J-A13035-17
                                2017 PA Super 358
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                       v.

    ANTHONY FORD

                            Appellant                 No. 196 EDA 2016


            Appeal from the Judgment of Sentence December 16, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0012403-2014

BEFORE: LAZARUS, OTT, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.: FILED NOVEMBER 14, 2017

        Appellant, Anthony Ford, appeals from the judgment of sentence

imposed in the Philadelphia County Court of Common Pleas. Appellant claims

the trial court erred in denying his motion to suppress the firearm seized from

his home. He also argues that the trial court erred in finding the evidence

sufficient to sustain his conviction for possession of a firearm with an altered

manufacturer’s number, because the manufacturer’s number was merely

obscured by corrosion, not by human hands.1 We affirm the trial court’s order

denying suppression, but we reverse Appellant’s conviction for possession of

a firearm with an altered manufacturer’s number.

        The trial court summarized the factual and procedural history as follows:

              On October 20, 2015, [] Appellant, [] through counsel[,]
           argued a motion to suppress, which was denied. On that

*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 6110.2(a).
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           same date, he was found guilty following a [non-jury] trial
           of [p]ossession of [f]irearm [p]rohibited[2] and [possession
           of firearm with altered manufacturer’s number.] Sentencing
           was deferred until December 16, 2015 for the preparation
           of a presentence investigation and mental health report. On
           that date[, Appellant] was sentenced to [concurrent terms]
           of . . . two and one-half [] to five [] years[’ imprisonment]
           followed by three [] years of probation.

              On January 6, 2016[,] Appellant filed a timely notice of
           appeal. Trial counsel filed a motion to withdraw[,] which
           was granted. New counsel was appointed. On February 18,
           2016, [the trial court] entered an [o]rder pursuant to
           Pa.R.A.P. 1925(b). On March 8, 2016[,] Appellant filed a
           timely response to [the trial court’s] order.

               On August 28, 2014[,] at around 10 pm, Philadelphia
           [p]olice [o]fficers Patrick Biles along with his partner, Officer
           St. Onge, were in uniform riding in a marked police car.
           They received several radio calls directing them to 2010
           Wilmot [Street] for reports of a person bleeding in the
           backyard and a person with a gun.[3] The officers went to
           the backyard of 2010 Wilmot [Street4] but did not find
           anyone. They then went through an alleyway to Dit[]man
           [Street]. There[,] several neighbors were directing them to
           4663 Ditman [Street]. While standing on the porch of [4663
           Ditman Street,] Officer Biles testified that he heard multiple
           voices screaming. Based on the information received, and
           the numerous gun arrests that Officer Biles conducted in
           that area, which he classified as a high crime area, he
           knocked on the door. When no one answered, Officer Biles
           opened the unlocked door and went inside. The home
           appeared to be under construction[,] but there were several
           lights on.      Once inside, Officer Biles observed three
           individuals standing in what would be the living room of the

2   18 Pa.C.S. § 6105(a)(1).

3Officer Biles testified the first radio call “came out as a person screaming.”
N.T., 10/20/15, at 12.

4 Officer Biles testified the backyard of 2010 Wilmot Street “backs up to the
back door of 4663 Ditman [Street],” Id., the address where the police
subsequently found Appellant.


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         home.    Specifically, he observed [] Appellant make a
         swinging motion with his arm and place an object on the
         kitchen chair next to him.      Officer Biles made this
         observation from approximately thirty feet away.     He
         ordered [] Appellant to show his hands and placed him in
         handcuffs. Officer Biles recovered a .38 caliber silver
         handgun with the serial number obscured on the chair
         where he observed [] Appellant make the swinging arm
         motion.

Trial Ct. Op., 9/13/16, at 1-2 (citations and footnote omitted). During trial,

the parties stipulated that the serial number on the handgun was “obscured

by corrosion [and] recovered by polishing.” N.T., 10/20/15, at 88.

      Appellant raises the following issues for our review:

         A. Was it error for the [trial] court to deny Appellant’s
         motion to suppress evidence of a gun found in Appellant’s
         home, where the gun was the product of a warrantless
         search of said home by police, without probable cause and
         exigent circumstances?

         B. Was it error for the trial court to find that Appellant was
         guilty of possession of a firearm which has had the
         manufacturer’s number integral to the frame or receiver
         altered, changed, removed, or obliterated, where the
         number was merely obscured by corrosion, and was
         recovered by polishing?

Appellant’s Brief at 2 (capitalization omitted).

      Appellant first contends that the trial court erred in denying his motion

to suppress, because the gun found in his home was “the product of an

unreasonable search and seizure.” Id. at 5. He asserts the police officers

lacked probable cause and exigent circumstances to justify a warrantless entry

and search of his home. We disagree.

      We review the denial of a motion to suppress as follows:


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         An appellate court’s standard of review in addressing a
         challenge to the denial of a suppression motion is limited to
         determining whether the suppression court’s factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. Because
         the Commonwealth prevailed before the suppression court,
         we may consider only the evidence of the Commonwealth
         and so much of the evidence for the defense as remains
         uncontradicted when read in the context of the record as a
         whole. Where the suppression court’s factual findings are
         supported by the record, the appellate court is bound by
         those findings and may reverse only if the court’s legal
         conclusions are erroneous.       Where the appeal of the
         determination of the suppression court turns on allegations
         of legal error, the suppression court’s legal conclusions are
         not binding on an appellate court, whose duty it is to
         determine if the suppression court properly applied the law
         to the facts. Thus, the conclusions of law of the courts below
         are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,

alterations, and ellipsis omitted).

             In a private home, searches and seizures without a
         warrant are presumptively unreasonable. Absent probable
         cause and exigent circumstances, the entry of a home
         without a warrant is prohibited under the Fourth
         Amendment.         In  determining    whether   exigent
         circumstances exist, a number of factors are to be
         considered. . . .

            Among the factors to be considered are: (1) the
            gravity of the offense, (2) whether the suspect is
            reasonably believed to be armed, (3) whether there is
            above and beyond a clear showing of probable cause,
            (4) whether there is strong reason to believe that the
            suspect is within the premises being entered, (5)
            whether there is a likelihood that the suspect will
            escape if not swiftly apprehended, (6) whether the
            entry was peaceable, and (7) the time of the entry,
            i.e., whether it was made at night. These factors are
            to be balanced against one another in determining
            whether the warrantless intrusion was justified.


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J-A13035-17



           Other factors may also be taken into account, such as
           whether there is hot pursuit of a fleeing felon, a likelihood
           that evidence will be destroyed if police take the time to
           obtain a warrant, or a danger to police or other persons
           inside or outside the dwelling.

Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa. 1994) (citations,

quotations, and ellipsis omitted).    Further, “when we examine a particular

situation to determine if probable cause exists, we consider all the factors and

their total effect, and do not concentrate on each individual element. We also

focus on the circumstances as seen through the eyes of the trained officer . .

. .”   Commonwealth v. Chase, 575 A.2d 574, 576 (Pa. Super. 1990)

(citations, alteration, and ellipsis omitted).

       Exigent circumstances exist where “the police reasonably believe that

someone within a residence is in need of immediate aid.” Commonwealth

v. Galvin, 985 A.2d 783, 795 (Pa. 2009) (citations omitted). Additionally,

“[i]t is widely recognized that situations involving the potential for imminent

physical harm in the domestic context implicate exigencies that may justify

limited police intrusion into a dwelling in order to remove an item of potential

danger.”     Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999)

(citations omitted). The relevant inquiry is “whether there was an objectively

reasonable basis for believing that medical assistance was needed, or persons

were in danger[.]” Michigan v. Fisher, 558 U.S. 45, 49 (2009) (citation and

internal quotation marks omitted). “[T]he calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make


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J-A13035-17

split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving.”   Ryburn v. Huff, 565 U.S. 469, 477 (2012) (citation

omitted). Additionally, “it is a matter of common sense that a combination of

events each of which is mundane when viewed in isolation may paint an

alarming picture.” Id. at 476-77.

      In this case, exigent circumstances justified the officers’ warrantless

entry into Appellant’s house. The evidence adduced during the suppression

hearing demonstrates that on the evening in question, police officers received

reports of someone screaming, someone bleeding, and someone with a gun

at the Wilmot Street residence abutting Appellant’s house. N.T., 10/20/15, at

12. Officer Biles, an eleven-year officer in this police district, described this

as a “high crime area.” Id. at 15. The officers did not find anything at the

Wilmot Street address, but when they proceeded to Ditman Street, one

neighbor pointed towards 4663 Ditman Street.          Id. at 14-15.     Another

neighbor who lived next door to 4663 Ditman Street was standing in her

doorway and appeared frightened, distraught and happy to see the officers.

Id. at 15. Officer Biles asked the neighbor if she heard any gunshots, and

she replied: “Not yet.” Id. at 13. As the officers approached 4663 Ditman

Street, they heard multiple voices screaming inside. Id. Officer Biles knocked

on the front door, but nobody answered, possibly because the screams

drowned out the knocks. Id. Based on these facts, the officers reasonably

believed that there was an immediate threat of violence and that those inside



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J-A13035-17

Appellant’s home were in danger.         The trial court properly admitted all

evidence arising from the officers’ warrantless entry into the house.         See

Commonwealth v. Potts, 73 A.3d 1275, 1281 (Pa. Super. 2013) (totality of

circumstances justified officers’ reasonable belief that they needed to enter

defendant’s apartment to ensure that another occupant was not in danger or

in need of immediate aid; officers were responding to emergency call for

alleged domestic dispute involving someone screaming at defendant’s

apartment building, screams were still emanating from defendant’s apartment

when officers arrived, occupant answered officers’ knock after delay, very

distraught,   apparently   crying,   sweating,   breathing   heavily,   and   with

disheveled clothing, and officers saw defendant through open doorway,

running into bedroom and shutting door); Commonwealth v. Hinkson, 461

A.2d 616, 618-19 (Pa. Super. 1983) (exigent circumstances justified

warrantless search of defendant’s house, even though defendant was outside

house, where police reasonably concluded that someone in house could have

been held hostage or had been hurt during shooting incident and where man

had already been shot outside the house; to have delayed action while search

warrant was obtained would have unduly risked lives of public and police).

      Next, Appellant argues that the evidence was insufficient to sustain his

conviction under 18 Pa.C.S. § 6110.2(a), because this statute does not

criminalize possession of firearms whose serial numbers are obscured by

natural corrosion. We agree.



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J-A13035-17

     We begin by noting our standard of review:

         [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.

Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citations

and quotations omitted). When, as here, the appellant raises a question of

statutory construction, “our standard of review is de novo, and our scope of

review is plenary.” Commonwealth v. Giulian, 141 A.3d 1262, 1266 (Pa.

2016).

         In matters involving statutory interpretation, the Statutory
         Construction Act directs courts to ascertain and effectuate
         the intent of the General Assembly. 1 Pa.C.S. § 1921(a). A
         statute's plain language generally provides the best
         indication of legislative intent. See, e.g., McGrory v. Dep't
         of Transp., [] 915 A.2d 1155, 1158 ([Pa.] 2007);
         Commonwealth v. Gilmour Mfg. Co., [] 822 A.2d 676,
         679 ([Pa.] 2003). In construing the language, however, and
         giving it effect, “we should not interpret statutory words in
         isolation, but must read them with reference to the context
         in which they appear.”          Roethlein v. Portnoff Law
         Assocs., Ltd., [] 81 A.3d 816, 822 ([Pa.] 2013), citing
         Mishoe v. Erie Ins. Co., 824 A.2d 1153, 1155 ([Pa.]
         2003).     Accord Commonwealth v. Office of Open
         Records, [] 103 A.3d 1276, 1285 ([Pa.] 2014) (statutory
         language must be read in context; in ascertaining legislative
         intent, every portion is to be read together with remaining
         language and construed with reference to statute as a
         whole).

Id. at 1267.




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J-A13035-17

      We must construe words and phrases in statutes “according to rules of

grammar and according to their common and approved usage[.]” 1 Pa.C.S.

§ 1903(a). “One way to ascertain the plain meaning and ordinary usage of

terms is by reference to a dictionary definition.” In re Beyer, 115 A.3d 835,

839 (Pa. 2015) (citation omitted). We must also take into account what the

statute does not prescribe. “[I]t is not for the courts to add, by interpretation,

to a statute, a requirement which the legislature did not see fit to include.

Consequently, [a]s a matter of statutory interpretation, although one is

admonished to listen attentively to what a statute says; one must also listen

attentively to what it does not say.” Commonwealth v. Johnson, 26 A.3d

1078, 1090 (Pa. 2011) (internal quotations and citations omitted).

      Section 6110.2 provides in pertinent part: “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. § 6110.2(a).

Section 6110.2 is part of Pennsylvania’s Uniform Firearms Act, 18 Pa.C.S. §§

6101-6127, whose purpose “is to regulate the possession and distribution of

firearms, which are highly dangerous and are frequently used in the

commission of crimes,” Commonwealth v. Corradino, 588 A.2d 936, 940

(Pa. Super. 1991), and to “prohibit certain persons from possessing a firearm

within this Commonwealth.” Commonwealth v. Baxter, 956 A.2d 465, 471

(Pa. Super. 2008). Firearm serial numbers are an important tool because they

help police officers identify the owner of weapons used in criminal offenses.



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J-A13035-17

To ensure that serial numbers remain intact on firearms, the legislature has

prohibited persons from defacing these markings, see 18 Pa.C.S. § 6117(a),

and from purchasing or obtaining defaced firearms, see 18 Pa.C.S. § 6110.2.

      The question here is whether corrosion of manufacturer’s numbers

renders them “altered, changed, removed or obliterated” within the meaning

of section 6110.2.   The Crimes Code does not define this phrase or any

individual terms therein. Thus, we consult the dictionary, which defines (1)

“alter” as “to cause to become different in some particular characteristic (as

measure, dimension, course, arrangement, or inclination) without changing it

into something else,” Webster’s Third Int’l Dict. (1986) at 63; (2) “change”

as “to make different . . . in some particular but short of conversion into

something else . . . [or] to make over to a radically different form,

composition, state, or disposition,” Id. at 373; (3) “remove” means “to get

rid of as by moving” as in eradicate or eliminate, and is synonymous with

erase, Id. at 1921; and (4) “obliterate” as “1 : to remove from significance

and bring to nothingness : as a: to make undecipherable or imperceptible by

obscuring, covering, or wearing or chipping away . . . b: to remove utterly

from recognition . . . or c (1): to remove from existence : make nonexistent :

destroy utterly all traces, indications, significance of . . . (2) to cause to

disappear[.]” Id. at 1557.

      We do not think that corrosion falls within the plain meaning or ordinary

usage of these terms. The dictionary defines “corrode” as typically meaning



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J-A13035-17

“a gradual wearing away or alteration by a chemical or electrochemical

essentially oxidizing process (as in the atmospheric rusting of iron)[.]” Id. at

512.

        Although, in an academic sense, “corroded” items might be

“changed” or “altered” through imperceptible forces of chemistry,

common sense does not support reading section 6110.2 in this manner.

As stated above, we must listen attentively to what a statute “does not

say.” Johnson, 26 A.3d at 1090. In our view, section 6110.2 does not

say that a crime takes place when a person possesses a gun whose

markings have become illegible due to natural causes.

       Further support for this view emerges when we read section

6110.2(a) in pari materia 5 with 18 Pa.C.S. § 6117(a), another statute in

the Uniform Firearms Act. Section 6117, entitled “Altering Or Obliterating

Marks Of Identification,” provides: “No person shall change, alter,

remove, or obliterate the manufacturer's number integral to the frame or

receiver of any firearm . . .” (Emphasis added). The bolded language, which

is virtually identical to section 6110.2(a), only prohibits a person from

intentionally defacing manufacturer’s numbers; it does not apply when the

manufacturer’s numbers corrode due to natural causes. Since a person cannot




5 “Statutes or parts of statutes are in pari materia when they relate to the
same persons or things or to the same class of persons or things.” 1 Pa.C.S.
§ 1932(a). “Statutes in pari materia shall be construed together, if possible,
as one statute.” 1 Pa.C.S. § 1932(b).


                                     - 11 -
J-A13035-17

be liable under section 6117 for defacing a firearm when the manufacturer’s

numbers corrode, it would be nonsensical to hold him liable under section

6110.2 for possessing such a firearm.

      For these reasons, we conclude that the evidence is insufficient to

sustain Appellant’s conviction under section 6110.2(a).     We do not find it

necessary to remand for resentencing. Appellant remains convicted under 18

Pa.C.S. § 6105, and his sentence under section 6105 is the same length as,

and runs concurrently with, his former sentence under section 6110.2. As a

result, his sentencing scheme remains the same despite our reversal of his

conviction under section 6110.2. Compare Commonwealth v. Williams,

871 A.2d 254, 266 (Pa. Super. 2005) (where appellate decision affects entire

sentencing scheme, all sentences for all counts will be vacated in order for

trial court to restructure its entire sentencing scheme).

      Judgment of sentence affirmed in part and reversed in part.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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