J-A23004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :     IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
                   Appellee                     :
                                                :
             v.                                 :
                                                :
OWEN FRANCIS,                                   :
                                                :
                   Appellant                    :          No. 501 WDA 2014

      Appeal from the Judgment of Sentence entered on February 10, 2014
               in the Court of Common Pleas of Allegheny County,
                 Criminal Division, No. CP-02-CR-0013746-2013

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 22, 2015

        Owen Francis (“Francis”) appeals from the judgment of sentence

imposed     following   his   conviction   of   two   counts   each   of   recklessly

endangering another person (“REAP”) and simple assault, and one count

each of aggravated assault, terroristic threats, and a carrying a firearm

without a license.1 We vacate Francis’s judgment of sentence for aggravated

assault and carrying a firearm without a license, affirm Francis’s convictions

of simple assault and terroristic threats, and remand for resentencing.

        Francis and the victim, Chanel Palmer (“Palmer”), began dating in April

2012.     On December 15, 2012, while watching television with Francis,

Palmer received a text message. Francis and Palmer argued about the text

message. During the argument, Palmer held her one-year-old daughter in



1
    See 18 Pa.C.S.A. §§ 2705, 2701, 2702, 2706, 6106.
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her arms, and Palmer’s two-year-old daughter sat on the couch. Francis told

Palmer he was going to leave, after which he gathered his belongings. The

two continued to argue, at which time Francis head-butted Palmer on the

forehead and struck Palmer with his closed fist.   At the time, Palmer still

held her daughter. After being struck, Palmer put her daughter down.

     Francis went to the second floor, as the two continued to argue. Upon

returning to the first floor, Francis grabbed Palmer by the neck, holding her

against the wall. Francis threw Palmer to the ground, still choking her. As

Francis continued to strike Palmer, he pulled out a gun and held it to

Palmer’s head.   Francis told Palmer that if she continued to scream, he

would pull the trigger. Palmer stopped screaming, and Francis released her.

However, Francis continued striking Palmer with a closed fist.        Palmer

gathered her children and proceeded to the first floor exit door.    Francis

grabbed Palmer’s phone and smashed it on the floor. Then, as he left the

residence, Francis threatened to kill Palmer and her grandmother if he saw

them again.

     Officer Elvis Duratovic (“Officer Duratovic”) responded to the scene, at

which time he found Palmer, crying hysterically. Officer Duratovic observed

that Palmer had severe injuries to her head and face, and that her mouth

was bleeding.    Based upon Palmer’s difficulty speaking and her injuries,

Officer Duratovic believed that “there was a pistol whipping[.]”        N.T.,




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2/10/14, at 7.    During his investigation, Officer Duratovic discovered that

Francis did not have a license to carry a firearm.

      After a non-jury trial, the trial court found Francis guilty of the above-

described charges. For his conviction of carrying a firearm without a license,

the trial court sentenced Francis to two to four years in prison, followed by a

five-year term of probation.    For his conviction of aggravated assault, the

trial court imposed a concurrent prison term of two to four years, followed

by five years of probation.2     Francis timely filed a post-sentence Motion,

which the trial court denied.     Thereafter, Francis filed the instant timely

appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Francis presents the following claim for our review: “Was the evidence

sufficient to support the conclusion[,] beyond a reasonable doubt[,] that

[he] committed the offenses of aggravated assault and carrying a firearm

without a license?” Brief for Appellant at 6.

      Francis claims that the Commonwealth failed to establish that he, in

fact, possessed a deadly weapon, and that he used that weapon to assault

Palmer. Id. at 15. Francis contends that Palmer “was not familiar with guns

at all,” and described it only as being black and silver.      Id.   According to

Francis, the Commonwealth’s evidence is “wholly insufficient to allow a

conclusion that the object in question ‘looks like, feels like, sounds like, or is

2
 The trial court imposed no further sentence as to Francis’s convictions for
REAP, simple assault and terroristic threats.


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like, a firearm.’” Id. at 16 (quoting Commonwealth v. Layton, 307 A.2d

843, 844 (Pa. 1973)). Francis argues that “[n]o evidence of any kind exists

on the record to establish that [he] had or used any pistol that could be

made to shoot a bullet.” Brief for Appellant at 16.

      In reviewing a challenge to the sufficiency of the evidence, 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.”    Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.

2009) (citation omitted).

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence.     Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Id. (citation and quotation marks omitted). It is within the province of the

fact finder to determine the weight to be accorded each witness’s testimony

and to believe all, part, or none of the evidence introduced at trial.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

      Francis first challenges the sufficiency of the evidence underlying his

conviction of aggravated assault, 18 Pa.C.S.A. § 2702(a)(4).      A person is

guilty of aggravated assault under that subsection if he “attempts to cause

or intentionally or knowingly causes bodily injury to another with a deadly

weapon[.]” Id. The Crimes Code defines a “deadly weapon,” as


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        [a]ny firearm, whether loaded or unloaded, or any device
        designed as a weapon and capable of producing death or serious
        bodily injury, or any other device or instrumentality which, in the
        manner in which it is used or intended to be used, is calculated
        or likely to produce death or serious bodily injury.

Id. § 2301. Section 2301 provides no definition for the term “firearm.”

        The term “firearm” is defined in thirteen separate sections of the

Crimes Code. Crimes Code section 908(c) (prohibited offensive weapons),

defines a firearm as “[a]ny weapon which is designed to or may readily be

converted to expel any projective by the action of an explosive or the frame

or receiver of any such weapon.”             Id. § 908(c).     Substantially similar

definitions are used in Crimes Code sections 913 (possession of firearm or

other    dangerous    weapon    in   court    facility),   2702.1   (assault   of   law

enforcement officer), 2707.1(d) (discharge of a firearm into an occupied

structure), 3901 (theft and related offenses), 5515(a) (prohibiting of

paramilitary training), 6105(i) (persons not to possess, use, manufacture,

control, sell or transfer firearms), 6106(e)(1) (firearms not to be carried

without a license), 6107(c) (prohibited conduct during emergency), 6111.2

(firearm sales surcharge),3 and 6111.4 (registration of firearms).              Thus,

twelve of the thirteen statutory definitions of firearm, set forth in the Crimes

Code, include the requirement that the weapon must be designed or readily




3
 See also 18 Pa.C.S.A. § 6111.1 (adopting the definition set forth in section
6111.2).



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be converted to expel a projectile by means of an explosive.4       See id.

Therefore, consistent with the definitions of “firearm” adopted by our

legislature, we conclude that for purposes of a conviction of aggravated

assault under 18 Pa.C.S.A. § 2301, the Commonwealth must establish, at a

minimum, that the weapon must be designed to, or readily may be

converted to expel a projectile by means of an explosive or the expansion or

escape of gas.

     Our review of the record discloses no evidence upon which a jury could

find that the weapon in Francis’s possession was designed to, or readily

could be converted to expel a projectile by means of an explosive or the

expansion or escape of gas.        The victim, Palmer, provided the only

description of the weapon:

     Q.    [The Commonwealth]: … Were you able to see this gun?

     A.    [Palmer]: It was black and silver.

     Q.    It was black and silver. Okay. And are you familiar with
           guns at all?

     A.    No.

     Q.    Okay. And had you ever seen this gun before?

     A.    I seen [sic] it once before.

     Q.    … Do you recall when that was?


4
  We note that Crimes Code section 5122 (weapons or implements of
escape) defines a firearm as including “an unloaded firearm and the
unassembled components of a firearm.” 18 Pa.C.S.A. § 5122(b)(2).



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     A.    Maybe a couple weeks prior to the incident.

     Q.    ... And was it the same color and everything that you had
           seen before?

     A.    Yes.

     Q.    … Is this something that you knew to be in your home?

     A.    No.

     Q.    … So, when he held the gun to your head, what did he do?

     A.    He said if I didn’t stop screaming, he will pull the trigger.

     …

     Q.    What part of your head was the gun pointing towards?

     A.    Along my temple.

N.T., 2/10/14, at 16-17. On cross-examination, Palmer testified as follows:

     Q.    [Defense counsel]: … You indicated … in answer to the
           Assistant District Attorney that you had seen this alleged
           gun before?

     A.    [Palmer]: Yes.

     Q.    And where had you seen it before?

     A.    In a car.

     Q.    In a vehicle?

     A.    In a car. In the Land Rover. I’ve been in the Land Rover
           before.

     Q.    Now, on this particular occasion, though, you’re not saying
           that he left the residence and went out to the street where
           the car was. Right?

     A.    I’m sorry. No, he did not.



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      Q.    He went up to your bedroom area?

      A.    Correct.

      Q.    … And you never saw him carry the gun?

      A.    No.

      Q.    Did he have a holster for it?

      A.    No.

Id. at 38-39. The Commonwealth presented no other evidence describing

the weapon.

      The evidence, even when viewed in a light most favorable to the

Commonwealth, fails to establish that the object used to threaten Palmer

was designed to, or readily could be converted to expel a projectile. Further,

there is no evidence, direct or circumstantial, upon which such inference

could be made.     “[R]easonable inferences are predicated on proven facts

and circumstances, not on suspicion or surmise.”          Commonwealth v.

Jackson,   955     A.2d   441,   444   (Pa.   Super.   2008).   Because   the

Commonwealth failed to establish that Francis committed aggravated

assault, as defined by 18 Pa.C.S.A. § 2702(a)(4), we vacate his judgment of

sentence as to that charge.

      Francis also challenges the sufficiency of the evidence underlying his

conviction of carrying a firearm without a license, a violation of Crimes Code

section 6106(a).   Brief for Appellant at 17.   Francis again argues that the




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Commonwealth failed to establish that he possessed a firearm, as defined by

that statute. Id.

        Section 6106 of the Crimes Code provides, in relevant part, that

        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 fixed place of business, without a valid
        and lawfully issued license under this Chapter commits a felony
        of the Third Degree.

18 Pa.C.S.A. § 6106(a).         The Uniform Firearms Act, 5 of which section

6106(a) is a part, offers the following definition of “firearm”:

        Any pistol or revolver with a barrel length less than 15 inches,
        any shotgun with a barrel length less than 18 inches or any rifle
        with a barrel length less than 16 inches, or any pistol, revolver,
        rifle or shotgun with an overall length of less than 26 inches.
        The barrel length of a firearm shall be determined by measuring
        from the muzzle of the barrel to the face of the closed action,
        bolt or cylinder, whichever is applicable.

18 Pa.C.S.A. § 6102.

        As the trial court stated in its Opinion,

        In Dictionary.com, pistol is defined as “a short firearm intended
        to be held and fired with one hand, a short and barreled
        handgun.     The Free Dictionary.com defines revolver as “a
        handgun having a revolving cylinder with several cartridge
        chambers that may be fired in succession.” Another definition is
        a “multi-chambered cylinder that allows several shots to be
        discharged without reloading.” When terms such as fired and
        discharged are used, the clear intent is the device must expel a
        projectile by some mechanism.          In [Commonwealth v.]
        Gaine[r, 7 A.3d 291 (Pa. Super. 2010)], the [Superior] Court
        stated[,] “The issue is whether the gun was capable of being
        converted into an object that could fire a shot.” [Gainer, 7 A.3d


5
    18 Pa.C.S.A. §§ 6101-6127.



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     at] 298-299. Simply stated, the gun must be a real gun capable
     of firing a shot.

Trial Court Opinion, 12/22/14, at 26. We agree.

     As reflected by this Court’s analysis in Gainer, the Commonwealth

must establish, at a minimum, not only the barrel length, as expressly

required by statute, but that the firearm is capable of being converted into

an object that could fire a shot. Our review of the record confirms the trial

court’s conclusion that the Commonwealth presented no evidence regarding

barrel length, or that the weapon was capable of being converted into

something that could fire a shot. See 18 Pa.C.S.A. § 6102; Gainer, 7 A.3d

at 298-99.    We therefore agree with the conclusion reached by the trial

court, as stated in its Opinion, that the evidence is insufficient to sustain

Francis’s conviction of possessing a firearm without a license.    See Trial

Court Opinion, 12/22/14, at 26.

     Francis does not challenge his remaining convictions on appeal.

Although the trial court imposed no further sentence as to these convictions,

our resolution of Francis’s appeal disrupts the trial court’s sentencing

scheme.   See Commonwealth v. Wilson, 67 A.3d 736, 745 n.11 (Pa.

2013) (deeming it necessary to remand for resentencing when the Court’s

resolution of the appellant’s claims affects the sentencing scheme imposed

by the trial court). We therefore reverse Francis’s judgment of sentence as

to REAP, simple assault and terroristic threats, and remand for resentencing.




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      Judgment of sentence vacated in part, reversed in part, and remanded

for resentencing, consistent with this Memorandum.        Superior Court

jurisdiction relinquished.

      Lazarus, J., joins the memorandum.

      Gantman, P.J., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2015




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