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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
LEROY THOMAS TAYLOR,                       :          No. 2976 EDA 2017
                                           :
                          Appellant        :


          Appeal from the Judgment of Sentence, September 8, 2017,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0002697-2016


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 04, 2019

        Leroy Thomas Taylor appeals the September 8, 2017 judgment of

sentence in which the Court of Common Pleas of Philadelphia County

sentenced him to an aggregate term of 5 to 10 years’ imprisonment for

possession of a firearm while prohibited, carrying firearms without a license,

carrying firearms in public in Philadelphia, and possession of an instrument

of crime.1 After careful review, we affirm.

        The facts, as recounted by the trial court, are as follows:

              On February 7, 2016, neighbors Angel Rivera and
              [a]ppellant got into an altercation over Rivera’s
              girlfriend, who was pregnant with [a]ppellant’s child.
              The fight, which took place in public outside of
              2710 North Reese Street, soon became physical and
              [a]ppellant punched Rivera in the eye. Several other
              parties became involved and separated [a]ppellant

1   18 Pa.C.S.A. §§ 6105, 6106, 6108, and 907, respectively.
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            and Rivera. At this point [a]ppellant went into his
            home and came back outside.         Rivera saw that
            [a]ppellant now had a gun in his waistband. Rivera’s
            daughter     MariaAngely    Rivera-Cruz   also   saw
            [a]ppellant with the gun.      The police arrived a
            moment later and Rivera saw [a]ppellant put the gun
            on the ground behind the wheel of River’s car. The
            police then retrieved the gun from under the car and
            arrested [a]ppellant while around 10-15 of Rivera’s
            family members and neighbors observed.

            Officer Anthony Nicoletti responded to a radio call for
            a black male with a black hoodie carrying a gun on
            the 2700-2800 block of Reese Street that night.
            When he arrived, he saw a group of around
            10-15 people trying to prevent [a]ppellant from
            leaving Reese Street by frantically tugging on his
            clothing and yelling, “Don’t let him leave. He threw
            the gun underneath the car.” Appellant was the only
            person present who matched the police radio
            description.      Officer   Nicoletti  then   secured
            [a]ppellant while his partner Officer Hoffman
            recovered the pistol from under Rivera’s car.

            Officer Ronald Whiteman later investigated the pistol
            found at the scene and determined that it was
            loaded    with   nine   cartridges   of   .45-caliber
            ammunition and that it was operable. Appellant was
            not licensed to carry a firearm on the date of this
            offense. Appellant was prohibited from possessing a
            handgun under the Firearms Act due to a previous
            conviction.

Trial court opinion, 12/12/17 at 2-3.

      Following a non-jury trial, the trial court convicted appellant on

April 28, 2017. On July 27, 2017, appellant filed a post-verdict motion for

reconsideration of verdict. On September 8, 2017, the trial court denied the

motion. Also on September 8, 2017, the trial court sentenced appellant. On

September 9, 2017, appellant filed a notice of appeal.      On November 14,


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2017, the trial court ordered appellant to file a statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied

with the order on November 16, 2017. (See trial court opinion, 12/12/17 at

1-2.)    The trial court issued an opinion, pursuant to Pa.R.A.P. 1925(a) on

December 12, 2017.

        On appeal, appellant contends that there was insufficient evidence to

convict him of the four crimes. (Appellant’s brief at 3.)

             In reviewing the sufficiency of the evidence, we view
             all evidence admitted at trial in the light most
             favorable to the Commonwealth, as verdict winner,
             to see whether there is sufficient evidence to enable
             [the fact-finder] to find every element of the crime
             beyond a reasonable doubt. This standard is equally
             applicable to cases where the evidence is
             circumstantial rather than direct so long as the
             combination of the evidence links the accused to a
             crime beyond a reasonable doubt.           Although a
             conviction must be based on “more than mere
             suspicion or conjecture, the Commonwealth need not
             establish guilt to a mathematical certainty.”

             Moreover, when reviewing the sufficiency of the
             evidence, the Court may not substitute its judgment
             for that of the fact finder; if the record contains
             support for the convictions, they may not be
             disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

             Moreover, when applying the above test, the entire
             record must be evaluated and all evidence actually
             received must be considered. Finally, the finder of
             fact, while passing upon the credibility of the
             witnesses and the weight of the evidence produced,
             is free to believe all, part, or none of the evidence.


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Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).

        Appellant specifically challenges the sufficiency of the evidence with

respect to the three firearms convictions.

        Section 6105 of the Crimes Code, entitled, “Persons not to possess,

use, manufacture, control, sell or transfer firearms,” provides in pertinent

part:

             (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.

18 Pa.C.S.A. § 6105(a)(1).

        Section 6106 of the Crimes Code, entitled “Firearms not to be carried

without a license,” provides in pertinent part:

             (a)   Offense defined.--

                   (1)   Except as provided in paragraph
                         (2), any person who carries a
                         firearm in any vehicle or any
                         person who carries a firearm
                         concealed on or about his person,
                         except in his place of abode or


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                        fixed place of business, without a
                        valid and lawfully issued license
                        under this chapter commits a
                        felony of the third degree.

                  (2)   A person who is otherwise eligible
                        to possess a valid license under
                        this chapter but carries a firearm in
                        any vehicle or any person who
                        carries a firearm concealed on or
                        about his person, except in his
                        place of abode or fixed place of
                        business, without a valid and
                        lawfully issued license and has not
                        committed any other criminal
                        violation commits a misdemeanor
                        of the first degree.

18 Pa.C.S.A. § 6106(a)(1-2).

      Section 6108 of the Crimes Code, entitled, “Carrying firearms on public

streets or public property in Philadelphia,” provides in pertinent part:

            No person shall carry a firearm, rifle or shotgun at
            any time upon the public streets or upon any public
            property in a city of the first class unless:

            (1)   such person     is   licensed   to   carry   a
                  firearm; or

            (2)   such person is exempt from licensing
                  under section 6106(b) of this title
                  (relating to firearms not to be carried
                  without a license).

18 Pa.C.S.A. § 6108.

      For all of these crimes, the Commonwealth must establish that

appellant carried or possessed a firearm.     See In re R.N., 951 A.2d 363,




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369-370 (Pa.Super. 2008). Appellant does not challenge the sufficiency of

any of the other elements of these crimes.

        Here, Angel Rivera (“Rivera”) testified that after the initial altercation,

appellant returned to the scene with a gun in his waistband.            (Notes of

testimony, 4/28/17 at 10.) Rivera also testified that he observed appellant

putting the gun on the ground behind the wheel of Rivera’s vehicle. (Id.)

Rivera’s daughter, MariaAngely Rivera-Cruz, testified that she saw appellant

with a gun. (Id. at 35.)

        In addition, Officer Anthony Nicoletti (“Officer Nicoletti”) of the City of

Philadelphia Police Department testified that when he arrived on the scene of

the altercation, he saw a group of 10 to 15 people tugging on appellant’s

clothing and yelling, “Don’t let him leave. He threw the gun underneath the

car.”     (Id. at 22.)      Officer Nicoletti also testified that his partner,

Officer Hoffman, recovered a firearm from under Rivera’s car. (Id. at 25.)

        This court does not agree with appellant’s assertion that the evidence

was insufficient.    Two eyewitnesses saw appellant with a firearm.         Rivera

saw him put the gun under the car or by the wheel.               Others informed

Officer Nicoletti that appellant had placed the gun under the vehicle, which is




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where the firearm was recovered.          Appellant’s contention that the

Commonwealth failed to present sufficient evidence is without merit.2

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/4/19




2  Appellant argues that the Commonwealth failed to prove that he had
constructive possession of the firearm. However, when the Commonwealth
is able to prove actual possession, it does not have to prove constructive
possession. Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983).


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