J-S57023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VINCENT FULLER

                            Appellant                  No. 62 EDA 2014


            Appeal from the Judgment of Sentence December 4, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003251-2013


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                           FILED OCTOBER 10, 2014

        Appellant, Vincent Fuller, appeals from the December 4, 2013

aggregate judgment of sentence of five to ten years’ imprisonment followed

by five years’ probation, imposed after the trial court found him guilty of

possession of firearms prohibited, firearms not to be carried without license,

and carrying firearms public in Philadelphia.1       After careful review, we

reverse.2

        The trial court has set out the relevant procedural history of this case

as follows.
____________________________________________


1
    18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
2
  We note the Commonwealth was granted an extension to file its brief by
July 29, 2014, with no further extensions. Per Curiam Order, 6/2/2014. The
Commonwealth filed its brief on September 24, 2014 and is thus untimely.
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                     On October 19, 2012, [Appellant], … was
              arrested and was charged with VUFA-former
              conviction, firearms not to be carried without a
              license, and carrying firearms public street/place for
              events that occurred on October 18, 2012, in the
              vicinity of the 5200 Block of N. 15th Street in the
              City and County of Philadelphia. A [bench] trial was
              conducted before [the trial court] on October 7,
              2013.

                    At the conclusion of the trial, [Appellant] was
              found guilty of all charges. … On December 4,
              2013, [the trial court] imposed a sentence of five (5)
              to ten (10) years of incarceration on the conviction
              for VUFA-former conviction, followed by a five (5)
              year period of probation on the conviction for
              carrying firearms without a license.      No further
              penalty was imposed on the conviction for firearms
              public street/place.

Trial Court Opinion, 3/18/14, at 1-2 (footnotes omitted). Appellant did not

file a post-sentence motion.        On January 2, 2014, Appellant filed a timely

notice of appeal.3

        On appeal, Appellant raises the following issue for our review.

              [1] Was the evidence sufficient to sustain the
              convictions for violation of the uniform firearms act?

Appellant’s Brief at 5.

        Our standard of review on a claim challenging the sufficiency of the

evidence is well settled.

              There is sufficient evidence to sustain a conviction
              when the evidence admitted at trial, and all
____________________________________________


3
    Appellant and the trial court have timely complied with Pa.R.A.P. 1925.



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             reasonable inferences drawn therefrom, viewed in
             the light most favorable to the Commonwealth as
             verdict winner, are sufficient to enable the fact-finder
             to conclude the Commonwealth established all of the
             elements of the offense beyond a reasonable doubt.

Commonwealth v. Morales, 91 A.3d 80, 87 (Pa. 2014) (citation omitted).

      “The Commonwealth can meet its burden by wholly circumstantial

evidence and any doubt about the defendant’s guilt is to be resolved by the

fact finder unless the evidence is so weak and inconclusive that, as a matter

of   law,   no   probability   of   fact   can   be   drawn   from   the   combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. “[T]he trier of fact

while passing upon the credibility of witnesses and the weight of the

evidence produced is free to believe all, part or none of the evidence.”

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted). A successful

sufficiency of the evidence challenge warrants discharge. Commonwealth

v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012) (citation omitted).

      With these principles in mind, we turn to Appellant’s challenge to the

sufficiency of the evidence supporting his convictions in the instant case.


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The relevant statutes under which Appellant was convicted provide as

follows.

           § 6105. Persons not to possess, use,
           manufacture, control, sell or transfer firearms

           (a) Offense defined.--

                (1) A person who has been convicted of an
                offense enumerated in subsection (b), within
                or without this Commonwealth, regardless of
                the length sentence or whose conduct meets
                the criteria in subsection (c), shall not possess,
                use, control, sell, transfer or manufacture or
                obtain a license to possess, use, control, sell,
                transfer or manufacture a firearm in this
                Commonwealth.

                                     …

           (i) Firearm.—As used in this section only, the term
           “firearm” shall include any weapons which are
           designed to or may readily be converted to expel any
           projectile by the action of an explosive or the frame
           or receiver of any such weapon.

                                     …

18 Pa.C.S.A. § 6105.

           § 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.


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                                                 …

Id. § 6106(a)(1).

              § 6108. Carrying firearms on public streets or
              public property in Philadelphia

              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;
                     or

                     (2) such person is exempt from licensing under
                     section 6106(b) of this title (relating to
                     firearms not to be carried without a license).

Id. § 6108.

       Appellant asserts that “[t]he evidence is insufficient to sustain all three

convictions for Violation of the Uniform Firearms Act.” Appellant’s Brief at 9.

Specifically, Appellant contends that the Commonwealth did not prove the

possession element of the offenses beyond a reasonable doubt “because the

only evidence against him was the weak, inconclusive, and uncorroborated

testimony of a witness.” Id. at 11.4

       Viewing      the   evidence      in     the   light   most   favorable   to   the

Commonwealth as verdict winner, we conclude there is insufficient evidence
____________________________________________


4
  The trial court found the testimony of the witnesses credible at trial. Trial
Court Opinion, 3/18/14, at 5. After reviewing the trial transcript, however,
the trial court now concludes that the evidence presented at trial “is not
sufficient to sustain the conviction.” Id. The trial court further concludes
“the guilty verdicts on all charges should be vacated and the case remanded
for dismissal.” Id. at 6.



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to support Appellant’s convictions for possession of firearms prohibited,

firearms not to be carried without license, and carrying firearms public in

Philadelphia.

              [E]vidence sufficient to implicate an accused in a
              crime must be something more than evidence
              showing remote connection between the accused and
              the crime, or evidence that merely raises a suspicion
              of guilty intention…. An accused is entitled to an
              acquittal if his guilt of the crime charged is not the
              only reasonable interpretation of which the facts
              adduced against him are susceptible. Guilt must be
              proved and not merely conjectured.

Commonwealth v. Barker, 70 A.3d 849, 854-855 (Pa. Super. 2013) (en

banc) (citations omitted), appeal denied, 87 A.3d 814 (Pa. 2014).      “[A]

verdict of guilt may not be based upon surmise or conjecture. … [W]here

evidence offered to support a verdict of guilt is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, a jury

may not be permitted to return such a finding.”            Commonwealth v.

Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).

       At trial, the Commonwealth presented the testimony of an eyewitness,

Timothy Bonds, and Philadelphia Police Detective Robert Hassel. 5 During his

direct examination at trial, Bonds testified that, while walking home on the

5200 block of North 15th Street in Philadelphia, he saw “a couple people

____________________________________________


5
  The only other evidence presented by the Commonwealth was a certificate
of non-licensure. N.T., 10/7/12, at 49. This element is not contested by
Appellant.



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arguing.” N.T., 10/7/12, at 17-18. Bonds testified that the argument was

between a woman and Appellant’s brother, and as Bonds walked by the

argument, Appellant asked Bonds “…was [Appellant’s] brother up the

street[?]    I answered yeah.”   Id. at 18.   Bonds continued to walk home

when he heard “a loud smack.”      Id.    Bonds testified that when he turned

around, “… the crowd that was with [Appellant’s] brother … was dispersing,

and I saw [a woman] running up the street waiving a gun and shooting.”

Id.   Bonds heard “a couple more shots,” and saw smoke coming from

Appellant’s hands. Id.

      Bonds testified he did not remember what type of gun he thought

Appellant possessed, but he heard “altogether maybe nine or ten shots.”

Id. at 19.    The Commonwealth then attempted to refresh his recollection

with a prior written statement made by Bonds.           Id., Commonwealth’s

Exhibit, C-1, Statement of Timothy Bonds, Jr., 10/18/12; see also Pa.R.E.

612 (permitting, under certain circumstances, the use of a writing to refresh

a witness’s memory).

             [Commonwealth:]

             Q.    Sir, if I showed you your statement, would that
             help you refresh your recollection, your memory?

             [Bonds:]

             A.    Maybe, yes, ma’am.

                                      …




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            Q.    Does that help you remember what type of gun
            it was in his hand?

            A.    It says here a silver revolver.

            Q.    ... And how many shots did he fire?

            A.    At least six.

            Q.    And where did [Appellant] go after you heard
            the shooting?

            A.    I don’t know. I don’t know.

N.T., 10/7/12, at 17-18 (emphasis added).

      On cross-examination, Bonds testified approximately six people were

in the crowd where the argument between Appellant’s brother and the

woman was occurring. Id. at 25. He saw the woman chasing people and

“pull out her gun and start shooting.” Id. at 26-27. Counsel for Appellant

admitted into evidence the same statement as the Commonwealth’s C-1, to

impeach Bonds’ testimony. Id. at 30, 53, Defense’s Exhibit, D-2, Statement

of Timothy Bonds, Jr., 10/18/2012; see also Pa.R.E. 613 (permitting, under

certain circumstances, the use of a witness’s prior inconsistent statement for

impeachment).    When asked why his prior statement did not indicate the

woman shot first, Bonds answered, “I must have misunderstood the

question, but I saw who fired first.”     N.T., 10/7/12, at 30.     He further

testified the statement was typed wrong, and that he told detectives he saw

the woman “pull a gun out and start shooting.”      Id. at 32-33.   The cross

examination continued, and Bonds testified he did not remember if he saw a


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gun. Id. at 36. He then testified, “I heard gunshots and I turned around. I

didn’t actually see [Appellant] shooting, but I heard gunshots.” Id.

        On re-direct examination, the Commonwealth again approached Bonds

with his prior statement.     Id. at 38.    Bonds acknowledged the statement

read, “I actually saw [Appellant] pull his gun out and start shooting[,]” but

continued “[t]hat’s what it says on there. I never saw him pull a gun.” Id.

at 38-39.      The Commonwealth asked him about another portion of his

statement which read, “I saw [Appellant] pull his gun out and start shooting.

… I heard the shots, and I saw [Appellant] pull his gun out and start

shooting.” Id. at 40. Bonds responded that he did not remember saying

that.    Id.   We note the Commonwealth never sought admission of this

statement as substantive evidence.          See Pa.R.E. 803.1(1) (permitting,

under certain circumstances, the admission of a witness’s prior inconsistent

statement as substantive evidence as an exception to the hearsay rule).

        The Commonwealth next called Detective Hassel who testified Bonds

identified Appellant from a photo array. N.T., 10/7/12, at 46-47. On cross-

examination,     Detective   Hassel   testified   that   the   investigation   never

recovered a gun nor was any evidence against Appellant recovered through

a search of Appellant’s residence. Id. at 47-48.

        After reviewing the entire record, and viewing all evidence actually

received in the light most favorable to the Commonwealth, we conclude that

insufficient evidence was produced at trial to find Appellant possessed a


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firearm beyond a reasonable doubt.            During his direct and cross-

examinations, Bonds testified that he merely heard shots fired, but he never

saw Appellant with a gun. We recognize that Bonds provided different and

more detailed information in his prior written statement.      However, Bonds

did not endorse that version of events when confronted with the statement

during his trial testimony and, as noted, the Commonwealth never sought

the admission of the statement as substantive evidence.

     Thus, the trial testimony Bonds provided, establishes there was an

argument involving Appellant’s brother, a crowd of approximately six people

were in the immediate area, and a woman began shooting. Bonds identified

Appellant as arriving at the scene about the same time as himself. Bonds

related that the woman produced a gun and started shooting.           He heard

other shots and saw smoke but never saw Appellant with a gun.                The

Commonwealth     produced   no   other      evidence   of   Appellant’s   alleged

possession of a firearm.

     Such evidence compels us to conclude that no probability of fact can

be drawn in favor of meeting the element of possession.           See Watley,

supra at 113. Moreover, to find Appellant possessed a firearm based on the

testimony of Bonds that he saw smoke coming from Appellant’s hands, but

never saw Appellant pull or shoot a gun would require the factfinder to

engage in conjecture and merely surmise possession, which is insufficient to

support a finding of guilt.      See Karkaria, supra at 1170.              While


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circumstantial   evidence   may   be    sufficient    to   prove   the   element   of

possession, the evidence adduced against Appellant arguably supporting an

inference of possession of a firearm is not the only reasonable interpretation

to which the evidence is susceptible. Therefore, guilt has not been proved.

See Barker, supra at 855.

      Based on the foregoing, we conclude the Commonwealth set forth

insufficient evidence to prove Appellant guilty of possession of firearms

prohibited, firearms not to be carried without license, and carrying firearms

public in Philadelphia beyond a reasonable doubt. See Morales, supra at

86. Accordingly, the trial court’s December 4, 2013 judgment of sentence is

reversed and we order Appellant discharged.

      Judgment of sentence reversed.            Appellant discharged.    Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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