Com. v. Lowery, H. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
HANSON LOWERY
Appellant No. 3474 EDA 2017
Appeal from the Judgment of Sentence imposed September 29, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0012832-2014
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 21, 2019
Appellant, Hanson Lowery, appeals from the judgment of sentence of
11½-23 months’ imprisonment plus five years’ probation with immediate
parole to house arrest for possession of a firearm with altered manufacturer
number (“firearm offense”),1 possession of an instrument of crime (“PIC”)2
and other offenses. Appellant argues that the evidence is insufficient to
sustain his convictions for the firearm offense and PIC. We affirm.
The trial court accurately summarized the evidence as follows:
On September 12, 2014, Police Officer Joseph Domico, assigned
to the Narcotics Field Unit of the Philadelphia Police Department,
went to the area of Cedar and Ann Streets in Philadelphia after
receiving information from a confidential informant that drug
activity was occurring there. Upon arrival, Officer Domico
searched a confidential informant and after determining that the
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1 18 Pa.C.S.A. § 6110.2.
2 18 Pa.C.S.A. § 907.
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informant had no money or drugs in his possession, he gave the
informant $20.00 in U.S. currency, the serial numbers of which
had been recorded by the officer, to use as “buy money” to
purchase drugs. Officer Domico then watched as the informant
approached a woman, later identified as Brianna Binz (ph.), and
spoke to her briefly. The officer also saw the informant hand the
buy money to Binz who then walked over to a black male who was
standing nearby on the corner and received an object from him
that she handed to the informant after walking back to him. Upon
getting the item from Ms. Binz, the informant returned to Officer
Domico and gave him a bag containing what testing revealed to
be marijuana and a pink pill later determined to be Oxycodone.
The informant also informed the officer of the name “Bree” and a
telephone number associated therein.
Officer Domico returned to that same location on October 3, 2014,
with the confidential informant to whom he gave $20.00 in pre-
recorded “buy money” and had call the number the informant had
relayed to the officer three weeks earlier. During the call, the
informant had a drug-related conversation with a female who
directed him to go to the intersection of Cedar and Memphis
Streets.
After the call ended, the informant went to the intersection
mentioned during the phone call where he met Ms. Binz, who,
after speaking to the informant, went to a residence located at
2115 Orleans Street and knocked on the door. Appellant
answered the door and Ms. Binz went inside with him. She exited
the property about two minutes later and handed the informant
two jars filled with marijuana, which the informant thereafter gave
to Officer Domico.
On October 15, 2014, Officer Domico again had the informant call
the number received on September 12, 2014. The informant
again spoke to a woman, after which the informant, having
received $120.00 in “buy money” from Officer Domico, who
searched him with negative results, went to the same area where
the two previous transactions occurred. Ms. Binz met the
informant there, who, after speaking with the informant, went to
2115 Orleans Street and knocked on the door. When no one
answered, Ms. Binz made a phone call. A short time later, the
male who gave Ms. Binz an item on September 12, 2014, and who
was wearing the same sweatshirt he had on that day, walked up
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to Ms. Binz and the informant, where he gave Ms. Binz an object
in exchange for U.S. currency.
After that transaction occurred, Appellant drove up in a Ford
Expedition and parked it in a vacant lot across the street. When
Appellant exited the Expedition, Ms. Binz walked up to him, and
after a brief conversation, handed him U.S. currency in exchange
for an object, which she gave the informant. The informant then
returned to Officer Domico a clear bag containing 12 grams of
marijuana a one Oxycodone pill.
Officer Domico returned to his office and prepared and obtained
search warrants for the Expedition, 2983 Cedar Street, and 2115
Orleans Street. He returned to the location where the previous
transactions occurred on October 16, 2014, and set up a
surveillance. The officer observed Ms. Binz and a Hispanic woman,
last name Lugo, with her who was braiding Ms. Binz’s hair. A
white male came onto the block and Ms. Lugo directed the male
to go to the corner. Ms. Binz then removed an object from her
bra and gave it to Ms. Lugo who walked up to the white male and
gave him the object in exchange for U.S. currency. The white
male then left the area.
After the white male departed, Officer Domico had members of his
back-up team apprehend Ms. Binz and Ms. Lugo. Incident thereto,
police recovered from Ms. Lugo a cell phone, an identification card
in her name, and $155.00. Police seized a plastic bag containing
eleven packets of marijuana, seventeen packets of crack cocaine,
and a key to 2983 Cedar Street. Officer Domico and other officers
then executed the search warrants. When police went to 2115
Orleans Street, Appellant answered the door and was placed
under arrest. Police recovered $1,350.00 from his back pocket.
A search of the residence yielded a bag hidden behind a couch
cushion that contained 354 grams of marijuana, four bags
containing eight grams of marijuana on a coffee table, a bottle
containing six Diazapam pills and an operable .32 caliber Kel-Tec
handgun loaded with nine rounds from under a couch cushion that
had its serial number scratched off. In addition thereto, police
recovered a scale, new and unused plastic bags, and an electric
bill for the residence in Appellant’s name. When police obtained
biographical information from Appellant, he stated that he resided
at 2115 Orleans Street.
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Trial Ct. Op., 3/13/18, at 2-5 (citations omitted). The Commonwealth also
introduced evidence that Appellant did not have a gun license. Id. at 5 n.3
(citation omitted).
Following a bench trial, the trial court found Appellant guilty of the
firearm offense, PIC and various drug charges, including possession with
intent to deliver the marijuana found in the couch and on the coffee table in
front of the couch. On September 29, 2014, the court imposed sentence.
Appellant filed a timely notice of appeal, and both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
1. Was the evidence insufficient to prove Appellant guilty of [the
firearm offense] under 18 Pa.C.S. § 6110.2?
2. Was the evidence insufficient to prove Appellant guilty of [PIC]
under 18 Pa.C.S. § 907?
Appellant’s Brief at 4.
In reviewing the sufficiency of the evidence, we must determine whether
the evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he
facts and circumstances established by the Commonwealth need not preclude
every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d
521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to
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determine the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 767
(Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence
and substitute our judgment for that of the fact-finder. Commonwealth v.
Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).
We first address Appellant’s challenge to the sufficiency of the evidence
of the firearm offense. 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.A.
§ 6110.2(a). Section 6110.2 is part of Pennsylvania's Uniform Firearms Act,
18 Pa.C.S.A. §§ 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.” Commonwealth v. Ford, 175 A.3d 985, 992 (Pa. Super.
2017). “To ensure that serial numbers remain intact on firearms, the
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legislature has prohibited persons from defacing these markings, see 18
Pa.C.S. § 6117(a), and from possessing defaced firearms, see 18 Pa.C.S. §
6110.2.” Id.
The evidence satisfies each element of Section 6110.2. First, construed
in the light most favorable to the Commonwealth, the evidence demonstrates
that Appellant was in constructive possession of the firearm. The
Commonwealth may establish constructive possession through the totality of
the circumstances. Commonwealth v. Muniz, 5 A.3d 345, 349 (Pa. Super.
2010); Commonwealth v. Walker, 874 A.2d 667, 678 (Pa. Super. 2005)
(defendant exercised dominion and control over illegal drugs found in home
office along with mail addressed to defendant and closet of his clothes). Here,
Appellant resided in the house where the police discovered the firearm, as
shown by an electric bill for the house in Appellant’s name and the fact that
Appellant answered the door on the date of one of the drug purchases
(October 3, 2014) and the date of his arrest (October 16, 2014). Moreover,
the trial court found Appellant guilty of possessing, with intent to deliver, 354
grams of marijuana found hidden in the same couch as the gun and four
baggies containing 32 grams of marijuana on a coffee table in front of the
couch. Appellant has not appealed his conviction for possession of marijuana
or argued in his brief that he did not possess the marijuana. Since it is clear
that he possessed the marijuana, it is equally clear that he possessed the
firearm.
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Next, the Commonwealth must prove that the firearm’s serial number
was “altered, changed, removed or obliterated.” 18 Pa.C.S.A. § 6110.2(a).
Natural corrosion of manufacturer’s numbers does not render them “altered,
changed, removed or obliterated” within the meaning of Section 6110.2.
Ford, 175 A.3d at 993. Appellant argues that it was more likely that the serial
number was altered by natural corrosion than by an affirmative act. We
disagree. During trial, Appellant stipulated to the accuracy of a firearms lab
report that stated that the gun was “defaced (scratched and gouged).” These
terms connote affirmative acts rather than natural corrosion. See Webster’s
New Universal Unabridged Dictionary 475 (2nd deluxe ed. 1983) (defining
“deface” as “to destroy or mar the face or surface of . . .”); id. at 789 (defining
“gouge” as “to scoop out with . . .”); id. at 1628 (defining “scratch” as “to
tear, mark, or scrape the surface of . . .”). Thus, the evidence demonstrates
that the serial numbers on the firearm were “altered, changed, removed or
obliterated.”
Finally, Appellant argues that he did not recklessly possess the gun in
question. A defendant can violate Section 6110.2, however, if he
intentionally, recklessly or knowingly possesses a firearm with an altered
serial number. Commonwealth v. Jones, 172 A.3d 1139, 1145 (Pa. Super.
2017). By hiding the gun in the couch, Appellant demonstrated that he knew
the gun needed to be concealed due to its altered serial number. Id. at 1145
(fact that defendant possessed gun and secreted it under garbage bags of
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clothing in back of closet indicated that he knew its serial number had been
altered). Thus, the evidence demonstrates that Appellant had the mens rea
required for conviction under Section 6110.2.
For these reasons, Appellant’s challenge to the sufficiency of the
evidence underlying his firearm conviction fails.3
In his second argument, Appellant claims that the evidence was
insufficient to sustain his conviction for PIC. We disagree. To prove this
offense, the Commonwealth must establish that Appellant possessed an
instrument of crime with intent to employ it criminally. 18 Pa.C.S.A. § 907(a).
An instrument of crime is “anything specially made or specially adapted for
criminal use” or “anything used for criminal purposes and possessed by the
actor under circumstances not manifestly appropriate for lawful uses it may
have.” 18 Pa.C.S.A. § 907(d).
Appellant’s gun was “adapted for criminal use,” id., because the purpose
of altering or obliterating serial numbers is to prevent police from tracing guns
used in crimes back to their users. Moreover, the circumstances of this case
demonstrate that Appellant intended to use the gun for criminal purposes. He
hid the gun, whose serial numbers were altered, in the same couch as 354
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3 It bears mention that Appellant was not charged with actually altering or
obliterating the gun’s serial number under 18 Pa.C.S.A. § 6117. He only was
charged and convicted of possessing an altered firearm under Section
6110.2. As discussed above, the Commonwealth demonstrated beyond a
reasonable doubt that Appellant knowingly possessed an altered firearm.
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grams of marijuana and nearby another 32 grams of marijuana packaged for
sale. Viewed in the light most favorable to the Commonwealth, this evidence
shows that Appellant hid the gun in the couch so he could use it to protect his
illegal drug business, a purpose not manifestly appropriate for its lawful use.
For these reasons, Appellant’s challenge to the sufficiency of the
evidence underlying his PIC conviction fails.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/19
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