Com. v. Taylor, L.

J. S70011/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LEROY THOMAS TAYLOR, : No. 2976 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, September 8, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002697-2016
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 04, 2019
Leroy Thomas Taylor appeals the September 8, 2017 judgment of
sentence in which the Court of Common Pleas of Philadelphia County
sentenced him to an aggregate term of 5 to 10 years’ imprisonment for
possession of a firearm while prohibited, carrying firearms without a license,
carrying firearms in public in Philadelphia, and possession of an instrument
of crime.1 After careful review, we affirm.
The facts, as recounted by the trial court, are as follows:
On February 7, 2016, neighbors Angel Rivera and
[a]ppellant got into an altercation over Rivera’s
girlfriend, who was pregnant with [a]ppellant’s child.
The fight, which took place in public outside of
2710 North Reese Street, soon became physical and
[a]ppellant punched Rivera in the eye. Several other
parties became involved and separated [a]ppellant
1 18 Pa.C.S.A. §§ 6105, 6106, 6108, and 907, respectively.
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and Rivera. At this point [a]ppellant went into his
home and came back outside. Rivera saw that
[a]ppellant now had a gun in his waistband. Rivera’s
daughter MariaAngely Rivera-Cruz also saw
[a]ppellant with the gun. The police arrived a
moment later and Rivera saw [a]ppellant put the gun
on the ground behind the wheel of River’s car. The
police then retrieved the gun from under the car and
arrested [a]ppellant while around 10-15 of Rivera’s
family members and neighbors observed.
Officer Anthony Nicoletti responded to a radio call for
a black male with a black hoodie carrying a gun on
the 2700-2800 block of Reese Street that night.
When he arrived, he saw a group of around
10-15 people trying to prevent [a]ppellant from
leaving Reese Street by frantically tugging on his
clothing and yelling, “Don’t let him leave. He threw
the gun underneath the car.” Appellant was the only
person present who matched the police radio
description. Officer Nicoletti then secured
[a]ppellant while his partner Officer Hoffman
recovered the pistol from under Rivera’s car.
Officer Ronald Whiteman later investigated the pistol
found at the scene and determined that it was
loaded with nine cartridges of .45-caliber
ammunition and that it was operable. Appellant was
not licensed to carry a firearm on the date of this
offense. Appellant was prohibited from possessing a
handgun under the Firearms Act due to a previous
conviction.
Trial court opinion, 12/12/17 at 2-3.
Following a non-jury trial, the trial court convicted appellant on
April 28, 2017. On July 27, 2017, appellant filed a post-verdict motion for
reconsideration of verdict. On September 8, 2017, the trial court denied the
motion. Also on September 8, 2017, the trial court sentenced appellant. On
September 9, 2017, appellant filed a notice of appeal. On November 14,
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2017, the trial court ordered appellant to file a statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied
with the order on November 16, 2017. (See trial court opinion, 12/12/17 at
1-2.) The trial court issued an opinion, pursuant to Pa.R.A.P. 1925(a) on
December 12, 2017.
On appeal, appellant contends that there was insufficient evidence to
convict him of the four crimes. (Appellant’s brief at 3.)
In reviewing the sufficiency of the evidence, we view
all evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the fact-finder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to a
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of the
evidence, the Court may not substitute its judgment
for that of the fact finder; if the record contains
support for the convictions, they may not be
disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal
denied, 89 A.3d 661 (Pa. 2014) (citations omitted).
Moreover, when 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 the
witnesses and the weight of the evidence produced,
is free to believe all, part, or none of the evidence.
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Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).
Appellant specifically challenges the sufficiency of the evidence with
respect to the three firearms convictions.
Section 6105 of the Crimes Code, entitled, “Persons not to possess,
use, manufacture, control, sell or transfer firearms,” provides in pertinent
part:
(a) Offense defined.--
(1) A person who has been convicted
of an offense enumerated in
subsection (b), within or without
this Commonwealth, regardless of
the length of sentence or whose
conduct meets the criteria in
subsection (c) shall not possess,
use, control, sell, transfer or
manufacture or obtain a license to
possess, use, control, sell, transfer
or manufacture a firearm in this
Commonwealth.
18 Pa.C.S.A. § 6105(a)(1).
Section 6106 of the Crimes Code, entitled “Firearms not to be carried
without a license,” provides in pertinent part:
(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
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fixed place of business, without a
valid and lawfully issued license
under this chapter commits a
felony of the third degree.
(2) A person who is otherwise eligible
to possess a valid license under
this chapter but 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 and has not
committed any other criminal
violation commits a misdemeanor
of the first degree.
18 Pa.C.S.A. § 6106(a)(1-2).
Section 6108 of the Crimes Code, entitled, “Carrying firearms on public
streets or public property in Philadelphia,” provides in pertinent part:
No person shall carry a firearm, rifle or shotgun at
any time upon the public streets or upon any public
property in a city of the first class unless:
(1) such person is licensed to carry a
firearm; or
(2) such person is exempt from licensing
under section 6106(b) of this title
(relating to firearms not to be carried
without a license).
18 Pa.C.S.A. § 6108.
For all of these crimes, the Commonwealth must establish that
appellant carried or possessed a firearm. See In re R.N., 951 A.2d 363,
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369-370 (Pa.Super. 2008). Appellant does not challenge the sufficiency of
any of the other elements of these crimes.
Here, Angel Rivera (“Rivera”) testified that after the initial altercation,
appellant returned to the scene with a gun in his waistband. (Notes of
testimony, 4/28/17 at 10.) Rivera also testified that he observed appellant
putting the gun on the ground behind the wheel of Rivera’s vehicle. (Id.)
Rivera’s daughter, MariaAngely Rivera-Cruz, testified that she saw appellant
with a gun. (Id. at 35.)
In addition, Officer Anthony Nicoletti (“Officer Nicoletti”) of the City of
Philadelphia Police Department testified that when he arrived on the scene of
the altercation, he saw a group of 10 to 15 people tugging on appellant’s
clothing and yelling, “Don’t let him leave. He threw the gun underneath the
car.” (Id. at 22.) Officer Nicoletti also testified that his partner,
Officer Hoffman, recovered a firearm from under Rivera’s car. (Id. at 25.)
This court does not agree with appellant’s assertion that the evidence
was insufficient. Two eyewitnesses saw appellant with a firearm. Rivera
saw him put the gun under the car or by the wheel. Others informed
Officer Nicoletti that appellant had placed the gun under the vehicle, which is
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where the firearm was recovered. Appellant’s contention that the
Commonwealth failed to present sufficient evidence is without merit.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/19
2 Appellant argues that the Commonwealth failed to prove that he had
constructive possession of the firearm. However, when the Commonwealth
is able to prove actual possession, it does not have to prove constructive
possession. Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983).
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