Com. v. Robles, G., II ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
GEORGE LUIS ROBLES, II,
Appellant No. 1302 MDA 2017
Appeal from the Judgment of Sentence entered on July 21, 2017,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0004084-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 11, 2018
George Luis Robles, II appeals from the judgment of sentence, entered
into after a jury trial, where he was convicted of various offenses including
firearms not to be carried without a license.1 After careful review, we affirm.
The trial court summarized the facts of this case as follows:
Marlon Bowen, II, a Victim, said that he and [Robles]
were acquaintances until they got into a dispute over a
girl. Before the date of the incident, [Robles] told Bowen
that he was going to shoot and kill him, according to
Bowen and another witness, Daniel Cabrera. On July 17,
2016, a witness, Xyiena Robbs, stated that she and the
two Victims, Bowen and Mikai Washington, were at a large
house party. A fight broke out between Bowen and
[Robles]. During this time, guns were taken from the
trunk of a vehicle and shots were fired as several people
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1 18 Pa.C.S.A. § 6106(a)(1).
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were trying to run away. Robbs witnessed [Robles] with a
gun later that night and testified that he threatened to
shoot her sister. Mikai Washington stated that he and
Bowen were walking down a nearby street when he heard
people yelling “run” before hearing several gunshots.
Robbs at that time witnessed [Robles] holding a gun in the
vicinity of Bowen and Washington although she never saw
him fire any shots. Washington suffered a gunshot wound
to the arm. Bowen believes that [Robles] shot Washington
and that the bullet was actually meant for Bowen.
Trial Court Opinion, 10/17/17 at 1-2.
Following his convictions, the court sentenced Robles to an aggregate
sentence of 7 to 20 years of imprisonment, followed by 5 years of special
probation. This timely appeal followed.
Robles raises only the following issue on appeal:
1. Whether the evidence was insufficient to sustain a
conviction for Amended Count 8 of the Information: 18
Pa.C.S.A. §6106(a)(1) Firearms Not to be Carried
Without a License?
Robles’ Brief at 9.
Our standard of review when reviewing a sufficiency of the evidence
claim is well established:
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, 556-60 (Pa. Super. 2011) (En
banc) (internal quotations and citations omitted).
Robles challenges his conviction of carrying a firearm without a
license. 18 Pa.C.S.A. § 6106(a)(1). Section 6106 provides in relevant part:
§ 6106. Firearms not to be carried without a license.
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 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)(1).
In order to convict Robles of carrying a firearm without a license, the
Commonwealth was required to show that: (a) Robles possessed a firearm,
(b) he did not possess a valid license to carry a firearm, and (c) the firearm
was carried in a vehicle or concealed about his person outside his place of
abode or fixed place of business. See Commonwealth v. Parker, 847
A.2d 745, 750 (Pa. Super. 2004).
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Robles does not contest the he possessed a firearm outside of his
home or abode or fixed place of business, or that he did not possess a valid
license to carry it. Instead, Robles argues that the Commonwealth failed to
prove an essential element of the offense, that is, the required barrel length
of the firearm as that term is defined in 18 Pa.C.S.A. section 6102. Section
6102 defines “firearm” as follows:
“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.
Robles argues that the Commonwealth, in failing to produce any direct
evidence that established the length of the gun’s barrel, fell short in meeting
the requisite burden of proof. During the trial, Xyiena Robbs testified that
the weapon she saw in Robles’ hand was “small,” and she acknowledged that
it was a handgun. Ms. Robbs further testified that “held [it] in one hand,”
and that it was black in color. See N.T., 6/20-6/22/17, at 115. According
to Robles, Ms. Robbs’ description is insufficient to make a finding that the
firearm was of the size described in section 6102, and argues that the she
should “have been asked to estimate the overall size or barrel length[.]”
Robles’ Brief at 19.
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We note that Robles has waived his sufficiency claim. In his 1925(b)
statement, Robles alleged generally that “the evidence was insufficient to
support the conviction for . . . Count 8: Firearms Not to be Carried Without a
License.” See Robles’ “Statement of Matters Complained of on Appeal” filed
9/5/2017. “In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must state with
specificity the element or elements upon which the appellant alleges that the
evidence was insufficient. Commonwealth v. Garland, 63 A.3d 339,344
(Pa. Super. 2013). Robles failed to specify which elements he was
challenging in his firearms not to be carried without a license conviction in
his 1925(b) statement. Thus, we find Robles’ sufficiency claim waived on
this basis. See Commonwealth v. Pukowsky, 147 A.3d 1229 (Pa. Super.
2016) (finding the defendant’s statement of errors did not inform the court
with any specificity about the elements that the evidence was insufficient).
However, even assuming Robles’ sufficiency claim was not waived, we
find the record contained sufficient evidence to convict him for firearms not
to be carried without a license.
The Commonwealth relies on our decision in Commonwealth v.
Rozplochi, 561 A.2d 25 (Pa. Super. 1989), where we held that sufficient
evidence existed to show the barrel length of the gun fell within the
prescribed dimensions defined in section 6102. In that case, a witness
testified that the weapon was inside an envelope and that the envelope was
“about this high” and “not too wide.” Another witness testified that the
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defendant had a “small black gun.” We further noted that “none of the
evidence of record indicat[ed] that the gun had an exceptionally long barrel
length and [the] appellant [had] never offered to come forward with any
evidence which would show that the gun was not a firearm.” Rozplochi, 561
A.2d at 31-32.
Although Ms. Robbs did not indicate the approximate dimensions to
explain the size of the gun in the same way the witness did in Rozplochi,
we nonetheless find that the Commonwealth provided sufficient evidence to
prove beyond a reasonable doubt that the barrel length of the gun was less
than 15 inches. Additionally, the Commonwealth presented two color
photographs into evidence, which Robles had previously sent to Bowen. One
depicted Robles holding a black handgun, and the other appeared to be a
black handgun tucked inside a waistband. The jury could reasonably infer
that the gun shown in the text message photos was the same gun that Ms.
Robbs observed Robles holding on the day of the incident. These photos,
coupled with Ms. Robbs’ description of the weapon, are sufficient evidence to
support a reasonable inference that the firearm had a barrel length of less
than 15 inches.
Because the Commonwealth presented sufficient evidence to support
Robles’ conviction of carrying a firearm without a license, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2018
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