J-S14029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :    IN THE SUPERIOR COURT OF
                                                   :         PENNSYLVANIA
                                                   :
                 v.                                :
                                                   :
                                                   :
    SHANE C. SMITH                                 :
                                                   :
                         Appellant                 :    No. 1923 EDA 2017

               Appeal from the Judgment of Sentence May 9, 2017
      In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0004965-2016


BEFORE:        OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                                     FILED MAY 08, 2018

        Shane Smith appeals from the judgment of sentence entered following

his    bench    trial   convictions    for     possession    of   firearm    with    altered

manufacturer’s number, firearms not to be carried without a license, receiving

stolen property, and possession of a controlled substance.1 We conclude the

Commonwealth            presented     sufficient       evidence   that      the     firearm’s

manufacturer’s number was “altered” and, therefore, affirm the judgment of

sentence.

        On June 12, 2016, Pennsylvania State Police officers arrested Smith

following a vehicle stop during which the police officers discovered a firearm,


____________________________________________


*     Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1), 3925(a), and 35 P.S. § 780-
113(a)(16), respectively.
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ammunition, a clip, and marijuana in Smith’s vehicle, and Oxycodone on

Smith’s person.

         On February 24, 2017, the trial court conducted a stipulated bench trial,

during which the Commonwealth admitted as an exhibit a photograph of the

firearm at issue. The manufacturer’s number was legible, but had multiple

scratch marks on it. The trial court concluded the manufacturer’s number was

“clearly abraded.” Trial Court Opinion, filed July 25, 2017, at 7-8.

         The trial court found Smith guilty of the above-reference charges. On

May 9, 2017, the trial court sentenced Smith to three to six years’

imprisonment for the conviction for possession of firearm with altered

manufacturer’s number, two to four years’ imprisonment for the conviction for

firearms not to be carried without a license, 15 to 30 months’ imprisonment

for the receiving stolen property conviction, and three years’ probation for the

conviction for possession of a controlled substance. The trial court ordered

that the terms of imprisonment were to run concurrent to each other and the

term of probation would be consecutive to the imprisonment.

         Smith filed a timely notice of appeal. On appeal he raises the following

issue:

            Whether the evidence was insufficient to prove all the
            elements of the charge of possession of a firearm with
            altered manufacturer’s number where the photo evidence of
            the gun in question shows that the number is completely
            legible and has not been altered, changed, removed, or
            obliterated in any substantive fashion.

Smith’s Br. at 7 (unnecessary capitalization omitted).


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      “Because evidentiary sufficiency is a question of law, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). Specifically, we must

determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that the Commonwealth proved each

element beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d

150, 152 (Pa.Super. 2003). “The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt by means of

wholly circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544,

559 (Pa.Super. 2011) (en banc) (quoting Commonwealth v. Hutchinson,

947 A.2d 800, 805–06 (Pa.Super. 2008)).

      Further, “[a]s an appellate court, we do not assess credibility nor do we

assign weight to any of the testimony of record.” Commonwealth v. Kinney,

863 A.2d 581, 584 (Pa.Super. 2004) (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.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super.

2007) (quoting Commonwealth v. Frisbie, 889 A.2d 1271, 1274–75

(Pa.Super. 2005)).

      Smith challenges the sufficiency of the evidence to support his

conviction for possession of firearm with altered manufacturer’s number.


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Section 6110.2 of the Crimes Code provides: “No person shall possess a

firearm which has had the manufacturer's number integral to the frame or

receiver altered, changed, removed or obliterated.” 18 Pa.C.S.A. § 6110.2.

Accordingly, to support a conviction for possession of firearm with altered

manufacturer’s number, the Commonwealth must establish the defendant

possessed a firearm, that the manufacturer’s number of the firearm was

“altered, changed, removed or obliterated,” and that the defendant acted

intentionally, knowingly, or recklessly with respect to the “altered, changed,

removed or obliterated” manufacturer’s number. See 18 Pa.C.S.A. §

6110.2(a); Commonwealth v. Jones, 172 A.3d 1139, 1145 (Pa.Super.

2017).

      Smith’s sole argument on appeal is that the Commonwealth failed to

prove the manufacturer’s number was “altered, changed, removed or

obliterated” because the number was legible with the naked eye, as shown by

the photograph of the firearm. He argues that under Commonwealth v.

Smith, 146 A.3d 257 (Pa.Super. 2016), the Commonwealth must present

evidence that the manufacturer’s number is illegible to the naked eye to

sustain a conviction for possession of firearm with altered manufacturer’s

number.

      In Smith, a firearms expert testified that the number had not been

altered because he was able to decipher the number. 146 A.3d at 263-64. He

stated that someone had attempted to remove the number “by mechanical


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means,” but he could still see the numbers “when placed under magnification.”

Id. at 263. This Court concluded that the evidence was sufficient to support

the conviction, reasoning that the expert testimony confirmed the number had

been “mechanically abraded to such a degree that it was no longer legible

unless magnification was employed.” Id. at 264. We reasoned that the

expert’s opinion the number had not been altered “did not bear on the legal

question of culpability.” Id. We found that the testimony supported that the

number had been altered or changed because it showed that “only

extraordinary means—in this case, magnification—enabled observation of the

number.” Id.

      Smith claims that there was insufficient evidence to establish the

manufacturer’s number of the firearm had been altered, changed, removed or

obliterated because, unlike the manufacturer’s number in Smith, the number

here was legible. We disagree. Smith held that there was sufficient evidence

to establish the number had been changed or altered, even though the expert

testified it had not been “altered.” Smith did not require the Commonwealth

to establish the number was unreadable with the naked eye to establish a

violation of Section 6110.2.

      Whether the Commonwealth established the number had been “altered,

changed, remove or obliterated” requires us to interpret Section 6110.2.

“[T]he objective of all interpretation and construction of statutes is to

ascertain and effectuate the intention of the legislature.” Commonwealth v.


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Scott, 176 A.3d 283, 287 (Pa.Super. 2017) (quoting Allstate Life Ins. Co.

v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012)). “[T]he best indication

of the General Assembly’s intent is the plain language of the statute” and,

therefore “[w]hen the words of a statute are clear and free from all ambiguity,

they are presumed to be the best indication of legislative intent.” Id. (quoting

Allstate Life Ins. Co., 52 A.3d at 1080).

      Here, Section 6110.2 prohibits the possession of a gun where the

manufacturer’s number has been “altered, changed, removed or obliterated.”

The trial court found that the manufacturer’s number was “altered.” Trial Ct.

Op., at 8. Because “altered” is not defined by statute, we look to its dictionary

definition to determine its plain meaning. Merriam-Webster’s Dictionary

defines “alter” as “to make different without changing into something else.”

Merriam-Webster’s Dictionary, http://www.merriam-webster.com/dictionary/

alter; see also Commonwealth v. Ford, 175 A.3d 985, 992 (Pa.Super.

2017).

      The picture shows that the manufacturer’s number was “clearly

abraded” by multiple scratch marks, Trial Ct. Op. at 7-8, which is sufficient to

establish the number was altered, as it made the number “different without

changing [it] into something else.”

      Judgment of sentence affirmed.




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Judge Ransom joins the memorandum.

Judge Ott concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/18




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