J-S55001-17

                                  2017 PA Super 332

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TRAVIS H. JONES,                           :
                                               :
                      Appellant                :   No. 1274 MDA 2016

              Appeal from the Judgment of Sentence May 31, 2016
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002461-2014


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

OPINION BY DUBOW, J.:                                 FILED OCTOBER 20, 2017

        Appellant, Travis H. Jones, appeals from the Judgment of Sentence of

16 to 30 years’ incarceration entered in the Luzerne County Court of

Common Pleas following his conviction of two counts of Possession of a

Firearm Prohibited and one count of Possession of a Firearm with an Altered

Serial Number.1        Finding that the Commonwealth presented sufficient

evidence to sustain Appellant’s convictions, we affirm.

        The relevant facts and procedural history, as gleaned from the certified

record, are as follows.        On June 16, 2014, at 6:02 AM, Kingston police

responded to a 911 call of a domestic disturbance in Appellant’s home at

105 Penn Street. When the police arrived, only Appellant, who was cleaning
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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 6105(a)(1) and 6110.2(a), respectively.
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blood from the walls and the floor, was present in the home. Appellant later

confessed to police that he had accidentally shot the victim, Raheem Clark,

in his daughter’s bedroom. Police recovered a .44 Magnum revolver with an

obliterated serial number and a shotgun from Appellant’s home. A ballistics

expert confirmed that a bullet jacket removed from the victim by surgeons

from Geisinger Wyoming Valley Hospital came from the revolver found in

Appellant’s home.2

        Kingston police charged Appellant with the above crimes, as well as

one count each of Aggravated Assault, Aggravated Assault with a Deadly

Weapon,      Tampering      with   Evidence,     and   four   counts   of   Recklessly

Endangering Another Person (“REAP”).3

        At Appellant’s request, the court severed the Possession of a Firearm

Prohibited charges from the Possession of a Firearm with an Altered Serial

Number and Tampering with Evidence charges for purposes of trial.                  On

January 29, 2016, the court held a bench trial on the Possession of a

Firearm Prohibited charges, at which the Commonwealth presented the

testimony of Kurtis Bennett, a witness, Kingston Police Detective Edward

Palka, Detective Stephen Gibson, Pennsylvania State Police Sergeant Floyd
____________________________________________


2   See N.T., 4/18/16, at 133.

318 Pa.C.S. §§ 2702(a)(1); 2702(a)(4); 4910(1); and 2705, respectively.
On May 31, 2016, the Commonwealth withdrew the REAP, Aggravated
Assault, and Aggravated Assault with a Deadly Weapon charges.




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Bowman, and Mary Dumas, Appellant’s mother. The Commonwealth elicited

testimony from Detective Gibson and Sergeant Floyd that demonstrated to

the court that Appellant had a prior Manslaughter conviction, thus rendering

him a person prohibited from possessing a firearm.         Accordingly, at the

conclusion of the bench trial the court convicted Appellant of two counts of

Possession of a Firearm Prohibited.

        On April 18, 2016, the court commenced a jury trial on the altered

serial number and Tampering with Evidence charges.        The Commonwealth

presented the testimony of Kingston Police Officer John Bevilaqua, Detective

Edward Polka,4 Detective Stephen Gibson, and Pennsylvania State Police

Corporal Elwood Spencer.

        Relevant to the instant appeal, Officer Bevilaqua testified that he was

the first police officer to arrive at 105 Penn Street.    N.T. at 53.   Officer

Belvilaqua secured the scene and departed for the hospital, where surgeons

gave him the bullet jacket recovered from the victim. Id. at 58-59.

        Detective Polka testified that he and Detective Gibson advised

Appellant of his Miranda5 rights, and interviewed him.           N.T. at 67.6


____________________________________________


4 Detective Polka is referred to as Detective Palka in the Notes of Testimony
from Appellant’s January 29, 2016 bench trial.

5   Miranda v. Arizona, 384 U.S. 436 (1966).

6 The court showed the jury Appellant’s videotaped interview. This Court
has reviewed Appellant’s custodial interview and we note that Apellant
(Footnote Continued Next Page)


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Detective Gibson testified that, in addition to interviewing Appellant with

Detective Polka, he also executed a search warrant on 105 Penn Street. Id.

at 83-84. Detective Gibson also testified that he recovered a .44 Magnum

revolver from the back of a closet, underneath garbage bags full of clothing.

Id. at 90. Detective Gibson indicated that a visual inspection of the inside of

the gun’s cylinder revealed that a round had been fired from the gun. Id. at

91.

      Corporal Spencer, the Commonwealth’s firearm and tool mark expert,

testified that he examined the gun found in Appellant’s residence.      Id. at

107. He concluded that the bullet jacket removed from the victim had come

from that gun. Id. at 133. Corporal Spencer also explained how one would

fire this particular weapon, highlighting its safety features. Id. at 110-12.

Corporal Spencer testified that he checked this gun for a serial number, but

it had been obliterated. Id. at 116, 118. Corporal Spencer indicated that he

found the obliterated serial number “just above the trigger part on the right-

hand side” of the gun.7 Id. at 116.


(Footnote Continued) _______________________

admitted to having shot the victim, although he purports to have done so
accidentally.

7 The court admitted into evidence a photograph of the area of the gun
where the serial number would have been had it not been obliterated. N.T.,
4/19/16, at 117. Corporal Spencer testified that the photograph depicts a
“smooth-out kind of ground-over surface where the serial location should
be.” Id. The certified record does not contain a copy of this photograph.
Thus, this Court has not reviewed it.



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      Corporal Spencer noted that someone had obliterated the serial

number to such a degree that the police could not read it and he could not

restore it to a legible condition. Id. at 122-23.

      At the close of the Commonwealth’s case, Appellant made an oral

Motion for Judgment of Acquittal, arguing, inter alia, that the Commonwealth

had failed to present evidence that Appellant understood he was handling a

gun without a serial number.     N.T., 4/19/16 at 144.   The Commonwealth

argued that proving that Appellant was in possession of a gun without a

serial number in his own home was sufficient to meet its burden of proof on

the Possession of a Firearm with an Altered Serial Number charge.         Id. at

144-47.   The court denied Appellant’s Motion, and, on April 20, 2016, the

jury convicted Appellant of Possession of a Firearm with an Altered Serial

Number.    The jury acquitted Appellant of the Tampering with Evidence

charge.

      On May 31, 2016, the court sentenced Appellant to three consecutive

terms of 5 to 10 years’ incarceration, to run consecutive to a 1-year

sentence imposed when the court earlier held Appellant in contempt of

court, for an aggregate term of 16 to 30 years’ incarceration.

      On June 7, 2016, Appellant filed a Post-Sentence Motion, which the

court denied on June 21, 2016.      Appellant’s timely appeal followed.    Both

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

      Appellant raises the following two issues on appeal:




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      1.      Did the trial court err in finding Appellant guilty despite the
              lack of sufficient evidence to prove the elements of the
              offense with which he was charged?

      2.      Did the trial court err in overruling Appellant’s request for
              a demurr[er] at the close of the Commonwealth’s case
              despite the fact that the Commonwealth failed to provide
              any evidence regarding [Appellant’s] mental state as
              required in the jury instructions?

Appellant’s Brief at 6.

      In   his    first   issue,   Appellant   challenges     the   sufficiency    of   the

Commonwealth’s evidence of Appellant’s identity as a person prohibited from

possessing a firearm.         Id. at 13.    Appellant claims that the evidence of

Appellant’s      prior    Manslaughter     conviction   was    insufficient   to    prove

definitively that Appellant was the person convicted for that crime.

Appellant asserts that, in the absence of witness testimony connecting

Appellant to the certified conviction record, the Commonwealth failed to

prove this charge beyond a reasonable doubt. Id. at 17-21.

      Our review of a challenge to the sufficiency of the evidence is well

settled.   “Whether sufficient evidence exists to support the verdict is a

question of law; our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013).

      Our standard of review in a sufficiency of the evidence challenge
      is to determine if the Commonwealth established beyond a
      reasonable doubt each of the elements of the offense,
      considering all the evidence admitted at trial, and drawing all
      reasonable inferences therefrom in favor of the Commonwealth
      as the verdict-winner. The trier of fact bears the responsibility
      of assessing the credibility of the witnesses and weighing the
      evidence presented. In doing so, the trier of fact is free to
      believe all, part, or none of the evidence.

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Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008) (citations

omitted). The Commonwealth may sustain its burden by means of wholly

circumstantial evidence. Commonwealth v. Markman, 916 A.2d 586, 598

(Pa. 2007).

      The Crimes Code prohibits a person who has been convicted, in this

Commonwealth or elsewhere, of a crime of violence from having a firearm in

his possession or under his control. 18 Pa.C.S § 6105. The Commonwealth

must present evidence of a prior conviction of a crime of violence in order to

sustain a conviction under Section 6105. Commonwealth v. Payne, 463

A.2d 451, 456 (Pa. Super. 1983).

      In the instant case, the Commonwealth alleged that Appellant had

previously entered a guilty plea to a charge of Manslaughter in New Jersey.

Under Section 6105, Manslaughter is a crime of violence a conviction for

which precludes the possession, use, or control of a firearm. 18 Pa.C.S. §

6105(b).

      In support of its claim that Appellant had a Manslaughter conviction,

the Commonwealth presented the testimony of Kingston Detective Stephen

Gibson. Detective Gibson explained that, based on documents he reviewed

during the course of his investigation, he became aware of Appellant’s prior

Manslaughter conviction.    N.T., 1/27/16, at 57-73.     The Commonwealth

introduced the following documents as evidence of Appellant’s prior

conviction of a violent crime: (1) a New Jersey Department of Corrections

identification card with Appellant’s name, date of birth, state identification

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number8 of 9589716, Department of Corrections number of 280521, his

height, weight, eye and hair color, the date the identification card was

issued, and a photograph of Appellant; (2) a “rap sheet” from New Jersey

including Appellant’s name, several aliases,9 his date of birth, his state

identification number of 958976B,10 his Social Security number, and a felony

arrest for Manslaughter on April 15, 1995; and (3) a certified record from

the New Jersey Superior Court of Appellant’s prior aggravated Manslaughter

conviction.11

       The Commonwealth also presented the testimony of Pennsylvania

State Police Sergeant Floyd Bowmen, an expert in fingerprint examination.

____________________________________________


8 Kingston Detective Stephen Gibson testified that a         state identification
number is the number assigned to a person when he            is arrested. State
identification numbers are specific to one state and          are used for any
subsequent arrests in that jurisdiction. N.T., 1/27/16, at   58-59.

9 These aliases include Kareem Brown, date of birth 3/18/76, Kareem L.
Brown, date of birth 4/28/76, Bobby Jones, date of birth 4/28/76, and Travis
Jones, date of birth 3/18/76.

10 That Appellant’s state identification number from his Department of
Corrections identification card does not match the state identification
number on his rap sheet appears to be a typographical error in the Notes of
Testimony and not evidence that the two numbers were not the same as
Detective Gibson testified that the state identification number on Appellant’s
rap sheet “is the same state ID number that appears on the Department of
Corrections card.” N.T. at 62.

11 The certified record included Appellant’s alias “Bobby Hasim Jones” and
Appellant’s state identification number 958976B, which matched the state
identification number on the Appellant’s rap sheet. Appellant’s date of birth
on the certified record of conviction is 3/18/76.



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Sergeant Bowmen testified that he compared Appellant’s fingerprints with a

fingerprint card that he requested from the New Jersey State Police related

to an April 15, 1995 felony arrest from New Jersey.     Id. at 83. Sergeant

Bowmen testified that he compared the fingerprint card generated by the

Kingston Police Department that included the name Travis Hasim Jones with

a date of birth of 3/18/76 with the one he received from the New Jersey

State Police which included the name Travis Jones, date of birth 3/18/76,

and state identification number 958976B, and found that the fingerprints

matched. Id. at 84-87.

      We note that Appellant does not challenge the admission of the

documentary evidence of his prior conviction, but rather challenges that the

documents alone are sufficient to prove that he has a Manslaughter

conviction. Our review of the evidence confirms that, after reviewing all of

the evidence presented and drawing all reasonable conclusions therefrom,

the trial court did not err in finding the Commonwealth’s evidence sufficient

to prove that Appellant has a prior Manslaughter conviction rendering him a

person prohibited from possessing, using, or controlling a firearm pursuant

to 18 Pa.C.S. § 6105.      The trial court did not err in finding that the

Commonwealth’s evidence, when viewed in its totality, demonstrated

beyond a reasonable doubt that Appellant was the man who entered a guilty

plea to Manslaughter in New Jersey. Accordingly, this issue fails.

      In his second issue, Appellant purports to challenge the trial court’s

Order denying his Motion for Judgment of Acquittal on the Possession of a

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Firearm with an Altered Serial Number charge.     In fact, Appellant actually

challenges the sufficiency of the Commonwealth’s evidence in support of his

Possession of a     Firearm with an     Altered Serial Number conviction.

Appellant’s Brief at 24.

      It is a second-degree felony to possess a firearm whose serial number

has been altered, removed, or obliterated. 18 Pa.C.S. § 6110.2.

      The interpretation of the statutory definition of an offense raises a

question of law, over which “our standard of review is de novo, and our

scope of review is plenary.”     Commonwealth v. Gravelle, 55 A.3d 753,

755 (Pa. Super. 2012) (citation omitted).

      Appellant argues that in order to sustain this conviction, the

Commonwealth had to prove that Appellant had “mental culpability with

respect to the obliterated serial number.”     Appellant’s Brief at 24, 27.

Appellant avers that the Commonwealth’s evidence was insufficient to prove

beyond a reasonable doubt that he acted with the requisite guilty knowledge

or criminal intent. Id. at 27.

      The Commonwealth submits that its evidence that Appellant possessed

and used a firearm with a tampered serial number is sufficient to prove the

elements of the crime. Commonwealth’s Brief at 6.

      It is well settled that the absence of a mental culpability requirement

in a criminal statute does not indicate that the legislature intended to

dispense with the element of criminal intent.      See Commonwealth v.

Gallagher, 924 A.2d 636, 638–39 (Pa. 2007) (mere absence of express

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J-S55001-17



mens rea requirement in statutory crime is not indicative of legislative intent

to impose strict liability). Rather, “there is a long-standing tradition, which

is reflected in the plain language of [§] 302, that criminal liability is not to be

imposed absent some level of culpability.” Id. at 639.

      Section 6110.2 does not specify the degree of culpability, or mens rea,

required to sustain a conviction. Section 302 of the Crimes Code, however,

provides additional guidance:

      Culpability required unless otherwise provided.--When the
      culpability sufficient to establish a material element of an offense
      is not prescribed by law, such element is established if a person
      acts intentionally, knowingly or recklessly with respect thereto.

18 Pa.C.S. § 302(c).     Intentionally, knowingly, and recklessly, in turn, are

defined as follows:

      (b) Kinds of culpability defined.--

         (1) A person acts intentionally with respect to a material
         element of an offense when:

            (i) if the element involves the nature of his conduct
            or a result thereof, it is his conscious object to
            engage in conduct of that nature or to cause such a
            result; and

            (ii) if the element involves the attendant
            circumstances, he is aware of the existence of such
            circumstances or he believes or hopes that they
            exist.

         (2) A person acts knowingly with respect to a material
         element of an offense when:

            (i) if the element involves the nature of his conduct
            or the attendant circumstances, he is aware that his



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              conduct is of that nature or that such circumstances
              exist; and

              (ii) if the element involves a result of his conduct, he is
              aware that it is practically certain that his conduct will
              cause such a result.

           (3) A person acts recklessly with respect to a material
           element of an offense when he consciously disregards a
           substantial and unjustifiable risk that the material element
           exists or will result from his conduct. The risk must be of
           such a nature and degree that, considering the nature and
           intent of the actor’s conduct and the circumstances known
           to him, its disregard involves a gross deviation from the
           standard of conduct that a reasonable person would
           observe in the actor’s situation.

18 Pa.C.S. § 302(b)(1)-(3).

        In sum, we find that the Crimes Code requires that the Commonwealth

prove that a defendant acted intentionally, knowingly, or recklessly with

respect to the obliterated manufacturer’s number on the firearm.            In this

case, we conclude that the relevant mens rea was knowledge of the

obliteration and that the Commonwealth presented sufficient evidence to

prove that Appellant had knowledge of the serial number’s obliterated

condition.

        In Commonwealth v. Shore, 393 A.2d 889 (Pa. Super. 1978), while

interpreting a related statute,12 this Court held that the defendant’s

possession of a firearm with an altered serial number, and his subsequent



____________________________________________


12   18 Pa.C.S. § 6117, Altering or obliterating marks of identification.



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attempt to get rid of it, was sufficient evidence of his guilty knowledge of its

altered condition, and, thus, sustained the defendant’s conviction.

      In the instant case, Appellant conceded he possessed the gun with an

obliterated serial number, and did so long enough to use it to shoot the

victim. The evidence also showed that Appellant continued to possess the

gun long enough to secret it away under garbage bags of clothing in the

back of a closet.   Moreover, the Commonwealth’s firearms expert testified

that that the gun’s serial number had been tampered with to such a degree

that the serial number’s full restoration was impossible.

      Considering all of the evidence of record in the light most favorable to

the   Commonwealth      as   the   verdict-winner,   we     conclude   that   the

Commonwealth presented sufficient direct and circumstantial evidence of

Appellant’s mental culpability to sustain his jury conviction.         From the

evidence presented, the jury was free to infer that, like the defendant in

Shore, supra, Appellant had knowledge of the gun’s altered condition.

Additionally, based on the jury’s observations of the degree of serial

number’s obliteration and the length of time during which he possessed the

gun, it was reasonable for the jury to infer that Appellant knew that the

serial number had been obliterated.      For the same reason, it is likewise

reasonable for the jury to conclude that, in the time he possessed, used, and

hid the weapon, Appellant would have felt the damage to the weapon caused

by the extensive obliteration.     Therefore, we find the Commonwealths’

evidence sufficient to sustain Appellant’s conviction.

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     Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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