J-S87040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EDWARD CHARLES HIXON

                            Appellant                  No. 306 MDA 2016


          Appeal from the Judgment of Sentence September 29, 2015
                In the Court of Common Pleas of Fulton County
             Criminal Division at No(s): CP-29-CR-0000192-2014


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 31, 2017

        Edward Charles Hixon appeals from the judgment of sentence, entered

in the Court of Common Pleas of Fulton County, following his jury trial

conviction of possessing a firearm as prohibited because of a prior conviction

of an offense as set forth by 18 Pa.C.S. § 6105(a).1

        The trial court summarized the relevant facts of this matter as follows:

        Raymond [R]oy Fisher, Jr.[,] testified that on October 28, 2014,
        he was playing horseshoes with his wife[,] Rhonda Lynch, his
        neighbor Katherine Cifollili, [Hixon], and others. [Hixon] and Mr.
        Fisher got into an argument, during which [Hixon] went into his
        home and came out with a gun. Rhonda Lynch corroborated this
        account[, testifying] that “but the next thing I know [Hixon], I
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The jury acquitted Hixon of making terroristic threats, 18 Pa.C.S. §
2706(a)(1), simple assault, 18 Pa.C.S. § 2701(a)(3), and recklessly
endangering another person (REAP), 18 Pa.C.S. § 2705.
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      seen him go in the house. Then when he came back out he had
      a gun in his hand and [he] fired.” . . . Katherine Cifollili testified
      that she was talking with Rhonda Lynch and “heard [Fisher and
      Hixon] arguing outside so we both went to the window and
      looked and that’s when we saw [Hixon] pointing a gun right at
      [Fisher] and he held it there for [a while] and then he shot. He
      fired.” Ms. Cifollili further testified that she saw the gun in
      [Hixon’s] hands.

      Additionally, Trooper Kenneth Falkosky of the Pennsylvania State
      Police testified that after obtaining a warrant for [Hixon’s]
      arrest[,] he went to [his] residence.        Upon entering the
      residence[,] Trooper Falkosky

         observed that there were green shotgun shells on a table
         surface not far inside the door . . . and Mr. Hixon [stated]
         that there was a shotgun underneath the couch in the
         room to the right of the doorway. At that point Trooper
         Garner lifted the couch and I observed that there was a
         long gun laying on the ground underneath the couch.

      Trooper Falkosky further testified that on January 19, 2015, the
      shotgun and shells were removed from the evidence room in
      order to do a function test. The parties stipulated that “the
      brake action and action lock worked, that the shotgun fired both
      shotgun shells that were tested, that the extractor is functional
      and that overall the shotgun is [in] working function order
      capable of firing.”

      The jury heard multiple witnesses testify that they observed
      [Hixon] in possession of a firearm in the instant matter.
      Furthermore, the jury heard testimony that a firearm was found
      in [Hixon’s] residence on October 30, 2014, when Hixon was
      arrested by Trooper Falkosky.

Trial Court Opinion, 1/22/16, at 5-7 (citations omitted).

      Following his jury trial conviction, Hixon was sentenced on September

29, 2015, to five to ten years’ incarceration.       Hixon filed a timely post-

sentence motion, which the court denied on January 22, 2016. Thereafter,

Hixon filed a timely notice of appeal and court-ordered concise statement of



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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hixon raises

the following issues for our review:

      1. Whether the evidence did not suffice to prove [Hixon] guilty
         of violating 18 Pa.C.S. § 6105(a)(1), failing to prove that, on
         the date asserted in the information, viz, on (or about)
         October 28, 2014, [Hixon] possessed a firearm, nor that
         [Hixon] had the requisite culpability, or mens rea, of acting
         knowingly (as the term “knowingly” is defined at 18 Pa.C.S. §
         103 and used at 18 Pa.C.S. § 302), so that the [t]rial [c]ourt
         erred in denying the motion for judgment of acquittal?

      2. Whether the verdict of guilty of violating 18 Pa.C.S. §
         6105(a)(1)[] was against the weight of the evidence,
         inasmuch as the Commonwealth’s evidence as to the events
         on (or about) October 28, 2014, was disbelieved, resulting in
         not guilty verdicts on the other counts, and so polluted the
         case as to depreciate the weight of the Commonwealth’s
         other evidence on those events other than that there was not
         reliable evidence, direct or circumstantial, that [Hixon]
         possessed a firearm on (or about) October 28, 2014, and that
         other, unpolluted Commonwealth witnesses did not place
         [Hixon] in possession of a firearm on (or about) October 28,
         2014, so that such guilty verdict shocked the conscience and
         required a new trial?

      3. Whether the [t]rial [c]ourt erred by denying the motion in
         arrest of judgment inasmuch as, in violation of the Due
         Process Clause of the United States Constitution, as well as
         the due process protections of Article I, Section 9, of the
         Pennsylvania Constitution and/or the requirements for
         informations at Article I, Section 10, of the Pennsylvania
         Constitution, the Commonwealth did not amend the
         information to charge [Hixon] with possessing a firearm inside
         his residence discovered by the police in violation of 18
         Pa.C.S. § 6105(a)(1), on October 30, 2014, which was
         separate and distinct from the offense charged in the
         information, which was alleged to have occurred on October
         28, 2014, which the jury, by their not guilty verdicts as to the
         events alleged to have occurred on October 28, 2014,
         disbelieved?




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      4. Whether the trial court abused its discretion in imposing a
         sentence of total confinement of not less than 60 months nor
         more than 120 months for conviction of 18 Pa.C.S. §
         6105(a)(1), which was excessive and unreasonable inasmuch
         as (i) it was predicated on an incorrect calculation of the
         “offense gravity score” of “10” under the Sentencing
         Guidelines, rather than the correct “offense gravity score” of
         “9”, because the evidence at trial did not show “loaded/ammo
         available” as to the firearm, and (ii) the sentence did not
         account for the mitigating circumstance that [Hixon] operated
         under a mistake of law, believing, based on information from
         his Bedford County probation officer, that he was permitted to
         possess the firearm in question?

Brief for Appellant, at 6-7.

      Hixon asserts that the evidence produced at trial was insufficient to

prove that he knowingly possessed a firearm on the date alleged by the

Commonwealth, and that even if it were sufficient, the verdict was against

the weight of the evidence.     In considering sufficiency of the evidence

claims,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

The Commonwealth can satisfy its burden via wholly circumstantial

evidence. Id.




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        As to weight of the evidence claims, we may not “re-weigh the

evidence and substitute our judgment for that of the fact-finder.” Id.

        The weight of the evidence is exclusively for the finder of fact
        who is free to believe all, part, or none of the evidence and to
        determine the credibility of the witnesses. . . . Thus we may
        reverse the lower court’s verdict if it is so contrary to the
        evidence as to shock one’s sense of justice.

        Moreover, where the trial court has ruled on the weight claim
        below, an appellate court’s role is not to consider the underlying
        question of whether the verdict is against the weight of the
        evidence. Rather, appellate review is limited to whether the trial
        court palpably abused its discretion in ruling on the claim.

Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013).

        Hixon was convicted pursuant to 18 Pa.C.S. § 6105(a)(1), which

prohibits a person from possessing a firearm if he or she has been convicted

of one of a number of certain offenses; Hixon stipulated to having such a

prior   conviction   in   his   record.     However,   Hixon   argues   that   the

Commonwealth presented insufficient evidence that he knowingly possessed

a gun, since his mother owned the shotgun police recovered from her cabin,

where he resided, and that he admitted only to knowing that the shotgun

was under the couch. Hixon also argues that the police recovered the gun

on October 30, 2014, but no witness identified it as the particular gun

involved in the events of October 28, 2014.

        Hixon’s argument as to the sufficiency of the evidence utterly ignores

the fact that three witnesses testified at trial that they observed him with a

firearm and watched him fire it on October 28, 2014.            Additionally, the

shotgun recovered from Hixon’s residence provides ample circumstantial

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evidence for the jury to infer that the shotgun was the one he used during

the incident on October 28, 2014. Watley, supra.

      Next, Hixon argues that his conviction is against the weight of the

evidence since it is an inconsistent verdict; because the jury acquitted him

as to the other charges in the information, they could not have convicted

him of possessing a firearm.        However, the evidence in this matter

overwhelmingly indicated that Hixon had a gun in his hands and fired it on

October 28, 2014.      Moreover, inconsistent verdicts “are not considered

mistakes and do not constitute a basis for reversal. . . . [T]his Court will not

disturb guilty verdicts on the basis of apparent inconsistencies as long as

there is sufficient evidence to support the verdict.”     Commonwealth v.

Talbert, 129 A.3d 536, 545 (Pa. Super. 2015). Accordingly, the trial court

did not abuse its discretion and this claim is without merit. Serrano, supra.

      In his next issue, Hixon asserts that he was deprived of due process of

law, arguing that he was actually convicted of possession of a firearm at the

time of his arrest on October 30, 2014, rather than on October 28, 2014, as

specified in the criminal information. Hixon again makes this claim on the

basis that the recovered shotgun was not specifically identified as the gun

that was used at the October 28 incident. This claim is without merit, since,

as noted above, the recovery of the shotgun on October 30 provided

circumstantial evidence in support of the direct evidence of eyewitnesses

who testified to observing Hixon fire a gun on October 28. Watley, supra.




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      Finally, Hixon asserts that the trial court used the incorrect offense

gravity score at the time of sentencing. However, this issue implicates the

discretionary aspects of sentencing, and is not appealable as of right.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

before we can address such a discretionary challenge, an appellant must

comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Id. (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

      Here, Hixon filed a post-sentence motion raising his sentencing claim,

followed by a timely notice of appeal to this Court. He has also included in

his appellate brief a concise statement of reasons relied upon for allowance

of appeal with respect to the discretionary aspects of his sentence pursuant

to Rule 2119(f).    We must now determine whether Hixon has raised a

substantial question that the sentence appealed from is not appropriate

under the Sentencing Code. We have previously held that a claim that the

sentencing court used the incorrect offense gravity score raises a substantial

question.   Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super.

2012). Accordingly, Hixon has raised a substantial question.

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      At sentencing, the court applied an offense gravity score of 10, which

indicates that the firearm was loaded or ammunition was available. Hixon

argues that a score of 9 should have been used, which indicates that the

firearm was unloaded and ammunition was not available. See 204 Pa. Code

§ 303.15 (offense gravity score is dependent upon whether firearm is

loaded/ammunition is available or is unloaded/ammunition is not available).

Based upon the testimony at trial that Hixon fired the gun on October 28,

2014, the gun in Hixon’s possession was loaded. Accordingly, we discern no

error on the part of the trial court in using the offense gravity score of 10.

      Hixon also baldly argues that the court should have sentenced him in

the mitigated range since a probation officer told him he was allowed to

possess a shotgun. Hixon provides no legal support for this claim, and we

find that the trial court did not err in not sentencing Hixon to a standard

range sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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