J-S71004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ZONDEL CARTER                           :
                                         :   No. 1405 EDA 2016
                    Appellant

            Appeal from the Judgment of Sentence April 8, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008975-2014


BEFORE:    PANELLA, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                           FILED MARCH 09, 2018

      Appellant, Zondel Carter, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions for possessing an instrument of crime (“PIC”) and resisting arrest.

He challenges the sufficiency of the evidence to support his convictions. We

affirm.

      The relevant facts and procedural history of this case are as follows. On

April 11, 2014, two uniformed officers responded to reports of an armed

robbery. Police saw Appellant walking out of a nearby alleyway and noticed he

matched the description of the robber. They ordered him to stop. Instead,

Appellant pulled what appeared to be a semiautomatic firearm from his

waistband, threw it on the ground, and ran away.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        The officers gave chase. When one of the officers was close, Appellant

turned and charged headlong at the one officer. The two men grappled until

the other officer tackled the pair. The officers subdued Appellant after

approximately thirty seconds. The officers also collected the gun Appellant had

discarded. Though the officers believed it to be a semiautomatic weapon at

the time Appellant threw it on the ground, upon further inspection they

discovered it was a BB gun1 with the orange plastic tip painted black.

        Appellant was arrested and charged with robbery and related crimes.

The victim could not identify Appellant at the preliminary hearing, and failed

to appear for trial. Consequently, the Commonwealth nolle prossed all charges

except PIC, resisting arrest, and offensive weapons.2 After a bench trial, the

court found Appellant guilty of PIC and resisting arrest and not guilty of the

offensive weapons charge. The court later sentenced Appellant to one to five

years’ incarceration. Appellant timely filed a notice of appeal and complied

with the requirements of Pa.R.A.P. 1925(b).

        On appeal, Appellant challenges the sufficiency of the evidence to

support his convictions. Our standard of review for a challenge to the

sufficiency of the evidence is to determine whether, when viewed in a light

most favorable to the verdict winner, the evidence at trial and all reasonable

____________________________________________


1“[A] gun that uses air pressure to fire small metal balls (called BBs).”
Merriam-Webster     Dictionary, available    at   https://www.merriam-
webster.com/dictionary/BB%20gun, retrieved 2/15/18.

2   18 Pa.C.S.A. §§ 907(a), 5104, and 908(a), respectively.

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inferences therefrom are sufficient for the trier of fact to find that each

element of the crimes charged is established beyond a reasonable doubt. See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we

do not assess credibility nor do we assign weight to any of the testimony of

record.” Id. (citation omitted). Therefore, we will not disturb the verdict

“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.” Bruce,

916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen

two equally reasonable and mutually inconsistent inferences can be drawn

from the same set of circumstances….” Commonwealth v. Woong Knee

New, 47 A.2d 450, 468 (Pa. 1946).

      We begin with the PIC conviction. Appellant argues BB guns are not

designed for criminal use. Appellant contends the Commonwealth failed to

present evidence regarding the gun’s capability of lethal use. Appellant

maintains that walking with a BB gun is not a criminal act. And he asserts his

flight from police was unrelated to his possession of the BB gun. Thus, he

concludes the Commonwealth failed to present sufficient evidence to support

his conviction for PIC. We disagree.

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       In order to prove possession of an instrument of crime, the

Commonwealth must show that the defendant “possesses any instrument of

crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). The statute

defines an instrument of crime as “[a]nything specially made or specially

adapted for criminal use” or “[a]nything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

lawful uses it may have.” 18 Pa.C.S.A. § 907(d). A BB gun with its toy

markings disguised may be considered “specially adapted for criminal use”

under the PIC statute. Commonwealth v. Brown, 23 A.3d 544, 561 (Pa.

Super. 2011).

       “PIC, by its definition, is an inchoate crime, meaning that a defendant

only has to intend to employ the instrument of crime criminally; a defendant

need    not   actually   employ   it   or    complete   an   associated   crime.”

Commonwealth v. Moore, 103 A.3d 1240, 1252 (Pa. 2014) (citation

omitted). “[R]ather, the focus is on whether the defendant possesses the

instrument for any criminal purpose.” Commonwealth v. Naranjo, 53 A.3d

66, 71 (Pa. Super. 2012) (emphasis in original). The defendant’s criminal

purpose provides the basis for his liability; that purpose may be inferred from

the circumstances surrounding the possession of the instrument of crime. See

Commonwealth v. Andrews, 768 A.2d 309, 318-319 (Pa. 2001).

       “Intent can be proven by direct or circumstantial evidence; it may be

inferred from acts or conduct or from the attendant circumstances.”

Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation

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omitted). Although a factfinder may infer criminal intent beyond a reasonable

doubt based on circumstantial evidence, intent may not be inferred based on

mere possession. See In re A.V., 48 A.3d 1251, 1254 (Pa. Super. 2012).

      Here, police responded to reports of an armed robbery in a quiet

residential neighborhood, late at night. They spotted Appellant furtively

walking out of an alleyway near a crime scene. When the officers asked

Appellant to stop, he instead threw what the officers believed to be a

semiautomatic weapon on the ground. Appellant then attempted to flee. Once

caught, Appellant offered no explanation for why he possessed the disguised

BB gun, or his reasons for discarding it when alerted to the presence of the

officers.

      In his brief, Appellant mischaracterizes his own actions as demonstrative

of mere possession. Based on the foregoing, we disagree. Appellant possessed

an item specially adapted for criminal use, the disguised BB gun, under

circumstances not manifestly appropriate for lawful uses that such a gun might

have. That Appellant was not convicted of robbery or any underlying criminal

activity is irrelevant. PIC is an inchoate crime; the Commonwealth was not

obligated to prove the existence of an underlying criminal offense. See

Moore, 103 A.3d at 1252; Naranjo, 53 A.3d at 71-72. Thus, we decline to

grant relief on Appellant’s PIC sufficiency challenge.

      Turning to Appellant’s second claim, he contests the sufficiency of the

evidence convicting him of resisting arrest. Appellant posits that his conduct

did not require substantial force to overcome.

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             A person commits a misdemeanor of the second degree if,
      with the intent of preventing a public servant from effecting a
      lawful arrest or discharging any other duty, the person creates a
      substantial risk of bodily injury to the public servant or anyone
      else, or employs means justifying or requiring substantial force to
      overcome the resistance.

18 Pa.C.S.A. § 5104. Our Court has upheld a conviction for resisting arrest

where a defendant ran away and struggled with officers to avoid being

handcuffed. See Commonwealth v. Clark, 761 A.2d 190, 193-194 (Pa.

Super. 2000).

      Here, both arresting officers testified at Appellant’s bench trial. Officer

James Putro testified that he was chasing Appellant down the street when

Appellant suddenly charged at him head-on. See N.T., Trial, 3/3/15, at 25.

Officer Putro and Appellant began wrestling, but he was unable to subdue

Appellant. See id. Officer Putro stated he required the assistance of the

second officer, Officer Stan Galiczynski, to control Appellant. See id. Officer

Galiczynski testified that he was forced to tackle both men to the ground, in

order to restrain Appellant. See id., at 12. Officer Putro explained how

Appellant continued to struggle even after both officers attempted to place

him in handcuffs: “[Appellant] was just actively resisting, flailing his arms and

trying to tuck underneath to clench his hands so we were unable to grab each

hand.” Id., at 25.

      Given the officers’ testimony, we find the Commonwealth presented

sufficient evidence to convict Appellant of resisting arrest. Appellant’s conduct

took the force of two police officers to overcome. Thus, Appellant’s sufficiency

challenge is without merit.

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     As Appellant is due no relief on either sufficiency claim, we affirm

Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/18




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