Com. v. Smith, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHANE C. SMITH :
:
Appellant : No. 1923 EDA 2017
Appeal from the Judgment of Sentence May 9, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004965-2016
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 08, 2018
Shane Smith appeals from the judgment of sentence entered following
his bench trial convictions for possession of firearm with altered
manufacturer’s number, firearms not to be carried without a license, receiving
stolen property, and possession of a controlled substance.1 We conclude the
Commonwealth presented sufficient evidence that the firearm’s
manufacturer’s number was “altered” and, therefore, affirm the judgment of
sentence.
On June 12, 2016, Pennsylvania State Police officers arrested Smith
following a vehicle stop during which the police officers discovered a firearm,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6110.2(a), 6106(a)(1), 3925(a), and 35 P.S. § 780-
113(a)(16), respectively.
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ammunition, a clip, and marijuana in Smith’s vehicle, and Oxycodone on
Smith’s person.
On February 24, 2017, the trial court conducted a stipulated bench trial,
during which the Commonwealth admitted as an exhibit a photograph of the
firearm at issue. The manufacturer’s number was legible, but had multiple
scratch marks on it. The trial court concluded the manufacturer’s number was
“clearly abraded.” Trial Court Opinion, filed July 25, 2017, at 7-8.
The trial court found Smith guilty of the above-reference charges. On
May 9, 2017, the trial court sentenced Smith to three to six years’
imprisonment for the conviction for possession of firearm with altered
manufacturer’s number, two to four years’ imprisonment for the conviction for
firearms not to be carried without a license, 15 to 30 months’ imprisonment
for the receiving stolen property conviction, and three years’ probation for the
conviction for possession of a controlled substance. The trial court ordered
that the terms of imprisonment were to run concurrent to each other and the
term of probation would be consecutive to the imprisonment.
Smith filed a timely notice of appeal. On appeal he raises the following
issue:
Whether the evidence was insufficient to prove all the
elements of the charge of possession of a firearm with
altered manufacturer’s number where the photo evidence of
the gun in question shows that the number is completely
legible and has not been altered, changed, removed, or
obliterated in any substantive fashion.
Smith’s Br. at 7 (unnecessary capitalization omitted).
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“Because evidentiary sufficiency is a question of law, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). Specifically, we must
determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that the Commonwealth proved each
element beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d
150, 152 (Pa.Super. 2003). “The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544,
559 (Pa.Super. 2011) (en banc) (quoting Commonwealth v. Hutchinson,
947 A.2d 800, 805–06 (Pa.Super. 2008)).
Further, “[a]s an appellate court, we do not assess credibility nor do we
assign weight to any of the testimony of record.” Commonwealth v. Kinney,
863 A.2d 581, 584 (Pa.Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined
circumstances.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super.
2007) (quoting Commonwealth v. Frisbie, 889 A.2d 1271, 1274–75
(Pa.Super. 2005)).
Smith challenges the sufficiency of the evidence to support his
conviction for possession of firearm with altered manufacturer’s number.
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Section 6110.2 of the Crimes Code provides: “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.A. § 6110.2.
Accordingly, to support a conviction for possession of firearm with altered
manufacturer’s number, the Commonwealth must establish the defendant
possessed a firearm, that the manufacturer’s number of the firearm was
“altered, changed, removed or obliterated,” and that the defendant acted
intentionally, knowingly, or recklessly with respect to the “altered, changed,
removed or obliterated” manufacturer’s number. See 18 Pa.C.S.A. §
6110.2(a); Commonwealth v. Jones, 172 A.3d 1139, 1145 (Pa.Super.
2017).
Smith’s sole argument on appeal is that the Commonwealth failed to
prove the manufacturer’s number was “altered, changed, removed or
obliterated” because the number was legible with the naked eye, as shown by
the photograph of the firearm. He argues that under Commonwealth v.
Smith, 146 A.3d 257 (Pa.Super. 2016), the Commonwealth must present
evidence that the manufacturer’s number is illegible to the naked eye to
sustain a conviction for possession of firearm with altered manufacturer’s
number.
In Smith, a firearms expert testified that the number had not been
altered because he was able to decipher the number. 146 A.3d at 263-64. He
stated that someone had attempted to remove the number “by mechanical
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means,” but he could still see the numbers “when placed under magnification.”
Id. at 263. This Court concluded that the evidence was sufficient to support
the conviction, reasoning that the expert testimony confirmed the number had
been “mechanically abraded to such a degree that it was no longer legible
unless magnification was employed.” Id. at 264. We reasoned that the
expert’s opinion the number had not been altered “did not bear on the legal
question of culpability.” Id. We found that the testimony supported that the
number had been altered or changed because it showed that “only
extraordinary means—in this case, magnification—enabled observation of the
number.” Id.
Smith claims that there was insufficient evidence to establish the
manufacturer’s number of the firearm had been altered, changed, removed or
obliterated because, unlike the manufacturer’s number in Smith, the number
here was legible. We disagree. Smith held that there was sufficient evidence
to establish the number had been changed or altered, even though the expert
testified it had not been “altered.” Smith did not require the Commonwealth
to establish the number was unreadable with the naked eye to establish a
violation of Section 6110.2.
Whether the Commonwealth established the number had been “altered,
changed, remove or obliterated” requires us to interpret Section 6110.2.
“[T]he objective of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the legislature.” Commonwealth v.
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Scott, 176 A.3d 283, 287 (Pa.Super. 2017) (quoting Allstate Life Ins. Co.
v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012)). “[T]he best indication
of the General Assembly’s intent is the plain language of the statute” and,
therefore “[w]hen the words of a statute are clear and free from all ambiguity,
they are presumed to be the best indication of legislative intent.” Id. (quoting
Allstate Life Ins. Co., 52 A.3d at 1080).
Here, Section 6110.2 prohibits the possession of a gun where the
manufacturer’s number has been “altered, changed, removed or obliterated.”
The trial court found that the manufacturer’s number was “altered.” Trial Ct.
Op., at 8. Because “altered” is not defined by statute, we look to its dictionary
definition to determine its plain meaning. Merriam-Webster’s Dictionary
defines “alter” as “to make different without changing into something else.”
Merriam-Webster’s Dictionary, http://www.merriam-webster.com/dictionary/
alter; see also Commonwealth v. Ford, 175 A.3d 985, 992 (Pa.Super.
2017).
The picture shows that the manufacturer’s number was “clearly
abraded” by multiple scratch marks, Trial Ct. Op. at 7-8, which is sufficient to
establish the number was altered, as it made the number “different without
changing [it] into something else.”
Judgment of sentence affirmed.
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Judge Ransom joins the memorandum.
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/18
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