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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM LEE CLEMMER                        :
                                               :
                       Appellant               :   No. 556 WDA 2019

         Appeal from the Judgment of Sentence Entered March 14, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001600-2018


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 1, 2020

        William Lee Clemmer appeals from the judgment of sentence, entered

in the Court of Common Pleas of Fayette County, following his conviction for

persons not to possess a firearm1 and firearms not to be carried without a

license.2 After careful review, we affirm.

        On March 12, 2016, Officer Alexis Metros pulled over a vehicle driven by

Clemmer. As he approached Clemmer, Officer Metros saw a rifle in plain view

inside the vehicle.        Officer Metros questioned Clemmer and Clemmer

confirmed that he possessed a rifle. Officer Metros took possession of the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105.

2   18 Pa.C.S.A. § 6106.
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firearm, a Ranger/Marlin bolt-action rifle, which was loaded and functional.

Clemmer was subsequently charged with the above offenses.

        During Clemmer’s non-jury trial on March 8, 2019, both parties

stipulated3 that on January 31, 2005, Clemmer had been convicted of two

counts of receiving stolen property (RSP).4 N.T. Non-Jury Trial, 3/8/19, at 5-

6. The Honorable Gerald R. Solomon found Clemmer guilty of all charges and,

on March 14, 2019, sentenced him to 30 to 60 months’ incarceration for

persons not to possess a firearm and imposed no further penalty for firearms

not to be carried without a license. This timely appeal follows.

        Clemmer has raised a single issue for our review:          “Whether the

evidence was legally and factually sufficient to prove that [Clemmer] was a

member of the class of persons not to possess a firearm.” Appellant’s Brief,

at 4.

        In analyzing a sufficiency claim, we examine whether the evidence

admitted at trial is capable of supporting a finding beyond a reasonable doubt

on every element of the offense at issue. See Commonwealth v. Doughty,

126 A.3d 951, 958 (Pa. 2015). In doing so, we view the evidence in the light


____________________________________________


3 The trial court opinion incorrectly states that the parties agreed that
Clemmer was convicted of only one count of RSP on January 31, 2005. See
Trial Court Opinion, 5/30/19, at 2. In fact, the stipulation at trial was that
Clemmer had two separate RSP convictions on that date. See N.T. Non-Jury
Trial, 3/8/19, at 5-6.

4   18 Pa.C.S.A. § 3925.


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most favorable to the verdict winner, drawing all reasonable inferences in the

verdict winner’s favor. See id.

      Clemmer was convicted of persons not to possess a firearm. Section

6105 defines that offense as follows:

      (a)   Offenses defined

            (1)   A person who has been convicted of an offense
                  enumerated in subsection (b) [(Enumerated
                  offenses.)],     within    or    without    this
                  Commonwealth, regardless of the length of
                  sentence or whose conduct meets the criteria in
                  subsection (c) [(Other persons.)] shall not
                  possess, use, control, sell, transfer or
                  manufacture or obtain a license to possess, use,
                  sell, transfer or manufacture a firearm in this
                  Commonwealth.

                                  *     *   *
      (b)   Enumerated offenses . . .

            Section 3925 (relating to [RSP]) upon conviction of
            the second felony offense.

18 Pa.C.S.A. § 6105. Thus, in order to find Clemmer guilty under section

6105, the Commonwealth must prove that Clemmer possessed a firearm and

that he had been convicted of the requisite number of enumerated offenses

at the time of possession.

      Clemmer does not dispute that he possessed a firearm at the time he

was stopped by Officer Metros. His sole contention on appeal is that he is not

within the class of people prohibited from possessing a firearm as defined in

section 6105(b). Appellant’s Brief, at 7. Specifically, Clemmer argues that

because he was previously only convicted of one felony count of RSP and one

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felony count of theft by unlawful taking, there was no second conviction of

either crime as required by section 6105(b). Id. at 8.

      Viewing the record in the light most favorable to the Commonwealth, as

verdict winner, the record reveals that the Commonwealth and Clemmer

entered into several stipulations at trial. One of those stipulations was agreed

to as follows:

      [Commonwealth Attorney]: We would also provide testimony to
      the [c]ourt that on or about January 31, 20[0]5, this [d]efendant
      was found guilty of [c]onspiracy to [e]ngage in [t]heft [b]y
      [u]nlawful [t]aking, a [f]elony of the [t]hird [d]egree. On that
      same exact date, this [d]efendant was also found guilty of
      [r]eceiving [s]tolen [p]roperty, a [f]elony of the [t]hird [d]egree.
      Do you need the offense numbers, Your Honor, the [s]tatute?

      The Court: Not if they are stipulating.

      [Commonwealth Attorney]: Okay. And on the same date and
      time, he was also found guilty of [e]ngaging in [r]eceiving [s]tolen
      [p]roperty, a [f]elony of the [t]hird [d]egree.

      The Court: So three [f]elonies of the [t]hird [d]egree?

      [Commonwealth Attorney]: Correct, Your Honor. []

                                  ***

      [Commonwealth Attorney]: And I believe they are stipulating to
      those facts.

      Mr. Clark [(Clemmer’s attorney)]: We would so stipulate, Your
      Honor.

N.T. Non-Jury Trial, 3/8/19, at 5-6 (emphasis added).

      Here, Clemmer indisputably possessed the rifle at the time of the current

offenses. See Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super.

2011) (finding defendant had constructive possession when firearm found in

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glove compartment and defendant only person in vehicle). Also, Clemmer

agreed to the above stipulation, that he had two prior convictions of RSP on

January 31, 2005. “A stipulation is a declaration that the fact agreed upon is

proven, and a valid stipulation will be enforced according to its terms.”

Commonwealth v. Mitchell, 902 A.2d 430, 460 (Pa. 2006) (brackets

omitted; quoting Commonwealth v. Rizzuto, 777 A.2d 1069, 1088 (Pa.

2001).   Thus, the Commonwealth proved each element of persons not to

possess a firearm beyond a reasonable doubt.      See Doughty, supra; 18

Pa.C.S.A. § 6105.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2020




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