J-S56039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSEPH SAITA,

                            Appellant                 No. 2140 MDA 2014


              Appeal from the Judgment of Sentence April 23, 2014
              in the Court of Common Pleas of Lackawanna County
                Criminal Division at No.: CP-35-CR-0002364-2013


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 12, 2015

        Appellant, Joseph Saita, appeals from the judgment of sentence

imposed following his jury conviction of firearm not to be carried without a

license, in violation of 18 § 6106(a)(2).1 We affirm on the basis of the trial

court’s opinion.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    In relevant part, the statute provides:

              A person who is otherwise eligible to possess a valid
        license under this chapter but 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 and has not
        committed any other criminal violation commits a misdemeanor
        of the first degree.

18 Pa.C.S.A. § 6106(a)(2).
J-S56039-15


       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them at length.        For the convenience of the reader we note that

Appellant, a tow truck operator, was stopped by police for various vehicle

code violations not at issue here. He was placed under arrest when it was

discovered he had an outstanding warrant.           While Appellant was being

processed after arrest, the officers found that he was carrying a firearm, a

Kel-Tec .380 handgun, concealed in a holster under his sweatshirt.

Appellant did not possess a valid license for the firearm.

       A jury convicted him of firearm not to be carried without a license on

February 11, 2014.        Appellant timely appealed following the denial of his

post-sentence motions.2

       Appellant raises four questions for our review:

             I. Whether the [trial] court erred in denying [A]ppellant’s
       request for more specific jury instructions relating to concealed
       carry laws?

              II. Whether the [trial] court erred in permitting a lay
       witness to testify on expert matters despite the fact that
       [A]ppellant was never on notice of the Commonwealth’s intent to
       call an expert witness?

             III. Whether the [trial] court erred in permitting lay
       witnesses to testify to and opine on the applicable law?

____________________________________________


2
 Appellant filed a statement of errors on January 2, 2015. See Pa.R.A.P.
1925(b). The trial court filed a Rule 1925(a) opinion on March 12, 2015.
See Pa.R.A.P. 1925(a).



                                           -2-
J-S56039-15


           IV. Whether 18 Pa.C.S.A. § 6106 is unconstitutionally
      vague as applied to the facts of this case?

(Appellant’s Brief, at 7).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that there is no merit to the issues Appellant has raised on appeal. The trial

court opinion properly disposes of the questions presented. (See Trial Court

Opinion, 3/12/15, at 4-25) (concluding: (1) trial court properly exercised its

discretion in declining Appellant’s request for more specific jury instructions

on the firearms not to be carried without a license statute (18 Pa.C.S.A.

§ 6106); (2) trial court properly permitted police officer to testify about

operability of weapon at issue in rebuttal to challenge by defense counsel to

operability of weapon; (3) trial court properly permitted a sheriff’s deputy to

testify about the law pertaining to obtaining a license to carry a concealed

weapon in Pennsylvania, which was within the scope of her official duties,

where the trial court instructed the jury four separate times that it was the

role of the trial court alone to provide the applicable law to the jury; and (4)

18 Pa.C.S.A. § 6106 was not unconstitutionally vague).         Accordingly, we

affirm on the basis of the trial court’s opinion.




                                      -3-
J-S56039-15


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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                                                                          :.l:l:i   i'ii;d   le    F:(1 2 :Li
                  COM.OF PENNSYLVANIA                     : IN THE COURT COMMON PLEAS
                                                          :OF LACKAWANNA COUNTY

                                  V.
                                                          : CRIMINAL DIVISION
                  JOSEPH SAITA
                        Defendant                         : 2013 CR 2364



                              OPINION PURSUANT TO Pa. R. A. P. 1925{a)

            Bisignani Moyle, J.

            I.      INTRODUCTION AND PROCEDURAL HISTORY

    I   J         The instant action arises out of the above-referenced Defendant's Motion for

    'I      Post Trial Relief and/or Reconsideration.   Defendant Joseph Saita (hereinafter

            "Defendant") has appealed various rulings made by this Court during the course of

            his trial, as a result of which he was convicted of one ( 1) count of Carrying a Fire mm

            Without a License in violation of Title 18 § 6106 §§ A2. On April 23, 2014, this

            Court sentenced the Defendant to serve a sentence of one (1) year probation.

                  The Defendant then filed a number of post-sentence motions. On May 5, 2014

            the Defendant filed a Motion for Judgment of Acquittal and/or a New Trial pursuant

1           to Pa.R.Criminal.P 720. On November 25, 2014 this Court denied the Motion for

If          Judgment of Acquittal and/or a New Trial. Following this, the Defendant filed a

            Notice of Appeal to the Superior Court on December 16, 2014 and a Statement of
I,
        I Matters Complained of on Appeal on January 2, 2015, pursuant to Pa.R.A.P.                 1925(b).

            This Court will briefly address each issue as required under Pa.R.A.P. 1925(a).




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     II.     FACTUAL BACKGROUND

           The evidence offered at trial demonstrated as follows:

           On October 19, 2013 Corporal McDonald and Officer Golden of the Scranton

     Police Department were assigned to work the nighttime hours to detect and deter

     criminal activity within the City of Scranton. N.T. 2/10/14 at p. 6.    Specifically, the

     two Officers were "aggressively enforcing traffic violations, any other type of crimes

     that we may have stumbled across while out there." Id. While on patrol, the Officers

     were primarily focusing on the downtown area. Id. at p.7.

           The Officers observed a flatbed tow truck on Mulberry Street heading due west.

.1 Id. The Officers noticed the truck had several marker lights ·out, a-registration light

     out, and a malfunctioning left lower tum signal light out. Id. The Officers initiated a

     traffic stop while on the 400 block of Mulberry Street. Id.    They identified the driver

I    as Joseph Saita. Id. The Officers then conducted a standard license and warrants

I    check on the driver. Id. The standard check revealed the Defendant's driver's

I I license was valid.   It also revealed that the Defendant had no criminal warrants. Id. at

l   1 ~-   However, Corporal McDonald requested a further check for warrants at Police

I   Headquarters. He testified the second check revealed the Defendant had a "summary
I
I   warrant for a traffic violation for $171. 00 out of Magistrate W are' s office." Id. The

I   Officers issued a citation for the lighting violations and for a heat shield violation.

    Id. at p. 10. The Officers then informed the Defendant of the warrant and placed him

    under arrest. Id.

           He was handcuffed and a pat-down search was conducted by Officer Golden.

    Id. at p. 11. During the pat-down, Officer Golden located a pill bottle in the



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         Defendant's pocket. Id. at p.12. Officer Golden noticed that there were different

         types of pills in the bottle.   Id. at p. 41-42. The pills were later determined to be

         Suboxone and Xanax mixed within the same prescription medication bottle. Id. An

         additional charge of unlawfully possessing Xanax was filed against the Defendant.

         Id. at 21.

               Corporal McDonald testified Officer Benke, the wagon officer, arrived on scene

         to transport the Defendant. Id. at p.11. He transported Mr. Saita to the Lackawanna

         County Processing Center which is located in the basement of the Lackawanna

         County Courthouse. Id. at p.11-12.       Officer Golden testified that it is the wagon

         officer's responsibility to again search an individual prior to placing him in the

         transportation vehicle. Id. at p.42. Officer Golden and Corporal McDonald remained

         with the Defendant's vehicle, the Officers had the vehicle towed because it was

     I   obstructing the roadway. Id. Once the vehicle was towed the officers cleared the

     I   scene and went to headquarters to prepare paperwork and enter the pills into

         evidence. Id. at p. 12.

 I
i'             While at Headquarters, the Officers were informed by Officer Benke that the

         Defendant had a fire mm concealed on his person when he was brought into the

         Processing Center. Id. at p. 13. The gun was found as the Defendant was being

         patted down by Lackawanna County Sheriff's Deputies. Id. It was located

         underneath the Defendant's hooded sweatshirt, Id. at p. 13-14.        Corporal McDonald

 . testified that his research revealed the Defendant did not have a valid license to carry

         a concealed weapon. Id. at p. 14. Corporal McDonald further testified that the

 j       Defendant never mentioned the firearm during the traffic stop and subsequent arrest.



                                                          3


.I
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         Id. at p.14. Corporal McDonald added the additional charges against the Defendant

         for a Firearm Not to be Carried Without a License. Id.

     I   III.        DISCUSSION- MATTERS COMPLAINED OF ON APPEAL
                                         I
                     PURSUANT TO 1925(B)

                             A. JURYIINSTRUCTIONS

                           The first tlJee averments made by the Defendant concern the jury

                    instructions given btfore deliberations began. In the Defendant's Statement of

                    Matters Complained of on Appeal pursuant to Rule 1925(B), the Defendant

                    specifically averred,in his first three claims that the Court erred by instructing

                the jury as requester by the Defendant.1 The· Defendant requested the jury be

                instructed as follows,

                                    1. Ladies and Gentleman, you have heard testimony in this
                           matter that tlie Defendant possessed a firearm. However, it is not illegal
                           per se to simply possess a firearm in public. In Pennsylvania, there is a
                           right to can~ a firearm in public so long as that firearm is not concealed.

                                   As I have already instructed you, Pennsylvania law only
                           prohibits carrying a concealed firearm without a license and carrying a
                           concealed fiiearm without a license and carrying a firearm in a vehicle
                           without a li6ense. It is undisputed that Defendant did not possess a
                           license to cciny a concealed weapon. Neve1iheless, there are several
                           exceptions to the general rule which allow a person to carry a concealed
11                         weapon or drry a weapon in a vehicle without a license.
11
!                                  Speci~cally, in this case, the Defendant has claimed that two
I                          exceptions apply. First, Defendant claims that he is exempt from the
                           rule because he was transporting his firearm between work and home.
                           Under Penn ylvania law, a person is exempt from the prohibition on
                           can·ying a cohcealed weapon if he is carrying a firearm which (1) is not
                           loaded, (2) is in a secured wrapper, (3) while "moving from one place of

                I                        I
                  This was erroneously pied
                                        I
                                            by the Defendant. On His Statement of Matters Complained of on
                Appeal , the Defendant stated that the trial court erred in instructing the jury as requested by the
                Defendant. On the contrary, the Court did not use the language cited in Defendant's Matters
                Complained of on Appel The Defendant asked the Court to give the requested jury
                instructions but the Cow1 declined. This Court will address the errors alleged accordingly.

                                                                 4
                                                                    Circulated 10/20/2015 01:28 PM




        abode or business to another." Therefore, if you find that the firearm
        which Deferidant was carrying was not loaded, was in a secure wrapper,
        and was bei ! g carried between Defendant's home and place of business,
        you must rerm a verdict of not guilty.

                Secondly, Defendant claims that he is exempt from the rule
        because he 1worked in a business which required him to protect the
        property o~ others.      Specifically, Pennsylvania Law provided an
        exception for (1) agents, and employees; (2) of business firms; (3)
        whose dutiesI require them to protect valuables and other property in the
        discharge o~ such duties. If you find these elements to be satisfied, you
        must return a verdict of not guilty.

                2.    Ladies and Gentlemen, you have heard testimony in this
        matter that the Defendant possessed a firearm. If you find that the
        Defendant did indeed possess a firearm, your inquiry in this matter is
        not at an end. In order for the Defendant to be criminally liable, he must
        have possedsed a firearm that was "operable or capable of being
        converted into an object that could fire a shot." "An operable fireann
        may be said Ito be under the control of the alleged actor even though it is
        a malfunctioning assembled firearm or a disassembled firearm, if the
        alleged actor has under his control the means to convert the inoperable
        firearm into ~n operable firearm." Therefore, if you find that the firearm
        which Defehdant is alleged to have carried was inoperable and the
I       components to make it operable were not in the control of and readily
        available to the Defendant at the time of his arrest, you must return a
        verdict of not guilty.

I                3.    adies and Gentleman, in your deliberations in this matter
         you should onsider the policy behind the prohibition of the Firearms
I   I    Law and w~ether Defendant's conduct falls within the conduct sought
11      to be sanctiohed by this policy. Specifically. the statute at issue has "the
         aim of discoraging the carrying of unlicensed weapons because of the
11
         inherent thre1at to human life and public peace, the primary thrust of the
I
         statute being to prohibit a practice evil in its tendencies. Whether the
I       Defendant dctually concealed a firearm "depends on the particular
        circwnstancJs present in each case" and is a factual question for you the
        jury to evalJate given the specific facts of this case. If you find that
        Defendant's conduct is not the type to be prevented by this policy, you
        may choose to consider this in your determination as to whether the
        element of c I ncealment has been proved beyond a reasonable doubt.




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        In Pennsylvania, when reviewing jury instructions for reversible error,
                          I                               -
 an appellate court must read and consider the charge as a whole.
                          I
                     I,
 Commonwealth v. ]J)ietterick. 631 A.2d 1347, 1352 (Pa.Super.1993),                 appeal

denied, 64 5 A.2d                 12 (Pa.1994). The Court shall "uphold an instruction if it

adequately and accurately reflects the law and is sufficient to guide the jury

through its deliberat~ons." Commonwealth v. Ahlborn, 657 A.2d 518, 520
                          I                                   I
(Pa.1995). "Error will not be predicated on isolated excerpts. Instead, it is the

general effect of the charge that controls." Commonwealth v. Zewe, 663 A.2d

 195, 201 (Pa.Super.1995), appeal denied, 675 A.2d 1248 (Pa.1996);

Commonwealth v. kderson, 600 A.2d 577, 578 (Pa.Super.1991), appeal
                        I
denied, 612 A.2d 983 (Pa.1992). The Superior Court has stated "an erroneous

charge warrants
                     - I
                    the grant of a new trial unless the reviewing          court is convinced

beyond a reasonab lei doubt that the en-or is harmless." Dietterick 631 A.2d at

1352. "The nature of a court's instructions to the jury is "within the discretion

of the court, so long as the court accurately instructs the jury on the appropriate

legal principles invo ved." Commonwealth v. Kim, 888 A.2d 847, 852
                              I
(Pa.Super.2005) (quoting Commonwealth v. Haiiey, 621 A.2d 1023, 1028

(Pa.Super.1993)).    TL            jury instruction must be read so "that the charge clearly,

adequately, and acclately presents the law to the jury for its consideration." Id.

(quoting Commonwlalth v. Collins, 810 A.2d ~98, 701 (Pa.Super.2002)). Th~

jury charge must be Jeviewed "not in isolated portions but as a whole to
                              I
ascertain whether it airly conveys the required legal principles at issue."

Commonwealth v. McClendon, 874 A.2d 1223, 1232 (Pa.Super.2005).



                                                    6
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                    This Court    II    address each requested jury instruction separately. The

            first requested instruction concerns two (2) exceptions to the prohibition of

            carrying a conceale   I   weapon. Specifically, the first exception states in

            pertinent part "any   ! erson while carrying    a firearm which is not loaded and is in

            a secure wrapper, fr m the place of purchase to his home or place of

            business ... " 18 Pa. C.S.A.      6106 b 8.     Thy instruction requested was not

            supported by any e1idence and therefore was not applicable. Kim, 888 A.2d. at

            853. The Defendant himself testified the firearm was in a holster on his

            waistband and not il a secure wrapper. N.T. 2/11/14 p.70. Additionally, the

            Defendant testified       e was carrying the weapon, in a holster, as he was.

                                  f
            performing his job, owing vehicles in Scranton. Id. The Defendant's own

            testimony reveals that his conduct fails to satisfy the requirement of the

            exception. More spicifically, the weapon was not in a secure wrapper and he

            carried it as he conjlucted his business from his tow truck and ultimately into

            the Processing Center located in the Courthouse, not from his place of purchase
        I
            to his home or plac~ of business, etc. Id. Clearly none of the requirements for
ii
  l         this exception have been satisfied. In light of the totality of the evidence, this

    I       .        . was proper
            instruction        11 y rejecte
                                       : d as not supporte db y th e testimony.
                                                                         .
l   !
    I              The second Jortion of this instruction addressed the business exception

            outlined in 18 Pa. els.A. § 6106 (b)(6). It states in pertinent part "agents,

    I       messengers and othlr employees of common caiTiers: banks, or business firms,

            whose duties requirt them to protect moneys, valuables, and other property in

            the discharge of such duties ... " 18 Pa. C.S.A. § 6106 (b)(6). The Defendant
lI

                                                        7
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     asserts he falls into the exception because his employment as a tow truck
                               I
     operator is contemp ated by the statute, specifically he asserts as a tow truck

     operator he is respo sible for the protections of the property of others. N.T.

     2/10/14 at p. 71. An' analysis of the employees exempted, however reveals tow

     truck drivers are no similarly situated. The Defendant testified that he is the

     owner/operator of Direct Towing and Recovery. N.T. 2/11/14 at p. 68. He

     testified his customLs include business owners and private individuals who

     own property in the area. Id at p.69. The customers contract the services of the

     Defendant to keep nwanted vehicles off their property. Id. He testified the

     reason he carries a fireann is because "I'm in the bad parts of the city. And

     that's why I carry ,at gun in the open as. a deterrent, not once ever had bullets

     in the gun, except for when I was target shooting." Id. at p. 70.

             The Superiol Court addressed this exception in Commonwealth v.

     Walton, 529 A.2d.     y,      17 (Pa.Super.1987). Specifically, the Court discussed the

     applicability of the xception to certain occupations. Id. The Walton Court
I
I·   reasoned the exceptton does not extend to all employees who hold or hai1dle
ii                         I
     valuable property of another. Id. Rather, the Walton Court stated "we interpret

     the language to be rLtrictive. These words limit the applicability of the

     exception to agents   L       employees who are hired for the primary purpose of and

     whose duties are plcipally related to the protection of money, valuables, and

     property. The exceJtion includes, but is not necessarily limited to, persons

     employed as guard,! watchmen, protective patrols, and private detectives, who

     are required in the ischarge of their duties to protect money, valuables, and




I:                                                 8

11
                                                                          Circulated 10/20/2015 01:28 PM




     property." Id. The Walton Cami also stated "the Commonwealth showed that

     appellant, a cab driier, possessed an unlicensed, operable firearm while driving

     a taxicab in Philadelphia. The burden of proof then shifted to appellant to come

     forward with evidelce that he was exempt from the licensing requirement of the

     statute because he j as an employee of a common carrier whose duties required

     him to protect moneys, valuables, or other property in the discharge of his

     duties." Id.

             "The provisions of 18 Pa.C.S.A. § 6106(b)(6) do not exempt all agents

     or employees who Jandle money or work with instrumentalities owned by their

     employers from the statutory proscription against carrying a firearm without a

     license." Id. The Walton Cami further stated "to adopt the general

     interpretation advaJced by appellant would be to sanction the carrying of

     firearms without a license by all types of employees, including waiters and
                         I
     waitresses, store clerks, bank tellers, train conductors, bus drivers, and theater

     cashiers. It would allow employees to carry firearms without licenses on

     occasions when an              could not." Id.
                         1mployer
                         I
            Clearly the IDefendant's self-employment as a tow truck operator does

     not meet the requirelnents set forth in Walton for a number ofreasons.      First,

     Defendant is the 0J1er of the business and not an "agent, messenger, or

     employee." Second! the Defendant asserts he falls into the exception because

     he is responsible for protecting the vehicles he has towed. N.T. 2/11/14 at p.71.

     The statute excepts in clear unambiguous language those "whose duties require

     them to protect mo1ys, valuables and other property in the discharge of such



                                              9

iI
                                                                      Circulated 10/20/2015 01:28 PM




duties." 18 Pa.C.S. § 6106(b)(6). The Walton court utilized the principles of

agency to conclude f 'agents are not specifically required in the discharge of

their duties to protet t money or property against robbers and other assailants."

Id. In this case the Defendant is hired by property owners to tow illegally

parked vehicles fror their property. N.T. 2/11/14 at p. 68-69. He asserts he is
                     I
required to protect the vehicles that he tows. Id. However, he is not hired or

contracted by the Jhicle owners, nor is he their agent. As such his argument

must fail.

        The second requested instruction addressed the "operability of the

firearm." This   Col     gave the Pennsylvania Standard Jury Instruction for§·

6106 which includeh the following language regarding operability: "the specific

object charged mus, be either operable, that is capable of firing a projectile, or,
                     I
if inoperable, that the Defendant had under his control the means to convert the

object into one capable of firing a shot." N.T. 2/11/14 p.239. As such, the

requested jury instruction was substantially similar to the delivered charge and

                     I
therefore was inapp opriate because if given would have been cumulative and

unnecessary. The    t:     has discretion and may properly refuse a requested

instruction when thl substance of that request has already been given in either a

general or specific charge. Zewe, 663 A.2d at 201. Furthermore, the Superior

Court has stated "With regard to the standard of review of this claim, we are

mindful that the natl! e of the court's instructions to the jury is "within the

discretion of the co rt, so long as the court accurately instructs the jury on the

appropriate legal prlciples involved." Commonwealth v. Haiiey, 621 A.2d



                                          10
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      1023, 1028 (Pa.Super.1993).            As such, the requested instruction was not

     appropriate.

             The third and final requested instruction addressed the policy behind the

     prohibition (i.e., wal the Defendant's conduct the type sought to be prevented

     by the legislative   in' ent?)      The Defendant cited Commonwealth v. Butler, 150

     A.2d. 172 (Pa.Supe .1959) in support of his position. The issue in Butler was

     whether a partially Lsible handgun was a "concealed" firearm pursuant to the

                                I
     statute. Id. at 172. nits analysis, the Butler court addressed the legislative

     intent by stating "the evil sought to be corrected by the enactment of the

     Uniform Firearms Act is a serious one, and courts owe-a duty to the public to

     see to it that the legislative intent is not thwarted by a construction which is

     unreasonably rigid and inflexible." Id. Additionally, the Butler court noted

     "the applicable staJte is viewed as having the aim of discouraging the carrying

     of unlicensed weapons because of the inherent threat to human life and public

     peace, the primary thrust of the statute being to prohibit a practice evil in its

     tendencies." Finall            the Cami in Butler stated "penal provisions me to be
                            I


11   strictly construed." Continuing, the Butler court stated "the Courts have a duty
I

     to ascertain and effectuate the intention of the legislature." Id. Turning to §
I    6106, the statute in Lem· language prohibits an individual from carrying a

     concealed firearm    't1        or about his person ... without a valid and lawfully issued

     license ... " The leg tiature carved _out several specific exceptions, none of

     which apply in this case. A careful review of this wording reveals the

     legislature's intent. The legislature intended to prohibit any individual, who did



                                                     11
                                                                         Circulated 10/20/2015 01:28 PM




not satisfy one oft   I       e many exceptions from carrying a concealed firearm

without a license. It could not be more clear that the Defendant's requested

·       · ·           I. · ·
instruction IS not appropriate b ecause 1·
                                        1Is bh   · IS
                                             e avior · t1re exact bh   · soug ht
                                                                   e avior

to be prohibited by the legislation, even absent an evil intent on his part.

        The jury instructions given by this Court_ accurately reflected the law

and were sufficient Ito guide the jury in its deliberation.

          B. mndMENT OF ACQUITTAL/ SUFFICIENCY OF THE

              EVIDkNCE
                                                                                                          I
        The Defendant also avers that the Court ened in failing to enter a                                I
Judgment ofAcqui!al because the verdict was not supported by sufficient                                   I.
                                                                                                          I
evidence. Specific~lly, he alleges the Commonwealth failed to present

sufficient evidence that he carried a concealed weapon, that he did not possess
                          I
the weapon in his place of business, and that the evidence was insufficient to

overcome two exceptions to 18 Pa. C.S.A. § 6106 (b). Thus, he asserts the
                          I
Court should have entered a judgment of not guilty. This Court will address

each issue separatelt.                                        ·
                              I
       Regarding tl 1e sufficiency of the evidence argument advanced by the

Defendant, the Court is required to evaluate the presence or absence "of that

quantum of evidencl necessary to establish the elements of the crime."

Commonwealth v. B\igelow, 611 A.2d 301, 303 (Pa.Super.1992). See also:
                                  I
Commonwealth v. Meadows, 369 A.2d 1266, 1268 (Pa.1977), Commonwealth

v. Yapsuga, 535 A.2J 187, 188 (Pa.Super.1987).            In order to determine the

legal sufficiency of vidence supporting a jury's verdict of guilty, the Court



                                                12
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         must "view the evidence in the light most favorable to the Commonwealth,

         which has won the lerdict, and draw all reasonable inferences in its favor. The

         Court must then de ermine whether the evidence is sufficient to permit a jury to

         determine that eac J and every element of the crimes charged has been

         established beyond a reasonable doubt."      Co1mnonwealth v. Aulisio, 522 A.2d

         1075, 1079 (Pa.19y); Commonwealth v. Smith, 568 A.2d 600, 602 (Pa.1989);

         Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa.1988), cert. denied,

         493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Therefore, "It is the

         function of the jury to pass upon the credibility of the witnesses and to

         determine the weight to be accorded the evidence produced. The jury is free to

         believe all, part, or l1one of the evidence introduced at trial." C01mnonwealth v.

         Guest 456 A.2d 1345, 1347 (Pa.1983); Commonwealth v. Rose, 344 A.2d 824,

         826 (Pa.1975); C01mnonwealth v. Verdekal, 506 A.2d 415, 419

         (Pa.Super.1986). Tt    facts and circumstances established by the

         Commonwealth "need not be absolutely incompatible with [the] defendant's
                            I


         innocence, but the 4uestion of any doubt is for the jury unless the evidence 'be

         so weak and inconc~usive that as a matter oflaw no probability of fact can be

         drawn from the coJbined circumstances." Co1mnonwealth v. Sullivan, 371
                            I
         A.2d 468, 478 (Pa.1977), quoting Commonwealth v. Libonati, 31 A.2d 95, 97

         (Pa.1943); Conunolwealth v. Kravitz, 161 A.2d 861, 869 (Pa.1960), cert.

     I   denied, 365 U.S. 8J6, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).
Ii
     I
     I




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                  In order to satisfy the elements of the crime of Carrying a Firearm

         Without a License, jthe Commonwealth must satisfy the following statutory

         requirements:




                                Firearms Not to be Carried Without a License
                           (a) Offense defined. (1) Any person who carries a firearm in
                               any vehicle or any person who carries a firearm concealed on
                               Jr about his person, except in his place of abode or fixed
                               J1ace of business, without a valid and lawfully issued license
                               1\nder this chapter commits a felony of the third degree. (2)
                               Ip. person who is otherwise eligible to possess a valid license
                               under this chapter but carries a firearm in any vehicle or any
                               ~erson who carries a firearm concealed on or about his
                               ~erson, except in his place of abode or fixed place of
                               business, without a valid and lawfully issued license and has·
                               not committed any other criminal violation commits a
                               misdemeanor of the first degree.

                  18 Pa. C.S.lA..I   § 6106 (a).


                  The Defendant alleges the testimony was insufficient to establish that

         he "concealed" a weapon. Regarding the first element of the offense, which is

         concealment, the Cbrrunonwealth presented the testimony of three (3) Scranton

         Police Officers a1:J)oue (1) Sheriffs Deputy each who testified they did not

         observe the firearm on the Defendant's waistband, despite the Defendant's self-

         serving assertions that it was visibly displayed and not concealed. N.T. 2/10/14

         pgs.15, 44, 63, 105, N.T. 2/11/14 p. 70-71. Applying the above referenced

         standard set forth in Commonwealth v. Guest, the jury as trier of fact, was free

         to accept or reject   tlL testimony of the four law enforcement officers who
         testified they did n1t see the weapon. Additionally, the jury was free to accept
I
I        or reject the Defendant's testimony that the gun was visible and not concealed.
1,
     I                                             14

     I
                                                                                Circulated 10/20/2015 01:28 PM




         As such, the Defendant's argument must fail. Turning to the second and third

         elements of the offebse, the Commonwealth called Detective Christopher

         Kolchamo who der onstrated for the jurors how the firearm operates and that

         the firearm in question is in fact operable. N.T. 2-11-14 at p.13-14.       Finally,
                              I
         Corporal McDonald and Deputy Sheriff Booth testified the Defendant did not

         possess a permit to carry a concealed firearm. N.T. 2/10/14 at pgs.14, 82-85.

         This last element wL stipulated by the Defendant.      Id. at p. 89.

                 This Court is satisfied the evidence presented by the Commonwealth

         was sufficient to overcome the assertion that the verdict was not supported by

         such evidence. The !evidence presented· by the Commonwealth, through

         corroborated witness testimony and expert testimony evidence, clearly

         established each and every element of each of the offense.

                 Next, the Defendant argues the Commonwealth failed to present

         sufficient evidence tl prove that he was not at his place of business and that

         business exception to 18 Pa. C.S.A. 6106 (b)(8) applies. Since the legal analysis

         is the same for both ~guments we will address them simultaneously.          First,

         Defendant claims that he is exempt from the prohibition because he was

         transporting his firJrm between work and home. The first exception states,

         "any person while cJn:ying a firearm which is not loaded and is in a secure

         wrapper and he is cairying it from the place of purchase to his home or place of

         business, or to a plac~ of repair, sale or appraisal or back to his home or place

         of business, or in moving from one place of abode or business to another or




'I                                                15

     I
                                                                               Circulated 10/20/2015 01:28 PM




          from his home to a racation or recreational home or dwelling or back ... "     ll.
          Pa. C.S.A. 6106 (b).(8).

                  Clearly, this! exception clearly does not apply. The testimony, including

          the Defendant's o    1testimony,   established the firearm was in a holster on his

          waistband, when br ught into the Processing Center located on the first floor of
                               I .
          the Courthouse. N.T 2/10/14 at p. 104-105. Even by the Defendant's own

          testimony the fireai4n was not in a 'secure wrapper.' N.T. 2/11/14 at p.79.

          Additionally, he wal n't carrying the firearm from "his place of purchase, to his

          place of business oTo a place of repair." The Defendant asserts that his "place

         .. of business" is his tow truck. Therefore he alleges is permitted to carry his

          firearm without a license in his truck, because of the business exception. To

          interpret the language of 18 Pa. C.S.A. 6106 (b)(8) to include his vehicle in the

          definition of "placeJofbusiness" would extend the exception to countless
                               I
          individuals who work out of their car. Walton, 529 A.2d. at 17. This Court
                               I
          does not accept the Defendant's interpretation and to adopt the general
     I                         I
:I        interpretation advanced by him would be to sanction the carrying of firearms
II
          without a license by rll types of employees, "including cab drivers, limousine

          drivers, ambulance iivers, traveling salesman, etc." Id.     Therefore, the
I
I         Defendant's argument must fail.
I                 Second, Defeldant argues that the Court should grant his request for a

     I    Judgment of AcquittL because he is permitted to carry a concealed weapon
11
         pursuant to the excellion outlined in 18 Pa. C.S.A. 6106 (b)(6). Specifically,
!I       the statute provides a 1exception for "agents, messengers and other employees
i
                                                   16
                                                                         Circulated 10/20/2015 01:28 PM




     of common carriers] banks, or business firms, whose duties require them to

     protect moneys, valuables and other property in the discharge of such duties."

     18 Pa. C.S.A. 6106 (b)(6). This Court has addressed this argument in the

     preceding section rtgarding the Defendant's requested jury instruction. For the

     reasons stated previously the Defendant's argument must fail.

               C. CON+ITUTIONALITY

              Next, the Defendant challenges the constitutionality of 18 Pa. C.S.A. §

     6106. The Pennsyl~ania Supreme Court has held that "a statute may be deemed

     to be unconstitutionally vague if it fails in its definiteness or adequacy of

     statutory expression. The "void-for-vagueness" doctrine implicates due process

     notions that a statutl must provide reasonable standards by which a person may

     gauge his future coJduct, i.e., notice and warning." Smith v. Goguen, 415 U.S.

     566, 572, 94 S.Ct. 11242, 39 L.Ed.2d 605 (1974); Commonwealth v. Heinbaugh,

     354 A.2d 244, 246 (Pa. 1976). Specifically, with respect to a penal statute, the

     Pennsylvania Suprebe Court and the United States Supreme Court have found

     that in order for a st~tute to withstand constitutional scrutiny, based upon a

     challenge of vagueness, a criminal statute must "define the criminal offense
                        I
     with sufficient definiteness that ordinary people can understand what conduct is

     prohibited and in a lanner that does not encourage arbitrary and discriminatory

     enforcement."   KolJnder v. Lawson, 461 U.S. 352, 357. Conm1onwealth v.

     Mayfield. 832 A.2d 418, 422 (2003); Commonwealth v. Mikulan. 470 A.2d

     1339, 1342 (1983), see also Heinbaugh. 354 A.2d at 246.




                                             17

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'.
                                                                           Circulated 10/20/2015 01:28 PM




                Reviewing courts have "looked at the statutory language itself, and have

        interpreted that lanbage, to resolve the question of vagueness."; Mayfield, 832

        A.2d at 422; Colonwealth v. Cotto.· 753 A.2d 217, 220 (Pa.2000). Iri doing
                            I
        so, however, "our Court has cautioned that a statute is not to be tested against

        paradigms oflegisltive draftsmanship," Heinbaugh, 354 A.2d at 246, and

        "thus, will not be Jclared unconstitutionally vague simply because the

        Legislature could Jave "chosen 'clear and more precise language' .... " Id. In

        other cases "the Courts have also looked to the legislative history and the

        purpose in enacting a statute in attempting to discern the constitutionality of the
                                I
        statute." See United States Civil Serv. C01mn111 v. Nat1l Ass'n of Letter-Caniers,

        413 U.S. 548, 57Jl75, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Cotto. 753

        A.2d at 221.

                The statute, in clear language, defines the criminal offense with

        sufficient definiteness, so that ordinary people can understand what conduct is
    l   prohibited (i.e. the rohibition of carrying a concealed firearm without a
I
        license) and in a manner that does not encourage arbitrary and discriminatory
I                               I
        enforcement. The Defendant had a firearm concealed on his person when he

        was brought into tiJ Processing Center after his arrest. Three (3) Scranton

        Police Officers and~ Deputy Sheriff failed to observe the firearm during their

        encounter with the Defendant. The gun was found as the Defendant was being

        patted down by De Ly Rinaldi. N.T. 2/10/14 pgs.15. 44, 63. 105. It was

        located underneath fhe Defendant's hooded sweatshirt. The Defendant did not

        have a permit to car ·y a concealed firearm. The conduct is clearly prohibited



                                                18
                                                                                         Circulated 10/20/2015 01:28 PM




                    and it is so in a manner that does not encourage arbitrary and discriminatory

                    enforcement.

                              D. WITNESSES

        I       I           11,e Defentt alleges that the Court erred in allowing Detective

                    Christopher Kolchamo to testify as to matters reserved for expert witnesses.

                    11,e Defendant als, avers that the Court erred in allowing Lackawanna County

                    Sheriffs Deputy Je'      a Booth to testify as to the applicable law regarding

                    firearms in Pennsylania. This Court will address each averment separately.

                           Detective Kolchamo was not originally on the Commonwealth's

                    witness list. N.T. 21/11/14 p.5..:6. The Commonwealth announced he would be

                    called to testify aftJr the Defense raised the issue of operability during cross-

            I       examination of Coronwealth witnesses on the first day of trial. Id. at p.4.

                    Specifically, the following exchange took place during cross-examination of

                    Corporal McDonald:
                                        I
    I                              Q: CJouldn't fire it, correct?
    11
                                        I
                                   A: I there was one in the- you don't need a magazine in the
            I
                                   weapon to fire it. There could be one in the chamber.
                                        I.
                                   Q: lid you check the weapon?

                                   A: I never saw the weapon because it was concealed on him at

                                   the tine of the traffic stop-the incident. I found out later that

                                   he bJrught the concealed weapon into the Processing Center

                                   where it was found by the Deputies.



I
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\1
                                                                              Circulated 10/20/2015 01:28 PM




                    Q: You've had three months before you sat here today. Did you

                    ever test fire the weapon?

                    A:
                         1       o.
                    Q: And you indicate, well, you could fire the gun even without a

                    magLine.          There's a certain guns that you can't do that with,

                    correct?
                         I
                    A: I m not a weapon expert. I couldn't tell you.

                    Q: All right. So the condition that you found it in his person,
                         I
                    you don't know that it was capable of discharging anything?

                    A: It looked operable.

                    Q: !hat's it and he's here.

                    A: Right.

                    Q: Facing a charge. That's all you could say. That's the best

                    evidence that you have that it might have been operable.

                   A: The best evidence I have is I have a weapon. The law

                    doesl,t say if it's loaded or unloaded. It just says that you have

11                 a wejpon on your person concealed which he did.

                   Q: Tt1at's not what the law states. That's not what the law

                   statesr

                   A: Okay.

     N.T. 2/10/14 p.30-311.
                             I
            In response t(i) the above exchange, the Commonwealth sought to call

     Detective Christophl Kolchamo as a witness for the purpose of demonstrating



                                                  20
                                                                         Circulated 10/20/2015 01:28 PM




     the firearm's opera ility. Prior to Detective Kolchamo's testimony, an

     objection was raise by the Defense. The Defendant objected to the testimony

     on the grounds that Detective Kolchamo 's testimony constituted matters

     reserved for experts. N.T. 2/11/14 at p.5-6. Additionally, the Defense argued

     the testimony was ihadmissible because the Commonwealth failed to provide
                         I
     sufficient notice and/or an expert report in compliance with the rules of criminal
                          I
     procedure. A lengthy sidebar conference was held in which all of the issues

     surrounding
                          I
                   Detective Kolcharno' s testimony   were discussed. Id. at p. 1-19,
                         I
     27-37, 55-59. 109-111. The Court allowed the Commonwealth to present the

     testimony and gave lthe Defendant the option of calling his own witness to

     testify about the operability of the fireann. The defense chose not to call a
                             I
     witness. N.T. 2/11/14 at p.37-38, 109-111.

I                            I
            This Court finds Detective Kolcharno's testimony was proper because

Ij   Defense counsel raised the operability of the firearm as a possible defense
                             I
     during cross-examination of Commonwealth witnesses. The Pennsylvania

     Superior Court has tdressed the issue of operability in Commonwealth v.

     Harshaw, 346 A.2d.1340 (Pa. Super.1975). In Harshaw, the Superior Court

     ruled the Common1ealth "need not show the weapon to have been operable

     until the evidence o its operability has been introduced into evidence."

     Harshaw, 346 A.2d at 340, citing Commonwealth v. Layton, 307 A.2d. 843

     (Pa.Super.1973).   D ltective Kolchamo during his testimony demonstrated to

     the jury how the firearm operated. N. T. 2/11/14 at pgs.3 8-42. He explained the

            .
     operation an d ~·           I
                    runcti. , na 1·ity o f a pisto
                                              . 1 magazme.
                                                       .   Id O n cross-exammation
                                                           _.               . . tlre



                                            21
     11

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              Defense questioned the Detective regarding the weapons ability to operate ·

              without a magazin1. Id. at p.42-48.     He testified that the firearm is capable of

              discharging a roun with or without a magazine. Id. at p.46.

                      The Cami's\ analysis into the admissibility of Detective Kolchamo's

              testimony must begin by reviewing the Pennsylvania Rules of Evidence.
                                   I
              Pa.R.E. 401 states 'tvidence is relevant if it has any tendency to make a fact

              more or less probable than it would be without the evidence; and the fact is of

              consequence in det1nnining the action. Whether evidence has a tendency to

              make a given fact rriore or less probable is to be determined by the court in the

              light of reason, exptrience, scientific principles and the other testimony offered

    I         in the case. The relevance of proposed evidence may be dependent on evidence
    11
              not yet of record." Pa.R.E. Rule 401.
II                                     I
                      Additionally, "a trial court has broad discretion to determine whether
    f
II
              evidence is admissible and a trial court's ruling on an evidentiary issue will be
I, j.
              reversed only if the rurt abused its discretion." Commonwealth v. Cook, 676

              A.2d 639, 647 (Pa.1996). A ruling admitting evidence "will not be disturbed on
          I   appeal unless that ruling reflects manifest unreasonableness, or partiality,
I
,,            prejudice, bias, or illf will, or such Jack of support to be clearly erroneous."

              Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super.2010).            Once the
                                           I
              Defense raised a challenge to the operability of the firearm, the Commonwealth
                                           I
              was required, per Harshaw to present evidence of the firearm's operability. As
                                           I
              such the evidence was clearly admissible pursuant to Pa. R.E. 401 and

              Harshaw.


I                                                      22
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                                                                               Circulated 10/20/2015 01:28 PM




               Next this clmi must consider whether Detective Kolchamo should have

     been permitted to Jstify to matters reserved for expert witnesses. Pennsylvania

     Rule of Evidence    7r2 governs expert witness testimony, it states:
               If scientific, technical or other specialized knowledge beyond that
               possessed lily a layperson will assist the trier of fact to understand the
               evidence or to determine a fact in issue, a witness qualified as an expert
               by knowledge, skill, experience, training or education may testify
               thereto in t le form of an opinion or otherwise.

               Pa.R.E., Rue 702.


               Pennsylvanila Courts have set the standard of review by stating

     "generally speaking, the admission of expert testimony is a matter left largely to
          -.        _.     I                                                                    -
     the discretion of thel trial comi, and its rulings thereon will not be reversed

     absent an abuse of discretion." Commonwealth v. Brown, 596 A.2d 840, 842

     (Pa.Super.1991).    J         expert's testimony is admissible when it is based on facts

     ofrecord and will not cause confusion or prejudice. Conunonwealth v. Watson,

     945 A.2d 174, 176. (Pa.Super.2008). Where the evidentiary question involves a

     discretionary rulingJ the reviewing Court' s scope of review is plenary, therefore
I                              I
II   the appellate court may review the entire record in making its decision.
                               I
     Commonwealth v. Delbridge, 859 A.2d 1254, 1257 (Pa.2004).

            Defense com\ sel raised operability of the firearm as a possible defense

     to the charge of Carrying a Firearm Without a License during cross-

     exarnination. N.T. J/10/14 p.30-31.           The Commonwealth was then required to

     prove the firearm w~s operable thus making Detective Kolcharno's testimony

     relevant. Harshaw, 346 A.2d at 340. Detective Kolchamo testified he is a

     Detective for the LaJkawanna County District Attorney's Office and is a


                                                    23
                                                                                    Circulated 10/20/2015 01:28 PM




         fireanns instructor for his department. N.T. 2/11/14 p.39. Additionally, he is

         employed privatel      I as a firearms     instructor for the Commonwealth of

         Pennsylvania.   Id.            e has been a Detective since June 2001. Id. This Court

         finds because of his employment, he possessed specialized knowledge beyond

         that of a lay personj as such he was properly permitted to testify as an expert.

         Furthermore, this CJomi finds the operation of the firearm, a Kel-Tec Model

         3AT, which is a   .38r caliber semiautomatic          pistol, "is beyond that possessed by

         a layperson." Pa.R.E., Rule 702. As such, his testimony aided the jury in

         understanding the Tidence and determining a fact at issue in the case. (ie. Was

         the firearm operable?) Detective Kolchamo qualified as an expert by his

         knowledge, skill, experience, training, and education. The jurors, as the finders

         of fact, had the power to judge the testimony of Detective Kolcharno, and to
                                I
         give his testimony the weight that they thought it deserved. The Defendant was

         also given the full opportunity to cross examine Detective Kolcharno and to call

         his own expert witness on the issue. N.T. 2/11/14 p.109-111. Therefore, based

         on these facts and cil·cumstances, this Court will not upset the determination

         made by the jury. Tre Defendant should be denied any of the relief that he
11
I

         requests with respec to this claim.

                Next, the Defendant alleges that the Court erred in allowing Deputy

         Booth to testify as   11 the applicable law regarding firearms in Pennsylvania.
         Deputy Booth testified she is employed as a Deputy Sheriff for Lackawanna
II       County Sheriffs DeJaiiment.             N.T. 2/10/14 at p. 75. Her responsibilities
     I                              I
     I   include issuing permits to carry a concealed weapon. Id. She testified about the


I
                                                         24
I
11
    'I                                                                              Circulated 10/20/2015 01:28 PM




             requirements for a , erson to carry a firearm concealed on their person or in

             their vehicle. Id.   · he also testified about the application process involved in

             obtaining a license hrough the Lackawanna County Sheriff's Office. Id.

                     On direct examination, Assistant District Attorney Rinaldi asked Deputy

             Booth the followinJ question, "what is your understanding of carrying in the

             open?" Id. at p. 83. Defense Counsel objected and this Court overruled

             defense counsel's objection. Id. Deputy Booth went on to state "my

             understanding is th ~ if a citizen carries a loaded weapon in the open, they're

             covered by the Constitution for that. They can carry a loaded handgun on their

             -person in the open ld it's a Second Amendment right." Id. This testimony is

             a statement of the lar- The question now is whether the admission of this

             testimony constitutes reversible error.

                     The stai1dai·dl of review for this error is the harmless error doctrine.

             Commonwealth v. sbotz, 84 A.3d. 294, 314 (Pa.2014). (" ... the harmless error
I                                  I
II           analysis is typically applied when determining whether the trial court erred in
                                   I                                     .
11
i            taking or failing to take certain action.") The Pennsylvania Supreme Court has

             held "under the harrriless error doctrine, the judgment of sentence will be
                                   I
             affirmed in spite of the error only where the reviewing court concludes beyond
         I   a reasonable doubt tllat the error did not contribute to the verdict."

'I                                 I
             Commonwealth v. Moran, 104 A.3d 1136, 1150 (Pa.2014). Continuing

             "whenever there is a leasonable possibility that an error might have contributed

             to the conviction, the error is not harmless ... " Spotz, 84 A.3d. at 314.




                                                       25
                                                                                      Circulated 10/20/2015 01:28 PM




                     In closing j ry instructions this Court gave the following instruction, "it

             is the Court' s responsibility to decide all questions of law. And you must

             accept and follow ,y instructions and rulings on matters oflaw." N.T. 2/11/14

             at p.224. In addition, this Court gave two additional cautionary instructions on

             this issue. The first was during direct examination of Officer Christopher

             Hallock. N.T. 2/10/i14. at p. 92. Then, again, during cross-examination of the

             Defendant.    N.T. 2Jll/14 at pgs. 97-98. In total, the jurors were instructed on

                                   I
             four (4) separate oc asions that the Court is the judge of the law and the jury is

             bound by the Comi'js instructions on what the law is. In order to determine if

             testimony erroneously admitted contributed to the verdict, this Court must

                 .
             review th e testimony
                              .    I
                                   presente d i111 its
                                                   .. entirety. A s previous
                                                                         .   1 y state dlt re

                                   I
             Commonwealth presented four (4) law enforcement officers, each who testified

             they did not observj the firearm on the Defendant's waistband. N.T. 2/10/14
I            pgs.15. 44. 63, 105. Detective Kolcharno demonstrated to the jury that the
         I   firearm was operabl . N. T. 2/10/14 p.30-31. Finally, Corporal McDonald,

             Deputy Sheriff Booth and the Defendant all testified the Defendant did not have
                                   I
             a license to carry a tncealed weapon. In evaluating the testimony this Court is

             satisfied the testimony even though it constituted error did not contribute to the

             verdict. Moran, 104 A.3d. at 1150.


     l
                       E. CONCLUSION
11

                    In conclusio , the verdict of guilty on the one count of Carrying a
                                       I .
             Firearm Without a License was supported by the evidence offered at trial.

I
     I
                                                        26
                                                                             Circulated 10/20/2015 01:28 PM




         Throughout the co rse of the trial, the Commonwealth, through corroborated

         witness testimony Ind other sufficient evidence, proved each and every element

         of the offense. Therefore, this Court finds that the issues raised in the

         Defendant's StateiJent of Matters Complained of on Appeal are without merit.




                                                        BY THE COURT




    I
    1
     I




I
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                                                27


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