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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LAMAR LEWIS

                            Appellant               No. 3253 EDA 2015


      Appeal from the Judgment of Sentence Entered October 23, 2015
           In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0010105-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MAY 04, 2017

       Appellant, Lamar Lewis, appeals from the October 23, 2015 judgment

of sentence imposing an aggregate 1½ to 3 years of incarceration for

carrying a firearm with an obliterated serial number followed by five years of

probation for carrying a firearm without a license.1 We vacate and remand

for resentencing.

       On April 29, 2013, Officers Timothy Stephan and Keith White were

patrolling the 3100 block of Frankford Avenue in Philadelphia when they

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1
    18 Pa.C.S.A. §§ 6110.2 and 6106, respectively. The trial court also
imposed a concurrent two years of probation for recklessly endangering
another person (18 Pa.C.S.A. § 2705).         The court imposed no further
penalty for possession of a controlled substance (35 P.S. § 780-113(a)(16)),
unlawful possession of a firearm (18 Pa.C.S.A. § 6105), and carrying a
firearm in public in Philadelphia (18 Pa.C.S.A. § 6108).
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noticed a firearm protruding from Appellant’s waistband.            Appellant

disobeyed Officer Stephan’s command to stop, and an altercation ensued

between Appellant, Officer Stephan, and Officer White. Back up arrived and

the police subdued Appellant.   Police retrieved a .40 caliber Taurus PT840

that dropped from Appellant’s person during the scuffle.          Both serial

numbers on the gun were obliterated.

      On August 3, 2015, a jury convicted Appellant of the aforementioned

offenses.   The trial court imposed sentence on October 23, 2015, and

Appellant filed this timely appeal on November 2, 2015. The sole issue on

appeal is the sufficiency of the evidence in support of Appellant’s conviction

for carrying a firearm without a license under § 6106.       Our standard of

review is well settled:

            When evaluating a sufficiency claim, our standard is
      whether, viewing all the evidence and reasonable inferences in
      the light most favorable to the Commonwealth, the factfinder
      reasonably could have determined that each element of the
      crime was established beyond a reasonable doubt. This Court
      considers all the evidence admitted, without regard to any claim
      that some of the evidence was wrongly allowed. We do not
      weigh the evidence or make credibility determinations.
      Moreover, any doubts concerning a defendant's guilt were to be
      resolved by the factfinder unless the evidence was so weak and
      inconclusive that no probability of fact could be drawn from that
      evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.2d 796 (Pa. 2011).         Section 6106 prohibits carrying a

concealed firearm without a license. 18 Pa.C.S.A. § 6106(a).




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       The Commonwealth bears the burden of proving the defendant’s

nonlicensure under § 6106. Commonwealth v. Lopez, 565 A.2d 437, 439-

440 (Pa. 1989).2 In an apparent oversight in this case, the Commonwealth

did not introduce into evidence the certificate of nonlicensure.         At the

conclusion of its case, the Commonwealth moved the introduction of Exhibits

C-6, C-7, C-9, C-10, etc., but omitted C-8, which was the certificate of

nonlicensure. N.T. Trial, 7/30/2015, at 30. Prior to sentencing, Appellant

moved for judgment of acquittal on the § 6106 charge on that basis. The

trial court addressed that motion at the sentencing           hearing.     The

Commonwealth argued that it produced sufficient evidence to sustain the

conviction under § 6106 because it is impossible to have a license to carry a

firearm with an obliterated serial number.       The trial court accepted the

Commonwealth’s reasoning and denied the motion.             N.T. Sentencing,

10/23/2015, at 6-7.

       We reject this line of reasoning, inasmuch as § 6106 and § 6110.2 are

separate offenses with distinct elements. Appellant’s possession of a license

would not provide a defense for possession of the altered firearm under

§ 6110.2.    On the other hand, Appellant’s possession of a firearm with an

obliterated serial number neither proves nor disproves whether Appellant

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2
  In this respect, § 6106 is distinct from § 6108, under which licensure is a
defense rather than an element of the offense.          Commonwealth v.
Bigelow, 399 A.3d 392 (Pa. Super. 1979).



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possessed a license to carry a firearm.         The Commonwealth must prove

nonlicensure to obtain a conviction under § 6106.

      On   appeal,    the   Commonwealth       offers   an    alternative    basis   for

affirmance.   See Commonwealth v. Truong, 36 A.3d 592, 593 n.2 (Pa.

Super. 2012) (noting that this Court may affirm the trial court on any valid

basis), appeal denied, 57 A.2d 70 (Pa. 2012).                In Commonwealth v.

Woods, 638 A.2d 1013 (Pa. Super. 1994), appeal denied, 651 A.2d 5 37

(Pa. 1994), this Court held that a certificate of nonlicensure is not necessary

to prove a violation of § 6106.     Rather, we accepted the testimony of the

deputy sheriff from the county in which the defendant resided. Id. at 1016.

“[E]vidence of non-licensure by the appropriate issuing authority of a

defendant’s   place    of   residence   at    the   time     of   arrest    meets    the

Commonwealth’s burden of proof on the element of non-licensure as

required by § 6106.” Id.

      The Commonwealth notes that Appellant introduced the transcript of

his suppression hearing into evidence.        In that transcript, Officer Stephan

testified that Appellant did not produce a license and had no license to carry.

N.T. Suppression Hearing, 11/25/2014, at 18. We are cognizant that Officer

Stephan is a Philadelphia police officer and that the Philadelphia Police

Department is an issuing authority for gun licenses.                Nonetheless, the

Commonwealth fails to cite any portion of the trial transcript or any exhibit




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establishing Appellant’s place of residence at the time of the arrest.3      As

such, the Commonwealth cannot avail itself of the holding in Woods. We

therefore conclude the Commonwealth failed to produce sufficient evidence

to obtain a conviction under § 6106. We vacate the judgment of sentence

and remand for resentencing.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2017




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3
   See Pa.R.A.P. 2119(c) (requiring citation to pertinent portions of the
record).



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