Commonwealth v. Ford ( 2017 )

J-A13035-17
2017 PA Super 358COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY FORD
Appellant No. 196 EDA 2016
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012403-2014
BEFORE: LAZARUS, OTT, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED NOVEMBER 14, 2017
Appellant, Anthony Ford, appeals from the judgment of sentence
imposed in the Philadelphia County Court of Common Pleas. Appellant claims
the trial court erred in denying his motion to suppress the firearm seized from
his home. He also argues that the trial court erred in finding the evidence
sufficient to sustain his conviction for possession of a firearm with an altered
manufacturer’s number, because the manufacturer’s number was merely
obscured by corrosion, not by human hands.1 We affirm the trial court’s order
denying suppression, but we reverse Appellant’s conviction for possession of
a firearm with an altered manufacturer’s number.
The trial court summarized the factual and procedural history as follows:
On October 20, 2015, [] Appellant, [] through counsel[,]
argued a motion to suppress, which was denied. On that
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 6110.2(a).
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same date, he was found guilty following a [non-jury] trial
of [p]ossession of [f]irearm [p]rohibited[2] and [possession
of firearm with altered manufacturer’s number.] Sentencing
was deferred until December 16, 2015 for the preparation
of a presentence investigation and mental health report. On
that date[, Appellant] was sentenced to [concurrent terms]
of . . . two and one-half [] to five [] years[’ imprisonment]
followed by three [] years of probation.
On January 6, 2016[,] Appellant filed a timely notice of
appeal. Trial counsel filed a motion to withdraw[,] which
was granted. New counsel was appointed. On February 18,
2016, [the trial court] entered an [o]rder pursuant to
Pa.R.A.P. 1925(b). On March 8, 2016[,] Appellant filed a
timely response to [the trial court’s] order.
On August 28, 2014[,] at around 10 pm, Philadelphia
[p]olice [o]fficers Patrick Biles along with his partner, Officer
St. Onge, were in uniform riding in a marked police car.
They received several radio calls directing them to 2010
Wilmot [Street] for reports of a person bleeding in the
backyard and a person with a gun.[3] The officers went to
the backyard of 2010 Wilmot [Street4] but did not find
anyone. They then went through an alleyway to Dit[]man
[Street]. There[,] several neighbors were directing them to
4663 Ditman [Street]. While standing on the porch of [4663
Ditman Street,] Officer Biles testified that he heard multiple
voices screaming. Based on the information received, and
the numerous gun arrests that Officer Biles conducted in
that area, which he classified as a high crime area, he
knocked on the door. When no one answered, Officer Biles
opened the unlocked door and went inside. The home
appeared to be under construction[,] but there were several
lights on. Once inside, Officer Biles observed three
individuals standing in what would be the living room of the
2 18 Pa.C.S. § 6105(a)(1).
3Officer Biles testified the first radio call “came out as a person screaming.”
N.T., 10/20/15, at 12.
4 Officer Biles testified the backyard of 2010 Wilmot Street “backs up to the
back door of 4663 Ditman [Street],” Id., the address where the police
subsequently found Appellant.
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home. Specifically, he observed [] Appellant make a
swinging motion with his arm and place an object on the
kitchen chair next to him. Officer Biles made this
observation from approximately thirty feet away. He
ordered [] Appellant to show his hands and placed him in
handcuffs. Officer Biles recovered a .38 caliber silver
handgun with the serial number obscured on the chair
where he observed [] Appellant make the swinging arm
motion.
Trial Ct. Op., 9/13/16, at 1-2 (citations and footnote omitted). During trial,
the parties stipulated that the serial number on the handgun was “obscured
by corrosion [and] recovered by polishing.” N.T., 10/20/15, at 88.
Appellant raises the following issues for our review:
A. Was it error for the [trial] court to deny Appellant’s
motion to suppress evidence of a gun found in Appellant’s
home, where the gun was the product of a warrantless
search of said home by police, without probable cause and
exigent circumstances?
B. Was it error for the trial court to find that Appellant was
guilty of possession of a firearm which has had the
manufacturer’s number integral to the frame or receiver
altered, changed, removed, or obliterated, where the
number was merely obscured by corrosion, and was
recovered by polishing?
Appellant’s Brief at 2 (capitalization omitted).
Appellant first contends that the trial court erred in denying his motion
to suppress, because the gun found in his home was “the product of an
unreasonable search and seizure.” Id. at 5. He asserts the police officers
lacked probable cause and exigent circumstances to justify a warrantless entry
and search of his home. We disagree.
We review the denial of a motion to suppress as follows:
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An appellate court’s standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court,
we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by
those findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below
are subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,
alterations, and ellipsis omitted).
In a private home, searches and seizures without a
warrant are presumptively unreasonable. Absent probable
cause and exigent circumstances, the entry of a home
without a warrant is prohibited under the Fourth
Amendment. In determining whether exigent
circumstances exist, a number of factors are to be
considered. . . .
Among the factors to be considered are: (1) the
gravity of the offense, (2) whether the suspect is
reasonably believed to be armed, (3) whether there is
above and beyond a clear showing of probable cause,
(4) whether there is strong reason to believe that the
suspect is within the premises being entered, (5)
whether there is a likelihood that the suspect will
escape if not swiftly apprehended, (6) whether the
entry was peaceable, and (7) the time of the entry,
i.e., whether it was made at night. These factors are
to be balanced against one another in determining
whether the warrantless intrusion was justified.
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Other factors may also be taken into account, such as
whether there is hot pursuit of a fleeing felon, a likelihood
that evidence will be destroyed if police take the time to
obtain a warrant, or a danger to police or other persons
inside or outside the dwelling.
Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa. 1994) (citations,
quotations, and ellipsis omitted). Further, “when we examine a particular
situation to determine if probable cause exists, we consider all the factors and
their total effect, and do not concentrate on each individual element. We also
focus on the circumstances as seen through the eyes of the trained officer . .
. .” Commonwealth v. Chase, 575 A.2d 574, 576 (Pa. Super. 1990)
(citations, alteration, and ellipsis omitted).
Exigent circumstances exist where “the police reasonably believe that
someone within a residence is in need of immediate aid.” Commonwealth
v. Galvin, 985 A.2d 783, 795 (Pa. 2009) (citations omitted). Additionally,
“[i]t is widely recognized that situations involving the potential for imminent
physical harm in the domestic context implicate exigencies that may justify
limited police intrusion into a dwelling in order to remove an item of potential
danger.” Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999)
(citations omitted). The relevant inquiry is “whether there was an objectively
reasonable basis for believing that medical assistance was needed, or persons
were in danger[.]” Michigan v. Fisher, 558 U.S. 45, 49 (2009) (citation and
internal quotation marks omitted). “[T]he calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make
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split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving.” Ryburn v. Huff, 565 U.S. 469, 477 (2012) (citation
omitted). Additionally, “it is a matter of common sense that a combination of
events each of which is mundane when viewed in isolation may paint an
alarming picture.” Id. at 476-77.
In this case, exigent circumstances justified the officers’ warrantless
entry into Appellant’s house. The evidence adduced during the suppression
hearing demonstrates that on the evening in question, police officers received
reports of someone screaming, someone bleeding, and someone with a gun
at the Wilmot Street residence abutting Appellant’s house. N.T., 10/20/15, at
12. Officer Biles, an eleven-year officer in this police district, described this
as a “high crime area.” Id. at 15. The officers did not find anything at the
Wilmot Street address, but when they proceeded to Ditman Street, one
neighbor pointed towards 4663 Ditman Street. Id. at 14-15. Another
neighbor who lived next door to 4663 Ditman Street was standing in her
doorway and appeared frightened, distraught and happy to see the officers.
Id. at 15. Officer Biles asked the neighbor if she heard any gunshots, and
she replied: “Not yet.” Id. at 13. As the officers approached 4663 Ditman
Street, they heard multiple voices screaming inside. Id. Officer Biles knocked
on the front door, but nobody answered, possibly because the screams
drowned out the knocks. Id. Based on these facts, the officers reasonably
believed that there was an immediate threat of violence and that those inside
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Appellant’s home were in danger. The trial court properly admitted all
evidence arising from the officers’ warrantless entry into the house. See
Commonwealth v. Potts, 73 A.3d 1275, 1281 (Pa. Super. 2013) (totality of
circumstances justified officers’ reasonable belief that they needed to enter
defendant’s apartment to ensure that another occupant was not in danger or
in need of immediate aid; officers were responding to emergency call for
alleged domestic dispute involving someone screaming at defendant’s
apartment building, screams were still emanating from defendant’s apartment
when officers arrived, occupant answered officers’ knock after delay, very
distraught, apparently crying, sweating, breathing heavily, and with
disheveled clothing, and officers saw defendant through open doorway,
running into bedroom and shutting door); Commonwealth v. Hinkson, 461
A.2d 616, 618-19 (Pa. Super. 1983) (exigent circumstances justified
warrantless search of defendant’s house, even though defendant was outside
house, where police reasonably concluded that someone in house could have
been held hostage or had been hurt during shooting incident and where man
had already been shot outside the house; to have delayed action while search
warrant was obtained would have unduly risked lives of public and police).
Next, Appellant argues that the evidence was insufficient to sustain his
conviction under 18 Pa.C.S. § 6110.2(a), because this statute does not
criminalize possession of firearms whose serial numbers are obscured by
natural corrosion. We agree.
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We begin by noting our standard of review:
[O]ur standard of review of sufficiency claims requires that
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.
Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime
charged and the commission thereof by the accused,
beyond a reasonable doubt.
Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citations
and quotations omitted). When, as here, the appellant raises a question of
statutory construction, “our standard of review is de novo, and our scope of
review is plenary.” Commonwealth v. Giulian, 141 A.3d 1262, 1266 (Pa.
2016).
In matters involving statutory interpretation, the Statutory
Construction Act directs courts to ascertain and effectuate
the intent of the General Assembly. 1 Pa.C.S. § 1921(a). A
statute's plain language generally provides the best
indication of legislative intent. See, e.g., McGrory v. Dep't
of Transp., [] 915 A.2d 1155, 1158 ([Pa.] 2007);
Commonwealth v. Gilmour Mfg. Co., [] 822 A.2d 676,
679 ([Pa.] 2003). In construing the language, however, and
giving it effect, “we should not interpret statutory words in
isolation, but must read them with reference to the context
in which they appear.” Roethlein v. Portnoff Law
Assocs., Ltd., [] 81 A.3d 816, 822 ([Pa.] 2013), citing
Mishoe v. Erie Ins. Co., 824 A.2d 1153, 1155 ([Pa.]
2003). Accord Commonwealth v. Office of Open
Records, [] 103 A.3d 1276, 1285 ([Pa.] 2014) (statutory
language must be read in context; in ascertaining legislative
intent, every portion is to be read together with remaining
language and construed with reference to statute as a
whole).
Id. at 1267.
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We must construe words and phrases in statutes “according to rules of
grammar and according to their common and approved usage[.]” 1 Pa.C.S.
§ 1903(a). “One way to ascertain the plain meaning and ordinary usage of
terms is by reference to a dictionary definition.” In re Beyer, 115 A.3d 835,
839 (Pa. 2015) (citation omitted). We must also take into account what the
statute does not prescribe. “[I]t is not for the courts to add, by interpretation,
to a statute, a requirement which the legislature did not see fit to include.
Consequently, [a]s a matter of statutory interpretation, although one is
admonished to listen attentively to what a statute says; one must also listen
attentively to what it does not say.” Commonwealth v. Johnson, 26 A.3d
1078, 1090 (Pa. 2011) (internal quotations and citations omitted).
Section 6110.2 provides in pertinent part: “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. § 6110.2(a).
Section 6110.2 is part of Pennsylvania’s Uniform Firearms Act, 18 Pa.C.S. §§
6101-6127, whose purpose “is to regulate the possession and distribution of
firearms, which are highly dangerous and are frequently used in the
commission of crimes,” Commonwealth v. Corradino, 588 A.2d 936, 940
(Pa. Super. 1991), and to “prohibit certain persons from possessing a firearm
within this Commonwealth.” Commonwealth v. Baxter, 956 A.2d 465, 471
(Pa. Super. 2008). Firearm serial numbers are an important tool because they
help police officers identify the owner of weapons used in criminal offenses.
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To ensure that serial numbers remain intact on firearms, the legislature has
prohibited persons from defacing these markings, see 18 Pa.C.S. § 6117(a),
and from purchasing or obtaining defaced firearms, see 18 Pa.C.S. § 6110.2.
The question here is whether corrosion of manufacturer’s numbers
renders them “altered, changed, removed or obliterated” within the meaning
of section 6110.2. The Crimes Code does not define this phrase or any
individual terms therein. Thus, we consult the dictionary, which defines (1)
“alter” as “to cause to become different in some particular characteristic (as
measure, dimension, course, arrangement, or inclination) without changing it
into something else,” Webster’s Third Int’l Dict. (1986) at 63; (2) “change”
as “to make different . . . in some particular but short of conversion into
something else . . . [or] to make over to a radically different form,
composition, state, or disposition,” Id. at 373; (3) “remove” means “to get
rid of as by moving” as in eradicate or eliminate, and is synonymous with
erase, Id. at 1921; and (4) “obliterate” as “1 : to remove from significance
and bring to nothingness : as a: to make undecipherable or imperceptible by
obscuring, covering, or wearing or chipping away . . . b: to remove utterly
from recognition . . . or c (1): to remove from existence : make nonexistent :
destroy utterly all traces, indications, significance of . . . (2) to cause to
disappear[.]” Id. at 1557.
We do not think that corrosion falls within the plain meaning or ordinary
usage of these terms. The dictionary defines “corrode” as typically meaning
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“a gradual wearing away or alteration by a chemical or electrochemical
essentially oxidizing process (as in the atmospheric rusting of iron)[.]” Id. at
512.
Although, in an academic sense, “corroded” items might be
“changed” or “altered” through imperceptible forces of chemistry,
common sense does not support reading section 6110.2 in this manner.
As stated above, we must listen attentively to what a statute “does not
say.” Johnson, 26 A.3d at 1090. In our view, section 6110.2 does not
say that a crime takes place when a person possesses a gun whose
markings have become illegible due to natural causes.
Further support for this view emerges when we read section
6110.2(a) in pari materia 5 with 18 Pa.C.S. § 6117(a), another statute in
the Uniform Firearms Act. Section 6117, entitled “Altering Or Obliterating
Marks Of Identification,” provides: “No person shall change, alter,
remove, or obliterate the manufacturer's number integral to the frame or
receiver of any firearm . . .” (Emphasis added). The bolded language, which
is virtually identical to section 6110.2(a), only prohibits a person from
intentionally defacing manufacturer’s numbers; it does not apply when the
manufacturer’s numbers corrode due to natural causes. Since a person cannot
5 “Statutes or parts of statutes are in pari materia when they relate to the
same persons or things or to the same class of persons or things.” 1 Pa.C.S.
§ 1932(a). “Statutes in pari materia shall be construed together, if possible,
as one statute.” 1 Pa.C.S. § 1932(b).
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be liable under section 6117 for defacing a firearm when the manufacturer’s
numbers corrode, it would be nonsensical to hold him liable under section
6110.2 for possessing such a firearm.
For these reasons, we conclude that the evidence is insufficient to
sustain Appellant’s conviction under section 6110.2(a). We do not find it
necessary to remand for resentencing. Appellant remains convicted under 18
Pa.C.S. § 6105, and his sentence under section 6105 is the same length as,
and runs concurrently with, his former sentence under section 6110.2. As a
result, his sentencing scheme remains the same despite our reversal of his
conviction under section 6110.2. Compare Commonwealth v. Williams,
871 A.2d 254, 266 (Pa. Super. 2005) (where appellate decision affects entire
sentencing scheme, all sentences for all counts will be vacated in order for
trial court to restructure its entire sentencing scheme).
Judgment of sentence affirmed in part and reversed in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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