J-S26004-19

                                   2019 PA Super 283


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW LINEMAN                             :
                                               :
                       Appellant               :   No. 1326 EDA 2018

             Appeal from the Judgment of Sentence March 28, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004774-2017


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.

OPINION BY PANELLA, P.J.:                          FILED SEPTEMBER 16, 2019

        Andrew Lineman appeals from the judgment of sentence entered

following his conviction for Violation of the Uniform Firearms Act, 18 Pa.C.S.A.

§ 6105 (“VUFA”). Lineman contends his conviction was against the sufficiency

and weight of the evidence presented at trial. We affirm.

        On November 27, 2017, Lineman appeared for a waiver trial on charges

of illegally possessing a firearm. The trial court summarized the facts of this

case as follows.

        On May 17, 2017, Philadelphia Police Officer Brian Benz was on
        routine patrol when he received a radio call indicating that a male
        was screaming for assistance in the area of 6th and Cumberland
        Streets in Philadelphia. The officer proceeded to that location and
        observed [Lineman] and another male struggling on the ground.
        [Lineman] was lying on the ground and the other male was on top
        of him. Officer Benz ordered the male to get off of [Lineman]. As
____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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       [Lineman] began to stand Officer Benz heard the sound of metal
       scraping the ground, drawing the officer’s attention to [Lineman’s]
       hand. In his hand, Officer Benz saw an Uzi handgun. The officer
       immediately pushed [Lineman] to the ground at which time
       another police officer kicked the gun from [Lineman’s] hand.[1]
       Officer [Benz] testified that [Lineman] was holding the gun as if
       preparing to shoot someone.[2] [Lineman] said nothing, appeared
       to be under the influence, and had a strong chemical odor
       emanating from him.3 In addition, [Lineman] was bleeding from
       his face and was taken for treatment by medical personnel. Calvin
       Bonaparte, the other male, did not talk to police and he appeared
       uninjured. Bonaparte left after it was determined that there was
       no reason to hold him. By way of a stipulation, the parties agreed
       that [Lineman] was not eligible to possess a firearm.

       [Lineman] testified in his own defense, stating that on the day of
       the incident he and Bonaparte, a long-time acquaintance, planned
       to share a bottle of liquor when Bonaparte began acting strangely
       while driving in [Lineman’s] vehicle. [Lineman] told Bonaparte
       that he decided to drive him home.

       According to [Lineman], Bonaparte pulled out a gun. [Lineman]
       then asked Bonaparte what was up and Bonaparte hit him in the
____________________________________________


1 Officer Benz testified that Lineman did not resist and cooperated with the
officers. See N.T., Waiver Trial, 11/27/15, at 13.

2      THE COURT: How was he holding it?

       THE WITNESS: He just had it in his hand like this. (Indicating.)

       THE COURT: In other words, his hand was on the grip stock?

       THE WITNESS: Yes.

       THE COURT: Like you would prepare to shoot somebody?

       THE WITNESS: Yes.

N.T., Waiver Trial, 11/27/2017, at 15.

3Lineman disputed that he was under the influence of any type of substance.
See id., at 32.

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      face with the gun, breaking his nose and cutting him. After
      Bonaparte struck him, [Lineman] attempted to wrestle the gun
      away from him. [Lineman] testified that he yelled for help and
      managed to get the better of Bonaparte. Once he did so, he
      opened the door to the car and both men tumbled out with
      Bonaparte landing on top. The police arrived while the two men
      were fighting.

Trial Court Opinion, filed 9/27/2018, at 2-3 (internal citations omitted).

      At the conclusion of the trial, the parties were permitted to file

memoranda outlining their respective positions concerning the applicability of

the defense of duress to a possessory offense. After receiving memoranda

from both parties, the court noted that it believed the defense of duress was

available to Lineman, but nonetheless found him guilty based on a credibility

determination. Lineman filed a motion for extraordinary relief, which was

denied by the trial court. He was then sentenced to three to seven years’

incarceration.   Lineman   filed   a   post-sentence   motion   challenging   the

sufficiency and weight of the evidence, which was denied. This timely appeal

followed.

      In his first issue on appeal, Lineman asserts the evidence was

insufficient to convict him of VUFA as he testified to a belief he acted in self-

defense.

      The trial court found the issue waived as it concluded Lineman did not

present it at trial. On appeal, the Commonwealth continues to press for

waiver. The Commonwealth asserts that Lineman only presented the defense

of duress at trial and blurs the lines between of self-defense, justification and


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duress in his brief. However, Lineman included case law on self-defense and

justification for possessory offenses in his letter brief to the trial court prior to

sentencing, as well as in his motion for extraordinary relief. Thus, we will

address the issue on its merits.

      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

Commonwealth as verdict winner, the evidence at trial and all reasonable

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). “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. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citation

omitted).

      “The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). “As 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). 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). Furthermore, a mere conflict in the testimony of the


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witnesses does not render the evidence insufficient because the factfinder is

free to believe all, part, or none of the evidence. Commonwealth v.

Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).

      To sustain a conviction under 18 Pa.C.S.A. § 6105, the Commonwealth

must prove that Lineman “possessed a firearm and that he was convicted of

an enumerated offense that prohibits him from possessing, using, controlling,

or transferring a firearm.” Commonwealth v. Thomas, 988 A.2d 669, 670

(Pa. Super. 2009).

      Lineman does not dispute that he possessed the firearm or that he is

legally prohibited from possessing a firearm. He claims the evidence was

insufficient to sustain his conviction because his possession of the firearm was

justified, negating the intent requirement necessary to convict him of unlawful

possession of a firearm. Lineman contends his own “uncontroverted testimony

established that he believed it was necessary to wrestle the gun away from

Bonaparte in order to avoid a further harm or evil to himself.” Appellant’s

Brief, at 28-29.

      This Court has recently acknowledged the lack of case law on this

particular matter in this Commonwealth. See Commonwealth v. Miklos,

159 A.3d 962, 968 (Pa. Super. 2017), appeal denied, 170 A.3d 1042 (Pa.

2017).   As a result, the Miklos panel, guided by decisions from other

jurisdictions, recognized the validity of a justification defense to charges of

unlawfully possessing a firearm. See id. at 968-969. Since a justification


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defense   challenges    whether    the   defendant    acted   with   intent,   the

Commonwealth bears the burden of disproving justification. See id. at 967-

968 (affirming the trial court’s conclusion that the Commonwealth bears the

burden of disproving justification).

      Pursuant to Miklos, we hold that a justification defense is available for

a possessory offense where a defendant plausibly argues he did not

intentionally possess the firearm. Nevertheless, we agree with the trial court

that there is sufficient evidence to show Lineman was not justified under the

facts before the trial court.

      The trial court responded to the issue of justification during a brief

hearing held after counsel for both parties submitted letter briefs on the

availability of the defense.

      This [c]ourt held it under advisement for the [c]ourt to perform
      its own research about the availability of this particular defense
      on the possession issue.

      After doing so, this [c]ourt finds the defendant guilty of these
      charges, notwithstanding the fact that I think theoretically that
      the defense is available. It was a credibility call. And I find that –
      I believe the police officer, so.

N.T., Hearing, 12/21/2017, at 4.

      The trial court further addressed the issue, albeit briefly, in its opinion.

The court relied on the officer’s testimony that Lineman was holding the gun

as if he were about to shoot someone, see N.T., Trial, 11/27/2017, at 15, and

found that this evidence “undermines any claim of self-defense or duress …




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because it showed that he consciously possessed the weapon and likely would

have used it had police not intervened.” Trial Court Opinion, at 4.

      Based on the foregoing, we discern no error in the trial court’s conclusion

that Lineman’s possession of the gun was not justified and that he was guilty

of the offense. It is uncontroverted that Lineman was previously convicted of

an enumerated offense which prevented him from possessing a firearm.

Further, the court credited the testimony of Officer Benz that Lineman

possessed a firearm when the officers broke up the altercation and that he

was holding the gun in a manner in which he could shoot someone, showing

he intentionally possessed the weapon. See Miklos, 159 A.3d at 968

(concluding that trial court was entitled to find that defendant’s possession

was justified for some, but not all, of the time he possessed it). We find the

evidence was sufficient to sustain Lineman’s conviction.

      In his second issue on appeal, Lineman asserts the verdict was against

the weight of the evidence. Specifically, he argues the verdict was so contrary

to the evidence that it shocks one’s sense of justice because the evidence

established that his actions were justified and lawfully taken in self-defense.

      We do not review challenges to the weight of the evidence de novo on

appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

Rather, we only review the trial court’s exercise of its discretionary judgment

regarding the weight of the evidence presented at trial. See id.




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          “[W]e may only reverse the lower court’s verdict if it is so contrary to

the evidence as to shock one’s sense of justice.” Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is

said to be contrary to the evidence such that it shocks one’s sense of justice

when “the figure of Justice totters on her pedestal,” or when “the jury’s

verdict, at the time of its rendition, causes the trial judge to lose his breath,

temporarily, and causes him to almost fall from the bench, then it is truly

shocking to the judicial conscience.” Commonwealth v. Davidson, 860 A.2d

575, 581 (Pa. Super. 2004) (citations omitted).

          The trial court addressed this issue when it stated on the record that its

decision was a credibility determination and that it believed the testimony of

the officer over Lineman’s testimony. See N.T., 12/21/2017, at 4. We find this

credibility determination is not shocking and was thoroughly within the court’s

discretion and function as factfinder. Thus, Lineman’s final issue merits no

relief.

          As Lineman has not established any right to relief on appeal, we affirm

the judgment of sentence.

          Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/19




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