Com. v. Williams, J. ( 2017 )

J-S96040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMEELE HAKEEM’ALI WILLIAMS
Appellant No. 534 WDA 2016
Appeal from the Judgment of Sentence Dated March 9, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000815-2015
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
JUDGMENT ORDER BY SOLANO, J.: FILED MARCH 14, 2017
Appellant, Jameele Hakeem’ali Williams, appeals from the judgment of
sentence following a jury trial and convictions for possession of an
instrument of crime,1 carrying firearms without a license,2 and reckless
endangerment.3 On appeal, he challenges the sufficiency of the evidence for
his firearms conviction, the weight of the evidence for all his convictions, and
the discretionary aspects of his sentence. We affirm.
The trial court’s opinion accurately sets forth the facts and procedural
history. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement,
and raises the following issues on appeal:
____________________________________________
1
18 Pa.C.S. § 907(a).
2
18 Pa.C.S. § 6106(a)(1).
3
18 Pa.C.S. § 2705.
J-S96040-16
The evidence in this case was insufficient to support the firearms
not to be carried without a license charge since the
Commonwealth did not present testimony of the actual barrel
length of the alleged firearm.
The verdict in this case was against the weight of the evidence in
that the evidence did not prove that [Appellant] was the
individual who actually discharged the firearm[.]
The sentence in this case was manifestly excessive and clearly
unreasonable when the court’s sentence fell within the
aggravated range of the sentencing guidelines and the specific
traits of [Appellant].
Appellant’s Brief at 3.
Our standard of review as it pertains to Appellant’s sufficiency
argument follows:
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 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 the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. . . .
Moreover, in applying the above test, the entire record must be
evaluated and all evidence actually received must be considered.
Finally, the finder 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. Roberts, 133 A.3d 759, 767 (Pa. Super.) (citation
omitted), appeal denied, 145 A.3d 725 (Pa., Sep. 6, 2016).
-2-
J-S96040-16
A weight claim must be preserved by raising it with the trial court. See
Pa.R.Crim.P. 607(A). When properly preserved, our standard of review of a
weight claim is:
A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial
court. An appellate court, therefore, reviews the exercise of
discretion, not the underlying question whether the verdict is
against the weight of the evidence. The factfinder is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The trial court will award a new trial
only when the jury’s verdict is so contrary to the evidence as to
shock one's sense of justice. In determining whether this
standard has been met, appellate review is limited to whether
the trial judge’s discretion was properly exercised, and relief will
only be granted where the facts and inferences of record disclose
a palpable abuse of discretion. Thus, the trial court’s denial of a
motion for a new trial based on a weight of the evidence claim is
the least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation
omitted).
Finally, the law governing our review of a challenge to the
discretionary aspects of a sentence is well-settled:
Our jurisdiction to hear such a challenge is discretionary, and we
may not exercise our discretion to review such an issue unless
we first determine that: (1) the appeal is timely; (2) Appellant
preserved his issue; (3) Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of an appeal
with respect to the discretionary aspects of his sentences, as
required by Rule 2119(f) of the Pennsylvania Rules of Appellate
Procedure; and (4) that concise statement raises a substantial
question that the sentences were inappropriate under the
Sentencing Code.
Commonwealth v. Flowers, 149 A.3d 867, 870 (Pa. Super. 2016)
(footnote and citation omitted).
-3-
J-S96040-16
Instantly, after careful review of the record, the parties’ briefs, and the
opinion of the Honorable Robert A. Sambroak, Jr., we affirm based on the
trial court’s opinion. See Trial Ct. Op., 7/13/16, at 9-14 (holding evidence
established barrel length of Appellant’s firearm was less than fifteen inches
because, among other things, a witness testified the gun was approximately
ten inches in length and Appellant withdrew the gun from his pants pocket;
Appellant failed to preserve his weight claim; and the court complied with
the Sentencing Code in sentencing Appellant). Accordingly, having
discerned no abuse of discretion, or error of law, we affirm the judgment of
sentence.
In the event of further proceedings, the parties shall attach a copy of
the trial court’s July 13, 2016 opinion to this memorandum.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2017
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Circulated 02/21/2017 03:32 PM
COMMONWEAL TH OF PENNSYLVANIA )IN THE COURT OF COMMON PLEAS
) OF ERIE COUNTY, PENNSYLVANIA
v. )
)
JAMEELE HAKEEM' ALI WILLIAMS ) No. 815 of 2015
1925{a) OPINION
On March 9, 2016, the Defendant was sentenced to serve an aggregate term of eighty
seven months to one hundred eighty six months (seven years, three months to fifteen years, six
months) incarceration after conviction by a jury of recklessly endangering another person, a
misdemeanor of the second degree, firearms not to be carried without a license, a felony of the
third degree, and possessing an instrument of a crime, a misdemeanor of the first degree. At the
same time, the Defendant was revoked from probation and re-sentenced at two other dockets.
The defendant in this appeal now claims the sentence was manifestly excessive and the
conviction itself against the weight of the evidence. He also alleges there was insufficient
evidence presented to support a conviction for Firearms to Be Carried Without a License. The
Defendant's arguments afford him no basis for relief. It is therefore requested the Superior Court
affirm the judgment of sentence.
BACKGROUND
Procedural History
The Defendant was charged with the criminal homicideof Arbie Wilson, conspiracy to
commit criminal homicide, one count of aggravated assault on an individual named Derick
Hemphill, an additional count of aggravated assault on Arbie Wilson, possession of an
instrument of crime, firearms not to be carried without a license, criminal attempt at criminal
homicide, and recklessly endangering another person.
1
Following a pre-trial motion hearing, the conspiracy charge was dismissed. No appeal
was taken by the Commonwealth.
Trial began on August 31, 2015. At the conclusion of the Commonwealth's case-in-
chief, the Defendant's motion for judgment of acquittal for the charge of criminal attempt to
commit criminal homicide was granted.
A jury then found the Defendant not guilty of criminal homicide and both counts of
aggravated assault. The jury found the Defendant Guilty of recklessly endangering another
person, but was unable to reach a verdict as to the other charges. A mistrial on those charges was
declared.
The Commonwealth retried the Defendant on the deadlocked counts. In the interim, the
Defendant filed a motion to sever the remaining charges from that of his co-defendant, Keith
Horton. The motion was granted.
At the end of the second trial, the Defendant was convicted by a jury on all remaining
charges.
On March 9, 2016, the Defendant was sentenced at Docket 815-2015 and revoked and
resentenced at Dockets 1709-2014 and 3134-2011 to an aggregate sentence of eighty seven
months to one hundred eighty six months incarceration (seven years, three months to fifteen
years, sixteen months). Defendant's timely post-sentence motions were denied.
The Defendant filed a timely notice of appeal on April 13, 2016. That same day, this
court directed the Defendant to file his l 925(b) statement within twenty-one days. Subsequently,
the Defendant filed two petitions to extend the time within which to file this statement because
the transcripts of the trial were not yet available for review by defense counsel. Each request
was granted. The statement was finally ordered filed by June 27, 2016 and counsel complied.
2
Facts
On the evening of November 21, 2014, the Defendant attended a birthday party for a
friend at the Red Tomato Lounge on the comer of 181h and Peach Streets in the City of Erie. The
victim, Derrick Hemphill, was also present with his girlfriend, Shadarea Flemings. They arrived
at the Red Tomato around 1 :00 a.m. Jury Trial, Transcript, Day 2, 2/2/16, p. 27-29.
At some point, Ms. Flemings briefly left the Red Tomato with a female friend to get
cigarettes from her car, which was parked in the Firestone parking lot across the street from the
Red Tomato. Jury Trial Transcript, Day 2, 2/2/16, p. 27, 31.
After retrieving her cigarettes, Ms. Flemings returned to the party. However, security did
not search her when she re-entered. A man standing near the door, Keith Horton, commented to
the security guards about this. The security guards asked Ms. Flemings to return to the doors and
to submit to a search. Ms. Flemings, though compliant, became irate, started to scream, yell, and
"run her mouth." Jury Trial Transcript, Day 2, 2/2/16, p.32-33, 35.
A verbal altercation took place between Mr. Horton and Ms. Flemings. The Defendant
decided to join in. He told Ms. Flemings he was going to "beat her ass and make her go get her
dude." Jury Trial Transcript, Day 2, p. 33-34. Eventually, Flemings returned to the party room
where Hemphill was waiting for her and told him what happened. The Defendant did not follow
her or continue the argument inside the Red Tomato. Jury Trial Transcript, Day 2, 212/16, p. 36.
Soon after, Mr. Hemphill and Ms. Flemings left the Red Tomato together; While Ms.
Flemings and Mr. Hemphill were leaving the party, Ms. Flemings was still irate and "running her
mouth." Jury Trial Transcript, Day 2, 2/2/16, p. 37.
While in the middle of 181h Street, heading towards the Firestone parking lot, Ms.
Flemings and Mr. Hemphill heard people coming around the back of the Red Tomato, shouting.
3
Ms. Flemings identified two individuals=one as the Defendant, and one as Mr. Horton. The
Defendant threw down his jacket and ran up to where Horton, Flemings, and Hemphill were.
standing. Hemphill asked the Defendant ifhe wanted to fight. Jury Trial Transcript, Day 2,
212/16, p. 39-40.
Mr. Hemphill started to "square off' with the Defendant. Ms. Flemings testified that in
the midst of this, she saw the Defendant reach in his pocket and try to take something out. At
that point, Flemings yelled to Hemphill that the Defendant had a gun and to run. Jury Trial
Transcript, Day 2, 2/2116, p. 40, 60. Mr. Hemphill ran. Flemings watched the Defendant chase
Hemphill while firing shots at him. She was adamant she saw a gun in the hands of the
Defendant and that he was firing it at her boyfriend. Jury Trial Transcript, Day 2, 2/2116, p. 4 I.
After Hemphill ran, Ms. Flemings lost track of him and got a ride home with someone
else in the parking lot. She then called the police. Jury Trial Transcript, Day 2, 2/2116, p. 42.
She did not see Mr. Hemphill again until hours later when he arrived home. Jury Trial
Transcript, Day 2, 2/2/16, p. 43.
Ms. Flemings identified the Defendant and Horton as the persons on a video of the
incident retrieved from the Labor Temple Building. The video showed the Defendant and
Horton returning to a car, opening the door, and taking something from it. Jury Trial Transcript,
Day 2, 2/2/16, p. 66-67. The Commonwealth alleged this item was a firearm.
The Commonwealth also presented testimony from John Leggiero, an eyewitness to the
incident. Leggiero testified that while he and his friends were leaving the King's Rook Club
around 1 :45 a.m. on November 22, 2014, he saw what appeared to be a fight in the middle of is"
street. He described seeing two people meeting face-to-face in the street, with other people on
the sidewalk gathering to watch. Jury Trial Transcript, Day 2, 212116, p. 4-6. During the few
4
seconds Leggiero and his friends stopped their car to watch, Leggiero testified he saw the person
facing west pull out a gun. Id. at 7. The person facing east did not have a weapon. Leggiero saw
this individual run west, towards his car. Id at 8. The person fleeing got within five to seven
feet of him. Id. Their car was directly in the shooter's line of fire, so Leggiero and company
quickly turned right leaving the parking lot and drove to Peach Street, away from the trouble. Id
at 9-10.
Leggiero stated the person fleeing was wearing jeans and a gray hoodie. The person who
had the weapon was wearing a white hoodie and jeans. Jury Trial Transcript, Day 2, 2/2/16,p.
13. He described the gun as large, about ten inches long, and chrome in color. Id. at 16.
Various officers of the Erie City Police Department were dispatched to the area of l 8 h
1
Street between Peach and State Streets for shots fired. Jury Trial Transcript, Day 2, 2/2116,p.
73. Detective Jay White was called to the scene to collect evidence and take photographs. Id. at
72. White recovered twenty shell casings, bullet fragments, and live rounds in the surrounding
area. He also recovered a firearm with no live rounds chambered and a full eleven round
magazine. Id. at 85-86. He photographed the location where the physical objects were found
before sending the items themselves to the Pennsylvania State Police Crime Lab for analysis. Id
at 75.
Shell casings, bullet fragments, and live rounds were also found in front of the Firestone
building, in front of the entrance to the Erie Motel, near the garage bay doors of the Firestone lot,
in the middle of l81h Street, the crosswalk area of 18th Street, and in and around the driveway to
the Firestone Parking Lot. Jury Trial Transcript, Day 2, 212116,p. 77, 79, 80, 82, 85, 88-89.
All of the shell casings, bullet fragments, and live rounds recovered were .40 caliber cartridges or
casings. Id at 94.
5
Video feed was recovered from the Labor Temple building on State Street and the hotel.
Id at 90-91. In the hotel video, footage of the actual incident had somehow been erased or
deleted and could not be restored, despite attempts by the forensics lab to recover it. Id. at 91-
92. The video from the Labor Temple, however, was crucial to the Commonwealth's case and
played several times for the jury by both sides and during closing arguments. It showed the
defendant and his codefendant running to a car on State Street, taking from the car what
appeared to be guns, then running back up to the hotel area. Within seconds the video then shows
the two running back to the car, picking up a third passenger then driving away from the scene as
police began arriving in response to a shots fired call.
Sergeant Anthony Ferraro of the Pennsylvania State Police testified as an expert in
firearm and tool examination. Jury Trial Transcript, Day 2, 2/6/16,p. 109. Among the-items
Ferraro analyzed were sixteen discharged cartridge cases, four discharged and mutilated metal
bullet jacket fragments, four mutilated bullet fragments, a Beretta semiautomatic pistol and
detachable box magazine for that pistol, eleven undischarged cartridges, and three additional
undischarged cartridges that were collected from the same scene. Id al 11 J. Based on his
education, training, and experience, Ferraro determined that thirteen of the sixteen cartridge
cases were discharged from one unknown firearm. He could not identify whether the four bullet
fragments were discharged from the same firearm. Id at 115. The other three undischarged
casings came from a different gun. Id at 116.
Based on the markings on the casings, Ferraro was able to narrow down the type of gun
that may have discharged the casings to several firearms, a Glock, Id at J 23, and gW1S
manufactured by Federal Arms, Smith and Wesson, and Storm Lake. Id at 127. No handgun of
was found by the police matching any type of firearm manufactured by these companies.
6
Detective Kem1ing of the Erie Police Department was called by the Commonwealth to
lay the foundation for the videotaped statement Mr. Hemphill gave to police once Hemphill took
the stand as a Commonwealth witness and basically claimed he did not remember anything about
the eventsthat night. The taped statement was played for the jury. Among other details,
Hemphill in his interview described the shooter as carrying a "Glock." . He further commented
that if a gun wasn't a revolver, it was a Glock, to describe how he defined and characterized
different types of firearms.
Kemling also authenticated the Pennsylvania State Police Certification Regarding
License to Carry a Firearm and confirmed the Defendant was not an individual licensed to carry.
Jury Trial Transcript, Day 2, 2/2/16,p. 141. Finally, Kernling narrated how the video secured
from the front lobby of the Erie Hotel was located and retrieved. While the video did not show
the actual shooting or the defendant with a gun, it did show several individuals running. One
individual was wearing a white hooded sweatshirt. Jury Trial Transcript, Day 2, 2/2116,p. I 47.
Based on these facts, the second jury convicted the Defendant of firearms not to be
carried without a license (F3), and possessing an instrument of a crime (Ml).
ISSUES PRESENTED
The defendant first claims his sentence was manifestly excessive and clearly
unreasonable in that it failed to consider the Defendant's rehabilitative potential and was handed
down without sufficient reasons stated on the record.
Second, the evidence was insufficient to support the Fireanns Not to be Carried Without
a License charge since the Commonwealth did not present testimony of the actual barrel length
of the alleged firearm.
7
Third, the jury's decision in the case was against the weight of evidence since the
evidence did not prove the Defendant was the individual who actually discharged the firearm.
STANDARD OF REVIEW
The imposition of a sentence is vested in the discretion of the sentencing court and will
not be disturbed absent a manifest abuse of discretion. Commonwealth v. Walls. 926 A.2d 957
(Pa. 2007) (citing Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)). An abuse of
discretion is more than a mere error ofjudgment; thus, a sentencing court will not have abused
its discretion unless "the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will." Id.
When reviewing a claim challenging the sufficiency of the evidence, the appellate court
considers "whether the evidence presented at trial, and all reasonable inferences drawn
therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support
the jury's verdict beyond a reasonable doubt." Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted), cert. denied, Patterson v. Pennsylvania 135 S. Ct. 1400 (2015).
"The Commonwealth can meet its burden by wholly circumstantial evidence and any
doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter oflaw, no probability of fact can be drawn from the
combined circumstances." Commonwealth v. Watley, 81.3d 108, 113 (Pa. Super. 2013). "[T]he
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." Id. However, the "evidence need
not preclude every possibility of innocence." Id Furthermore, the appellate court is "not
permitted to re-weigh the evidence and substitute [its]judgment for that of the fact-finder." Id.
8
"Because evidentiary sufficiency is a question of law, [the appellate court's] standard of
review is de novo and [itsJ scope of review is plenary." Commonwealth v. Diamond, 83 A.3d
119, 126 (Pa. 2013).
The standard of review regarding a claim the jury verdict was against the weight of the
evidence is likewise well-settled. A claim such as this is "addressed to the discretion of the trial
court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does
not answer for itself whether the verdict was against the weight of the evidence."
Commonwealth v. Karns, 50 A.3d. 158, 165 (Pa.Super.2012).
Additionally, the fact finder is "free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses, and a new trial based on a weight of the evidence
claim is only warranted where the [factfinder's] verdict is so contrary to the evidence that it
shocks one's sense of justice." Id To determine whether this standard has been met> appellate
review "is limited to whether the trial judge's discretion was properly exercised, and relief will
only be granted where the facts and inferences of record disclose a palpable abuse of discretion."
Id.
However> when a claim the jury's verdict was against the weight of the evidence was not
raised orally on the record, at any time before sentencing, by written motion at any time before
sentencing, or in a post-sentence motion, that claim is waived on appeal. See Pa. R. Crim.P.
607. See also Commonwealth v. Priest, 18 A.3d 1235, 1239 {Pa. Super. 2011).
DISCUSSION
The Defendant first challenges the legitimacy of his sentence, claiming it was manifestly
excessive, clearly unreasonable, was not supported by the record, and failed to consider the
Defendant's rehabilitative potential and other mitigating factors.
9
A sentencing court is required to place on the record its reasons for imposition of
sentence. 42 Pa. Cons. Stat. §9721 (b). Failure by a court to state of record any reason for the
sentence imposed presents a substantial question for review. Commonwealth v. Cappellini, 690
A.2d 1220 (Pa. Super. 1997). The sentencing judge can satisfy this requirement by identifying
on the record that he was informed by a pre-sentence report. Commonwealth v. Devers, 546 A.2d
12 (Pa. 1988).
Where the sentencing court has the benefit of a pre-sentence report, it is presumed the
court was aware of the relevant information regarding the Defendant's character and weighed
those considerations along with the mitigating statutory factors delineated in the Sentencing
Code. Commonwealth v. Cruz-Centeno, 668 .A2d 536, 545 (Pa. Super. 1995). An appellate
court will not substitute its judgment for that of the sentencing court. Commonwealth v. Rogers,
563 A.2d 165, 168 (Pa. Super. 1989).
When considering whether a sentence is manifestly excessive, the appellate court must
give great weight to the sentencing court's discretion because it is in the best position to measure
the nature of the crime, the defendant's character, and the defendant's display of remorse,
defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948 (Pa. Super. 1997).
Finally, when the sentencing court has handed down a sentence in the aggravated range, a
court must state its reasons on the record and the record must support the court's sentence. Pa.
Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super. 1995). Prompt or recent recidivism is an
aggravating factor because it gives "rise to an inference of intransigence rather than a mere
relapse following sincere attempts to reform." Commonwealth v. Penrod, 578 A.2d 486, 491
(Pa. Super. 1990). See also, Commonwealth v, Eck, 654A.2d1104, 1106-07 (Pa. Super. J 995)
10
(considering information that a crime committed while defendant was on probation was an
aggravating sentencing/actor).
Among those factors in this case considered and made part of the record were: I) the
pre-sentence report; 2) revocation summary; 3) statements of counsel and family members; 4)
the defendant's own statement; 5) letters received on the defendant's behalf; 6) the nature of the
offenses, given the testimony at trial, 7) the defendant's rehabilitative needs, and the impact of
the crimes on the community; 8) the fact the defendant committed the currents crime while on
supervision for the same crime at docket 1709-2014; 9) the previous reckless endangerment
\
charge involving a firearm at docket 3134-2011; 10) the defendant's lack of treatment needs; and
11) the age of the defendant. Parole/Probation Revocation and Sentencing Transcript, 3/9/16,p.
16-17,
Weight was given to the serious impact the Defendant's actions had on the community.
The Defendant's charges stemmed from a situation in which he retrieved a gun from a vehicle
and fired shots on a major public street with a crowd present. He then chased the victim, Derrick
Hemphill up another busy and well- traveled public street, with intent to harm him.
Parole/Probation Revocation and Sentencing Transcript, 3/9/16,p. 18.
Additionally, weight was given to the fact the Defendant committed the offenses while on
supervision for only two months on another gun related offense. His most recent conviction is his
third conviction on a firearms related offense. Parole/Probation Revocation and Sentencing
Transcript, 3/9/16,p. 14. The Defendant's choices show his inability to comply with probation's.
requirements and the necessity of the sentence imposed. Moreover, the Defendant's prompt
relapse after being on supervision for such a short period of time shows he has not made a
meaningful effort to reform.
11
He was afforded every possible chance to prove he could be a productive member of
society yet refused to follow the rules of probation and chose to commitnew crimes involving
guns. Parole/Probation Revocation and Sentencing Transcript, 3/9/16, p. 14, 18. Though the
Defendant clearly had the support of his family, he failed to utilize this support at every tum,
instead placing himself in a situation where he became a serious threat to other members of the
community.
Given the Defendant's previous gun charges, the Defendant was no stranger to the law,
its requirements, or the conditions of probation. Along with the impact of the crimes on the
community, and the fact the crimes were committed after the Defendant had· been on probation
for a short time, the sentence was not manifestly excessive.
Appellant next claims there was insufficient evidence presented at trial to support the
Firearms Not to be Carried Without a License charge because the Commonwealth did not present
testimony of the actual barrel length of the alleged firearm. This contention is contradicted by
the record.
The governing statute for this offense provides in part as follows:
§6106 Firearms not to be carried without a license
(a) 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.
The Crimes Code defines "firearm" in the following manner:
§6102 Definitions
"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
12
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.
Direct and circumstantial evidence was presented at trial regarding the size of the gun.
Mr. Leggiero confirmed he described the gun he saw as "large," "about ten inches long," and
"chrome" in color. Jury Trial Transcript, Day 2, 212116, p. 16. Additionally, Ms. Flemings
described seeing the Defendant pull the gun out of his pocket. Id. at 40. Mr. Hernphill's stated in
his interview with police that the shooter had a "Glock," which is a type of handgun that is not a
revolver. See Derrick Hemphill Disk Redacted 2/1/16. This information allowed the jury to
corroborate Leggiero's testimony, and to properly infer the gun would necessarily have to be
small enough to fit inside a jeans pocket, but large enough to be seen by Leggiero a short
distance away.
Additionally, the testimony presented by Sergeant Anthony Ferraro of the Pennsylvania
State Police showed the projectiles found at the scene could only have been fired from one of .
four types of firearms, all different makes or models of handguns. Jury Trial Transcript, Day 2,
212116,p. 123, 127.
The combined testimony ofLeggiero, Hemphill, Flemings, and Ferraro when viewed in
a light most favorable to the Commonwealth supports the jury's reasonable inference and
determination the weapon in question was not a rifle or a gun in excess of twenty-six inches.
Therefore, Defendant's second issue fails to entitle him to relief.
The Defendant's final allegation that the jury's decision to convict on all remaining
charges was against the weight of the evidence was not properly preserved for appeal and affords
him no basis for relief.
Pennsylvania Rule of Criminal Procedure Rule 607 provides as follows:
13
(A) A claim that the verdict was against the weight of the evidence shall be raised
with the trial judge in a motion for a new trial:
( l) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Furthermore, the Comment to this Rule states its purpose is to "make clear that a
challenge to the weight of the evidence must be raised with the trial judge or it will be waived.
Appellate review of a weight of the evidence claim is limited to a review of the judge's exercise
of discretion." Id.
The Defendant did not present a weight of the evidence claim orally or in writing before
sentencing, or in a post-sentence motion. Thus, his claim on this basis is waived. Com. v.
Bryant, 57 A.3d 191,196 (2012).
CONCLUSION
All issues raised by defendant are without legal support. The sentence was not
manifestly excessive given the Defendant's prior charges, the fact the crimes were committed
while he was on supervision and the impact of the crimes on the community. Further, the
Commonwealth provided sufficient evidence to allow the jury to reasonably conclude the firearm
carried by the Defendant met the requirements of the statute. Finally, his challenge to the weight
of the evidence is waived for failing to raise the issue at any time before sentencing or in a post-
sentence motion. It is therefore requested the Superior Court affirm the judgment of sentence.
i'1-.
Dated this t ) day of July, 2016.
14