J-S67024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: S.H., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: S.H., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 3998 EDA 2017

                    Appeal from the Order November 9, 2017
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                        No(s): CP-51-JV-0002150-2017

BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 16, 2019

        Appellant S.H. appeals from the order of disposition adjudicating him

delinquent for the offense of possession of a firearm by a minor and possession

of firearm prohibited.1 Appellant challenges the sufficiency of the evidence for

possession of a firearm by a minor because it was undisputed the gun was

inoperable. We vacate the adjudication of delinquency for the offense of 18

Pa.C.S. § 6110.1. We otherwise affirm the remainder of the adjudication and

the disposition.

        We briefly state the facts and procedural history, as set forth by the trial

court:



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 6110.1 and 6105, respectively.
J-S67024-18


       On October 13, 2017 at approximately 11:30PM, Philadelphia
       police officers Lally (Badge # 4141) and McCullough (Badge [No.]
       3552) were on patrol at the 3800 block of N. 13th Street. Officer
       Lally observed [Appellant] and a second male, later identified as
       S.B., on the west side of the street. Officer Lally observed
       [Appellant] holding a blunt, as well as a pink tube, which the
       officer believed to contain marihuana. Officer Lally stopped his
       patrol vehicle, and opened the vehicle door. [Appellant] and S.B.
       began to run southbound on the 3800 block of N. 13th Street. As
       he ran, [Appellant] was holding his waistband. Officer Lally
       followed the individuals in the patrol vehicle, while Officer
       McCullough engaged in a foot chase. Officer Lally observed the
       individuals run westbound onto Butler Street, then turn
       southbound onto the 3700 block of Park Street. During the chase,
       Officer Lally observed [Appellant] discard a dark grey firearm to
       the ground and continue to run eastbound through an alleyway
       between Park Street and N. 13th Street. Officer Lally was able to
       go around the corner, where he observed [Appellant] remove his
       red hoodie and place it next to a car. [Appellant] then began to
       walk on the 1300 block of Airdrie Street. As Officer Lally’s patrol
       car was coming down the street, he observed [Appellant] attempt
       to hide himself between parked vehicles. Officer Lally was able to
       apprehend [Appellant], as he was hiding underneath a parked
       truck.

       The discarded firearm was recovered and identified as a dark grey
       24 caliber Raven Arms, loaded with six rounds.

       Said firearm, bearing serial number 1803029, was submitted to
       the ballistics unit for testing, and Officer Drew of the Firearms
       Identification Unit determined the firearm to be inoperable, due
       to a broken missing portion of the firing pin. Officer Drew also
       reported that there was gunshot residue in the barrel.

Trial Ct. Op., 3/14/18, at 2-3. The court adjudicated Appellant delinquent of

the above offenses.2        Appellant timely appealed and timely filed a court-

____________________________________________


2 The court granted Appellant’s motion for acquittal of charges of violating
sections 6106 and 6108, which we discuss in further detail below.




                                           -2-
J-S67024-18


ordered Pa.R.A.P. 1925(b) statement.3

       Appellant raises the following question on appeal:

       Was not the evidence insufficient to convict [A]ppellant of
       possession of a firearm by a minor, 18 Pa.C.S.[] § 6110.1, where
       the gun was inoperable due to a broken missing portion of the
       firearm’s firing pin, and the Commonwealth offered no evidence
       that the firearm could have readily been made operable by means
       [A]ppellant had under his control[?]

Appellant’s Brief at 3.

       Appellant argues there is no dispute that the gun was not operable. Id.

at 9-10. He acknowledges that while there is no applicable case construing

section 6110.1, “Pennsylvania courts have held that operability is an element

of other firearm offenses such as § 6106.” Id. at 10 (citing Commonwealth

v. Layton, 307 A.2d 843 (Pa. 1973); Commonwealth v. Gainer, 7 A.3d 291

(Pa. Super. 2010)).        Appellant claims that except for section 6105, the

Commonwealth is required to prove operability of the firearm as an element

of a chapter 61 offense. Id. at 11. Specifically, Appellant asserts that section

6106 uses the definition of “firearm” set forth in section 6102, which requires

that the weapon be operable. Id. Building on that premise, Appellant argues

that section 6110.1 must also use the section 6102 definition of firearm,

including its operability element.        Id.   Therefore, Appellant concludes that



____________________________________________


3 We note that “a juvenile, like an adult defendant in a criminal proceeding,
should be permitted to challenge the sufficiency of the evidence for the first
time on appeal.” In re D.S., 39 A.3d 968, 973 (Pa. 2012).


                                           -3-
J-S67024-18


because section 6110.1 requires an operable firearm, as defined by section

6102, the adjudication for section 6110.1 must be vacated. Id. at 12.

      The standard of review for a challenge to the sufficiency of the evidence

follows:

      A claim challenging the sufficiency of the evidence presents a
      question of law. We must determine whether the evidence is
      sufficient to prove every element of the crime beyond a
      reasonable doubt. We must view evidence in the light most
      favorable to the Commonwealth as the verdict winner, and accept
      as true all evidence and all reasonable inferences therefrom upon
      which, if believed, the fact finder properly could have based its
      verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super.) (citation

omitted), appeal denied, 170 A.3d 993 (Pa. 2017).

      The rules of statutory interpretation are well-settled:

      The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets
      forth principles of statutory construction to guide a court’s efforts
      with respect to statutory interpretation. In so doing, however, the
      Act expressly limits the use of its construction principles. The
      purpose of statutory interpretation is to ascertain the General
      Assembly’s intent and to give it effect. In discerning that intent,
      courts first look to the language of the statute itself. If the
      language of the statute clearly and unambiguously sets forth the
      legislative intent, it is the duty of the court to apply that intent
      and not look beyond the statutory language to ascertain its
      meaning. Courts may apply the rules of statutory construction
      only when the statutory language is not explicit or is ambiguous.

      . . . We must read all sections of a statute together and in
      conjunction with each other, construing them with reference to
      the entire statute. When construing one section of a statute,
      courts must read that section not by itself, but with reference to,
      and in light of, the other sections. Statutory language must be
      read in context, together and in conjunction with the remaining
      statutory language.


                                      -4-
J-S67024-18


        Every statute shall be construed, if possible, to give effect to all
        its provisions. We presume the legislature did not intend a result
        that is absurd, impossible, or unreasonable, and that it intends
        the entire statute to be effective and certain. When evaluating
        the interplay of several statutory provisions, we recognize that
        statutes that relate to the same class of persons are in pari
        materia and should be construed together, if possible, as one
        statute.

Commonwealth v. Arcelay, 190 A.3d 609, 616 (Pa. Super. 2018) (citation

omitted).

        Section 6102 defines “firearm” as follows:

        Subject to additional definitions contained in subsequent
        provisions of this subchapter which are applicable to specific
        provisions of this subchapter, the following words and phrases,
        when used in this subchapter shall have, unless the context clearly
        indicates otherwise, the meanings given to them in this section:

                                       *       *   *

        “Firearm.” Any pistol or revolver with a barrel length less than
        15 inches, any shotgun with a barrel length less than 18 inches or
        any rifle with a barrel length less than 16 inches, or any pistol,
        revolver, rifle or shotgun with an overall length of less than 26
        inches. The barrel length of a firearm shall be determined by
        measuring from the muzzle of the barrel to the face of the closed
        action, bolt or cylinder, whichever is applicable.

18 Pa.C.S. § 6102.

        Section 6110.1 defines the offense of possession of firearm by a minor:

        (a) Firearm.—Except as provided in subsection (b),[4] a person
        under 18 years of age shall not possess or transport a firearm
        anywhere in this Commonwealth.



____________________________________________


4   Subsection (b) does not apply to this case.


                                           -5-
J-S67024-18


18 Pa.C.S. § 6110.1.

      In Commonwealth v. Gainer, 7 A.3d 291 (Pa. Super. 2010), the

defendant had challenged his conviction for violating 18 Pa.C.S. § 6106, which

employs the section 6102 definition of firearm. Gainer, 7 A.3d at 296. The

Gainer Court noted that prior appellate courts have construed section 6102

to include an operability element in resolving sufficiency challenges under

section 6106. Id. at 298 (citing and discussing cases). The Gainer Court

therefore addressed whether the firearm at issue was operable. Id.

      Specifically, in Gainer, the issue was whether the firearm, which was

inoperable when recovered by the police, “was capable of being converted into

an object that could fire a shot.” Id. (internal quotation marks and citation

omitted).   The Gainer Court noted that because the Commonwealth

presented testimony that the defendant could have easily and quickly made

the firearm operable, the defendant could not reverse his section 6106

conviction. Id. at 299.

      Here, section 6110.1, identical to section 6106, lacks a separate

definition of firearm; thus, section 6110.1 relies on the definition of firearm

set forth in section 6102. See id. at 298. Because the Gainer Court held

that operability was an element of section 6106—since it incorporated the

section 6102 definition of firearm—it follows that section 6110.1, which also

incorporates the section 6102 definition of firearm, must also have an

operability element. See id. Indeed, when Appellant moved for acquittal for


                                     -6-
J-S67024-18


his sections 6106 and 6108 charges on the basis that the gun was inoperable,

the Commonwealth conceded as follows:

      [Commonwealth]: That is correct, your Honor, the gun is
      inoperable, and we don’t have anyone to testify as to how quickly
      it would be able to be made operable, so I have no argument on
      those counts.

N.T. Trial, 11/9/17, at 27. The court immediately granted Appellant’s motion

for acquittal on those charges. Id. at 28. The Commonwealth, therefore,

cannot establish that the gun was operable or readily made operable as to

sustain its burden of proof for section 6110.1. See Gainer, 7 A.3d at 298.

Even after viewing the record in the Commonwealth’s favor, the evidence was

insufficient to establish the gun’s operability.     See N.T. Trial at 27;

McFadden, 156 A.3d at 303.

      We need not remand for a new disposition, however, because the trial

court noted that its disposition would remain unchanged given Appellant’s

unchallenged adjudication of delinquency for violating section 6105. See Trial

Ct., 3/14/18, at 4; accord Adjudicatory/Dispositional Hr’g Order, 11/9/17

(ordering placement for adjudication of delinquency for violating sections 6105

and 6110.1). We therefore vacate the adjudication of delinquency for section

6110.1.

      Order affirmed in part and reversed in part. Adjudication of delinquency

for section 6110.1 reversed.   Adjudication of delinquency for section 6105

affirmed.




                                     -7-
J-S67024-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/19




                          -8-
