J-A26003-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

WILFREDO RODRIGUEZ-CLAUDIO

                         Appellee                    No. 394 MDA 2014


             Appeal from the Order Entered January 29, 2014
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000920-2012


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

CONCURRING STATEMENT BY MUNDY, J.:               FILED OCTOBER 23, 2014

      I concur in the result reached by the Majority that the trial court erred

in dismissing the severed violation of the Uniform Firearms Act (VUFA)

charge on the grounds of the collateral estoppel component of the Double

Jeopardy Clause.   I do so, however, on a different basis than that relied

upon by the Majority. I agree with the Majority that, to the extent the trial

court determined the jury must have concluded Appellant was not in

possession of the firearm when it acquitted him of possession of an

instrument of crime (PIC), its determination was too narrow. Rather, as the

Majority notes, the jury could have premised its verdict “upon a finding that

Appellee acted justifiably when he fired his shotgun at assailants pursuing

his sister.” Majority Memorandum at 8. Implicit in the Majority’s position, is

that the jury’s finding of justification is not available as a defense to the
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possessory VUFA charge. If it was, the trial court’s application of collateral

estoppel in this case would be proper, based on this alternative finding by

the jury.    This Court has recently speculated about the applicability of a

justification defense to possessory offenses without resolving the issue.

        In Commonwealth v. Valcarel, 94 A.3d 397 (Pa. Super. 2014), the

defendant was charged with unlawfully possessing a weapon in prison.1 Id.

at 397. Prior to trial, the Commonwealth filed a motion in limine, seeking to

preclude the defendant from introducing evidence supporting his claim of

justification.2 Id. at 398. The trial court precluded the evidence, and the

defendant appealed.        Id.   On appeal, the Valcarel panel did not directly

address the Commonwealth’s position that justification was not an available

defense to the charge. Rather, it held that assuming arguendo the defense

was available, the defendant did not establish the necessary conditions

precedent for the defense.           Id. at 401-402, citing Commonwealth v.

Stanley, 446 A.2d 583, 589 (Pa. 1982) (applying standards articulated in

People v. Lovercamp, 118 Cal. Rptr. 110 (Cal. Ct. App. 1974)).

        In Commonwealth v. Moore, 49 A.3d 896, (Pa. Super. 2012), this

Court was confronted with a similar scenario as that presented in the instant

case. In Moore, the defendant was charged with homicide and attempted
____________________________________________
1
    18 Pa.C.S.A. § 5122(a)(2).
2
  The defendant claimed he secured the shiv at issue because of threats
from other inmates and prior attacks on him and his best friend in the
prison. Id. at 398-399.


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homicide counts, together with PIC and VUFA.       Id. at 897.    The trial was

bifurcated, deferring the VUFA charge until after verdict on the remaining

charges.   Id.   The defendant claimed self-defense at trial.      Id.   A jury

acquitted Moore of all the homicide charges but convicted him of PIC and, in

the second phase of the trial, the VUFA charge. Id. On appeal, this Court

determined that the defendant’s conviction for PIC was not supported by

sufficient evidence because the Commonwealth had not proven intent to

employ the firearm criminally.    Id. at 901.    The Moore Court, however,

declined to consider whether self-defense is an available defense to VUFA

because the defendant continued to possess the gun after the need for self-

defense had passed, providing an independent basis for the appellant’s

conviction of that offense. Id. at 903.

      In the instant case, testimony at trial indicated that Appellee, after the

shooting, retained possession of the firearm and transported it to a new

location at the home of co-defendant, leaving it with co-defendant’s wife.

N.T., 9/30/13 to 10/2/13, at 281-282. I conclude, therefore, consistent with

Moore, Appellant’s alleged actions after the shooting, when the need for

self-defense was arguably abated, provide a basis for prosecution of the

VUFA charge independent of the jury’s verdict.       It is on this basis that I

conclude the trial court erred in its application of the collateral estoppel

component of the Double Jeopardy Clause to preclude the Commonwealth’s




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further   prosecution   of   Appellee   on    the   VUFA   charge.   With   these

clarifications, I concur in the result reached by the Majority.

      Judge Bowes and Judge Jenkins join this concurring statement.




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