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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
BENIGNO JOSE MULERO JR.,                    :
                                            :
                          Appellant         :     No. 750 MDA 2013


             Appeal from the Judgment of Sentence March 25, 2013
               In the Court of Common Pleas of Lancaster County
               Criminal Division No(s).: CP-36-CR-0002636-2012

BEFORE: MUNDY, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 24, 2014

        Appellant, Benigno Jose Mulero, Jr., appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas following



number,1 simple assault,2 and recklessly endangering another person3



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6110.2(a).
2
    18 Pa.C.S. 2701(a)(1).
3
  18 Pa.C.S. § 2705. We note that Appellant was initially charged with
aggravated assault, see 18 Pa.C.S. § 2702(a)(3), but the trial court, sua
sponte

and does not challenge his REAP conviction in this appeal.
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not establish he acted recklessly to the fact that the firearm in his

possession had an obliterated serial number. We conclude that Appellant is

entitled to relief, reverse the conviction for possession of a firearm with an



remand for resentencing.

      The trial court summarized the background of this case as follows:

            On April 6, 2012, Officers from the Lancaster City
         Bureau of Police were dispatched . . . for a reported fight
         involving three males and a possible gun. Officer Ryan
         Hockley arrived to find two men, later identified as
         [Appellant] and David Rosario, in a heated argument.
         Officer Hockley observed Rosario remove what appeared to
         be a gun from his waistband, place it on the ground and
         punch [Appellant]. During the altercation, Rosario noticed
                                                       ay from the

         retrieved the gun and took aim at Rosario. Officer Hockley
         announced his presence and fired his duty weapon at
         [Appellant] in an attempt to prevent him from shooting
         Rosario.

            [Appellant] and Rosario ran from the scene in different
         directions.   Officer Hockley observed [Appellant] run

         Rosario.    Another officer arrived and helped with
         apprehending and arresting Rosario.       Officer Hockley
         radioed to other responding officers with a description of
         [Appellant] and where he fled. Officers recovered the
         firearm near where [Appellant] fled. The serial number
         had been scratched off the gun.

                                 *    *    *




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             Following the presentation of evidence [at the bench
         trial], the Court found [Appellant] guilty beyond a
         reasonable doubt of possessing a firearm with an altered

         aggravated assault count, the Court found [Appellant]
         guilty of the lesser offense of recklessly endangering
         another person.

           On March 25, 2013, the Court sentenced [Appellant] to
         an aggregate term of time served to 23 months of

         possession of a firearm with an altered manuf
         number]. On April 9, 2013, [Appellant] was paroled on
         petition. . . .

Trial Ct. Op., 7/29/13, at 1-3 (unpaginated) (footnotes omitted). Appellant

timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.         The trial court filed a

responsive Rule 1925(a) opinion.




with an altered serial number when he picked up the pistol Rosario had

placed on the ground and aimed it at Rosario.     Id. at 14-15.   He argues,



establish that he consciously disregarded a substantial and unjustifiable risk

that the firearm had an altered serial number. Id. at 15-16.

      The Commonwealth asserts Appellant came into possession of the

firearm for the sole purposes of committing a criminal act. Co




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           Id. Similarly, the trial court, in its Rule 1925(a) opinion, suggests

that the evidence established Appellant acted recklessly with respect to the



                                                                               s



Ct. Op. at 5.

      Following our review, we agree with the parties and the trial court that

a conviction under 18 Pa.C.S. § 6110.2 requires proof of culpability. We also

agree that the Commonwealth must show that a defendant was at least




in this case did not establish that Appellant acted recklessly with respect to



      It is well settled that:

            [o]ur standard of review of sufficiency claims requires
         that we evaluate the record in the light most favorable to
         the verdict winner giving the prosecution the benefit of all
         reasonable inferences to be drawn from the evidence.
         Evidence will be deemed sufficient to support the verdict
         when it establishes each material element of the crime
         charged and the commission thereof by the accused,
         beyond     a   reasonable    doubt.    Nevertheless,    the
         Commonwealth need not establish guilt to a mathematical

         resolved by the fact finder unless the evidence is so weak



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         and inconclusive that, as a matter of law, no probability of
         fact can be drawn from the combined circumstances.

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation

omitted), appeal denied, 77 A.3d 636 (Pa. 2013). The interpretation of the

statutory definition of an offense raises a questi

standard of review is de novo

Commonwealth v. Gravelle, 55 A.3d 753, 755 (Pa. Super. 2012)

(citsation omitted).

      Section 6110.2 states, in relevant part:

         Possession of firearm with altered ma
         number

            (a) General rule.    No person shall possess a firearm

         frame or receiver       altered,   changed,   removed    or
         obliterated.

           (b) Penalty. A person who violates this section
         commits a felony of the second degree.

18 Pa.C.S. § 6110.2(a), (b).

      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
                     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.




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18 Pa.C.S. § 302(c) (e

follows:

           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

           to him, its disregard involves a gross deviation from the
           standard of conduct that a reasonable person would


18 Pa.C.S. § 302(b)(3) (emphases added).

      By    contrast,   the   lesser   degree   of   culpability   referred   to   as



           A person acts negligently with respect to a material
           element of an offense when he should be aware of a
           substantial and unjustifiable risk that the material element
           exists or will result from his conduct. The risk must be of
                                                            failure to
           perceive it, considering the nature and intent of his
           conduct and the circumstances known to him, involves a
           gross deviation from the standard of care that a


18 Pa.C.S. § 302(b)(4) (emphases added).             The key distinction between




light of the totality of the circumstances.     See Commonwealth v. Heck,

491 A.2d 212, 216 (Pa. Super. 1985).

      Thus, the Crimes Code requires the Commonwealth to establish

culpability to sustain a conviction for possession of a firearm with an altered



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                           See 18 Pa.C.S. §§ 301(c), 302(b)(3)-(4), 302(c),

6110.2; see generally Commonwealth v. Pond, 846 A.2d 699, 706-707



liability statutes are an exception to the centuries old philosophy of criminal

                                                              coupled with moral



Commonwealth      was    required   to       demonstrate   that   Appellant   acted



firearm,4 we will review the record in light of this concession.

       Instantly, Officer Hockley testified that at 4:30 a.m. on April 6, 2012,

he responded to a report of a fight in progress, possibly involving a gun.

N.T. at 14-15.    The officer exited his vehicle near the scene and heard
                                         5
                                             Id. at 16. As he approached on foot,

he observed Appellant and David Rosario on the sidewalk along Prince

Street, facing each other and standing two to three feet apart. When the


4
    As discussed above, Appellant concedes possession of the firearm.           We

the meaning of this section [defining voluntary act], if the possessor
knowingly procured or received the thing possessed or was aware of his
control thereof for a sufficient period to have been able to terminate his


5
  A surveillance camera recorded an altercation among three individuals
before Officer Hockley arrived at the scene. N.T. at 59. Two of the
individuals in the recording were identified as Appellant and Rosario. Id.
Appellant testified that the third individual was his friend David Reyes was
his friend. Id. at 69-70.



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officer was within thirty to forty feet of Appellant and Rosario, he saw

Rosario reach into his waistband, retrieve an item, and place it on the

ground. Id.

                                             Id. at 17-18. Believing Rosario

had a gun, the officer drew his duty weapon and continued to approach

Appellant and Rosario. Id. at 20. He then saw Rosario punch Appellant in

the face. Id. After striking Appellant, Rosario saw the officer and walked

from the scene with his back to Appellant. Id. at 21-22.

      Appellant, whose back was to the officer, reached down and retrieved



observed a pistol in his hand and saw him point it at Rosario.     Id. at 22.

Appellant did not pause to manipulate the firearm     i.e.

load the weapon before pointing it at Rosario. Id. at 23, 26. The officer



Id. at 25.   The officer fired several shots at Appellant.   Id.    Appellant



along the Prince Street. Id.

after he saw Appellant with the pistol in his hand.6 Id.




6
  On cross-examination, Officer Hockley testified that he began firing
immediately after he saw Appellant pick up the firearm. See N.T., at 32.

                                                Id. at 37.



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                      Id. The officer was unable to discern if Appellant was

still in possession of the firearm. Id. at 36.

      According to Officer Hockley, Appellant ran north on Prince Street and

turned left to run west along the sidewalk of West King Street. Id. at 27.

While in pursuit, the officer called for assistance and then saw Rosario

running south on Water Street. Id. The officer apprehended Rosario with

the assistance of an off-duty officer who happened to be in the area. Id.

Meanwhile, Officer Hockley observed Appellant go behind a fast food

restaurant at the intersection of Water and King Streets and climb a fence

toward the 200 block of West Mifflin Street. Appellant was apprehended on

that block by another responding police officer. Id. at 28. Appellant did not

have a firearm when he was taken into custody. Id. at 29.

      Appellant testified at trial.   Of relevance to this appeal, Appellant



Id. at 71. He acknowledged that he took possession of the firearm Rosario

placed on the sidewalk. Id. at 76.

      Additional officers responded to the scene and found a Smith &

Wesson .38 caliber revolver behind an iron gate on the first block of South

Prince Street, approximately twenty-five feet from the location of the

altercation between Appellant and Rosario. Id. at 35, 43. The revolver was



         Id. at 46. Appellant stipulated t



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                     Id. at 50.    However, at the time of trial, the serial

number had been partially restored using polishing and chemical etching

techniques. Id.

     As noted above, it is conceded in this appeal that Appellant possessed



                           See

We also discern no reason to dispute that the Commonwealth established

Appellant intended to employ the firearm for criminal purposes. However,

the record established only that Appellant possessed the firearm for a matter

of seconds before the officer opened fire, after which Appellant ducked

behind parked cars, began fleeing the scene, and discarded the weapon

within twenty feet from where the altercation with Rosario occurred.     The

Commonwealth did not adduce any evidence that the scratching or damage

to the serial number was obvious at the time of the incident. Moreover, the

evidence established Appellant, when picking up the firearm and pointing it

at Rosario, did not manipulate it any way to make the altered serial number

apparent.

     We are mindful the trial court found that Rosario initially drew the

pistol from his waistband, set the firearm on the ground, and abandoned it

when he saw the officer approach. We also note that Appellant testified that

he knew Rosario from New York. Although the inferences from these facts

could establish that Appellant was aware Rosario was carrying a firearm



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illegally, they do not, even when construed in a light most favorable to the

Commonwealth, prove that Appellant consciously disregarded a substantial
                                                                            7



Thus, we conclude that neither the manner in which Appellant came into

possession of the firearm, nor the circumstances surrounding his possession

and discarding of the firearm, suggest a conscious disregard of a substantial

                                                   ed.   Accordingly, we are




      Since our decision upsets the sentencing scheme of the trial court, we

vacate the judgment of sentence and remand this case for resentencing.

See Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013).

      Judgment of sentence vacated. Conviction for possession of a firearm



resentencing. Jurisdiction relinquished.




7
                       arguments in this case, we do not address whether

terminate his possession. See 18 Pa.C.S. § 301(c). Furthermore, given the
plain language of Section 6110.2 and the rule of construction set forth in 18

appropriate level of culpability.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2014




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