Com. v. Santana, A. ( 2023 )

J-S26022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERTO SANTANA :
:
Appellant : No. 2539 EDA 2022
Appeal from the Judgment of Sentence Entered September 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004445-2021
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 5, 2023
Alberto Santana appeals from the judgment of sentence imposed after
he was convicted of several firearm charges.1 He challenges the sufficiency
of the evidence. Upon review, we affirm.
The trial court summarized the pertinent facts and procedural history as
follows:
On April 18, 2021, around 3:30 p.m., Angela Smith (“Ms. Smith”)
was working at the Sunoco gas station at 500 W. Erie Ave. in
Philadelphia. Alberto Santana (“[Santana]”) was using one of the
station’s video gaming terminals. He had won over $200 in
vouchers and wished to exchange them for cash. Due to some
system error, however, Ms. Smith was unable to immediately pay
[Santana] the full amount to which he was entitled. [Ms. Smith
testified that Santana] grew angry; he withdrew a black handgun
from his waistband and asked [her] if she would rather he rob the
____________________________________________
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.
J-S26022-23
station. Although Ms. Smith was behind plexiglass during the
encounter, she testified that the handgun was held only a few feet
away from her. She further testified that she had seen firearms
on about five prior occasions.
Ms. Smith promptly called her manager, and [Santana] left the
gas station in his car. [He] returned to the station about [ten]
minutes later, and Ms. Smith told him that the police were on their
way. Police arrested [Santana] shortly thereafter. No handgun
was recovered.
[Santana] was charged with three counts: (i) possession of
firearm prohibited, 18 Pa. C.S.A. § 6105(a)(1); (ii) firearms not
to be carried without a license, [id.] at § 6106(a)(1); and (iii)
carrying firearms on public streets in Philadelphia, [id.] at § 6108.
[Santana] elected a bench trial and, on April 7, 2022, was tried
before [the trial court]. The parties stipulated to [Santana’s]
ineligibility to possess a firearm. [He] was subsequently found
guilty on all counts.
Trial Court Opinion, 01/30/23, at 1-2.
On September 27, 2022, Santana was sentenced to four to eight years’
incarceration. Santana filed a post-sentence motion, which the trial court
denied.
Santana filed this timely appeal. He and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Santana presents the following single issue for our review:
Did the Commonwealth present sufficient evidence to sustain a
conviction for [s]ections 6105, 6106, and 6108 of the Uniform
Firearms Act?
Santana’s Brief at 7.
In reviewing a sufficiency claim, this Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom when viewed in the
-2-
J-S26022-23
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super 2011) (citations
omitted). “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Johnson, 236 A.3d 1141, 1152 (Pa. Super. 2020) (citations omitted).
Santana first claims that the evidence was insufficient to convict him of
persons not to possess a firearm under section 6105. To convict a defendant
of this offense, the Commonwealth must show that the defendant has been
convicted of an offense enumerated in section 6105(b) and possessed a
“firearm.” 18 Pa.C.S.A. § 6105(a)(1). For purposes of this offense, “firearm”
is defined as:
(i) Firearm.--As used in this section only, the term “firearm” shall
include any weapons which are designed to or may readily be
converted to expel any projectile by the action of an explosive or
the frame or receiver of any such weapon.
Id. at § 6105(i).
Here, the parties stipulated that Santana was prohibited from
possessing a firearm under section 6105 due to prior convictions. Thus, the
first element was easily established. Santana argues, however, that the
Commonwealth failed to present sufficient evidence to establish that he was
in possession of a “firearm” on the day in question. Specifically, he claims
that: 1) the testimony of a single witness was insufficient to sustain his
-3-
J-S26022-23
conviction because he did not discharge the gun and police did not discover a
gun; 2) expert testimony was required to prove that the object Ms. Smith saw
was a gun; and 3) the Commonwealth was required to prove the gun was
operable. See Santana’s Brief at 8. We disagree.
Our review of the record discloses that the uncontroverted evidence was
sufficient to establish that Santana possessed a gun during the incident at the
gas station. At trial, Ms. Smith testified that Santana pulled a black handgun
from his waist after she told him she could not pay out his winnings. While
holding the gun, Santana threatened to rob the gas station. Santana held the
gun only a few feet from Ms. Smith, giving her a good view of it. Santana
then put it back in his waistband. Ms. Smith further testified that she had
seen a gun roughly five times prior to the incident, including once during a
robbery. As such, she was familiar with guns and able to identify the object
Santana had as a gun. N.T., 4/7/22, at 9-14.
Contrary to Santana’s contention, a witness’s testimony that they
observed someone with a gun, alone, is sufficient evidence to establish
possession; recovery of the gun is not required. Commonwealth v.
Robinson, 817 A.2d 1153, 1161-62 (Pa. Super. 2003). Additionally, expert
testimony is not required to establish that the object was a gun. Indeed, such
testimony would be inadmissible, as expert testimony is admitted only when
the subject matter is beyond the knowledge or experience of the average
layman. When the issue is one of common knowledge, expert testimony is
inadmissible. See, Commonwealth v. O'Searo, 352 A.2d 30, 32 (Pa.
-4-
J-S26022-23
1976); Pa.R.E. 701-702. As such, Ms. Smith’s testimony alone was sufficient
to establish that Santana possessed a gun.
Additionally, Santana contends that Ms. Smith’s testimony was
insufficient nonetheless because it did not establish that the gun was operable.
To be considered a “firearm” under section 6105 and sustain his conviction,
Santana maintains the gun must be operable, i.e., capable of firing a shot. In
support of his position, Santana cites Commonwealth v. Layton, 307 A.2d
843 (Pa. 1973). Santana’s Brief at 14, 15. This reliance is misplaced.
In Layton, the police found the defendant in possession of a loaded
pistol. The condition of it rendered it such that the defendant could not have
fired at the time, to which the parties stipulated. Thereafter, the defendant
was convicted of violating a provision of the Uniform Firearms Act, which
prohibited a person who was convicted of a violent crime from possessing a
firearm.2 The defendant appealed, claiming that he could not be convicted of
this crime if the object was not capable of firing a shot, i.e., was inoperable.
Layton, 307 A.2d at 845.
Upon review, our Supreme Court observed that the statute did not
answer this question. Notably, the definition of firearm at the time defined a
“firearm” as “any pistol or revolver with a barrel less then twelve inches, any
shotgun with a barrel less than twenty-four inches or any rifle with a barrel
____________________________________________
2 18 P.S. § 4628, which was repealed and replaced by section 6105.
-5-
J-S26022-23
less than fifteen inches.”3 Thus, to ascertain the Legislature’s intent, the Court
found that the goal of the statute was to prevent further violence, but that it
only intended to cover objects which could cause violence by firing a shot. If
the object was incapable of firing a shot, the Court reasoned it could not cause
the violence the Act intended to prevent. Id.
Under the facts of that case, the Court concluded that the defendant did
not violate the Act. Id. The Court acknowledged that “[a] reasonable fact
finder may . . . infer operability from an object which looks like, feels like,
sounds like or is like, a firearm. And such inference would be reasonable
without direct proof of operability.” Id. at 844 (emphasis added).
However, because the parties there stipulated that the gun could not fire a
shot due to its condition, the Court concluded that an inference of operability
could not “reasonably be made where all parties agree that the object was not
operable.” Id. Thus, the Court reversed the defendant’s conviction for illegal
possession of a handgun because it was not operable.
Years after the Supreme Court decided Layton, the Legislature repealed
the statute involved in Layton and enacted section 6105, which set forth a
new, broader definition of “firearm.” As a result, we have held that Layton
does not apply to section 6105. In Commonwealth v. Thomas, 988 A.2d
669, 671 (Pa. Super. 2009), this Court explained:
____________________________________________
3 The definition of “firearm” in Layton was the same as is currently set forth
in 18 Pa.C.S.A. § section 6102, the general definitions section for the Uniform
Firearms Act. See discussion infra.
-6-
J-S26022-23
In Layton, supra, our Supreme Court reversed a conviction for
illegal possession of a handgun because the weapon was
inoperable, and the record failed to establish why the gun would
not fire. However, that case was decided under a provision
of the Uniform Firearms Act, 18 P.S. § 4628, which has been
repealed and replaced by Section 6105. The current statute
applies to any weapon that is designed to fire ammunition
containing an explosive charge, whereas section 4628 contained
much narrower language and defined a firearm as “any pistol or
revolver with a barrel less then twelve inches, any shotgun with a
barrel less than twenty-four inches or any rifle with a barrel less
than fifteen inches.” Thus, contrary to [Thomas'] position,
Layton is neither controlling nor instructive because that decision
is based upon statutory language that was rewritten in 1995.
Thomas, 988 A.2d at 671 (emphasis added). We noted that the Legislature,
in part, sought to eliminate the operability requirement for a “firearm” as
articulated in Layton. Thomas, 988 A.2d at 672. Consequently, we held
that he Commonwealth is not required to prove that a gun is operable to be
considered a “firearm” under section 6105. Thomas, 988 A.2d at 671-72;
Commonwealth v. Batty, 169 A.3d 70, 77 (Pa. Super. 2017) (trial court
correctly charged jury that Commonwealth was not required to prove gun was
operable under persons not to possess firearm).
Thus, contrary to Santana’s claim, Layton does not apply to his
conviction under section 6105. The Commonwealth was not required to show
that the gun Santana possessed was operable to convict him of this offense.
In sum, viewing the evidence in the light most favorable to the
Commonwealth, we conclude that there was sufficient evidence to convict
Santana of persons not to possess a firearm under section 6105. Santana is
therefore not entitled to any relief for his conviction.
-7-
J-S26022-23
Santana also claims that the evidence was insufficient to convict him of
firearm violations under sections 6106 and 6108. To convict a defendant of
carrying a firearm without a license under section 6106, the Commonwealth
must show that the defendant “carrie[d] 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.” Id. at § 6106(a)(1). To convict a defendant of
carrying a firearm in the City of Philadelphia under section 6108, the
Commonwealth must demonstrate that the defendant “carr[ied] a firearm. . .
upon the public streets or upon any public property” without a license. Id. at
§ 6108.
Initially, we observe that the statutory definition of “firearm” for these
sections is set forth in section 6102. It provides:
“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.
Because the parties stipulated that Santana prohibited from possessing
a firearm, it follows that Santana did not have a license to carry a gun under
sections 6106 or 6108, and he does not argue otherwise. Santana also does
not claim that where he had the gun was not on public property or in the
streets of Philadelphia as required under section 6108. Instead, Santana
-8-
J-S26022-23
makes the same arguments he made for section 6105 (single witness not
enough, expert witness needed, and no proof that gun was operable). In light
of our analysis above, we conclude that the Commonwealth’s evidence also
was sufficient to establish that Santana possessed a gun under these sections
also.
We adopt the reasoning above refuting Sanatana’s claims about a single
witness and the need for expert testimony. However, we cannot summarily
conclude that the Commonwealth was not required to show that the gun was
operable as we did above. Our decision in Thomas only addressed operability
and Layton in relation to section 6105, not sections 6106 or 6108.
Additionally, we note that the Legislature did not change the definition of
“firearm” applicable to sections 6106 and 6108. As such, the definition of
“firearm” considered in Layton is the same definition that currently applies to
sections 6106 and 6108. Therefore, we must consider Santana’s operability
argument in relation to his convictions under these sections.
Although operability under Layton remains a consideration for purposes
of sections 6106 and 6108, as the Supreme Court stated therein, the finder
of fact can infer operability from the circumstances without direct proof.
Layton supra. Furthermore, the Commonwealth is not required to show
operability in every case involving sections 6106 and 6108. In
Commonwealth v. Horshaw, 346 A.2d 340 (Pa. Super. 1975), where an
appellant claimed that the Commonwealth failed to present evidence that a
weapon was operable, we explained:
-9-
J-S26022-23
The Commonwealth need not show the weapon to have been
operable until evidence of its inoperability has been
introduced into evidence, and [b]ecause no evidence as to
inoperability was introduced into evidence, the appellant's claim
is without merit.
Id. at 342 (emphasis added) (citing Layton supra; Commonwealth v. Lee,
302 A.2d 474 (Pa. Super. 1973)).
Here, Santana presented no evidence that the gun Ms. Smith saw him
with was inoperable. He only made a legal argument claiming that the
Commonwealth was required to demonstrate the gun was operable. This is
not the law in Pennsylvania. The testimony established that Santana removed
a gun from his waist band and threatened to rob the gas station. Without any
evidence or suggestion that the gun was inoperable, the Commonwealth was
not required to show that the gun Santana possessed was operable to convict
him under sections 6106 and 6108.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude that there was sufficient evidence to
sustain Santana’s convictions under sections 6106 and 6108. Santana is
therefore not entitled to any relief for these convictions.
Judgment of sentence affirmed.
- 10 -
J-S26022-23
Date: 12/5/2023
- 11 -