J-S23027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASPER EDWIN OLIVER                        :
                                               :
                       Appellant               :   No. 3295 EDA 2018

         Appeal from the Judgment of Sentence Entered October 9, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0008031-2016


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                              FILED JUNE 10, 2020

        Jasper Edwin Oliver (Appellant) appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his

bench trial conviction of one count of criminal use of a communication facility.1

On appeal, Appellant challenges the sufficiency of the evidence and the legality

of his sentence. Because we agree the evidence was insufficient to support

the verdict, we reverse Appellant’s conviction and vacate the judgment of

sentence.

        The facts underlying Appellant’s conviction are summarized by the trial

court as follows:

               On April 14, 2016, authorities met with a then confidential
        informant named Danielle Miller who informed them that an
        individual named Joseph Wesley had contacted her through text
____________________________________________


1   18 Pa.C.S. § 7512(a).
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     messages with respect to assault rifles he wished to sell. On April
     15, 2016, authorities utilized Ms. Miller to effectuate a controlled
     purchase of these rifles. During this transaction, Mr. Wesley had
     a brief interaction with [Appellant] in front of a residence at 35
     Holland Avenue in Ardmore, PA.          Following the transaction,
     authorities confirmed the weapons Ms. Miller had purchased from
     Mr. Wesley were two assault rifles.2

     __________
     2 The court found [Appellant] not guilty of all of the charges
     associated with this transaction.
     __________

            On June 14, 2016, Danielle Miller informed authorities that
     she had received a text message from Mr. Wesley containing a
     picture of a semi-automatic rifle. On June 20, 2016, Ms. Miller
     received another text message offering the semi-automatic rifle
     for sale and a nine millimeter semi-automatic pistol for $2,700
     total. On June 28, 2016, Mr. Wesley again contacted Ms. Miller
     via text message and offered to sell her the previously referenced
     guns. One of the text messages contained a picture of the nine
     millimeter semi-automatic pistol. The message itself was a screen
     shot of a message emanating from the number 215-680-7431,
     which was later revealed to belong to [Appellant]. Mr. Wesley also
     offered to sell Ms. Miller cocaine. Later that day, authorities
     utilized Ms. Miller to effectuate a controlled purchase of the semi-
     automatic rifle, nine millimeter semi-automatic pistol and cocaine
     and supplied her with $3,300 in prerecorded buy money and a
     recording device. The authorities also set up surveillance near Ms.
     Miller and Mr. Wesley’s designated meeting spot. Following the
     transaction, authorities confirmed Mr. Wesley had sold Ms. Miller
     a semi-automatic rifle, a Highpoint nine millimeter semi-automatic
     pistol, and one clear bag containing two clear bags of cocaine.

           On August 22, 2016, authorities effectuated a traffic stop on
     [Appellant] in which he supplied his cell phone number (215-680-
     7431) and his address of 35 Holland Avenue, Ardmore, PA. As
     part of the investigation into the Joseph Wesley matter,
     authorities conducted a public records check on the 215-680-
     7431 cell phone number associated with the picture of the nine
     millimeter semi-automatic pistol and were able to confirm the
     number was being utilized by [Appellant]. Further information
     revealed that [Appellant] had possessed this number since
     December 2015 and the phone was registered to the address of


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        35 Holland Avenue, Ardmore, PA. Authorities later reviewed the
        video surveillance from the April 15, 2016 gun purchase involving
        Danielle Miller and confirmed [Appellant] was the individual who
        Joseph Wesley interacted with during the initial stages of
        transaction. Authorities arrested [Appellant] on October 13,
        2016.

Trial Ct. Op., 4/8/19, at 1-2.

        Appellant was charged with 22 offenses stemming from Wesley’s sale of

the firearms to Miller in April and June of 2016, including, persons not to

possess firearms (four counts), criminal conspiracy (eight counts), sale or

transfer of firearms – ineligible persons (four counts), criminal use of a

communication facility (four counts), and possession of a firearm with altered

manufacturer’s number (two counts).2             Wesley was charged with similar

offenses, and the two cases were consolidated for trial.

        On June 13, 2018, the day trial was scheduled to begin, the cases were

effectively severed when Wesley decided to proceed on stipulated facts, 3 and

Appellant chose to proceed with a bench trial. See N.T., 6/13/18, at 15-16.

On June 15, 2018, the trial court found Appellant guilty of one count of criminal

use of a communication facility (Count 17). With regard to the other charges,

the court granted trial counsel’s motion for a judgment of acquittal on three

offenses relating to one of the firearms sold during the second purchase (the

semi-automatic rifle), and found Appellant not guilty of the remaining

offenses. See N.T., 6/14/18, at 105-06; N.T., 6/15/18, at 3-4. On October
____________________________________________


2   18 Pa.C.S. §§ 903(a)(1), 6105(a)(1), 6110.2(a), 6111(g)(2).

3 The transcript from Appellant’s trial reveals that Wesley stipulated to the
“Affidavit of Probable Cause and an NMS report.” N.T., 6/13/18, at 16.

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9, 2018, the trial court sentenced Appellant to a term of 30 to 60 months’

imprisonment, followed by three years’ probation.

      Relevant to the issue raised herein, the trial court summarized the

procedural history of Wesley’s case as follows:

      [O]n June 13, 2018, the court held a stipulated bench trial on the
      charges involving [ ] Wesley which stemmed from the April 15,
      2016 and June 28, 2016 transactions described above. On June
      15, 2018, the court found [ ] Wesley guilty of four (4) counts of
      illegal sale or transfer of firearms, three (3) counts of criminal
      conspiracy, one (1) count of possession with intent to deliver a
      controlled substance, and one (1) count of possession of a
      controlled substance.     [Wesley was found not guilty of the
      remaining charges, including persons not to possess firearms.
      See Commonwealth v. Wesley, 3028 EDA 2018 (unpub. memo.
      at 3 n.2) (Pa. Super. Dec. 12, 2019).]

            On July 2, 2017, which was following the verdict but prior
      to sentencing, the Commonwealth informed the court of its intent
      to nolle prosse five (5) of these counts due to the fact that the
      length of the guns at issue excluded them from the illegal sale or
      transfer of firearms statute. These counts included three (3)
      counts of sale or transfer of firearms and two (2) counts of criminal
      conspiracy. [These were the rifles sold during the April 2016
      transaction.] The Commonwealth, however, did not nolle prosse
      the counts related to the nine (9) millimeter semi-automatic pistol
      as the length of this gun did not exclude it from the statute.9 After
      the above referenced charges were nolle prossed, the charges
      which remained and on which the court imposed sentence were
      one (1) count of illegal sale or transfer of firearms, one (1) count
      of criminal conspiracy involving sale or transfer of firearms, one
      (1) count of possession with intent to deliver a controlled
      substance and one (1) count of possession of a controlled
      substance.
      __________
      9 This is the firearm pictured in the screen shot which emanated
      from [Appellant’s] cell phone.
      _________




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              As a result of the other firearms charges being nolle
       prossed, the illegal sale of transfer of firearms count and the
       criminal conspiracy involving the sale or transfer of firearms count
       were downgraded from felonies to second degree misdemeanors.
       Specifically, pursuant to 18 Pa.C.S.A. § 6111(h), any second or
       subsequent violation of the sale or transfer of firearms statute
       constitutes a second degree felony. Considering [ ] Wesley was
       convicted of only one count of illegal sale or transfer of firearms,
       there was no second or subsequent violation of this statute to
       raise its grading to a felony.

Trial Ct. Op. at 9-10 (some footnotes omitted).         We note that Wesley’s

judgment of sentence was affirmed by a panel of this Court on direct appeal.

Wesley, 3084 EDA 2018.

       Appellant raises the following two issues for our review:

       I. Was evidence sufficient to convict [Appellant] of criminal use
       of a communication facility, 18 Pa.C.S.A. § 7512(a), where that
       statute only applies to uses that facilitate felonies and it is
       undisputed that the underlying offense was a misdemeanor?

       II. Is [Appellant’s] sentence illegal because it exceeds the
       statutory maximum?

Appellant’s Brief at vii.4

       Appellant’s first issue challenges the sufficiency of the evidence

supporting his conviction. When reviewing a sufficiency challenge, we must

consider “whether the evidence admitted at trial, and all reasonable inferences

drawn from that evidence, when viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to enable the factfinder to
____________________________________________


4We note that both the trial court and the Commonwealth concede Appellant’s
sentence is illegal because the aggregate term (eight years) exceeds the
statutory maximum of seven years for a third-degree felony. See Trial Ct.
Op. at 5-6; Commonwealth’s Brief at 23-24. See also 18 Pa.C.S. § 1103(3).
However, because, as we conclude infra, the evidence was insufficient to
support the verdict, Appellant’s sentencing claim is moot.

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conclude that the Commonwealth established all of the elements of the offense

beyond a reasonable doubt.” Commonwealth v. Crabill, 926 A.2d 488, 490

(Pa. Super. 2007) (citation omitted).

      Here, Appellant was convicted of only one offense — criminal use of a

communication facility.      A person commits that offense if they “use[ ] a

communication facility to commit, cause or facilitate the commission or the

attempt thereof of any crime which constitutes a felony . . . .” 18 Pa.C.S.

§ 7512(a) (emphasis added).        The statutory definition of “communication

facility” includes a cell phone.        See 18 Pa.C.S. § 7512(c) (defining

“communication facility” as, inter alia, “[a] private instrumentality used . . . in

the transmission of . . . sounds, . . . including [a] telephone”). Therefore, in

order to secure a conviction of criminal use of a communication facility, the

Commonwealth must prove:

      (1) Appellant[ ] knowingly and intentionally used a communication
      facility; (2) Appellant[ ] knowingly, intentionally or recklessly
      facilitated an underlying felony; and (3) the underlying felony
      occurred. . . . If the underlying felony never occurs, then
      Appellant[ has] facilitated nothing and cannot be convicted under
      § 7512.

Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004). However,

the statute “does not require that the defendant be the one to commit the

underlying felony.”    Id.    In Moss, this Court reversed the judgments of

sentence as to two of the three defendants; although the evidence proved the

defendants “engaged in drug-related telephone conversations with a known




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drug trafficker[,]” there was no evidence the drug trafficker delivered, or even

attempted to deliver, the drugs they discussed. Id. at 383-84.

      In the present case, Appellant contends the Commonwealth failed to

prove he facilitated an underlying felony.       Appellant’s Brief at 8.   Indeed,

Appellant maintains the charge is “premised entirely upon allegations that he

forwarded a text in aid of an illegal sale of a [nine] millimeter pistol . . . [and

t]he commission of that sale was a misdemeanor.”            Id.   He insists that

because “no specific felony was carried out,” his conviction should be

reversed. See id. at 13.

      The trial court, however, found the evidence was sufficient to

demonstrate Appellant intended to facilitate a felony because the sale of the

nine millimeter pistol was one of several guns Wesley sold to Miller. Trial Ct.

Op. at 10. The court opined:

             Here, [Appellant] used his cell phone to facilitate [ ]
      Wesley’s sale of a nine millimeter semi-automatic weapon to [ ]
      Miller. Although the charges involving the other weapons [ ]
      Wesley sold to [ ] Miller were nolle prossed and the sale of the
      nine millimeter semi-automatic weapon was downgraded to a
      misdemeanor, the end result of a felony conviction is not
      necessary to demonstrate a felony occurred. [Appellant’s] intent
      when sending his text message to [ ] Wesley was to facilitate a
      transaction involving a gun. The evidence clearly indicates this
      transaction actually occurred. This gun was one of several which
      [ ] Wesley sold to [ ] Miller.

                                   *    *    *

      . . . Although [ ] Wesley was never convicted of these other
      transactions, this felonious conduct still transpired.

Id. at 10-11. We disagree.


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       The sale of the nine millimeter pistol was graded a misdemeanor. See

18 Pa.C.S. § 6111(g)(1) (“Any person . . . who knowingly or intentionally sells

. . . a firearm in violation of this section commits a misdemeanor of the second

degree.”).    The court acknowledges that the only reason the offense was

graded as a felony was that the Commonwealth intended to convict Wesley of

the April 2016 sale of two rifles, which would have made the sale of the nine

millimeter pistol a “second or subsequent violation” under the statute. See

18 Pa.C.S. § 6111(h)(1) (“A second or subsequent violation of this section

shall be a felony of the second degree.”); Trial Ct. Op. at 10-11. However,

neither Wesley nor Appellant was convicted of any offenses involving the April

2016 sale. Therefore, it was error for the trial court to consider the sale of

the nine millimeter pistol as a felony for purposes of Section 7512.5
____________________________________________


5 We note, too, that the trial court’s reliance on Commonwealth v. Ortega,
3227 EDA 2016 (unpub. memo.) (Pa. Super. 2017), is misplaced. First, as an
unpublished decision, filed before May 1, 2019, Ortega should not be relied
upon, as it has no precedential value. See 210 Pa. Code § 65.37(B)
(unpublished memorandum decision filed before May 2, 2019, may not be
cited or relied upon by a court or party unless it is “relevant under the doctrine
of law of the case” or involves the same defendant).

        Second, Ortega is distinguishable on its facts. In that case, the
defendant was convicted of one count of criminal use of a communication
facility when he used his cell phone to facilitate his co-defendant’s drug
transaction with a confidential informant. Ortega, 3227 EDA 2016 (unpub.
memo. at 7). Although the jury acquitted him of the underlying felony drug
sale and conspiracy charges, the panel concluded the “Commonwealth
presented overwhelming evidence that [the defendant] facilitated the
transaction whereby [his co-defendant] intended to sell fifty bags of heroin to
the [informant, and the defendant] was fully aware of what [his co-defendant]
intended to do that day[.]” Id. Significantly, the decision does not reveal



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        Nevertheless, as the Commonwealth notes in its brief, the sale of the

nine millimeter pistol “was not the only underlying crime on which the

Commonwealth pursued the criminal use of communication facility charge.”

Commonwealth’s Brief at 17. Indeed, Appellant was found guilty of Count 17

in his Information,6 which reads as follows:

        COUNT 17: CRIMINAL USE OF A COMMUNICATION FACILITY

              187512A — Felony 3rd DEGREE

        Did unlawfully use a communication facility to commit, cause or
        facilitate the commission or the attempt thereof of any crime, to
        wit:     PERSONS NOT TO POSSESS, USE, MANUFACTURE,
        CONTROL, SELL OR TRANSFER FIREARMS

Appellant’s Information, 6/5/17, at 3.           Thus, the underlying felony the

Commonwealth charged Appellant with facilitating was persons not to possess

firearms. See 18 Pa.C.S. § 6105(a), (a.1) (person, previously convicted of

enumerated offense, who, inter alia, possesses or sells firearm commits

felony).

        Here, the Commonwealth insists it satisfied the elements of the crime

of criminal use of a communication facility: “Based on the uncontroverted

evidence that [ ] Wesley was a person not to possess a firearm in light of his

previous Drug Act conviction, and that he possessed the [nine] millimeter


____________________________________________


what charges the co-defendant was convicted of, only that she “agreed to
testify for the Commonwealth in exchange for a more favorable disposition of
her charges.” Id. at 2-3 (citation omitted). Here, however, neither Appellant
nor Wesley were convicted of any of the underlying felony offenses.

6   See N.T., 6/15/18, at 4.

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pistol, despite his status as a person not to possess a firearm, [Appellant] did

indeed facilitate the felony offense of person not to possess a firearm.”

Commonwealth’s Brief at 16. This purported uncontroverted evidence is the

October 13, 2016, affidavit of probable cause — a document Wesley stipulated

to — which revealed Wesley’s prior conviction of possession with intent to

deliver a controlled substance.          See id. at 15.        The primary fallacy in

Commonwealth’s argument is that Wesley’s stipulation to the affidavit of

probable cause is not binding on Appellant, and there was no testimony or

evidence presented during Appellant’s trial establishing that Wesley had a

prior conviction which prohibited him from possessing a firearm.7 Thus, we

conclude the evidence was insufficient to establish Appellant “facilitated” the

felony offense of persons not to possess a firearm.

       The Commonwealth also argues the evidence established Appellant

facilitated   Wesley’s    felony    possession     of   a   firearm   with   an   altered

manufacturer’s number.         Commonwealth’s Brief at 11.            See 18 Pa.C.S. §

6110.2 (any person who “possess[es] a firearm which has had the

manufacturer's number integral to the frame or receiver altered, changed,

removed or obliterated” commits a felony of the second degree). It contends:

       The record makes clear that [ ] Wesley possessed a firearm with
       an altered manufacturer’s number; to wit, the [nine] millimeter
____________________________________________


7   Moreover, it bears mention that despite the existence of the
“uncontroverted” evidence in the affidavit, the trial court acquitted Wesley
of the Section 6105 charges. See Wesley, 3084 EDA 2018 (unpub. memo.
at 3 n.2).


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       pistol that [Appellant] sent him a photograph of through his cell
       phone. Not only did [Appellant] stipulate that the firearm had an
       obliterated serial number, but both the screen-shot of the gun as
       well as the actual gun itself were entered into evidence at trial;
       both displayed the scratched-off serial number.

Commonwealth’s Brief at 13.

       We disagree. As noted above, Appellant was charged with facilitating

the felony of persons not to possess firearms; he was not charged with

facilitating the possession of a firearm with an altered manufacturer’s number.

For that reason alone, this argument fails. See Pa.R.Crim.P. 560(D) (“In all

court cases tried on an information, the issues at trial shall be defined by such

information.”); Commonwealth v. Brown, 886 A.2d 256, 260 (Pa. Super.

2005) (holding when Commonwealth “does specify, in the information . . .,

the crime defendant intended to commit, the Commonwealth must prove the

requisite intent for that particular crime in order to prove a burglary or

attempted burglary.”).       Moreover, although it is true the parties stipulated

that “two of the firearms had obliterated serial numbers,” the transcript does

not specify which two, of the four firearms at issue, had altered serial

numbers.8     See N.T., 6/14/18, at 5.         Indeed, our review of the transcript

reveals no mention at all that the nine millimeter pistol had an altered

manufacturer’s number.

       Therefore, because we agree that the Commonwealth did not present

sufficient evidence to establish that Appellant used his cell phone to facilitate
____________________________________________


8  We note, similarly, Appellant’s information did not identify the specific
firearms that had altered manufacturer’s numbers.          See Appellant’s
Information, 6/5/17, at Counts 21-22.

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a felony, we reverse his conviction of criminal use of a communication facility,

and vacate his judgment of sentence. As this was Appellant’s sole conviction,

we also order that he be discharged.

      Conviction reversed, and judgment of sentence vacated. Appellant is

ordered discharged.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2020




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