J-A21019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                    v.

JOSEPH IRVIN JACKSON,

                          Appellant                  No. 1299 WDA 2016


           Appeal from the Judgment of Sentence March 3, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002197-2013,
           CP-02-CR-0016049-2013 and CP-02-CR-0016652-2014


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 31, 2017

      Appellant, Joseph Irvin Jackson, appeals from the judgment of

sentence entered on March 3, 2015, as made final by the denial of

Appellant’s post-sentence motion on August 17, 2016. We affirm.

      The trial court has ably explained the underlying facts and procedural

posture of this appeal:

        At approximately 2:30 a.m. on October 20, 2012, Officer
        Adam Quinn, who was then employed by the North
        Braddock Police Department, was on routine patrol with his
        partner, Officer Gettig[,] and [was traveling] along Hawkins
        Avenue when [he] noticed two males wearing hoodies who
        had their hoods up. Officer Quinn stopped his patrol car
        and then asked these individuals to produce some
        identification and asked what they were doing out at 2:30 in
        the    morning.       [Appellant]   produced     identification
        establishing who he was and told Officer Quinn that they
        were going home after they had left a bar. During the
        course of their discussion, [Appellant] turned and [] ran
        from the police officers. Officer Quinn ran after [Appellant]
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          and pulled out his [TASER] and fired it at him in an attempt
          to stop him, however, he did not hit [Appellant]. Officer
          Quinn then noticed that [Appellant] reached into his
          waistband and pulled out a gun and discarded that gun.
          Officer Quinn was able to stop [Appellant] after he tripped
          over some railroad tracks.         Once [Appellant] was
          handcuffed, Officer Quinn went back to the area where he
          saw the gun and retrieved a nine[-]millimeter semi-
          automatic [handgun].

                                           ...

          On December 16, [2014], following a jury trial, [Appellant]
          was found guilty of the charge of possession of a firearm
          without a license.[1] Prior to the commencement of that
          jury trial, [the trial court] granted [Appellant’s] motion to
          sever the charge of person not to possess a firearm and
          heard that charge in a non-jury trial which was held in
          conjunction with his jury trial. [Appellant] was found guilty
          of the charge of person not to possess a firearm[2] since it
          was      stipulated     between     [Appellant]    and    the
          [Commonwealth] that [Appellant] had two convictions for
          delivery of a controlled substance[.       Appellant and the
          Commonwealth also stipulated that Appellant had twice
          before been convicted of person not to possess a firearm.
          N.T. Trial, 12/16/14, at 57.]

          A presentence report was ordered and [Appellant] was
          sentenced on March 3, 2015, to [serve an aggregate term
          of two-and-a-half to five years in prison, followed by three
          years of probation.     N.T. Sentencing, 3/3/15, at 9-10.
          Following the nunc pro tunc restoration of Appellant’s post-
          sentence and appellate rights, Appellant’s post-sentence
          motion was denied by operation of law on August 17,
          2016].

Trial Court Opinion, 4/11/17, at 2-4.
____________________________________________


1
    18 Pa.C.S.A. § 6106(a)(1).
2
    18 Pa.C.S.A. § 6105(a)(1).




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      Appellant filed a timely notice of appeal. He now raises four claims on

appeal:

          1. Was the evidence insufficient to convict [Appellant]
          because the Commonwealth did not provide proof that
          [Appellant] received “actual notice” of the suspension of his
          right to possess a firearm?

          2. Did the trial court err by informing the jury that “anybody
          [who] owns a gun” must “register it with the Pennsylvania
          State Police”?

          3. Did the trial court err by giving jury instructions that did
          not adequately specify that concealment is a material
          element of 18 [Pa.C.S.A.] § 6106?

          4. Are the standard jury instructions for 18 [Pa.C.S.A.]
          § 6106 fundamentally flawed because they do not
          adequately specify that concealment is a material element
          of the offense?

Appellant’s Brief at 6-7.

      Appellant first claims that the evidence was insufficient to support his

conviction for “person not to possess a firearm.” This claim fails.

      We review Appellant’s sufficiency of the evidence claim under the

following standard:

          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial in the light most favorable to the verdict winner, there
          is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt.             In
          applying the above test, we may not weigh the evidence
          and substitute our judgment for [that of] the fact-finder. In
          addition, we note that the facts and circumstances
          established by the Commonwealth need not preclude every
          possibility of innocence.        Any doubts regarding a
          defendant’s guilt may be resolved by the fact-finder unless


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        the evidence is so weak and inconclusive that as a matter of
        law no probability of fact may be drawn from the combined
        circumstances. The Commonwealth may sustain its burden
        of proving every element of the crime beyond a reasonable
        doubt by means of wholly circumstantial evidence.
        Moreover, in applying the above test, the entire record must
        be evaluated and all evidence actually received must be
        considered. Finally, the trier of fact while passing upon the
        credibility of witnesses and the weight of the evidence
        produced, is free to believe all, part or none of the
        evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc) (internal quotations and citations omitted).

      Appellant was convicted of person not to possess a firearm under 18

Pa.C.S.A. § 6105(a)(1). In relevant part, Section 6105 declares:

        § 6105. Persons not to possess, use, manufacture,
        control, sell or transfer firearms

        (a) Offense defined.--

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

                                      ...

        (c) Other persons.--In addition to any person who had been
        convicted of any offense listed under subsection (b), the
        following persons shall be subject to the prohibition of
        subsection (a):

                                      ...

            (2) A person who has been convicted of an offense
            under the act of April 14, 1972 (P.L. 233, No. 64),


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            known as The Controlled Substance, Drug, Device and
            Cosmetic Act, or any equivalent Federal statute or
            equivalent statute of any other state, that may be
            punishable by a term of imprisonment exceeding two
            years.

18 Pa.C.S.A. § 6105.

      During trial, Appellant stipulated that he has two prior convictions for

possession of a controlled substance with the intent to deliver. N.T. Trial,

12/16/14, at 57. Thus, as Appellant acknowledges, Section 6105 prohibited

him from possessing a firearm on the night in question.      See Appellant’s

Brief at 17. Nevertheless, Appellant claims on appeal that the evidence was

insufficient to support his Section 6105 conviction, as the Commonwealth

“did not provide any evidence demonstrating that the government had

informed [Appellant] that [he was prohibited from] possess[ing] a firearm.”

Id. Appellant’s claim fails.

      Within Appellant’s brief, Appellant claims that “there are no cases

directly on point” with respect to the issue of whether a defendant’s actual

knowledge of the prohibition is an element of Section 6105.        Appellant’s

Brief at 13.   Appellant is incorrect.    In Commonwealth v. Thomas, 988

A.2d 669 (Pa. Super. 2009), this Court held:

        In order to obtain a conviction under 18 Pa.C.S. § 6105, the
        Commonwealth must prove beyond a reasonable doubt that
        the defendant possessed a firearm and that he was
        convicted of an enumerated offense that prohibits him from
        possessing, using, controlling, or transferring a firearm.

Thomas, 988 A.2d at 670.




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      Therefore, under our binding precedent, Section 6105 has no “actual

knowledge” element. In accordance with Thomas, the crime of person not

to possess a firearm merely requires proof beyond a reasonable doubt that:

1) “the defendant possessed a firearm” and 2) the defendant “was convicted

of an enumerated offense that prohibits him from possessing . . . a firearm.”

Id.   As such, Appellant is incorrect to claim that a defendant’s “actual

knowledge” of the prohibition is an element of Section 6105.       Appellant’s

first claim on appeal necessarily fails.

      Regardless, during Appellant’s trial, the Commonwealth introduced

evidence that Appellant had two prior convictions for violating Section

6105. N.T. Trial, 12/16/14, at 57 (“[t]he defense stipulates indicating that

[Appellant] has prior [possession with the intent to deliver] convictions as

well as two 6105s making him a person not to possess a firearm”). Further,

under Section 6105, an individual who is prohibited from possessing a

firearm does not automatically regain their ability to possess a firearm at the

end of a specified time. Rather, the statute declares that the individual must

apply, to the court of common pleas, “for relief from the disability imposed

by [Section 6105].” 18 Pa.C.S.A. § 6105(d).

      Thus, Appellant’s prior convictions for “person not to possess firearms”

and his obvious failure to successfully apply for relief from the disability

imposed by Section 6105 prove that Appellant had “actual knowledge” he

was prohibited from possessing a firearm – and, for this second reason,

Appellant’s claim on appeal fails.

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J-A21019-17



       Finally, Officer Quinn testified at trial that, after he approached

Appellant on the street, Appellant ran away from him and, as he was chasing

Appellant, he observed Appellant “reach[] towards his belt area and . . .

toss[] . . . [the] pistol” away.           N.T. Trial, 12/16/14, at 22 and 27.

Appellant’s unprovoked flight from the police and his attempt to dispose of

the    firearm   while     police   were    pursuing        him   constitutes   sufficient

circumstantial evidence to prove that Appellant knew he was prohibited from

possessing the firearm. See Commonwealth v. Robinson, 128 A.3d 261,

265 (Pa. 2015) (“like all culpable mental states[, a defendant’s] . . . guilty

knowledge . . . may be inferred from circumstantial evidence”). Appellant’s

claim on appeal thus fails for this third, independent reason.

       For Appellant’s remaining claims on appeal, Appellant argues: 1) that

the trial court erred when it instructed the jury that “anybody [who] owns a

gun” must “register it with the Pennsylvania State Police;” 2) that “the trial

court err[ed] by giving jury instructions that did not adequately specify that

concealment is a material element of 18 [Pa.C.S.A.] § 6106;” and, 3) that

“the    standard    jury    instructions    for        18   [Pa.C.S.A.]    § 6106     [are]

fundamentally      flawed    because    they      do    not   adequately    specify   that

concealment is a material element of the offense.” Appellant’s Brief at 18-

24. All of these claims are waived, as Appellant did not object to any of the

trial court’s specified instructions.      N.T. Trial, 12/16/14, at 26-27 and 54;

Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (“[a]

specific and timely objection must be made to preserve a challenge to a

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particular jury instruction.   Failure to do so results in waiver”) (internal

citations omitted); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal”).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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