Com. v. Mulero, Jr., B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BENIGNO JOSE MULERO JR., :
:
Appellant : No. 750 MDA 2013
Appeal from the Judgment of Sentence March 25, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division No(s).: CP-36-CR-0002636-2012
BEFORE: MUNDY, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 24, 2014
Appellant, Benigno Jose Mulero, Jr., appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas following
number,1 simple assault,2 and recklessly endangering another person3
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6110.2(a).
2
18 Pa.C.S. 2701(a)(1).
3
18 Pa.C.S. § 2705. We note that Appellant was initially charged with
aggravated assault, see 18 Pa.C.S. § 2702(a)(3), but the trial court, sua
sponte
and does not challenge his REAP conviction in this appeal.
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not establish he acted recklessly to the fact that the firearm in his
possession had an obliterated serial number. We conclude that Appellant is
entitled to relief, reverse the conviction for possession of a firearm with an
remand for resentencing.
The trial court summarized the background of this case as follows:
On April 6, 2012, Officers from the Lancaster City
Bureau of Police were dispatched . . . for a reported fight
involving three males and a possible gun. Officer Ryan
Hockley arrived to find two men, later identified as
[Appellant] and David Rosario, in a heated argument.
Officer Hockley observed Rosario remove what appeared to
be a gun from his waistband, place it on the ground and
punch [Appellant]. During the altercation, Rosario noticed
ay from the
retrieved the gun and took aim at Rosario. Officer Hockley
announced his presence and fired his duty weapon at
[Appellant] in an attempt to prevent him from shooting
Rosario.
[Appellant] and Rosario ran from the scene in different
directions. Officer Hockley observed [Appellant] run
Rosario. Another officer arrived and helped with
apprehending and arresting Rosario. Officer Hockley
radioed to other responding officers with a description of
[Appellant] and where he fled. Officers recovered the
firearm near where [Appellant] fled. The serial number
had been scratched off the gun.
* * *
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Following the presentation of evidence [at the bench
trial], the Court found [Appellant] guilty beyond a
reasonable doubt of possessing a firearm with an altered
aggravated assault count, the Court found [Appellant]
guilty of the lesser offense of recklessly endangering
another person.
On March 25, 2013, the Court sentenced [Appellant] to
an aggregate term of time served to 23 months of
possession of a firearm with an altered manuf
number]. On April 9, 2013, [Appellant] was paroled on
petition. . . .
Trial Ct. Op., 7/29/13, at 1-3 (unpaginated) (footnotes omitted). Appellant
timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court filed a
responsive Rule 1925(a) opinion.
with an altered serial number when he picked up the pistol Rosario had
placed on the ground and aimed it at Rosario. Id. at 14-15. He argues,
establish that he consciously disregarded a substantial and unjustifiable risk
that the firearm had an altered serial number. Id. at 15-16.
The Commonwealth asserts Appellant came into possession of the
firearm for the sole purposes of committing a criminal act. Co
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Id. Similarly, the trial court, in its Rule 1925(a) opinion, suggests
that the evidence established Appellant acted recklessly with respect to the
s
Ct. Op. at 5.
Following our review, we agree with the parties and the trial court that
a conviction under 18 Pa.C.S. § 6110.2 requires proof of culpability. We also
agree that the Commonwealth must show that a defendant was at least
in this case did not establish that Appellant acted recklessly with respect to
It is well settled that:
[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. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
resolved by the fact finder unless the evidence is so weak
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and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013) (citation
omitted), appeal denied, 77 A.3d 636 (Pa. 2013). The interpretation of the
statutory definition of an offense raises a questi
standard of review is de novo
Commonwealth v. Gravelle, 55 A.3d 753, 755 (Pa. Super. 2012)
(citsation omitted).
Section 6110.2 states, in relevant part:
Possession of firearm with altered ma
number
(a) General rule. No person shall possess a firearm
frame or receiver altered, changed, removed or
obliterated.
(b) Penalty. A person who violates this section
commits a felony of the second degree.
18 Pa.C.S. § 6110.2(a), (b).
Section 6110.2 does not specify the degree of culpability, or mens rea,
required to sustain a conviction. Section 302 of the Crimes Code, however,
provides additional guidance:
Culpability required unless otherwise
When the culpability sufficient to establish a
material element of an offense is not prescribed by law,
such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.
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18 Pa.C.S. § 302(c) (e
follows:
A person acts recklessly with respect to a material element
of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of
such a nature and degree that, considering the nature and
to him, its disregard involves a gross deviation from the
standard of conduct that a reasonable person would
18 Pa.C.S. § 302(b)(3) (emphases added).
By contrast, the lesser degree of culpability referred to as
A person acts negligently with respect to a material
element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of
failure to
perceive it, considering the nature and intent of his
conduct and the circumstances known to him, involves a
gross deviation from the standard of care that a
18 Pa.C.S. § 302(b)(4) (emphases added). The key distinction between
light of the totality of the circumstances. See Commonwealth v. Heck,
491 A.2d 212, 216 (Pa. Super. 1985).
Thus, the Crimes Code requires the Commonwealth to establish
culpability to sustain a conviction for possession of a firearm with an altered
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See 18 Pa.C.S. §§ 301(c), 302(b)(3)-(4), 302(c),
6110.2; see generally Commonwealth v. Pond, 846 A.2d 699, 706-707
liability statutes are an exception to the centuries old philosophy of criminal
coupled with moral
Commonwealth was required to demonstrate that Appellant acted
firearm,4 we will review the record in light of this concession.
Instantly, Officer Hockley testified that at 4:30 a.m. on April 6, 2012,
he responded to a report of a fight in progress, possibly involving a gun.
N.T. at 14-15. The officer exited his vehicle near the scene and heard
5
Id. at 16. As he approached on foot,
he observed Appellant and David Rosario on the sidewalk along Prince
Street, facing each other and standing two to three feet apart. When the
4
As discussed above, Appellant concedes possession of the firearm. We
the meaning of this section [defining voluntary act], if the possessor
knowingly procured or received the thing possessed or was aware of his
control thereof for a sufficient period to have been able to terminate his
5
A surveillance camera recorded an altercation among three individuals
before Officer Hockley arrived at the scene. N.T. at 59. Two of the
individuals in the recording were identified as Appellant and Rosario. Id.
Appellant testified that the third individual was his friend David Reyes was
his friend. Id. at 69-70.
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officer was within thirty to forty feet of Appellant and Rosario, he saw
Rosario reach into his waistband, retrieve an item, and place it on the
ground. Id.
Id. at 17-18. Believing Rosario
had a gun, the officer drew his duty weapon and continued to approach
Appellant and Rosario. Id. at 20. He then saw Rosario punch Appellant in
the face. Id. After striking Appellant, Rosario saw the officer and walked
from the scene with his back to Appellant. Id. at 21-22.
Appellant, whose back was to the officer, reached down and retrieved
observed a pistol in his hand and saw him point it at Rosario. Id. at 22.
Appellant did not pause to manipulate the firearm i.e.
load the weapon before pointing it at Rosario. Id. at 23, 26. The officer
Id. at 25. The officer fired several shots at Appellant. Id. Appellant
along the Prince Street. Id.
after he saw Appellant with the pistol in his hand.6 Id.
6
On cross-examination, Officer Hockley testified that he began firing
immediately after he saw Appellant pick up the firearm. See N.T., at 32.
Id. at 37.
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Id. The officer was unable to discern if Appellant was
still in possession of the firearm. Id. at 36.
According to Officer Hockley, Appellant ran north on Prince Street and
turned left to run west along the sidewalk of West King Street. Id. at 27.
While in pursuit, the officer called for assistance and then saw Rosario
running south on Water Street. Id. The officer apprehended Rosario with
the assistance of an off-duty officer who happened to be in the area. Id.
Meanwhile, Officer Hockley observed Appellant go behind a fast food
restaurant at the intersection of Water and King Streets and climb a fence
toward the 200 block of West Mifflin Street. Appellant was apprehended on
that block by another responding police officer. Id. at 28. Appellant did not
have a firearm when he was taken into custody. Id. at 29.
Appellant testified at trial. Of relevance to this appeal, Appellant
Id. at 71. He acknowledged that he took possession of the firearm Rosario
placed on the sidewalk. Id. at 76.
Additional officers responded to the scene and found a Smith &
Wesson .38 caliber revolver behind an iron gate on the first block of South
Prince Street, approximately twenty-five feet from the location of the
altercation between Appellant and Rosario. Id. at 35, 43. The revolver was
Id. at 46. Appellant stipulated t
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Id. at 50. However, at the time of trial, the serial
number had been partially restored using polishing and chemical etching
techniques. Id.
As noted above, it is conceded in this appeal that Appellant possessed
See
We also discern no reason to dispute that the Commonwealth established
Appellant intended to employ the firearm for criminal purposes. However,
the record established only that Appellant possessed the firearm for a matter
of seconds before the officer opened fire, after which Appellant ducked
behind parked cars, began fleeing the scene, and discarded the weapon
within twenty feet from where the altercation with Rosario occurred. The
Commonwealth did not adduce any evidence that the scratching or damage
to the serial number was obvious at the time of the incident. Moreover, the
evidence established Appellant, when picking up the firearm and pointing it
at Rosario, did not manipulate it any way to make the altered serial number
apparent.
We are mindful the trial court found that Rosario initially drew the
pistol from his waistband, set the firearm on the ground, and abandoned it
when he saw the officer approach. We also note that Appellant testified that
he knew Rosario from New York. Although the inferences from these facts
could establish that Appellant was aware Rosario was carrying a firearm
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illegally, they do not, even when construed in a light most favorable to the
Commonwealth, prove that Appellant consciously disregarded a substantial
7
Thus, we conclude that neither the manner in which Appellant came into
possession of the firearm, nor the circumstances surrounding his possession
and discarding of the firearm, suggest a conscious disregard of a substantial
ed. Accordingly, we are
Since our decision upsets the sentencing scheme of the trial court, we
vacate the judgment of sentence and remand this case for resentencing.
See Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013).
Judgment of sentence vacated. Conviction for possession of a firearm
resentencing. Jurisdiction relinquished.
7
arguments in this case, we do not address whether
terminate his possession. See 18 Pa.C.S. § 301(c). Furthermore, given the
plain language of Section 6110.2 and the rule of construction set forth in 18
appropriate level of culpability.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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