J-A31010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC PAGAN-AFANADOR,

                            Appellant                 No. 3493 EDA 2015


         Appeal from the Judgment of Sentence Entered April 22, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001065-2013


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 04, 2017

        Appellant, Eric Pagan-Afanador, appeals nunc pro tunc from the

judgment of sentence of 24 to 48 months’ incarceration, imposed after a

jury convicted him of carrying a firearm without a license, 18 Pa.C.S. §

6106(a)(1). Herein, Appellant challenges the trial court’s decision to exclude

certain evidence, and he also argues that the verdict was contrary to the

weight of the evidence. After careful review, we affirm.

        The trial court concisely summarized the facts and procedural history

of Appellant’s case, as follows:

              This case arises out of an assault that occurred on
        December 13[], 2012. [Appellant] pistol[-]whipped the victim on
        the head causing serious injury and[,] during the encounter, the
        firearm discharged and the victim sustained a through[-]and[-]
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*
    Former Justice specially assigned to the Superior Court.
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      through gunshot wound to his shoulder.            [Appellant] was
      arrested and[,] at trial[,] the Commonwealth proceeded on two
      counts of [a]ggravated [a]ssault and one count of [carrying a
      firearm without a license]. On February 7, 2014[,] after a two[-]
      day jury trial, the jury acquitted [Appellant] on the [a]ggravated
      [a]ssault charges and found him guilty of [the firearm offense].
      On April 2[2], 2014[, Appellant] was sentenced to 24 to 48
      months[’] confinement in a State Correctional Facility.
      [Appellant’s] direct appeal rights were restored by the [Post
      Conviction Relief Act] [c]ourt and [Appellant] timely appealed.

Trial Court Opinion (TCO), 1/26/16, at 1 (footnote omitted).

      Appellant timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) statement, and the court filed a responsive opinion.            Herein,

Appellant sets forth three issues for our review, which we have re-ordered

for ease of disposition:

      1. Did the trial court err by failing to admit and publish to the
      jury [Appellant’s] License to Carry a Firearm?

      2. Is Appellant … entitled to a mistrial?

      3. Is the jury’s verdict … against the weight of the evidence …
      specifically in light of exculpatory evidence present[ed] by []
      Appellant in his pro se Motion for Judgment of Acquittal?

Appellant’s Brief at 14.

      In the Argument section of Appellant’s brief, he combines his first two

issues, averring that he “is entitled to a mistrial insofar as the trial court

committed error in refusing to admit [Appellant’s] license to carry a firearm.”

Id. at 19 (unnecessary capitalization and emphasis omitted).       Appellant is

essentially challenging the court’s decision to exclude certain evidence; thus,

we review his claim as follows:

      The standard of review employed when faced with a challenge to
      the trial court's decision as to whether or not to admit evidence

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      is well settled. Questions concerning the admissibility of evidence
      lie within the sound discretion of the trial court, and a reviewing
      court will not reverse the trial court's decision absent a clear
      abuse of discretion. Abuse of discretion is not merely an error of
      judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (internal

citations omitted).

      Here, Appellant contends that the trial court erred by not permitting

him to admit into evidence a copy of a license to carry a firearm, that was

issued by the Delaware County Sheriff’s Department on August 22, 2008

(hereinafter “the August license”).     On the face of the August license, it

states an expiration date of August 22, 2013, which was after the incident

underlying Appellant’s conviction in         this case.     See Attachment to

“Defendant’s Motion for Reconsideration of Sentence,” 4/24/14 (Docket

Entry 30).    According to Appellant, the August license proves that he

possessed a valid license to carry a firearm on the date of the incident and,

thus, the court erred by not allowing him to admit it at trial.

      However, our review of the record reveals that the August license was

admitted into evidence by the Commonwealth as Exhibit C-17. That exhibit

contains an exact replica of the August license that Appellant later sought to

admit, but with a handwritten notation on the license stating, “Revoked on

7/23/2009.” Notably, Appellant did not object to the admission of Exhibit C-

17, nor challenge the authenticity of the handwritten notation. Instead, he



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waited until his recross-examination of Detective Brad Ross, the lead

investigator in the case, to attempt to admit an un-notated copy of the very

same firearm license. Because Appellant failed to object to the admission of

the notated license as Exhibit C-17, the trial court did not abuse its

discretion by precluding him from later admitting an un-notated copy of the

same document.1

        In Appellant’s final issue, he challenges the weight of the evidence to

sustain his convictions.      However, his entire argument is premised on his

assertion that the trial court erred by not admitting his copy of the August

license. Because we have already concluded that the court did not abuse its

discretion in that regard, we also ascertain no abuse of discretion in the

court’s decision to reject Appellant’s weight-of-the-evidence claim.

       Judgment of sentence affirmed.




____________________________________________


1
  Moreover, Appellant fails to explain how Detective Ross, who was not a
member of the Sheriff’s Department that issued the August license, would
have been able to testify as to the authenticity of Appellant’s un-notated
copy of that document. See Pa.R.E. 901(a) (“To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”); Pa.R.E. 901(b)(1) (stating that a piece of evidence
may be authenticated through the “[t]estimony of a [w]itness with
[k]knowledge … that an item is what it is claimed to be”) (emphasis
omitted). Consequently, the trial court did not abuse its discretion in
refusing to admit Appellant’s copy of the August license on this basis, as
well.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2017




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