J-S16006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CLIFFORD TAYLOR GREEN

                            Appellant                  No. 212 WDA 2016


            Appeal from the Judgment of Sentence November 24, 2015
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0015533-2014


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 19, 2017

       Clifford Taylor Green appeals from the November 24, 2015 judgment

of sentence entered in the Allegheny Court of Common Pleas following his

convictions for persons not to possess a firearm, carrying a firearm without a

license, and possession of a controlled substance.1         We vacate Green’s

judgment of sentence on his conviction for carrying a firearm without a

license and affirm the judgment of sentence in all other respects. Because

our decision does not alter the trial court’s overall sentencing scheme, we do

not remand for resentencing.


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 35 P.S. § 780-
113(a)(16), respectively.
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       The trial court summarized the factual history of this matter as

follows:

                On October 19, 2014, Borough of Wilkinsburg Police
            Sergeant Daniel Cuiffi was assisting City of Pittsburgh
            police with the apprehension of [Green], who was
            suspected to be in the East Hills section of the City of
            Pittsburgh near Wilkinsburg. [Green] had escaped from
            the Renewal Center and was wanted on an active warrant.
            Sergeant Cuiffi was provided with [Green]’s direction of
            flight (into a wooded area of the East Hills that borders
            Wilkinsburg), as well as a description and photograph of
            [Green].

               At approximately 8:50 P.M. Sergeant Cuiffi observed
            [Green] standing in front of a store in the 1700 block of
            Montier Street, at the intersection of Laketon Road,
            Montier Street, and Robinson Boulevard. Sergeant Cuiffi
            placed a radio call to other officers for backup, and to
            notify them that he located an individual matching
            [Green]’s description. Sergeant Cuiffi drove past [Green],
            turned around, and approached [Green] in his vehicle. At
            that time, [Green] crossed the street and walked towards
            the Dollar General store. Sergeant Cuiffi parked his
            vehicle, opened the door, and told [Green] to stop.
            [Green] ignored Sergeant Cuiffi and entered the Dollar
            General store.

               Officers Donald Hamlin and Waz2 arrived on scene, and
            assisted Sergeant Cuiffi in setting up a perimeter around
            the Dollar General store. Sergeant Cuiffi covered the rear
            entrance, Officer Waz covered the front entrance, and
            Officer Hamlin covered the side entrance. Shortly after
            entering, [Green] walked to the back of the store, through
            double doors, into a storage area, and out the side door.
            Officer Hamlin took [Green] into custody. [Green] was
            searched incident to arrest, and the officers recovered a
            small amount of cocaine from [Green]’s front right pants


____________________________________________


       2
           Officer Waz’s first name does not appear in the record.



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            pocket. Following the search, Officer Waz transported
            [Green] to the police station.

               Sergeant Cuiffi entered the Dollar General store and
            spoke with staff inside the store. Staff member Addie
            Thorn directed Sergeant Cuiffi to a firearm on a shelf.
            Thorn noted that he had cleaned the shelf prior to [Green]
            entering the store, and there was no firearm present at
            that time.

                While at the station, [Green] was read his Miranda[3]
            Rights. After signing a Miranda Rights Waiver Form,
            Sergeant Cuiffi questioned [Green] about the firearm.
            [Green] provided a written statement wherein he stated
            that he had found the firearm in the woods in the East
            Hills, and discarded it in the Dollar General store because
            the police were following him.

               Approximately one hour later, [Green] called for
            Sergeant Cuiffi, and requested to add something to his
            statement. Sergeant Cuiffi provided [Green] with a new
            statement form, wherein [Green] provided a statement
            that omitted mention of a firearm, and ended with a
            request for an attorney. Prior to that time, [Green] had
            not requested an attorney.

               [Green] did not have a license to carry a firearm, and
            he was charged as noted hereinabove.

Opinion, 7/20/16, at 8-10 (“1925(a) Op.”) (internal citations and footnotes

omitted).

       The procedural history of this matter is as follows:

               [Green] was charged by criminal information (CC
            201415533) with one count each of persons not to possess
            a firearm, carrying a firearm without a license, and
            possession of a controlled substance.



____________________________________________


       3
           Miranda v. Arizona, 384 U.S. 436 (1966).



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            On November 20, 2015, [Green] proceeded to a
         nonjury trial.4 On November 24, 2015, the Trial Court
         found [Green] guilty as charged.
                   4
                      [Green] proceeded to a nonjury trial,
                wherein the Trial Court incorporated the
                testimony from the suppression hearing.
                Nonjury Trial Transcript, November 20, 2015,
                at 5 (hereinafter “N.T.”). Additionally, the
                Commonwealth presented evidence regarding
                [Green]’s non-licensure, his Miranda rights
                form, the affidavit of probable cause, [Green]’s
                certified conviction, and the crime lab reports.
                [Green] testified on his own behalf.

            On November 24, 2015, [Green] was sentenced by the
         Trial Court as follows:

            Count one: persons not to possess a firearm — three to
         six years incarceration;

            Count two: carrying a firearm without a license — three
         to six years incarceration, to be served concurrent to the
         period of incarceration imposed at count one;

            Count three: possession of a controlled substance —
         one to two years incarceration, to be served concurrent to
         the period of incarceration imposed at count two.

            On November 30, 2015, [Green] filed a post sentence
         motion, which was denied by the Trial Court on January
         12, 2016.

              This timely appeal followed.

Id. at 2-3.

      Green raises the following issues on appeal:

         1. Should [Green]’s 18 Pa.C.S. § 6106 conviction be
         vacated because the Commonwealth failed to prove the
         Concealment, Barrel/Overall Length, and Non-Licensure
         elements of that crime?

         2. Should [Green]’s Confession admitting to having
         Possessed the Firearm that was found on the shelf of the
         Dollar General Store – the only evidence presented by the


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         Commonwealth on the element of Possession – have been
         excluded pursuant to the Corpus Del[i]cti Rule?

         3. Should [Green]’s Corpus Del[i]cti Argument be
         addressed on the merits, either (A) because it was
         preserved for appeal when Trial Counsel sought exclusion
         of [Green]’s confession prior to trial, with the fact that he
         did so due to a violation of the Miranda rule rather than
         the Corpus Del[i]cti rule being irrelevant since Pa.R.App.P.
         302(a) requires only Issues be preserved, not rationales;
         or, alternatively, (B) because although it was waived by
         Trial Counsel’s failure to assert the Corpus Del[i]cti
         rationale, that failure constituted an act of ineffective
         assistance for which the remedy is for the waived Corpus
         Del[i]cti claim to be addressed?

Green’s Br. at 4.

      Green challenges the sufficiency of the evidence to support his

conviction for carrying a firearm without a license. We apply the following

standard when reviewing a sufficiency of the evidence claim:       “[W]hether

viewing all the evidence admitted at trial in the light most favorable to the

verdict winner, there is sufficient evidence to enable the fact-finder to find

every element of the crime beyond a reasonable doubt.” Commonwealth

v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003) (quotation omitted). In

applying this standard, “we may not weigh the evidence and substitute our

judgment for the fact-finder.” Id. (quotation omitted). Further, “the facts

and circumstances established by the Commonwealth need not preclude

every possibility of innocence.” Id. (quotation omitted). Moreover, “[a]ny

doubts regarding a defendant’s guilt may be resolved by the fact-finder

unless the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.”        Id.

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(quotation omitted).       In applying the above test, we must evaluate the

entire record. Id.

       To convict a defendant of carrying a firearm without a license, the

Commonwealth must prove beyond a reasonable doubt that:               (1) the

weapon was a firearm; (2) the defendant did not have a valid and lawfully

issued license to carry a firearm; and (3) where the firearm was concealed

on or about the defendant’s person, it was outside the defendant’s abode or

place of business. See 18 Pa.C.S. § 6106(a)(1); Commonwealth v. Coto,

932 A.2d 933, 939 (Pa.Super. 2007). Green argues that the Commonwealth

failed to prove beyond a reasonable doubt that: the firearm was concealed;

the firearm in question qualified as a “firearm” within the meaning of section

6106; and Green lacked a concealed-carry license.

       We first address Green’s contention that the Commonwealth failed to

prove beyond a reasonable doubt that he concealed the firearm. In essence,

Green claims that even if the evidence was sufficient to prove he carried

the firearm, it did not establish that he concealed it. The Commonwealth

concedes, and the record reveals, that Sergeant Cuiffi never testified as to

whether he saw Green with a firearm before entering the store or on the

video of Green entering the store4. See Cmwlth.’s Br. at 13. Nonetheless,


____________________________________________


       4
           Sergeant Cuiffi testified as follows:

(Footnote Continued Next Page)


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the Commonwealth argues that because Sergeant Cuiffi never testified “that

he did not see a gun in [Green]’s hands . . . the only reasonable implication .

. . is that he did not see the appellant with a gun.” Id.

      We are mindful that our standard of review requires us to view the

evidence in the light most favorable to the Commonwealth as the verdict

winner, and “giv[e] the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.” Commonwealth v. Robinson, 817 A.2d

1153, 1158 (Pa.Super. 2003) (quoting Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000)). However, we are also mindful that:

          the inferences must flow from facts and circumstances
          proven in the record, and must be of [“]such volume and
          quality as to overcome the presumption of innocence and
          satisfy the jury of the accused’s guilt beyond a reasonable
          doubt.[”] Commonwealth v. Clinton, 391 Pa. 212, 219,
          137 A.2d 463, 466 (1958). The trier of fact cannot base a
          conviction on conjecture and speculation and a verdict
          which is premised on suspicion will fall even under the
          limited scrutiny of appellate review.

Id. (quoting Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.Super.

1991) (emphasis omitted).

                       _______________________
(Footnote Continued)

          Q. Let’s stop a minute to talk a little more about that
          video. You say the video showed the defendant walking
          into the store. Did it show anything else?

          A. The video didn’t show anything other than Mr. Green
          walking into the store and bearing left and that’s where --
          that was the extent of that video.

N.T. Suppression, 9/9/15, at 9.



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       In Commonwealth v. Nickol, 381 A.2d 873, 876-77 (Pa. 1977), our

Supreme Court rejected the appellant’s challenge to the trial court’s failure

to grant his motion in arrest of judgment with respect to a charge of

carrying a firearm without a license.5            The appellant argued that the

Commonwealth failed to establish that he had concealed the firearm. Id. at

876. The Court concluded:

           At trial, the prosecution called . . . the driver of the get-
           away vehicle. She testified that she saw no gun in the
           possession of Nickol either at the time he left the vehicle to
           enter the supermarket or at the time he reentered the
           automobile. Other testimony elicited at trial substantiates
           that Nickol did possess and use a firearm in the interim.
           The issue of whether the gun which appellant used might
           have been concealed on his person when he entered the
           supermarket was a question for the finder-of-fact. We
           believe the evidence in the instant case was sufficient to
           give rise to a permissible inference that Nickol did conceal
           the weapon.

Id. at 876-77. Thus, in Nickol, a witness had testified the appellant was

not in visible possession of a firearm.          However, because other evidence

established that the appellant was later seen in possession of a firearm, a

reasonable inference of concealment arose.

       Here, the Commonwealth posits that because Sergeant Cuiffi did not

testify that Green possessed a firearm, the “only reasonable implication” is
____________________________________________


       5
        At the time, section 6106 read as follows: “(a) Offense defined. No
person shall carry a firearm in any vehicle or concealed on or about his
person, except in his place of abode or fixed place of business, without a
license therefor as provided in this subchapter.” Nickol, 381 A.2d at 877
n.6 (quoting former 18 Pa.C.S. § 6106(a)).



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that Green concealed a firearm.                We disagree.   Another “reasonable

implication” is that Sergeant Cuiffi simply did not see a firearm that was

otherwise visible on or about Green’s person.             It is also possible that

Sergeant Cuiffi saw a firearm on or about Green’s person but failed to say so

when he testified. Further, although Green placed the firearm on the store

shelf, this fact does not establish that the firearm was concealed before

Green entered the store. Given Sergeant Cuiffi’s silence6 as to whether he

saw Green in possession of a firearm, despite viewing video of Green

entering the store,7 we conclude that the Commonwealth did not prove the

element of concealment beyond a reasonable doubt. Accordingly, because

the Commonwealth did not prove the essential element that Green

concealed a firearm, we vacate his judgment of sentence on the conviction

for carrying a firearm without a license.

       Because we have vacated Green’s judgment of sentence for carrying a

firearm without a license, we need not address his other arguments on this
____________________________________________


       6
       Even if this silence reasonably supports the inference that from his
vantage point Sergeant Cuiffi did not see a firearm, it does not similarly
support the further inference that the firearm was concealed.
       7
       Sergeant Cuiffi testified that on the night of the crime, after viewing
the video, he attempted to obtain a copy but was told that a district
manager would have to retrieve the video for him. This did not occur.
Sergeant Cuiffi returned to the store and made other requests for the video
over a number of months, but by his fourth request, he was advised that the
video had probably been taped over. N.T. Suppression, 9/9/15, at 10.
Accordingly, the video was not part of the record at trial and was never
viewed by the trial court.



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issue. The trial court sentenced Green to 3 to 6 years’ incarceration on his

conviction for carrying a fireman without a license, to be served concurrent

to a term of 3 to 6 years’ incarceration on the persons not to possess a

firearm conviction. Thus, our decision does not upset Green’s overall

sentencing scheme, and we need not remand for resentencing.                     See

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006) (“[I]f our

decision does not alter the overall scheme, there is no need for a remand.”).

       In his next two issues, Green challenges his firearm convictions on the

ground that his confession should have been excluded on the basis of the

corpus delicti rule.8 He argues that we should review this issue because,

either, it has not been waived despite a failure to raise the issue before the

trial court, or because trial counsel was ineffective for failing to raise the

issue before the trial court.

       Because Green did not raise his corpus delicti claim before the trial

court, we conclude that it is waived.9             See Pa.R.A.P. 302(a) (“Issues not

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       8
        As we have previously explained: “The corpus [delicti] rule places
the burden on the prosecution to establish that a crime has actually occurred
before a confession or admission of the accused connecting him to the crime
can be admitted.”     Commonwealth v. Dupre, 866 A.2d 1089, 1097
(Pa.Super. 2005) (quotation omitted). “The Commonwealth need not prove
the existence of a crime beyond a reasonable doubt as an element in
establishing the corpus delicti of a crime, but the evidence must be more
consistent with a crime than with [an] accident.” Id. at 1098.
       9
        Green argues that because his motion to suppress properly raised
the “issue” of his statement’s admissibility, his failure to offer the “rationale”
(Footnote Continued Next Page)


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raised in the lower court are waived and cannot be raised for the first time

on appeal.”); see also Andrews v. Cross Atl. Capital Partners, Inc., 158

A.3d 123, 130 (Pa.Super. 2017) (finding claim waived where argument on

appeal advanced a different legal theory than theory offered at trial and

post-trial); Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008)

(“[F]or any claim that [is] required to be preserved, this Court cannot review

a legal theory in support of that claim unless that particular legal theory was

presented to the trial court.”)

      We further conclude that we cannot review Green’s ineffective

assistance of counsel claim on this direct appeal. Green argues that if we

find his corpus delicti claim is waived, then his trial counsel was ineffective

for seeking to suppress his confession based on only Miranda. It is well-

settled that “absent certain circumstances, ‘claims of ineffective assistance

of counsel are to be deferred to [Post Conviction Relief Act] review; trial

courts should not entertain claims of ineffectiveness upon post-verdict

motions; and such claims should not be reviewed upon direct appeal.’”

Commonwealth v. Harris, 114 A.3d 1, 5 (Pa.Super. 2015) (quoting

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013)); see also

                       _______________________
(Footnote Continued)

of corpus delicti did not constitute waiver. See Green’s Br. at 59-62. We
disagree. The failure to raise the corpus delicti argument before the trial
court deprived the Commonwealth of the opportunity to present relevant
evidence and argue then, as it does now, that the requirements of the rule
were met.



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Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“[A]s a general

rule, a petitioner should wait to raise claims of ineffective assistance of trial

counsel until collateral review.”).       Accordingly, because circumstances

warranting review of Green’s ineffectiveness claim on direct appeal do not

exist, we dismiss that claim without prejudice. See Grant, 813 A.2d at 739

(dismissing   appellant’s   claims   of   ineffectiveness   of   counsel   without

prejudice).

      Judgment of sentence vacated in part and affirmed in part.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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