Com. v. Mathis, J.

J-S19002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JULIUS MATHIS
Appellant No. 3308 EDA 2013
Appeal from the Judgment of Sentence entered October 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006317-2012
BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015
Appellant, Julius Mathis, appeals from the October 17, 2013 judgment
of sentence imposing two to four years of incarceration followed by three
years of probation for carrying a firearm without a license (18 Pa.C.S.A.
§ 6106(a)(1)) and a concurrent five years of reporting probation for carrying
a firearm on a public street in Philadelphia (18 Pa.C.S.A. § 6108). We
affirm.
A jury convicted Appellant of the aforementioned offenses, in addition
to possession of an instrument of crime (18 Pa.C.S.A. § 907), after a trial
that commenced on July 29, 2013 and concluded on August 5, 2013.
Appellant filed a post-verdict motion on August 8, 2013. The trial court
imposed sentence on October 17, 2013. At the sentencing hearing, the
Appellant sought to argue the issues set forth in his post-verdict motion, but
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the sentencing court advised that it would treat Appellant’s arguments as a
post-sentence motion rather than a motion for extraordinary relief.1 The
court scheduled a hearing on the post-sentence motion for November 12,
2013 and then continued it to November 26, 2013 because Appellant was
not brought down for the November 13, 2013 hearing. At the conclusion of
the November 26, 2013 hearing, the trial court denied relief. Appellant filed
his notice of appeal the same day.2
Appellant raises four issues for our review:
1. Was the evidence insufficient as a matter of law to support
Appellant’s conviction for carrying a firearm without a license,
where it failed to establish beyond a reasonable doubt that
Appellant at any time carried a gun that met the Uniform
Firearms Act’s definition of a firearm concealed on his person
or in a vehicle?
2. Was the verdict against the weight of the evidence?
3. Did the lower court erroneously admitted [sic] into evidence
an unrelated federal or state investigation or prosecution?
4. Did the lower court erroneously introduce evidence when, in
closing argument, the Commonwealth introduced portions of
the 911 tapes that were not introduced into evidence?
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1
See Pa.R.Crim.P. 704(B).
2
This procedural history is unusual in that Appellant never filed a motion
after the sentencing hearing and his notice of appeal post-dates the
judgment of sentence by more than thirty days. This Court’s jurisdiction
lapses when the trial court advises a defendant, per Pa.R.Crim.P.
704(C)(3)(a), of the deadlines for filing a post-sentence motion and/or
notice of appeal and the defendant fails to comply. Here, Appellant followed
the sentencing court’s prescribed procedure. We therefore have jurisdiction
over this appeal.
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Appellant’s Brief at 11.3 We will address these issues in turn.
Our standard for reviewing a sufficiency of the evidence challenge is
well settled:
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 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. Vargas, 108 A.3d 858, 867-868 (Pa. Super. 2014).
Section 6106(a)(1) of the Crimes Code prohibits concealed carry of a firearm
without a license. 18 Pa.C.S.A. § 6106(a)(1). Section 6108 prohibits
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3
We note with disapproval that Appellant’s first question only encompasses
§ 6106(a), but his argument challenges the sufficiency of the evidence in
support of all three of his convictions. The Rules of Appellate Procedure
provide that “No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a). Since Appellant included all of these issues in his Pa.R.A.P.
1925(b) statement and the trial court issued an opinion on them, Appellant’s
omission has not hampered our review and we will not find waiver.
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carrying a firearm on public streets or property in Philadelphia without a
license or license exemption.
Appellant argues the evidence is insufficient because (1) the
Commonwealth did not prove Appellant possessed a gun; the perpetrator
used a .380 caliber weapon and police did not recover a .380 caliber weapon
from his home; (2) no evidence establishes the weapon involved had a
barrel length less than 15 inches as per § 6102 of the Crimes Code; and (3)
no evidence establishes Appellant carried a firearm, concealed or otherwise,
anywhere outside of the victim’s residence.
The trial court summarized the pertinent facts as follows:
At approximately 12:00 a.m. on April 29, 2012,
[Appellant] went to victim Tyreik Robinson’s residence at 2019
South Opal Street, Philadelphia. Upon entering, [Appellant] and
victim immediately began fighting. [Appellant] rushed the
victim, pushed him onto a couch and held him down. A ‘pop’
gunshot sounded. This was a ‘warning shot,’ [Appellant]
cautioned the victim. The defendant threatened to ‘come back
and put one in the victim’s head.’ The defendant fled.
At the crime scene, the police observed a bullet hole in a
couch pillow, a bullet hole penetrating the couch, and a bullet
fragment on the floor. Forensics determined that the bullet
fragment was most likely from either a .380 or 9mm caliber
weapon.
Police executed a search warrant at [Appellant’s] residence
in Lebanon County, Pennsylvania, where detectives recovered
two firearms from the ceiling of [Appellant’s] living room: a .22
caliber Smith & Wesson handgun and a .25 caliber Raven Arms
handgun. The police also found ammunition in the kitchen
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pantry, including a box of .380 caliber bullets and a .380
magazine.
Trial Court Opinion, 7/21/14, part B.4
Appellant first asserts the evidence is insufficient because police did
not recover a .380 caliber firearm at his home. This fact does not render the
evidence insufficient. As the trial court noted, several eyewitnesses
observed Appellant enter the victim’s home and begin a scuffle with the
victim. The victim’s police statement indicates that he and Appellant fought,
Appellant fired a warning shot, and Appellant threatened to come back and
shoot the victim in the head.5 N.T. Trial, 8/1/13, at 88-89. Police found a
bullet hole in the victim’s couch and floor. The Commonwealth’s expert
testified that police recovered a bullet fragment from the victim’s living room
floor consistent with .380 caliber ammunition.6 Police recovered a
functioning .380 magazine from Appellant’s home. In other words, the
record contains ample evidence from which the jury could infer that
Appellant possessed a .380 caliber firearm during the commission of the
crime even though police did not find him in possession of one.
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4
The opinion is not paginated.
5
The victim changed his testimony at trial. The change in testimony is not
pertinent to our sufficiency of the evidence analysis.
6
The expert believed the fragment more likely to be a .380 than a .9
millimeter bullet. N.T. Trial, 8/2/13, at 79.
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Next, Appellant asserts that the Commonwealth failed to produce
sufficient evidence of the firearm’s barrel length. Section 6102 of the
Crimes Code defines a firearm as a pistol or revolver with a barrel length of
less than 15 inches. 18 Pa.C.S.A. § 6102. Appellant’s assertion flatly
contradicts the record. Though the Commonwealth did not recover the
actual firearm used in the offense, the Commonwealth’s expert showed the
jury an example of a Smith and Wesson .380 handgun that would have fired
the type of round recovered from the victim’s living room and would have fit
the magazine recovered from Appellant’s home. The expert testified the
barrel was 2½ to 3 inches long. N.T. Trial, 8/2/13, at 90-91.
Next, Appellant asserts the evidence is insufficient because the
Commonwealth failed to prove he possessed a firearm anywhere other than
inside the victim’s house. In other words, Appellant asserts the record
contains no evidence he carried a concealed weapon or that he carried a
weapon on the streets of Philadelphia.
In Commonwealth v. Nickol, 381 A.2d 873, 876-77 (Pa. 1973), an
eyewitness watched the defendant enter and exit the grocery store he
robbed. She did not see the defendant in possession of a gun. Id. Other
witnesses observed the defendant brandishing a gun inside the grocery
store. Id. The Supreme Court held this evidence gave rise to a permissible
inference the defendant concealed the gun. Id.
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We find Nickol to be directly on point. Nickol illustrates that
Appellant’s argument ignores the distinction between direct and
circumstantial evidence, either of which is sufficient to support a conviction.
Here, as in Nickol, direct evidence confirms Appellant used a firearm during
commission of the offense. Eyewitness testimony confirms that Appellant
entered the victim’s home, produced a weapon, and fired a warning shot.
Nothing in the record indicates Appellant picked the firearm up inside the
victim’s home or that he did not take the weapon with him when he left.
The jury could reasonably infer Appellant carried the firearm to the victim’s
home and took it with him when he left. The record contains more than
sufficient evidence to prove Appellant carried a firearm on the streets of
Philadelphia.7
The same argument applies with respect to concealment. The victim’s
mother did not see anything in Appellant’s hands when he entered the
home. N.T. Trial,. 7/31/13, at 71. Likewise, she did not see “anything
unusual on his person.” Id. at 72. She observed Appellant leave the home,
walk to a motor vehicle and depart from the scene, but did not report
observing a gun in Appellant’s possession. Id. at 81. Nonetheless, the
victim stated Appellant fired a warning shot in the victim’s living room.
Pursuant to Nickol, the jury was permitted to infer that Appellant concealed
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7
Appellant stipulated he was not licensed to carry a firearm. N.T. Trial,
8/2/13, at 116.
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a weapon on his person before he entered the scene of the crime and used
it. Appellant’s sufficiency of the evidence arguments lack merit.
Appellant’s second assertion of error is that the jury’s verdict was
against the weight of the evidence. Appellant included this issue in his
statement of the questions involved, but he abandoned it in the argument
section of his brief. Appellant divided the argument of his brief into three
sections, corresponding to his first, third and fourth questions. Since
Appellant has failed to include any argument in support of his weight of the
evidence challenge, we deem the issue waived. Pa.R.A.P. 2119;
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
562 U.S. 906 (2010).
Next, Appellant argues the trial court erred in admitting evidence from
the search of Appellant’s home in Lebanon County.8 Appellant argues this
evidence permitted the jury to draw an improper inference of his possession
of a firearm in the city of Philadelphia. Appellant argues the Commonwealth
relied upon evidence culled from his Lebanon County home to atone for the
Commonwealths’ inability to prove that he possessed a firearm in
Philadelphia. The premise of this argument is fatally flawed. We have
already explained that the victim’s mother’s eyewitness testimony created a
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8
We note with disapproval that Appellant fails to support this argument
with citation to the record or pertinent legal authority, in violation of
Pa.R.A.P. 2119(b) and (c).
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permissible inference that Appellant was in possession of a concealed
weapon before he arrived at the crime scene in Philadelphia. The evidence
culled from the search of Appellant’s home was unnecessary to support that
inference.
In his final argument, Appellant claims the trial court erred in
permitting the Commonwealth to play during its closing argument portions
of a 911 recording the Commonwealth never played during trial. Appellant
concedes he failed to offer a timely objection during the closing argument,9
and therefore waived this argument pursuant to Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”). Appellant’s Brief at 25. He nonetheless argues the trial
court should have issued a corrective jury instruction sua sponte. Id. at 25-
26. Since Rule 302 clearly puts the onus on the litigant, rather than the trial
court, Appellant’s argument lacks merit. Appellant has waived this
argument.
In summary, we have concluded that Appellant is not entitled to relief
on any of his arguments. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
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9
Appellant also did not object to the admission into evidence of the 911
recording.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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