J-S09019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    CHARLES ROBINSON                             :
                                                 :
                       Appellant                 :   No. 3689 EDA 2018

        Appeal from the Judgment of Sentence Entered January 30, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000398-2016


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                                   FILED JUNE 22, 2020

        Charles Robinson appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction for

possession of firearms—persons not to possess,1 carrying firearms without a

license,2 conspiracy—making any materially false oral statement,3 making any

materially    false   oral   statement,4       tampering   with   public   records   or




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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105(a)(1).

2   18 Pa.C.S.A. § 6106(a)(1).

3   18 Pa.C.S.A. § 903.

4   18 Pa.C.S.A. § 6111(g)(4).
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information,5 and carrying firearms in public in Philadelphia.6 Upon careful

review, we affirm.

        Marcella Hardnett, who testified for the Commonwealth, had been

friends with Robinson since childhood. N.T. Trial, 11/21/16, at 12. During a

conversation in March 2015, in response to Hardnett’s concerns about the high

rate of crime in her neighborhood, Robinson suggested that the two of them

purchase a gun. Id. at 13. Hardnett agreed, although she was aware that

Robinson was prohibited from purchasing a firearm for himself. Id. A few

weeks later, on March 18, 2015, pursuant to their agreement, Robinson picked

Hardnett up at her home and drove to Delia’s gun shop in Philadelphia, which

was located near Robinson’s home. Id. at 14-15, 40.

        Once inside, Robinson pointed out a .38 caliber Ruger handgun and

directed Hardnett to purchase it. Id. at 16, 20-21. As Hardnett waited for

her background check to clear, Robinson left the store. Id. at 21. He returned

approximately thirty to forty-five minutes later, handed Hardnett the purchase

money, and instructed her to buy ammunition as well. Id. at 21-22. Hardnett

purchased the firearm and ammunition with the money Robinson gave her.

Id. at 22. Immediately upon leaving the store, Hardnett handed Robinson

the gun. Id. at 22. Robinson then told Hardnett to report the gun stolen in




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5   18 Pa.C.S.A. § 4911(a)(1).

6   18 Pa.C.S.A. § 6108.

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one week. Id. at 23. In exchange for Hardnett’s cooperation, Robinson paid

her approximately thirty dollars. Id. at 38.

       Surveillance footage from inside and outside of Delia’s gun store was

presented at trial and narrated by Hardnett; it captured Robinson pointing out

the firearm, leaving and returning to the store, handing Hardnett the purchase

money, and retrieving the gun from her upon exiting the store. Id. at 33-36;

(Video Surveillance, Channel 2 at 13:44 - 14:26; Channel 5 at 14:26-

14:26:25).

       One week after the purchase, on March 25, 2015, Hardnett complied

with Robinson’s request.        Id. at 23.     Hardnett met with Detective Daniel

Strunk of the Philadelphia police, Southwest Detective Division, and reported

the gun stolen. Id. at 24. Hardnett told Detective Strunk that the firearm

she purchased for self-defense just days earlier was stolen from her

basement. Id. at 24-25, 61-62. She explained that there were no signs of

forced entry and that nothing else was taken. Id. Detective Strunk testified

that he told Hardnett, because her story was inconsistent and “didn’t make

sense,”7 that he would refer the case to the Gun Violence Task Force. Id. at

62-63.



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7 Detective Strunk testified that he was suspicious about the firearm, allegedly
purchased for self-defense, being kept in Hardnett’s basement. N.T. Trial,
11/21/16, at 62. He also had “concerns” about the lack of forced entry and
the fact that nothing else was taken. Id.



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       That same day, Hardnett met with Agent Marty Dietz of the Gun Violence

Task Force, along with Detective Strunk.         Id. at 26, 62. She initially told

Agent Dietz the same information she gave to Detective Strunk. Id. at 26,

62. The police told Hardnett that she would not be going home if she did not

tell them the truth. Id. at 43. Hardnett ultimately signed a Mirandized8

written statement confessing that she acted as the straw purchaser for

Robinson’s firearm in exchange for money.            Commonwealth Exhibit C-2,

3/25/15, at 2. Hardnett testified that she did not implicate Robinson initially

because she “didn’t want to get him in trouble.” N.T. Trial, 11/21/16, at 43.

       Hardnett further testified that, upon leaving the police station that day,

she called Robinson and requested that he give her back the gun. Id. at 26.

Hardnett explained to him that she had to turn the gun in to the police, and

that she was facing criminal prosecution in connection with her false report of

theft. Id. Robinson told her, “I ain’t going to jail,” and Hardnett never heard

from him nor saw the gun again. Id. After a conversation with Agent Dietz

on the following day, March 26, 2015, Hardnett signed another written,

Mirandized statement detailing, among other things, her phone call with

Robinson. Id. at 44; Commonwealth Exhibit C-3, 3/26/15. Hardnett later

pled guilty to several charges stemming from the illegal purchase, including

carrying a firearm without license, delivering a firearm to the purchaser less

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8   See Miranda v. Arizona, 396 U.S. 868 (1969).




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than forty-eight hours after applying for a firearm purchase, criminal

conspiracy, tampering with public records, unsworn falsification to authorities,

and falsely reporting to law enforcement authorities,9 pursuant to a plea

agreement with the Commonwealth in which she agreed to testify truthfully

in this matter. Id. at 29-31.

       On November 21, 2016, after a non-jury trial before the Honorable Mia

R. Perez, Robinson was convicted of the above crimes. On January 30, 2017,

Robinson was sentenced to an aggregate term of six to twelve years’

imprisonment followed by three years of reporting probation. Robinson filed

a pro se petition for relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, on February 5, 2018. Counsel was appointed and

filed an amended PCRA petition on July 5, 2018, raising claims of trial

counsel’s ineffectiveness for failing to file post-sentence motions and a direct

appeal, in addition to seeking reinstatement of Robinson’s appellate rights

nunc pro tunc. On December 17, 2018, the PCRA court reinstated Robinson’s

appellate rights nunc pro tunc. Robinson timely filed a notice of appeal on

December 26, 2018, followed by a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.




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9   CP-51-CR-0007109-2015.




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       Robinson raises the following issues for our review:10

       I.     Whether the verdicts of guilty to the three (3) firearm
              charges were against the weight of the evidence where the
              cooperating co-defendant’s testimony was unbelievable,
              incredible[,] and where she admitted to lying to police about
              the facts of the case?

       II.    Whether the evidence produced at trial was sufficient to
              sustain the jury’s verdict of guilty to the three (3) firearm
              charges where the evidence was weak a[n]d inconclusive
              and where the convictions were based on speculation and
              conjecture?

Brief of Appellant, at 3-4.

       Robinson contends that he is entitled to a new trial because, with regard

to his convictions under the Violations of the Uniform Firearms Act (VUFA)—

sections 6105, 6106, and 6108 of the Crimes Code—the verdict was against

the weight of the evidence. Specifically, Robinson argues that the trial court

abused its discretion when it credited Hardnett’s trial testimony, because

Hardnett gave two different stories to the police. Brief of Appellant, at 11.

       When challenging the weight of the evidence, relief in the form of a new

trial may be granted only where the verdict shocks one’s sense of justice.


____________________________________________


10  We note with strong disapproval that the Commonwealth failed to timely
file an appellate brief with this Court, even after being granted four separate
extensions of time. See Order, 9/3/19 at 1; Order, 10/7/19 at 1; Order,
11/18/19 at 1; Order, 12/30/19 at 1. This Court’s order on November 18,
2019, provided that the Commonwealth’s brief shall be filed by December 4,
2019, and that no further extensions of time would be granted to the
Commonwealth.        Yet, on December 30, 2019, this Court granted the
Commonwealth’s fourth application for extension of time, and ordered that
the Commonwealth file its appellate brief by January 10, 2020.             The
Commonwealth did not file its appellate brief until March 3, 2020.

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Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). It is not our

role, as a reviewing court, to reweigh the evidence and substitute our

judgment for that of the fact-finder. Commonwealth v. Mitchell, 902 A.2d

430, 449 (Pa. 2006). Where the trial court has ruled on a weight claim, our

review is limited to determining whether the trial court “palpably abused its

discretion in ruling on the weight claim.” Champney, supra at 408. Where,

however, a defendant fails to raise a challenge to the weight of the evidence

with the trial judge, that challenge is waived. See Pa.R.Crim.P. 607(a)(1)-(3)

(claim verdict was against weight of evidence shall be raised with trial judge

in motion for new trial orally on record, by written motion before sentencing,

or in post-sentence motion); Commonwealth v. Gillard, 850 A.2d 1273,

1277 (Pa. Super. 2004), appeal denied, 863 A.2d 1143 (Pa. 2004) (“A

challenge to the weight of the evidence must be raised with the trial judge or

it will be waived.”).

      Robinson’s failure to challenge the weight of the evidence before the

trial court deprived that court of the opportunity to exercise discretion on the

question of whether to grant a new trial. Thus, with regard to Robinson’s

weight claim, this Court has nothing to review on appeal. Commonwealth

v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (“appellate review of a weight

claim is a review of the exercise of discretion, not of the underlying question

of whether the verdict is against the weight of the evidence”).        Because

Robinson failed to present his weight of the evidence claim to the trial judge,

we conclude that Robinson waived this claim. See Commonwealth v. Mack,

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850 A.2d 690, 694 (Pa. Super. 2004) (weight claim waived by noncompliance

with Rule 607 even if trial court addresses it on the merits in 1925(a) opinion).

      Robinson also challenges the sufficiency of the evidence for his three

VUFA convictions.    He submits that with respect to each conviction, “the

Commonwealth failed to prove beyond a reasonable doubt that [Robinson]

possessed the firearm.” Brief of Appellant, at 14.

      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. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015).                 We

review the evidence in the light most favorable to the Commonwealth as

verdict winner to determine whether there is sufficient evidence to allow the

fact-finder to find every element of a crime beyond a reasonable doubt. Id.

      In applying the above test, we may not weigh the evidence and
      substitute our judgment for [that of] the fact-finder. In addition,
      we note that the facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      Any doubts regarding a defendant’s guilt may be resolved by the
      fact-finder 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. The Commonwealth may sustain its
      burden of proving every element of the crime beyond a reasonable
      doubt by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [fact-finder,] while passing upon the credibility of the witnesses
      and the weight of the evidence produced, is free to believe all,
      part[,] or none of the evidence.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).




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      Section 6105 of the Crimes Code provides that “a person who has been

convicted of an offense enumerated in subsection (b) . . . 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.” 18

Pa.C.S.A. § 6105(a)(1). Section 6106 states that an individual without proper

licensure may not carry a firearm in any vehicle or concealed on his person

except in his home or fixed place of business. 18 Pa.C.S.A. § 6106(a). Lastly,

section 6108 provides that it is illegal for an individual without proper licensure

to carry a firearm at any time upon the public streets of Philadelphia.         18

Pa.C.S.A. § 6108(a).

      Robinson stipulated at trial that he has been convicted of an offense

enumerated in section 6105(b) and is ineligible to possess a firearm. N.T.

Trial, 11/21/16, at 59-64. Therefore, “[i]n the aggregate, three facts need to

be proven to maintain these convictions: [Robinson] possessed a firearm, he

maintained possession within a vehicle or carried it in a concealed manner,

and he possessed the firearm in public.” Trial Court Opinion, 4/18/19, at 4.

      Instantly, Robinson claims that the Commonwealth failed to prove

beyond a reasonable doubt that he possessed the firearm, an element of each

of the three VUFA offenses. Brief of Appellant, at 14. Specifically, Robinson

argues that “the only evidence presented by the Commonwealth that

[Robinson] possessed the gun was [Hardnett’s] testimony.” Id. Incredibly,

he asserts that “no video or other physical evidence was ever presented that

[Robinson] took possession of the gun,” and that accordingly, the “volume

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and quality” of the Commonwealth’s evidence was insufficient to sustain his

conviction. Id.

      “It is well-settled that the uncorroborated testimony of a prosecution

witness may be sufficient to convict[, even] in spite of contrary evidence from

the defense, if the trier of fact, based on the evidence before it, chooses to

lend credibility to the former.” Commonwealth v. Kearney, 601 A.2d 346,

349 n.6 (Pa. Super. 1992); see also Commonwealth v. Robinson, 817 A.2d

1153, 1161-62 (Pa. Super. 2003) (eyewitness testimony sufficient to sustain

VUFA violation even though no weapon was recovered). Here, the evidence,

viewed in the light most favorable to the Commonwealth as verdict winner, is

sufficient to sustain Robinson’s convictions because it demonstrated, beyond

a reasonable doubt, that Robinson actually possessed a firearm in public and

maintained possession within his vehicle.

      Hardnett testified that Robinson drove her to Delia’s gun shop, paid her

to buy a firearm and ammunition for him, and directed her to report the gun

stolen one week later, which she did. N.T. Trial, 11/21/16, at 13-23. She

further testified that she handed Robinson the firearm immediately upon

exiting the store, and that after she falsely reported the gun stolen per

Robinson’s instructions, she ultimately confessed to the police about her

arrangement with Robinson and asked him to return the gun, which he refused

to do. Id. at 22-26.    This alone would be sufficient to sustain Robinson’s

convictions. Kearney, supra; Robinson, supra.



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       Moreover, the record belies Robinson’s assertion that the “only

evidence” concerning his possession of a firearm was Hardnett’s testimony.

The Commonwealth presented surveillance footage from Delia’s gun shop that

fully corroborated Hardnett’s testimony regarding the straw purchase and

Robinson’s firearm possession.11           Id. at 33-37.   Circumstantial evidence

allows the Court to conclude that Robinson maintained possession of the

weapon during his transport, in a vehicle, back to Hardnett’s residence, after

exiting the store.

       In sum, the Commonwealth’s evidence at trial is sufficient to sustain

each of Robinson’s convictions for VUFA violations. See Kearney, supra;

Robinson, supra.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20


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11The surveillance footage presented at trial has not been made available to
us despite requests for the same. However, Hardnett narrated the video as it
was played during trial: she identified herself and Robinson in the gun store
on March 18, 2015, and testified that “what [she] saw on the video” at
“14[:]25[:]50” was “[her giving] him the gun.” N.T. Trial, 11/21/16, at 33-
37.

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