Com. v. Jackson, J. ( 2017 )

J-A21019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH IRVIN JACKSON,
Appellant No. 1299 WDA 2016
Appeal from the Judgment of Sentence March 3, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002197-2013,
CP-02-CR-0016049-2013 and CP-02-CR-0016652-2014
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 31, 2017
Appellant, Joseph Irvin Jackson, appeals from the judgment of
sentence entered on March 3, 2015, as made final by the denial of
Appellant’s post-sentence motion on August 17, 2016. We affirm.
The trial court has ably explained the underlying facts and procedural
posture of this appeal:
At approximately 2:30 a.m. on October 20, 2012, Officer
Adam Quinn, who was then employed by the North
Braddock Police Department, was on routine patrol with his
partner, Officer Gettig[,] and [was traveling] along Hawkins
Avenue when [he] noticed two males wearing hoodies who
had their hoods up. Officer Quinn stopped his patrol car
and then asked these individuals to produce some
identification and asked what they were doing out at 2:30 in
the morning. [Appellant] produced identification
establishing who he was and told Officer Quinn that they
were going home after they had left a bar. During the
course of their discussion, [Appellant] turned and [] ran
from the police officers. Officer Quinn ran after [Appellant]
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and pulled out his [TASER] and fired it at him in an attempt
to stop him, however, he did not hit [Appellant]. Officer
Quinn then noticed that [Appellant] reached into his
waistband and pulled out a gun and discarded that gun.
Officer Quinn was able to stop [Appellant] after he tripped
over some railroad tracks. Once [Appellant] was
handcuffed, Officer Quinn went back to the area where he
saw the gun and retrieved a nine[-]millimeter semi-
automatic [handgun].
...
On December 16, [2014], following a jury trial, [Appellant]
was found guilty of the charge of possession of a firearm
without a license.[1] Prior to the commencement of that
jury trial, [the trial court] granted [Appellant’s] motion to
sever the charge of person not to possess a firearm and
heard that charge in a non-jury trial which was held in
conjunction with his jury trial. [Appellant] was found guilty
of the charge of person not to possess a firearm[2] since it
was stipulated between [Appellant] and the
[Commonwealth] that [Appellant] had two convictions for
delivery of a controlled substance[. Appellant and the
Commonwealth also stipulated that Appellant had twice
before been convicted of person not to possess a firearm.
N.T. Trial, 12/16/14, at 57.]
A presentence report was ordered and [Appellant] was
sentenced on March 3, 2015, to [serve an aggregate term
of two-and-a-half to five years in prison, followed by three
years of probation. N.T. Sentencing, 3/3/15, at 9-10.
Following the nunc pro tunc restoration of Appellant’s post-
sentence and appellate rights, Appellant’s post-sentence
motion was denied by operation of law on August 17,
2016].
Trial Court Opinion, 4/11/17, at 2-4.
____________________________________________
1
18 Pa.C.S.A. § 6106(a)(1).
2
18 Pa.C.S.A. § 6105(a)(1).
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Appellant filed a timely notice of appeal. He now raises four claims on
appeal:
1. Was the evidence insufficient to convict [Appellant]
because the Commonwealth did not provide proof that
[Appellant] received “actual notice” of the suspension of his
right to possess a firearm?
2. Did the trial court err by informing the jury that “anybody
[who] owns a gun” must “register it with the Pennsylvania
State Police”?
3. Did the trial court err by giving jury instructions that did
not adequately specify that concealment is a material
element of 18 [Pa.C.S.A.] § 6106?
4. Are the standard jury instructions for 18 [Pa.C.S.A.]
§ 6106 fundamentally flawed because they do not
adequately specify that concealment is a material element
of the offense?
Appellant’s Brief at 6-7.
Appellant first claims that the evidence was insufficient to support his
conviction for “person not to possess a firearm.” This claim fails.
We review Appellant’s sufficiency of the evidence claim under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
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the evidence is so weak and inconclusive that as a matter of
law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc) (internal quotations and citations omitted).
Appellant was convicted of person not to possess a firearm under 18
Pa.C.S.A. § 6105(a)(1). In relevant part, Section 6105 declares:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(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.
...
(c) Other persons.--In addition to any person who had been
convicted of any offense listed under subsection (b), the
following persons shall be subject to the prohibition of
subsection (a):
...
(2) A person who has been convicted of an offense
under the act of April 14, 1972 (P.L. 233, No. 64),
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known as The Controlled Substance, Drug, Device and
Cosmetic Act, or any equivalent Federal statute or
equivalent statute of any other state, that may be
punishable by a term of imprisonment exceeding two
years.
18 Pa.C.S.A. § 6105.
During trial, Appellant stipulated that he has two prior convictions for
possession of a controlled substance with the intent to deliver. N.T. Trial,
12/16/14, at 57. Thus, as Appellant acknowledges, Section 6105 prohibited
him from possessing a firearm on the night in question. See Appellant’s
Brief at 17. Nevertheless, Appellant claims on appeal that the evidence was
insufficient to support his Section 6105 conviction, as the Commonwealth
“did not provide any evidence demonstrating that the government had
informed [Appellant] that [he was prohibited from] possess[ing] a firearm.”
Id. Appellant’s claim fails.
Within Appellant’s brief, Appellant claims that “there are no cases
directly on point” with respect to the issue of whether a defendant’s actual
knowledge of the prohibition is an element of Section 6105. Appellant’s
Brief at 13. Appellant is incorrect. In Commonwealth v. Thomas, 988
A.2d 669 (Pa. Super. 2009), this Court held:
In order to obtain a conviction under 18 Pa.C.S. § 6105, the
Commonwealth must prove beyond a reasonable doubt that
the defendant possessed a firearm and that he was
convicted of an enumerated offense that prohibits him from
possessing, using, controlling, or transferring a firearm.
Thomas, 988 A.2d at 670.
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Therefore, under our binding precedent, Section 6105 has no “actual
knowledge” element. In accordance with Thomas, the crime of person not
to possess a firearm merely requires proof beyond a reasonable doubt that:
1) “the defendant possessed a firearm” and 2) the defendant “was convicted
of an enumerated offense that prohibits him from possessing . . . a firearm.”
Id. As such, Appellant is incorrect to claim that a defendant’s “actual
knowledge” of the prohibition is an element of Section 6105. Appellant’s
first claim on appeal necessarily fails.
Regardless, during Appellant’s trial, the Commonwealth introduced
evidence that Appellant had two prior convictions for violating Section
6105. N.T. Trial, 12/16/14, at 57 (“[t]he defense stipulates indicating that
[Appellant] has prior [possession with the intent to deliver] convictions as
well as two 6105s making him a person not to possess a firearm”). Further,
under Section 6105, an individual who is prohibited from possessing a
firearm does not automatically regain their ability to possess a firearm at the
end of a specified time. Rather, the statute declares that the individual must
apply, to the court of common pleas, “for relief from the disability imposed
by [Section 6105].” 18 Pa.C.S.A. § 6105(d).
Thus, Appellant’s prior convictions for “person not to possess firearms”
and his obvious failure to successfully apply for relief from the disability
imposed by Section 6105 prove that Appellant had “actual knowledge” he
was prohibited from possessing a firearm – and, for this second reason,
Appellant’s claim on appeal fails.
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Finally, Officer Quinn testified at trial that, after he approached
Appellant on the street, Appellant ran away from him and, as he was chasing
Appellant, he observed Appellant “reach[] towards his belt area and . . .
toss[] . . . [the] pistol” away. N.T. Trial, 12/16/14, at 22 and 27.
Appellant’s unprovoked flight from the police and his attempt to dispose of
the firearm while police were pursuing him constitutes sufficient
circumstantial evidence to prove that Appellant knew he was prohibited from
possessing the firearm. See Commonwealth v. Robinson, 128 A.3d 261,
265 (Pa. 2015) (“like all culpable mental states[, a defendant’s] . . . guilty
knowledge . . . may be inferred from circumstantial evidence”). Appellant’s
claim on appeal thus fails for this third, independent reason.
For Appellant’s remaining claims on appeal, Appellant argues: 1) that
the trial court erred when it instructed the jury that “anybody [who] owns a
gun” must “register it with the Pennsylvania State Police;” 2) that “the trial
court err[ed] by giving jury instructions that did not adequately specify that
concealment is a material element of 18 [Pa.C.S.A.] § 6106;” and, 3) that
“the standard jury instructions for 18 [Pa.C.S.A.] § 6106 [are]
fundamentally flawed because they do not adequately specify that
concealment is a material element of the offense.” Appellant’s Brief at 18-
24. All of these claims are waived, as Appellant did not object to any of the
trial court’s specified instructions. N.T. Trial, 12/16/14, at 26-27 and 54;
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (“[a]
specific and timely objection must be made to preserve a challenge to a
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particular jury instruction. Failure to do so results in waiver”) (internal
citations omitted); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal”).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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