm for purposes of
     [S]ection 6105 and certain enumerated [S]ubsections of
     [S]ection 6106. Under the revised definition, an individual is
     subject to criminal prosecution if he unlawfully possesses: (1)
     any weapon that is specifically designed to or may readily be
     converted to expel a projectile by means of an explosive; or (2)
     the frame or receiver of such a weapon. See 18 Pa.C.S.[A.] §
     6105(i)[.] The statutory language is clear, and it does not
     require proof that the weapon was capable of expelling a
     projectile when it was seized; on the contrary, the fact that a
     person can be prosecuted simply for possessing a semiautomatic
     pistol frame refutes this notion because the frame requires
     additional parts, e.g., a slide and barrel, in order to fire a bullet.
     Thus, the use of the terms “frame” and “receiver” in [S]ection
     6105(i) demonstrates that the legislature sought to eliminate the
     operability requirement articulated in Layton for purposes of
     this [S]ection.
           The Stevenson Court did not review the pertinent
     statutory language and proceeded to analyze [Stevenson’s]
     claims in accordance with Layton, which was no longer
     applicable to a conviction under this [S]ection. Nevertheless, it
     correctly denied relief on the basis that [Stevenson] possessed a
     handgun that was specifically designed to shoot bullets.
     Accordingly, that decision does not preclude us from reviewing
     [Thomas’] argument under the appropriate standard.




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Thomas, 988 A.2d at 670-72 (citations and footnote omitted).                        See

Commonwealth v. Miklos, 159 A.3d 962, 967 (Pa.Super. 2017) (“To

sustain a conviction for the crime of persons not to possess a firearm, 5 the

Commonwealth must prove that ‘[the appellant] possessed a firearm and

that he was convicted of an enumerated offense that prohibits him from

possessing,     using,   controlling,    or    transferring   a   firearm.’”)   (quoting

Thomas, 988 A.2d at 670 (Pa. Super. 2009) (footnote added)).

       Based on the aforementioned, we agree with the Commonwealth that

the trial court’s charge in the instant case adequately conveyed to the jury

the correct elements for the offense of possession of a firearm prohibited.

Specifically, the trial court informed the jury that the elements of the crime

are that the person was prohibited by law from possessing a firearm and

that Appellee’s possession of the firearm had to be more than sixty days

after he became prohibited from so doing.                N.T., 9/11/15, at 139-41.

Further, the trial court properly defined the term “possession” as well as

“firearm.” Id.      Moreover, contrary to the lower court’s ruling on Appellee’s

post-sentence motion, the trial court properly clarified for the jury that the

Commonwealth was not required to prove that the firearm was “operable” in

order to convict Appellee of possession of a firearm prohibited.                    See

Thomas, supra.
____________________________________________


5
 Case law refers to the offense codified at 18 Pa.C.S.A. § 6105 as persons
not to possess a firearm and/or possession of a firearm prohibited.



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      The next reason provided by the lower court in granting Appellee’s

post-sentence motion and awarding a new trial is that the trial court’s jury

instruction “direct[ed] a verdict in favor of the Commonwealth, which

usurped the jury’s function, and deprived [Appellee] of his right to have this

offense decided by a jury.” Lower Court Opinion, filed 1/10/17, at 6. In so

concluding, the lower court focused on the following portion of the trial

court’s charge:

      In order to prove that [Appellee] has committed the offense of
      possessing a weapon when prohibited, the following elements
      have to be proven by the Commonwealth. They are proven
      beyond a reasonable doubt.

N.T., 9/11/15, at 139 (emphasis added).

      We note:

      It is well-established that an accused in a criminal case is
      entitled to presumption of innocence; the Commonwealth is the
      party that must come forward with the evidence to establish
      guilt. An accused is not required to disprove his alleged guilt of
      an element of an offense.          In all criminal cases, the
      Commonwealth must establish the defendant's guilt beyond a
      reasonable doubt.

Commonwealth v. Gearhart, 384 A.2d 1321, 1323 (Pa.Super. 1978) (en

banc) (citations omitted).

      Our jurisprudence denounces instructions which direct a verdict of

guilt. “Directed verdicts of guilt in criminal cases negate the presumption of

innocence and, as such, are never permissible.” Id. (footnote and citation

omitted).




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J-S46031-17


       Here, the Commonwealth argues that, while the trial judge may have

misspoken in the isolated sentence highlighted by the lower court in ruling

on Appellee’s post-sentence motion,6 when read in its entirety, the trial

court’s jury instruction fairly conveyed the appropriate legal principles and

did not direct a verdict of guilt as to the offense of possession of a firearm

prohibited. We agree.

       For instance, with regard to the instant offense, the trial court properly

instructed the jury that Appellee stipulated to the fact he was prohibited

from possessing a weapon, as well as stipulated to the date his prohibition

began.     The trial court then informed the jury that, even though Appellee

had so stipulated, the jury still had to “go through and apply the stipulation

and make your finding.”          N.T., 9/11/15, at 140.   The trial court further

informed the jury of the correct definition for “firearm.” Id. The trial court

specifically instructed the jury to make factual and credibility determinations

as to whether Appellee possessed such an item. Id. at 141.

       Moreover, the trial court repeatedly instructed the jury throughout its

charge that the jury was the finder of fact and the Commonwealth was

required to prove Appellee’s guilt as to each offense beyond a reasonable

doubt. The trial court explained Appellee was charged with three offenses
____________________________________________


6
  We note that Appellee did not object to this portion of the jury instruction
at trial. Thus, the trial court was never given the opportunity to clarify to
the jury whether it had misspoken and intended to say “they are to be
proven beyond a reasonable doubt.”



                                          - 14 -
J-S46031-17


and, for each offense, the jury had to render a verdict of guilty or not guilty.

Id. at 139.

      Thus, viewing the instruction as a whole, we agree with the

Commonwealth that the general effect of the charge accurately and fairly

conveyed the legal principle at issue, did not compel the jury to render a

particular verdict, and did not usurp the jury’s function. Commonwealth v.

Bracey, 831 A.2d 678, 684 (Pa.Super. 2003) (“In reviewing a challenged

jury instruction, we must review the charge as a whole and not simply

isolated portions, to ascertain whether it fairly conveys the required legal

principles at issue.”) (citation and quotation omitted)); Commonwealth v.

Clark, 683 A.2d 901, 904 (Pa.Super. 1996) (“Error will not be predicated on

isolated excerpts.    Instead, it is the general effect of the charge that

controls.”) (citation omitted)).

      For all of the aforementioned reasons, we reverse the lower court’s

order granting Appellee a new trial and we reinstate Appellee’s October 27,

2016, judgment of sentence.

      January 10, 2017, order for new trial REVERSED; October 27, 2016,

judgment of sentence REINSTATED; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2017

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