J-S42021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CURTIS BUSH,                               :
                                               :
                       Appellant               :   No. 3393 EDA 2018

        Appeal from the Judgment of Sentence Entered, October 6, 2016,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0013467-2013.

BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 18, 2019

        Curtis Bush appeals from the judgment of sentence imposed following

his conviction of aggravated assault and various weapons-related charges.1

We affirm.

        The trial court summarized the evidence presented at trial as follows:

              The complainant, Mr. Lamont Paschall, testified that . . . as
        he was traveling [by bicycle] on Poplar Street, in Philadelphia, he
        noticed a group of males on the corner as he made a left turn onto
        Leland Street. As he approached the middle of the block[,] he
        heard a gun “cock” behind him and heard shots. On reaching the
        end of the block and just about to turn, he was hit in the back by
        a bullet and fell to his right coming to rest on a set of steps on the
        corner of Ginnodo Street. As he was attempting to get up, [Bush]
        stood “over top” of him, shooting him multiple times.               He
        described [Bush’s] gun as “black and square.” [Bush] then ran
        back down Leland [Street] in the direction from which he had
        come.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 2702(a), 6106, 6108, 907(a).
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             Mr. Paschall testified that he knew [Bush] from the
      neighborhood and had, in fact, seen him earlier that day. He also
      testified that [Bush’s] face was uncovered and he “looked of
      shock, that’s why his mouth was wide open, that’s when he
      started shooting again.”

            Philadelphia Police Officer Lamont Fox testified that he is a
      member of the Philadelphia Police Crime Scene Unit and that on
      August 12, 2013, he was assigned to investigate Mr. Paschall’s
      shooting at Leland and Ginnodo Streets.          As part of his
      investigation, he recovered several bullet fragments and ten
      “Federal 40 S&W” fired casings.

             Philadelphia Police Officer Norman DeFields, qualified as an
      expert in the field of firearms identification and ballistics, testified
      that he was assigned to conduct an examination of ballistics
      evidence recovered by Officer Fox. As a result of his examination
      of the shell casings, he concluded that they were all fired from the
      same gun which he testified had the markings of a Glock type
      firing pin and were fired from a semi-automatic pistol. He
      illustrated his testimony by displaying to the jury a model of a
      Glock semi–automatic pistol that was consistent with his findings.

Trial Court Opinion, 12/12/17, at 5-6.

      Bush was arrested and charged with numerous offenses, including

attempted murder, aggravated assault, firearms not to be carried without a

license, carrying firearms on public streets in Philadelphia, and possession of

an instrument of a crime (“PIC”). His first trial ended in a mistrial in 2015. At

the conclusion of his second trial in 2016, the jury was unable to reach a

verdict on the charge of attempted murder. Bush accepted the jury’s partial

verdict finding him guilty on the charges of aggravated assault, firearms not

to be carried without a license, carrying firearms in Philadelphia, and PIC. On

October 6, 2016, Bush was sentenced to an aggregate prison term of fifteen


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to thirty years. Bush filed timely post-trial motions, which were denied by

operation of law.2 Bush thereafter filed a timely notice of appeal, and both

Bush and the trial court complied with Pa.R.A.P. 1925.

       Bush raises the following issue for our review: “Is [Bush] entitled to an

arrest of judgment since the evidence is insufficient to sustain the verdicts of

guilt on the firearms charges as the Commonwealth failed to sustain its burden

of proving guilt beyond a reasonable doubt and because the evidence was

against the weight of the evidence.”             Bush’s Brief at 6 (unnecessary

capitalization omitted).3

       Bush contends that the Commonwealth failed to present sufficient

evidence to support his convictions of firearms not to be carried without a

license and carrying firearms in Philadelphia.4 Our standard of review of a

sufficiency claim is as follows:



____________________________________________


2 Pursuant to Pa.R.Crim.P. 720(B)(3)(a), (b) a post-trial motion is deemed
denied “by operation of law” when the deciding court fails to render a
judgment before the applicable 120-day disposition period expires.

3 Although Bush’s issue, as presented, purports to challenge both the
sufficiency and weight of the evidence, he discusses only the sufficiency of the
evidence in his appellate brief. Aside from stating the applicable standard of
review, Bush fails to explain how his convictions are against the weight of the
evidence. We therefore deem his challenge to the weight of the evidence
waived. See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa.
Super. 2002) (holding that an issue identified on appeal but not developed in
appellant’s brief is abandoned and therefore waived).

4 Bush does not challenge the sufficiency of the evidence supporting his
convictions for aggravated assault and PIC.

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            [W]e evaluate the record in the light most favorable to the
      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. Nevertheless, the
      Commonwealth need not establish guilt to a mathematical
      certainty. [T]he facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with the
      defendant’s innocence. 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. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations

and quotation marks omitted). The finder of fact is free to believe all, part,

or none of the evidence presented, and determines the credibility of the

witnesses. Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013)

(en banc).

      Additionally, the crime of firearms not to be carried without a license is

set forth in 18 Pa.S.C.A. § 6106(a)(1), which provides: “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." The crime of carrying firearms in Philadelphia is set forth

in 18 Pa.S.C.A. 6108, which 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...”




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A “firearm” is defined in pertinent part, as: “Any pistol or revolver with a barrel

length less than 15 inches.” See 18 Pa.S.C.A. 6102.

       Bush argues that the Commonwealth failed to prove two elements that

were required to establish both firearms not to be carried without a license

and carrying firearms in Philadelphia; namely (1) that the firearm was

concealed on or about Bush’s person; and (2) that the firearm was a pistol

with a barrel-length of less than 15 inches.5        Bush first contends that the

record is devoid of any testimony regarding his concealment of the firearm.

He points out that Mr. Paschall was never asked if the gun was on display, or

if he saw a gun as he rode by. Bush also argues that, because he was standing

with a group of individuals, the weapon could have been concealed by another

individual and then handed to him.               Accordingly, he claims that his

concealment of the gun is an assumption not supported by the record.

       Initially, we observe that concealment is not an element of carrying a

firearm in Philadelphia. See Commonwealth v. Bavusa, 832 A.2d 1042,

1045 (Pa. 2003) (observing that 18 Pa.C.S.A. § 6108 lacks a concealment

element). Thus, the Commonwealth was not required to prove concealment

to establish that crime. However, concealment is an element of firearms not




____________________________________________


5 With respect to both firearms not to be carried without a license and carrying
firearms in Philadelphia, Bush stipulated that he was not licensed to carry a
firearm, and that he was on a public street in Philadelphia.

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to be carried without a license. See 18 Pa.C.S.A. § 6106. Thus, we will review

the sufficiency of the concealment evidence supporting that conviction.

      Here, the record reflects that Mr. Paschall described riding his bike past

Bush and a group of men on the corner of 19th and Poplar Street. See N.T.

5/18/16, at 134. He did not testify that a gun was in view at the time. Id.

Instead, he testified that heard a gun cock after he had passed the group of

men. Id. at 164-66. He further testified that, a second later, he heard the

first shot when he was in the middle of the block. Id. at 166. Then, as Mr.

Paschall was turning the corner, he was shot and fell to the ground. Id. at

134-35. He watched Bush follow him, continuing to fire. Id. at 136-37.

      Viewing this evidence in the light most favorable to the Commonwealth,

as we must, we conclude that it provided a sufficient evidence from which the

jury could infer that the weapon was concealed, and that Bush was the person

concealing it. Presumably, if Mr. Paschall had seen the firearm while he was

passing Bush and the group of men, he would have testified to this fact.

Instead, his testimony suggests that he did not become aware of a weapon

until he heard the click of a weapon after he had passed the group. From

these facts, the jury could reasonably infer that the weapon was concealed.

Further, from the short time in which the shooting incident occurred, the jury

could reasonably infer that there was insufficient time for the gun to be handed

to Bush by another individual, such that Bush must have been the person in

possession of the concealed weapon. Thus, Bush’s challenge to the sufficiency


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of the evidence supporting his conviction of firearms to be carried without a

license fails.

      Bush next asserts that the record is devoid of any testimony regarding

the barrel length of any weapon he may have used.          He claims that Mr.

Paschall was never asked to describe the gun’s length, and that Officer

DeFields did not discuss the length of the exemplar gun, or the barrel length

of the firearm that Bush used.         Accordingly, Bush contends that the

Commonwealth failed to establish this element of both firearms not to be

carried without a license and carrying firearms in Philadelphia.

      Here, the record reflects that Mr. Paschall testified that when Bush

attempted to shoot him in the head, after firing ten rounds, the gun produced

only an audible click but did not fire. N.T. Trial, 5/18/16, at 142. While the

weapon used to shoot Mr. Paschall was never recovered, the firearms expert

who examined the ballistics evidence, Officer DeFields, testified that the spent

shell casings were consistent with a Glock-type semiautomatic pistol. N.T.

Trial, 5/19/16, at 91-95.       Officer DeFields then testified that most

semiautomatic handguns have a feature where the slide locks back after the

ammunition is emptied out, and do not produce a clicking sound when the

operator attempts to fire with an empty magazine. Id. at 98. Importantly,

the officer explained that smaller pistols generally do not have enough space

for the slide mechanism, and therefore produce an audible click when they fail

to fire. Id. Officer DeFields showed the jury a model Glock-17 semiautomatic


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pistol with a slide lock that was consistent with his analysis of the shell casings

and bullet jackets. Id. at 91-95.

      Viewing this evidence in the light most favorable to the Commonwealth,

as we must, we conclude that, based on Officer Fields’s testimony and

demonstration, it was reasonable for the jury to infer that the gun Bush used

to shoot Mr. Paschall did not have a slide lock, since it produced an audible

click when it ran out of ammunition. Because the jury was able to view the

barrel length of the exemplar firearm, and to infer from Officer DeFields’s

expert testimony that the firearm used by Bush was smaller than the

exemplar, we conclude that the jury had sufficient evidence to find that the

barrel length of the firearm used by Bush was less than fifteen inches. See

Commonwealth v. Jennings, 427 A.2d 231, 235 (Pa. Super. 1981) (holding

that, although no testimony was proffered by the Commonwealth as to the

dimensions of the weapon, the jury was competent of determining the length

of the weapon by the examination of same); cf. Commonwealth v. Todd,

384 A.2d 1215 (Pa. 1978) (holding that barrel length was not proven where

no witness saw the weapon, it was never recovered, and the only evidence

produced by the Commonwealth on the issue of barrel length was through its

criminalist, who testified on direct examination that “[t]he weapon was a .38

caliber weapon and probably a Smith and Wesson”); and Commonwealth v.

Rapp, 384 A.2d 961 (Pa. Super. 1978) (holding that the Commonwealth failed

to establish barrel length when the weapon was never introduced into


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evidence and its length was never mentioned). Thus, Bush’s challenge to the

sufficiency of the evidence supporting the barrel length of the firearm fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/19




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