J-A14034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    SAL GERACE                                 :
                                               :
                       Appellant               :      No. 3163 EDA 2017


              Appeal from the Judgment of Sentence July 25, 2017
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0003759-2016


BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 30, 2018

        Appellant, Sal Gerace, appeals from the judgment of sentence imposed

on July 25, 2017, following his non-jury trial conviction of possession of an

instrument of a crime, terroristic threats, simple assault, and violations of the

uniform firearms act (VUFA) for firearms not to be carried without a license,

and carrying a firearm in public in Philadelphia.1 We affirm.

        We take the factual and procedural history in this matter from the trial

court’s December 1, 2017 opinion and our review of the certified record.

              On November 7, 2015, the complainant . . . lived with
        Appellant and their five[-]year[-]old son in the apartment of
        Appellant’s mother. An argument over Appellant’s attempt to give
        candy to the pre-diabetic child escalated into an incident where
        the complainant was[] told “to leave or he was going to throw me
        out by the neck,” hit (mug slapped) in the face, and threatened
        while Appellant held a gun at his side. During the gun episode,
____________________________________________


1   18 Pa.C.S.A. §§ 907, 2706(a)(1), 2701(a), 6106, and 6108, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Appellant made threatening statements such as “we gotta go take
       a ride and he was going to fix this,” and threats to kill everyone,
       including himself. With a history of abuse at the hands of the
       Appellant, [the c]omplainant [] felt threatened. When the gun
       appeared, it was Appellant’s mother who called the police.

             When Police Officer Mike Edwards arrived[,] he first
       encountered Appellant[,] who was standing outside. The officer
       also encountered the complainant who “. . . was crying. She was
       scared, face was trembling.”        The complainant told Officer
       Edwards “. . . after [Appellant] pulled out the firearm and
       threatened to kill her, he left the property, went outside, put the
       firearm in a duffle bag that was inside of the trunk of his car which
       was directly outside.” As a result of this conversation, the
       complainant opened the car trunk and showed the duffle bag.
       Appellant gave the officer permission to look inside the bag along
       with the key to open it. A locked firearm was inside the bag, all
       of which the officer transported to the detective division for
       processing.

              Police Officer [Mark] Wilusz of the Firearm Identification Unit
       testified that the firearm recovered from Appellant arrived for
       processing “with a master trigger lock fixed to the frame,” which
       “inhibited, basically, anybody from pulling the trigger of the
       firearm.” A key for the trigger lock was not recovered. The
       firearms examiner used a drill press to remove the lock, a
       procedure which took less than a minute[,] and the lock “came off
       relatively easily.” The weapon was found to be operable.

(Trial Court Opinion, 12/01/17, at 2-3) (record citations omitted).

       A non-jury trial was held on December 20, 2016 and January 3, 2017.

After trial, the court found Appellant guilty of all charges. On August 30, 2017,

following a hearing, the court denied Appellant’s post-sentence motion. This

timely appeal followed.2

    Appellant presents three questions on appeal:

____________________________________________


2 Pursuant to the court’s order, Appellant filed a concise statement of errors
complained of on appeal on October 12, 2017. The trial court entered its
opinion on December 1, 2017. See Pa.R.A.P. 1925.

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      1. Was the evidence sufficient to prove beyond a reasonable
         doubt that the Appellant was guilty of violation of the [UFA]
         and [p]ossession of an [i]nstrument of [c]rime where the
         weapon that was recovered in this case was not readily
         operable?

      2. Was the evidence sufficient to prove beyond a reasonable
         doubt that the Appellant was guilty of simple assault where the
         Appellant merely slapped the side of his wife’s face during a
         domestic argument, the victim did not sustain impairment of a
         physical condition or substantial pain and the hand[]gun that
         was recovered by the police had not been pointed at her?

      3. Was the evidence sufficient to prove beyond a reasonable
         doubt that the Appellant was guilty of [t]erroristic [t]hreats
         where the Appellant did not have the necessary mens rea with
         respect to statements attributed to him that were made in the
         context of a heated domestic discussion with his wife, during
         which time the Appellant did not have a gun on his possession
         and at no time was a firearm pointed at the complainant?

(Appellant’s Brief, at 3).

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

is well settled.

            When reviewing challenges to the sufficiency of the
      evidence, we evaluate the record in the light most favorable to
      the Commonwealth as verdict winner, giving the prosecution the
      benefit of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      However, the Commonwealth need not establish guilt to a
      mathematical certainty, and it may sustain its burden by means
      of wholly circumstantial evidence. In addition, this Court may not
      substitute its judgment for that of the factfinder, and where the
      record contains support for the convictions, they may not be
      disturbed. Lastly, we note that the finder of fact is free to believe
      some, all, or none of the evidence presented.

Commonwealth v. Smith, 146 A.3d 257, 261-62 (Pa. Super. 2016)

(citations and quotation marks omitted).


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       In his first issue, Appellant challenges the sufficiency of the evidence to

support his VUFA conviction of firearms not to be carried without a license and

carrying a firearm in public in Philadelphia.3 (See Appellant’s Brief, at 7-11).

He claims that the evidence was insufficient because the Commonwealth did

not prove that he possessed a key or other implement that would permit him

to operate the firearm. (See id. at 10-11). We disagree.

       Appellant was convicted of violating sections 6106(a)(1) and 6108 of

the Uniform Firearms Act. Section 6106(a)(1) states, in relevant part:

       § 6106. Firearms not to be carried without a license

       (a) Offense defined.—

              (1) Except as provided in paragraph (2), any person
              who 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 under this
              chapter commits a felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1).

       Section 6108 provides: “No person shall carry a firearm, rifle or shotgun

at any time upon the public streets or upon any public property in a city of the

first class unless: (1) such person is licensed to carry a firearm . . . .” 18

Pa.C.S.A. § 6108(1).
____________________________________________


3 Although Appellant’s question presented also challenges the sufficiency of
the evidence to support his possession of an instrument of crime conviction,
he failed to raise such issue in his Rule 1925(b) statement of errors
complained of on appeal; therefore, it is waived.            See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).


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

denied, 23 A.3d 1055 (Pa. 2011), this Court considered whether operability of

a firearm was a necessary component of sufficient evidence to sustain a

conviction under section 6106. It held that “‘[i]n order to sustain convictions

under [this] section, the firearm in question must have been operable or

capable of being converted into an object that could fire a shot.’” Gainer,

supra at 298 (quoting Commonwealth v. Stevenson, 894 A.2d 759, 775

(Pa. Super. 2006), appeal denied, 917 A.2d 846 (Pa. 2007)); see also

Commonwealth v. Layton, 307 A.2d 843, 845 (Pa. 1973) (“An operable

firearm may be said to 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 an operable firearm.”).

      The Gainer Court determined that unlike in Layton, where the evidence

was not sufficient because there was no evidence to explain why the gun would

not fire, the firearms expert in Gainer testified that the pistol would not fire

because a metal burr had formed, preventing a round from chambering. The

expert explained that he was able to make the pistol operable by grinding the

metal burr off with a small tool. See Gainer, supra at 299.

      Here, similarly, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude the evidence was sufficient to

establish that Appellant’s firearm was capable of being converted into an

operable firearm. See Smith, supra at 261-62; Gainer, supra at 299. The

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evidence demonstrated that after the trigger lock was removed (either by

drilling through the trigger lock or simply using a key—which one could

reasonably infer that Appellant, as the owner of the locked firearm, might

possess), the firearm was operable.4 (See N.T. Trial, 1/03/17, at 24-25); see

also Gainer, supra at 299 (“reject[ing] . . . contention that the

Commonwealth was required to show that [a]ppellant had in his possession

the tools required to repair the pistol, that [a]ppellant was aware of the pistol’s

inoperability, or that [a]ppellant had the knowledge or expertise needed to

remove the metal burr.”). Thus, we conclude the evidence was sufficient to

sustain Appellant’s conviction for violating sections 6106 and 6108 of the

Uniform Firearms Act. Appellant’s first issue is meritless.

       In his second issue, Appellant challenges the sufficiency of the evidence

to support his conviction of simple assault. (See Appellant’s Brief, at 11-12).

Specifically, he claims that the evidence was insufficient to prove his simple

assault conviction because his wife did not sustain significant impairment or

pain. (See id.). We disagree.

       Appellant was convicted of simple assault pursuant to 18 Pa.C.S.A. §

2701(a), which provides that “a person is guilty of assault if he: (1) attempts

to cause or intentionally, knowingly or recklessly causes bodily injury to

another; (2) negligently causes bodily injury to another with a deadly weapon;
____________________________________________


4 Here, the firearms expert explained that he used a drill press to drill off the
trigger lock; however, the same could have been reasonably accomplished
using a hand drill, if one did not have a drill press readily available. (See N.T.
Trial, 1/03/17, at 26, 28).

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[or] (3) attempts by physical menace to put another in fear of imminent

serious bodily injury . . . .” 18 Pa.C.S.A. § 2701(a)(1)-(3).

      “18 Pa.C.S.A. § 2301 defines ‘bodily injury’ as ‘[i]mpairment of physical

condition or substantial pain.’ [18 Pa.C.S.A. § 2301.] Substantial pain may

be inferred from the circumstances surrounding the physical force used.”

Commonwealth v. Duck, 171 A.3d 830, 836 (Pa. Super. 2017) (case citation

omitted); see Commonwealth v. Smith, 848 A.2d 973, 976 (Pa. Super.

2004), appeal denied, 860 A.2d 489 (Pa. 2004) (“For the crime of Simple

Assault, [t]he existence of substantial pain may be inferred from the

circumstances surrounding the use of physical force even in the absence of a

significant injury.”) (citation and internal quotation marks omitted).

      Here, the trial court, which acted as fact finder in this non-jury trial,

concluded that the evidence “is clear that Appellant physically assaulted his

wife with a mug slap to the face, put her in fear of bodily harm, retrieved a

firearm, and verbally threatened to kill her with the gun at his side and/or

forced her to take a ride to fix this.” (Trial Ct. Op., at 4) (record citations and

internal quotation marks omitted). Additionally, the victim testified at trial

that she was sitting in the laundry room crying because Appellant had hit her.

(See N.T. Trial, 12/20/16, at 17).        Accordingly, we conclude that it is

reasonable to infer that the victim endured substantial pain when she was

crying after having been struck on the side of the head by Appellant. (See

id. at 17-18). Consequently, we conclude that the evidence is sufficient to




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support Appellant’s conviction of simple assault.       Appellant’s second issue

does not merit relief.

       Finally, in his third issue, Appellant claims that the evidence was not

sufficient to prove that he was guilty of terroristic threats. (See Appellant’s

Brief, at 12-13). Specifically, he claims that his statements were made in the

context of a “heated domestic discussion” and the Commonwealth failed to

prove that he had the necessary mens rea. (Id. at 12). We disagree.

             The crime of terroristic threats is committed when a person
      “communicates, either directly or indirectly, a threat to commit
      any crime of violence with intent to terrorize another.” 18
      Pa.C.S.A. § 2706(a)(1). An express or specific threat is not
      necessary to sustain a conviction for terroristic threats.
      Consequently, [i]t is unnecessary for an individual to specifically
      articulate the crime of violence which he or she intends to commit
      where the type of crime may be inferred from the nature of the
      statement and the context and circumstances surrounding the
      utterance of the statement.

             [T]he harm sought to be prevented by the statute is the
      psychological distress that follows from an invasion of another’s
      sense of personal security[.] Nevertheless, whether the person
      threatened actually believes the threat will be carried out is
      irrelevant, as such a factor is not an element of the offense.

Commonwealth v. Martinez, 153 A.3d 1025, 1028-29 (Pa. Super. 2016)

(case citations and some quotation marks omitted).

      In the instant case, the evidence at trial demonstrated that Appellant

“retrieved a firearm, and verbally threatened to kill [the victim] with the gun

at his side, and/or forced her to take a ride ‘to fix this.’” (Trial Ct. Op., at 4).

The victim testified that she felt scared after Appellant threatened to kill her,

her child, and himself. (See N.T. Trial, 12/20/16, at 26).


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      Thus, it is reasonable to infer that Appellant’s threat to kill the victim,

her child, and himself, while he was carrying a firearm, was intended to “place

[the victim] in a resultant state of fear and submission.” Martinez, supra at

1029. Accordingly, we conclude that the evidence was sufficient to prove that

Appellant threatened to commit a crime with the intent to terrorize his victim.

See id. at 1028-29. Appellant’s challenge to the sufficiency of the evidence

offered to prove terroristic threats is meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/18




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