J-S55011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HEZEKIAH JOHNSON                           :
                                               :
                       Appellant               :   No. 1390 EDA 2017

            Appeal from the Judgment of Sentence December 1, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012873-2015


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 14, 2018

       Appellant, Hezekiah Johnson, appeals from the judgment of sentence

entered on December 1, 2016, following his bench trial convictions for persons

not to possess a firearm and recklessly endangering another person (REAP).1

Upon review, we affirm the convictions, but we are constrained to vacate the

judgment of sentence and remand for resentencing.

       The trial court summarized the facts of this case as follows:

       On October 14, 2015, [Appellant] was sitting on the front porch
       of his home located [on] South Robinson Street, in the city and
       county of Philadelphia. At approximately 1:00 a.m., witness
       Danielle Freeman approached the front porch that was occupied
       by [Appellant] and his brother, James Hart.       Ms. Freeman
       approached [Appellant] and Mr. Hart with the intention of asking
       for a cigarette. As Ms. Freeman spoke with [Appellant], two men
       approached from the corner at Ludlow Street and immediately
       began firing weapons at Ms. Freeman, Mr. Hart, and [Appellant].

____________________________________________


1   18 Pa.C.S.A. §§ 6105(a)(a)(1) and 2705, respectively.
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       The assailants did not speak or attempt to engage in any
       conversation with the three people on the front porch[.]

       In response to the attack, Ms. Freeman, Mr. Hart, and [Appellant]
       immediately sought refuge inside the home. [Appellant’s] sister
       and her two-year-old child were in the home when the three
       entered from the porch. After the three ran into the home from
       the porch, and approximately [60] seconds after the shots began,
       [Appellant’s] sister, LaToya McLellan, called 911. Ms. Freeman,
       believing herself to be injured, immediately laid down on the floor
       of the home and watched [Appellant] disappear somewhere into
       the interior of the home. Around the one-minute mark from when
       the three entered into the home, Ms. [McLellan] dialed 911.
       […T]wo minutes after the previous gunfire had [begun],
       [Appellant] exited the home through the front door back onto the
       front porch. Immediately upon exiting the home onto the front
       porch, at least another two or three gunshots were heard, after
       which [Appellant] re-entered the house through the front door and
       proceeded to the upstairs level of the home.

       Philadelphia police arrived within one to two minutes from the
       time the 911 call was placed. Upon arrival, officers noticed that
       the front window of [the residence] had been shot out. Officers
       proceeded immediately into the home and encountered three men
       coming down the stairs from the upstairs level of the home into
       the living room. Officers took the three males into custody due to
       their profuse sweating, heavy breathing, and nervous appearance.
       The officers observed spent cartridge casings on the front porch[.]
       Philadelphia police searched the street and located six more
       cartridges in the vicinity[.] At that time, [Appellant] was placed
       under arrest and taken into custody.

Trial Court Opinion, 1/26/2018, at 1-2 (record citations omitted).

       The case proceeded as follows:

       On May 26, 2016, a waiver trial was conducted in front of the trial
       court,[2] after which [Appellant] was subsequently found guilty of
____________________________________________


2 At trial, the Commonwealth presented three, recorded prison conversations
between Appellant and his mother and an unidentified third party. See N.T.,
5/26/2016, at 46-48. During those conversations, Appellant asked if the “hot”



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       [the aforementioned charges]. On December 1, 2016, [Appellant]
       was sentenced by the court to an aggregate term of five to ten
       years[’] incarceration. [More specifically, the trial court sentenced
       Appellant to five to ten years of imprisonment with a concurrent
       sentence of one to two years for REAP.]

       On December 6, 2016, [Appellant] filed a timely post-sentence
       motion for reconsideration of his sentence. On April 6, 2017,
       [Appellant’s] motion for reconsideration of his sentence was
       denied by operation of law. On April 26, 2017, [Appellant] filed a
       notice of appeal [to this Court]. On May 2, 2017, the trial court
       issued an order pursuant to Pa.R.A.P. 1925(b) to [Appellant]
       requiring a concise statement of errors complained of on appeal
       within 21 days. [After receiving an extension, Appellant complied
       timely. The trial court issued an opinion pursuant to Pa.R.A.P.
       1925(a) on January 26, 2018.]

Id. at 3.

       On appeal, Appellant presents the following issues for our review:

       1.     Did not the lower court err and abuse its discretion in finding
              [A]ppellant guilty of 18 Pa.C.S.A. § 6105 where there was
              insufficient evidence that he possessed, used, controlled,
              sold, transferred, or manufactured or obtained a license to
              possess, use, control, sell, transfer, or manufacture a
              firearm in Pennsylvania?

       2.     Did not the lower court err and abuse its discretion by
              finding guilt where there was insufficient evidence that
              Appellant recklessly engaged in conduct which placed or
              may have placed another person in danger of death or
              serious bodily injury?

       3.     Did not the lower court err and abuse its discretion by
              imposing a sentence that is manifestly excessive and
              unreasonable by failing to consider Appellant’s rehabilitative
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“jawn” had been removed from the residence. Appellant testified at trial that
he was referring to marijuana. Id. at 63. However, the Commonwealth
argued that Appellant’s use of the word “jawn” referred to a firearm, because
Appellant stated that the “jawn” was “hot,” meaning recently used during the
commission of a crime. Id. at 71.

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              needs or otherwise follow 42 Pa.C.S.A. § 9721(b), [] by
              imposing a sentence based entirely on the severity of the
              offense?

Appellant’s Brief at 4.

       In his first issue presented, Appellant claims that there was insufficient

evidence to support his firearm conviction. Id. at 15-19. More specifically,

Appellant claims that there was no eyewitness testimony that he “possessed

a gun or had fired a gun[.]” Id. at 16. Because the police did not recover a

firearm, Appellant argues the trial court erred by relying on ballistic evidence

that showed that firearms of different calibers were discharged from the street

and the porch during exchange of gunfire in this case. Id. at 17. Appellant

claims that the trial court further erred by relying upon three, recorded

conversations that Appellant had from prison, because such evidence

constituted hearsay.3 Id. at 18.

       Our standard of review is as follows:


____________________________________________


3   Defense counsel objected to the introduction of the prison recordings,
arguing that statements made by unidentified third persons speaking to
Appellant constituted hearsay. See N.T., 5/26/2016, at 44-46. However,
because Appellant failed to raise the trial court’s admissibility ruling in his
concise statement pursuant to Pa.R.A.P. 1925(b), he has waived this aspect
of his claim. See Commonwealth v. Scott, 952 A.2d 1190, 1191 (Pa. Super.
2008) (issues not raised in a Rule 1925(b) statement are waived). Insofar as
the trial court’s evidentiary ruling relates to Appellant’s sufficiency challenge,
our Supreme Court has determined that “it is improper for a court, when
reviewing a sufficiency challenge, to eliminate from its consideration any
evidence which it deems to be inadmissible.” Commonwealth v. Sanford,
863 A.2d 428, 431 (Pa. 2004). As such, we are to consider “all of the
testimony” presented to the factfinder at trial, “without consideration as to
the admissibility of that evidence.” Id. (citation and original emphasis
omitted).

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       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. Hewlett, 189 A.3d 1004, 1008 (Pa. Super. 2018)

(citations omitted).

       Appellant was convicted of persons not to possess a firearm, which is

defined as follows:

       (1)    A person who has been convicted of an offense enumerated
              in subsection (b),[4] within or without this Commonwealth,
              regardless of the length of sentence or whose conduct meets
              the criteria in subsection (c) shall not possess, use, control,
              sell, transfer or manufacture or obtain a license to possess,
              use, control, sell, transfer or manufacture a firearm in this
              Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).



____________________________________________


4 At trial, Appellant stipulated that he had a prior conviction for an enumerated
offense under subsection (b) of the statute. See N.T., 5/26/2016, at 43. He
does not challenge this element of the crime on appeal.

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      Here, the trial court determined that there was circumstantial evidence

that Appellant exchanged gunfire with two assailants on the street in front of

his house. The trial court first noted that although Ms. Freeman did not see

Appellant physically wielding a firearm, she witnessed Appellant flee into the

home, go into another room inside the house, and rush back on to the porch

from where he originally fled. Trial Court Opinion, 1/26/2018, at 6. Appellant

was the only person who exited the home and ran towards the gunfire. Id.

Ms. Freeman heard two or three gunshots soon thereafter. Id. The trial court

found sufficient circumstantial evidence that Appellant retrieved a firearm and

returned fire on the day in question.      Id.   Police found a group of 9mm

cartridges on the sidewalk in front of the residence at issue and two spent .40

caliber cartridges on the porch. Id. at 7. The trial court determined that the

ballistics evidence was consistent with Ms. Freeman’s testimony. Id. Finally,

the trial court determined that, in reviewing three recorded prison

conversations and interpreting the slang code words used, Appellant inquired

on several occasions about what happened to the weapon used in the

shooting. Id. at 8.

      Upon review of the record, we conclude that there was sufficient

evidence to support Appellant’s firearm conviction. Here, the Commonwealth

presented circumstantial evidence that Appellant used a firearm on the day in

question. Appellant initially retreated into his home when gunshots erupted.

He went into a room and quickly rushed back outside, by himself, toward the


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gunfire. An eyewitness heard two or three additional gunshots while Appellant

was on the porch. Ballistic evidence confirmed that shots were fired from the

front porch toward the street. Taking all the evidence together, we conclude

it was proper for the trial court to infer circumstantially that Appellant

possessed and used a firearm despite the prohibition against him doing so.

Moreover, Appellant’s conversations from prison showed his concern with

police recovering somewhere inside his house the firearm used during the

commission of the crimes. Based upon our standard of review, we conclude

that sufficient evidence supported Appellant’s conviction for persons not to

possess a firearm.

       Next, Appellant contends that the Commonwealth did not present

sufficient evidence to support his conviction for REAP.    Appellant’s Brief at

20-21. More specifically, Appellant claims that because the Commonwealth

failed to present evidence that “Appellant was seen to possess or fire a gun[,]”

it did not prove his “present ability to cause harm” as statutorily required.5

Id. Having already determined that the Commonwealth presented sufficient

evidence to establish that Appellant used a firearm to support his conviction

for persons not to possess a firearm conviction, Appellant’s second issue


____________________________________________


5 “A person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S.A. § 2705. We have previously held
that “discharging [] a weapon numerous times in the vicinity of others
constitutes a sufficient danger to satisfy the REAP statute.” Commonwealth
v. Hartzell, 988 A.2d 141, 144 (Pa. Super. 2009).

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necessarily fails.   Based upon all of the foregoing, we affirm Appellant’s

convictions.

      In his final claim presented, Appellant claims that the trial court erred

by sentencing him to an excessive sentence without stating its reasons for the

sentence on record. Appellant’s Brief at 21-23. More specifically, he argues

that the trial court failed to consider his rehabilitative needs and based his

sentence entirely on the severity of the offense, without adequately stating its

reasons on the record for the imposition of the sentence. This claim implicates

the discretionary aspects of sentencing, which is not appealable as of right.

Rather, an appellant challenging the sentencing court’s discretion must invoke

this Court’s jurisdiction by satisfying a four-part test. See Commonwealth

v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).

      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect,
      Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
      that the sentence appealed from is not appropriate under the
      Sentencing Code, 42 Pa.C.S.A. § 9781(b).

      An appellate court will find a “substantial question” and review the
      decision of the trial court only where an aggrieved party can
      articulate clear reasons why the sentence imposed by the trial
      court compromises the sentencing scheme as a whole.

Id. (internal case citations omitted).

      Here, Appellant preserved his claim by filing a post-sentence motion,

filing a timely notice of appeal, and raising the issue in his concise statement


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pursuant to Pa.R.A.P. 1925(b). Moreover, an allegation that the trial court

failed to offer specific reasons for a sentence raises a substantial question.

See Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011);

see also 42 Pa.C.S.A. § 9721(b) (“In every case in which the court imposes

a sentence for a felony or misdemeanor [] the court shall make as a part of

the record, and disclose in open court at the time of sentencing, a statement

of the reason or reasons for the sentence imposed.”) (emphasis added).

      Our standard of review in sentencing matters is well settled:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(citation omitted).

      This Court has previously determined:

      [T]he court must state its reasons on the record at the time the
      sentence is imposed. Requiring the sentencing court to state its
      reasons at that time provides a procedural mechanism for the
      aggrieved party both to attempt to rebut the court's explanation
      and inclination before the sentencing proceeding ends, and to
      identify and frame substantive claims for post-sentence motions
      or appeal. Therefore, [] it is not sufficient for the trial court to
      state its reasons in a post-sentence Rule 1925(a) opinion. The
      reasons must be given “in open court at the time of sentencing.”
      42 Pa. C.S. § 9721(b).

      […A]lthough a sentencing court need not undertake a lengthy
      discourse for its reasons for imposing a sentence, ... the record as

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      a whole must reflect the sentencing court's consideration of the
      facts of the crime and character of the offender. A discourse on
      the court's sentencing philosophy, as it applies to the defendant
      before it, is not required. […T]he reasons must reflect the judge's
      consideration of the sentencing code, the circumstances of the
      offense and the character of the offender.

Commonwealth v. Flowers, 149 A.3d 867, 875–876 (Pa. Super. 2016)

(case citations, original brackets, and most quotations omitted).

      Moreover, we have stated:

      When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the defendant's prior criminal record, age, personal characteristics
      and potential for rehabilitation. Where pre-sentence reports exist,
      we shall ... presume that the sentencing judge was aware of
      relevant information regarding the defendant's character and
      weighed those considerations along with mitigating statutory
      factors. A pre-sentence report constitutes the record and speaks
      for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).

      Here, upon review of the certified record, the trial court did not place its

reasons for the imposition of Appellant’s sentence on the record. Instead,

when Appellant attempted to reargue the merits of his case during allocution,

the trial court cut him off and imposed sentence without any elaboration. See

N.T., 12/1/2016, at 14-15. Thereafter, while the trial court states in its Rule

1925(a) opinion that it considered the need to protect the public, the gravity

of the offense and the rehabilitative needs of Appellant, as well as Appellant’s

“numerous arrests as both an adult and juvenile, his numerous convictions,

his previous violations while under court supervision, [and] defense counsel’s


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mitigation arguments” in fashioning Appellant’s sentence, it is not sufficient

for the trial court to state its reasons in a subsequent Rule 1925(a) opinion.

See Trial Court Opinion, 1/26/2018, at 13-14. Moreover, while the docket

indicates that a presentence investigation report was requested in this matter,

it is not contained in the certified record and the trial court did not

acknowledge that it had the benefit of such a report in rendering its decision

at the time of sentencing.   As such, there is no indication of record that the

trial court received, reviewed, or was aware of a presentence investigation

report and, thus, we cannot presume that the trial court was aware of all of

the relevant information when sentencing Appellant. Hence, the trial court

abused its discretion by failing to state the reasons on the record for the

imposition of Appellant’s sentence.      Accordingly, we affirm Appellant’s

convictions, but are constrained to vacate Appellant’s judgment of sentence

and remand for resentencing.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/18


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