J-S01029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MICHAEL E. MCNEIL

                            Appellant              No. 2397 EDA 2014


            Appeal from the Judgment of Sentence March 25, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006167-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                          FILED MARCH 30, 2016

       Appellant, Michael E. McNeil, appeals from the March 25, 2014

aggregate judgment of sentence of 8 to 24 years’ imprisonment, following

his convictions by a jury of voluntary manslaughter, carrying firearms on

public property in Philadelphia, and possession of an instrument of a crime

(PIC).1   Based upon our sua sponte review of the legality of Appellant’s

sentence, we are constrained to vacate and remand for resentencing.

____________________________________________


1
  18 Pa.C.S.A. §§ 2504(a), 6108, and 907(a), respectively. The record
reveals Appellant was actually tried and convicted of carrying a firearm
without a license, not carrying firearms on public property in Philadelphia.
See generally 18 Pa.C.S.A. § 6106. It appears from the record the trial
court mistakenly sentenced Appellant on the basis of a conviction for
carrying firearms on public property in Philadelphia. N.T., 3/25/14, at 35-
36. At the time of sentencing neither party objected to this mistake. Id.
As we are vacating and remanding Appellant’s sentence based on the
(Footnote Continued Next Page)
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      The trial court set forth the relevant factual history of this case as

follows.

                    On May 5, 2012, at approximately 3:00 p.m.,
             [Appellant] was standing on his porch at 5639
             Nelson Street talking with [Keenan] Gaskins, Aaron
             Tucker (“Tucker”), Kenneth McTillman (“McTillman”),
             and several others. A group of males walked up to
             the porch and began arguing with them. A few
             minutes later, two of the people present started
             fighting, which escalated into a melee involving
             everyone who had been on the porch and in the
             group who walked up.

                    Approximately five minutes after the fight
             began, Jahleel Johnson (“Johnson”) fired a single
             shot into the air from a 0.38 revolver. After Johnson
             fired into the air, [Appellant] began wildly firing a
             0.380 automatic pistol in his direction. [Appellant]
             fired three times until the gun jammed and couldn’t
             fire anymore. Upon hearing the gunshots, everyone
             involved in the fight scattered and ran away. Nyeem
             Lewis (“Lewis”) ran towards Johnson firing a gun as
             Johnson fled down the street.        When the scene
             cleared, Gaskins remained on the ground after
             having been struck by one of [Appellant]’s bullets.
             The Medical Examiner, Dr. Osbourne, testified that
             the bullet had entered Gaskins’ back, gone through
             his spinal cord, aorta, and lung, and exited his chest.

                   When Officer Czepiel arrived at the scene, he
             found Gaskins face down on the pavement, lying in a
             pool of blood. After hearing that the ambulance was
             not going to arrive soon, Officer Czepiel directed
             Tucker and McTillman to place Gaskins in the back of
             his marked police car. Tucker remained in the car
             with Gaskins, and Officer Czepiel drove them to the
                       _______________________
(Footnote Continued)

application of an illegal mandatory minimum sentence, we need not reach
this issue, but note that the trial court should correct the discrepancy at
resentencing.



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              hospital. Gaskins was pronounced dead at Albert
              Einstein Medical Center at 3:31 p.m.

Trial Court Opinion, 4/16/15, at 2-3.

       Thereafter, on May 7, 2012, Appellant was arrested and charged in

connection with Gaskins’ death.         On May 30, 2012, the Commonwealth filed

its notice of its intent to seek mandatory minimum sentences pursuant to

Section 9712 for offenses committed with firearms, and Section 9714 for

second and subsequent offenses.                The case proceeded to trial and on

December 10, 2013, the jury found Appellant guilty of the aforementioned

charges. On March 25, 2014, the trial court imposed an aggregate sentence

of 8 to 24 years’ imprisonment.2 On April 1, 2014, Appellant filed a timely

post-sentence motion which was denied by the trial court on July 31, 2014.

On August 13, 2014, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following issues for our review.

              A. Whether Appellant is           entitled to an arrest of
              judgment    as   to  the           charge    of  voluntary
              manslaughter, because the         Commonwealth failed to
              prove each element of the         crime charged beyond a
              reasonable doubt?

____________________________________________


2
  Specifically, Appellant was sentenced to 6 to 20 years on the charge of
voluntary manslaughter, and a consecutive sentence of 2 to 4 years on the
VUFA charge. N.T., 3/25/14, at 36. No further penalty was imposed on the
PIC charge. Id. As noted, a five-year mandatory minimum was applied to
the voluntary manslaughter charge. Id. at 35.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            B. Whether Appellant is entitled to an arrest of
            judgment as to the charge of Violation of the
            Uniformed [sic]    Firearms Act,    because  the
            Commonwealth failed to prove each element of the
            crime charged beyond a reasonable doubt?

Appellant’s Brief at 6.

      Our review is guided by the following. “In reviewing the sufficiency of

the evidence, we consider whether the evidence presented at trial, and all

reasonable inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth as the verdict winner, support the [finder of fact] verdict

beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55,

66 (Pa. 2014) (citation omitted), cert. denied, Patterson v. Pennsylvania,

135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly

circumstantial evidence and 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. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),

appeal denied, 95 A.3d 277 (Pa. 2014).      As an appellate court, we must

review “the entire record … and all evidence actually received[.]”       Id.

(internal quotation marks and citation omitted).       “Because evidentiary

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.”   Commonwealth v. Diamond, 83 A.3d 119,




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126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

      In this case, Appellant first challenges the sufficiency of his conviction

for voluntary manslaughter which is codified as follows.

            § 2503. Voluntary manslaughter

            (a) General rule.--A person who kills an individual
            without lawful justification commits voluntary
            manslaughter if at the time of the killing he is acting
            under a sudden and intense passion resulting from
            serious provocation by:

                  (1) the individual killed; or

                  (2) another whom the actor endeavors to kill,
                  but he negligently or accidentally causes the
                  death of the individual killed.

18 Pa.C.S.A. § 2503(a).

      Appellant asserts the Commonwealth failed to present sufficient

evidence that the killing was in the heat of passion. Appellant’s Brief at 11.

Appellant’s four-page argument recounts his view of the trial testimony and

concludes that “not one witness testified live that Appellant was involved in

the shooting.”   Id. at 14.   Rather, Appellant claims the “Commonwealth’s

case is premised upon the written statements of witnesses who testified

under oath that the statements are untrue and the product of coercive

interrogation tactics.”   Id. at 14.   The Commonwealth counters,“[t]o the

extent that [Appellant] disregards his own statement and the statements of

his eyewitness cohorts as incredible, that assertion is unavailing on


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sufficiency review, where the credibility of the evidence is not at issue and

where all of the evidence is considered in the light most favorable to the

Commonwealth.” Commonwealth’s Brief at 8.

      After careful review, we agree with the Commonwealth that the

credibility of the witnesses is not at issue when reviewing the sufficiency of

the Commonwealth’s evidence. See Commonwealth v. Melvin, 103 A.3d

1, 43 (Pa. Super. 2014) (stating, “[a]n argument regarding the credibility of

a witness’s testimony “goes to the weight of the evidence, not the

sufficiency of the evidence[]”).     Rather, viewing the evidence in the light

most favorable to the Commonwealth as the verdict winner, we conclude the

record   reveals   sufficient   evidence   to   convict   Appellant   of   voluntary

manslaughter.

      In its Rule 1925(a) opinion, the trial court noted the following.

                   At trial, the jury heard testimony from
            numerous civilian witnesses, members of the
            Philadelphia Police Department, and the Medical
            Examiner, Dr. Osbourne. Johnson testified that he
            was standing on the corner of Nelson and Woodlawn
            streets, and that he fired a 0.38 revolver once in the
            air after the fight broke out down the street. Tucker
            testified that he had been standing on the porch at
            5639 Nelson Street with [Appellant], his cousin.
            After the group of males walked up to the house,
            Tucker testified that he and the others began to fight
            with them until gunshots rang out and everyone ran
            away.       Tucker further testified that he told
            [Appellant] to give the police made-up names and
            tell them that those made-up individuals were the
            people carrying guns at the scene.           Marquise
            Graham-Budd, a friend of [Appellant]’s who was
            present at the fight, testified that three guns, a

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            revolver, a 0.380, and a Tek-9, were kept in a
            bookbag on the porch at [Appellant]’s house.

                   The jury also heard testimony from numerous
            members of the Philadelphia Police Department.
            Detective Tolliver testified that he took [Appellant]’s
            statement while he was at the police station after the
            incident. He read [Appellant]’s own sworn statement
            that [Appellant] had fired “wildly” towards Johnson
            after hearing the first gunshot. In his statement,
            [Appellant] also said that he had fired until his gun
            jammed, and couldn’t fire anymore.           Detective
            Aitken testified that he took McTillman’s statement
            after the incident with Detective Scally. In his sworn
            statement, McTillman said that he saw [Appellant]
            “running down the street shooting,” but didn’t see
            the gun after the police arrived on the scene.

Trial Court Opinion, 4/16/15, at 5-6.

      The trial court’s findings are supported by the record.     At trial, the

Commonwealth called Aaron Tucker as a witness. Tucker testified that on

May 5, 2012, he was present when the fight between several people broke

out on the porch at his Aunt’s house. N.T., 12/3/13, at 123-124. Tucker

stated that five or six guys approached the porch where he was standing

with Appellant, the victim, and several other people.     Id. at 125.    Tucker

testified a fight broke out, he heard one shot, then seconds later

approximately eight shots, and everyone ran.        Id. at 132-133.      Tucker

further testified that Appellant was standing on the steps and was not

involved in the fight. Id. at 133.

      On direct examination, the Commonwealth presented Tucker’s second

statement to police given days after the incident.         Id. at 152.     The


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Commonwealth read Tucker the questions and his answers from the

statement, asking Tucker to verify the information.

           Q. “QUESTION: Were you completely honest [on
           May 5, 2012] when you were first interviewed by the
           detectives?”  Do you recall being asked that
           question?

           A. Yes.

           Q. “ANSWER: No. I was scared and I didn’t want to
           tell them everything. [The victim] is like a brother to
           me. [Appellant] is my cousin, my first cousin.” Did
           you say that?

           A. Yes.

           Q. Is that true?

           A. Yes.

           Q. “QUESTION: What did you leave out the first
           time?” Do you recall being asked that question?

           A. Yes.

           Q. “ANSWER: I was involved in a fight at the time.
           I was fighting a boy named Hak. He was there with
           some of his people. There was Jahleel and Gee.
           During the fight, Jahleel pulled a gun out and fired it
           in the air. The fight started to break up. That’s
           when [Appellant] pulled out a gun and he started to
           chase Jahleel. Twig was also chasing Jahleel, also.
           Twig was running with [Appellant]. He was kind of
           on the side of him. I was coming off a lady’s porch
           when they were first running on Nelson Street
           towards Woodlawn Street. I got off the porch and
           that’s when I saw Twig laying on the ground. I ran
           over to him and tried to help him. [Appellant] was
           there also. Ken and Amir were there, also. There
           was a lady there who was my neighbor’s nurse for
           her kids. She was trying to get a pulse. The cops
           came and we put Twig in the car. I went with Twig

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J-S01029-16


          to the hospital.     I stayed with him until they
          pronounced him dead. The police took me there. I
          didn’t know what to do so I lied. I told [Appellant] to
          give all those fake names, Piece, Don, Rell and Kev.
          They were just made up.” Do you recall giving that
          answer to that question to the detectives?

          A. No, I don’t.

          Q. Well, what don’t you recall? Did you say that?

          A. I don’t recall ever saying that [Appellant] pulled
          out a gun or that I seen him running on the side with
          Twig.

          Q. But they got everything else right?

          A. No.

          Q. What else is wrong with that paragraph?

          A. When he – when they said that I was coming off
          the porch, that was right. But when they said that,
          when they said that I seen Jahleel pulling out a gun,
          I didn’t see Jahleel pull out a gun. And I was on the
          porch. So how could I see him pull out a gun?

          Q. Anything else wrong with that paragraph that you
          didn’t say?

          A. That’s it.

          Q. So basically the detectives got everything correct
          except the fact of [Appellant] having a gun and
          chasing down the street with Twig and Jahleel having
          a gun.

          A. Right.

                                    …

          Q. “QUESTION: What kind of gun did [Appellant]
          have?” Do you recall that question?


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          A. No.

          Q. “ANSWER: It was a handgun.            I think it was
          black.” Did you say that?

          A. No.

                                      …

          Q. “QUESTION:       When [Appellant] was running
          toward Woodlawn, who was he shooting at?” Do you
          recall being asked that question?

          A. No.

          Q. “ANSWER: Jahleel.” Do you recall saying that?

          A. Huh? Jahleel?

          Q. Yes.

          A. No.

          Q. You didn’t say that?

          A. No.

          Q. “QUESTION: How many shots did [Appellant]
          fire?” Do you recall being asked that question?

          A. No.

          Q. “ANSWER:     About four.”       Do you recall saying
          that?

          A. No.

                                      …

          Q. “QUESTION: Detective Grebloski is showing you
          a photo. Is this the [Appellant] you have referred to
          in your interview?” Do you recall being asked that
          and being shown a photograph of [Appellant]?


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           A. No. He asked me if this is my cousin.        That’s
           what he asked me.

           Q. Okay. But did I read that correctly what’s down
           there?

           A. Yes, you did.

           Q. Was your answer, “Yes. That’s [Appellant].” Did
           you say that?

           A. Yes.

Id. at 152-164.

     Most of the remaining questions Tucker was asked to verify from his

statement did not pertain to Appellant. See id. Tucker answered that he

recalled answering those questions as stated. See id. The jury was free to

weigh Tucker’s testimony against his written statement.       See Hansley,

supra.

     The Commonwealth also presented Kenneth McTillman as a witness,

who, like Tucker, testified that he was involved in the altercation on May 5,

2012, but that he did not see anyone with a gun or see who fired the

gunshots. N.T., 12/3/13, at 205-209. McTillman was also presented with

his statement to police, which read “I looked toward the street and saw Amir

and [Appellant] running down the street shooting.”        Id. at 217.    The

statement included the following.

           Q. “QUESTION: Did you see [Appellant] with the gun
           after the shooting?” Do you recall that question?

           A. No.


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J-S01029-16


            Q. “ANSWER: I seen him during the shooting but
            not afterward. He was around us when the cops
            came. I didn’t see what he did with the gun.” Do
            you recall giving that answer to that question?

            A. No.

            Q. “QUESTION: Do you know what kind of gun it
            was?” Do you recall being asked that question?

            A. Yes.

            Q. “ANSWER: It was some type of automatic.” Did
            you say that?

            A. No. I told him it was a revolver.

Id. at 219-220. Similar to Tucker, McTillman testified that he did not recall

giving many of the answers in his sworn statement, or that the answers

were inaccurate.      Further, McTillman disputed signing or reviewing the

statement. At trial, Detective Ronald Aitken testified to taking McTillman’s

statement on May 6, 2012, as well as the accuracy of the statement. N.T.,

12/4/13, at 28.

      Detective Edward Tolliver also testified for the Commonwealth.

Detective Tolliver took Appellant’s statement following the incident, which in

relevant part, encompassed the following.


            “QUESTION: Tell us what happened.”

            “ANSWER: There was a fight on the block. People
            started shooting and the next thing I know, Keenan
            laying on the street dead. While the fight was going
            on, I hear a shot. I got scared and pulled my gun
            out and then I started shooting.”



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                                      …

            “When you saw that male fire his gun into the air,
            what did you do”

            “ANSWER: I pulled my gun from my waistband and
            started shooting.”

            “QUESTION: How many times did you fire the gun
            you had?”

            “ANSWER: Three times. It jammed and I couldn’t
            shoot no more.”

            “QUESTION: What kind of gun did you have?”

            “ANSWER: It was a .380 automatic. It’s black.

            “QUESTION: Who were you shooting at when you
            fired your gun?

            “ANSWER: I was wildly shooting at the corner in the
            direction of the man I saw shoot his gun.”

Id. at 86-88.   The statement was signed by Appellant and dated May 6,

2012. Id. at 95.

      Several other witnesses gave similar statements to police, although

each eye-witness recanted his statement at trial.        Despite each of the

witnesses testifying at trial to a different recollection of the events than

those they gave in their sworn statements to police, the jury, as fact-finder,

was free to weigh all of the evidence and testimony. Watley, supra; see

also Commonwealth v. Brown, 52 A.3d 1139, 1171 (Pa. 2012) (holding

“the out-of-court statements of [Appellant and his co-defendants which were

recanted at trial] furnished legally sufficient evidence to sustain Appellant’s


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convictions[]”). Further, the evidence presented was sufficient for the jury

to find Appellant acted in the heat of passion in response to Johnson’s first

shot. Accordingly, Appellant’s first issue fails.

      In his second issue, Appellant argues the evidence was insufficient to

convict him of carrying a firearm without a license. This crime is defined as

follows.

             § 6106. Firearms not to be carried without a
             license

             (a) Offense defined --

             (1) Except as provided in paragraph (2), 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.

                                        …

18 Pa.C.S.A. § 6106(a)(1).

      Instantly, Appellant’s argument is approximately one-page long and

vacillates between arguing elements of carrying a firearm on public streets

in Philadelphia and carrying a firearm without a license. Appellant’s Brief at

14-15.     As noted above, there was confusion at sentencing resulting in

Appellant being sentenced for the wrong VUFA offense.            Nevertheless,

despite the confusion, the record reveals that sufficient evidence was

produced at trial for the jury to conclude Appellant carried a firearm without

a license.    “The Commonwealth presented a certificate of nonlicensure,

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J-S01029-16


evidence marked Commonwealth’s Exhibit C-44. The certificate showed that

on May 5, 2012, [Appellant] did not have a valid license to carry a firearm.”

Trial Court Opinion, 4/16/15, at 6; N.T., 12/4/13, at 21-23. Additionally, as

noted in the previous issue, evidence was presented through eye-witness

statements to police that Appellant was in possession of a gun.          N.T.,

12/3/13, at 156, 219. Therefore, Appellant’s second issue also fails.

       Notwithstanding our disposition of Appellant’s issues on appeal, we are

constrained to address a legality of sentencing issue sua sponte.        “[A]

challenge to the legality of the sentence can never be waived and may be

raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800,

801 (Pa. Super. 2014), appeal granted 121 A.3d 433 (Pa. 2015). As noted,

Appellant was sentenced to a mandatory minimum pursuant to Pa.C.S.A. §

9712. In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en

banc), this Court held that Section 9712.1 was facially unconstitutional. Id.

at 102. In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),

this Court, applying Newman’s rationale, concluded that Section 9712 is

also facially unconstitutional. Id. at 811-812. Thus, Appellant’s sentence is

illegal.

       Based on the foregoing, we conclude the evidence was sufficient to

convict Appellant; however the trial court imposed an illegal sentence.

Accordingly, we vacate the trial court’s March 25, 2014 judgment of




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sentence, and remand for resentencing without consideration of the

mandatory minimum, in accordance with this memorandum.

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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