Com. v. Simmons, J.

J-S30013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOSEPH SIMMONS
Appellant No. 2132 EDA 2021
Appeal from the Judgment of Sentence Entered June 21, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001195-2019
BEFORE: STABILE, J., MCCAFFERY, J. and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 12, 2022
Appellant, Joseph Simmons, appeals from his aggregate judgment of
sentence of six to twelve years’ imprisonment for aggravated assault, firearms
not to be carried without a license, carrying firearms on public streets or public
property in Philadelphia, possessing instruments of crime, simple assault,
recklessly endangering another person, and persons not to possess, use,
manufacture, control, sell or transfer firearms.1 Appellant contends that the
evidence was insufficient to sustain his convictions for carrying firearms
without a license and carrying firearms on public streets in Philadelphia. He
also claims the trial court abused its discretion by denying his claim that the
verdict was against the weight of the evidence. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702, 6106, 6108, and 907, 2701, 2705, and 6105,
respectively.
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The evidence adduced during Appellant’s non-jury trial demonstrates
that on July 16, 2018, the victim, Ronald McCutchen, spent his evening on the
porch of 1857 East Tioga Street in Philadelphia, Pennsylvania. McCutchen was
accompanied by several adults and children, including his friend Charlmane
Tripline, Tripline’s juvenile daughter, N.T., and Appellant, who had been dating
McCutchen’s sister, Christina Willis.
Appellant and Willis were not on good terms because Appellant had
recently cheated on her. Willis responded by taking Appellant’s car keys. On
July 16, 2018, Willis was supposed to meet Appellant at 1857 East Tioga Street
to return the keys. McCutchen sold marijuana from the porch while Appellant
waited for Willis to arrive.
At approximately 8:15 p.m., with multiple witnesses including Tripline
and N.T. present on the porch, Appellant and McCutchen argued about money.
Appellant shot McCutchen twice in the abdomen and left.
Later that evening, Tripline gave a police statement implicating
Appellant in the shooting. The statement was admitted as evidence, and the
Commonwealth read it into the record. At the end of the interview, she signed
a photograph positively identifying Appellant. She averred in her statement
that she knew Appellant because he was Willis’ ex-boyfriend. She saw
Appellant at three or four parties and cookouts prior to the shooting, and he
was with Willis at each event. She stated that Appellant went into the house
right before the incident and came back outside with a gun. Appellant told
the victim not to move, stated he was not playing, and instructed him to tell
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his sister to give Appellant his money. The victim asked what he was talking
about, and Appellant shot him twice. Tripline described the gun as a “black
nine automatic.” N.T., 3/5/21, at 84. According to her statement, after the
second shot, Appellant chased the victim down the street and fired two more
shots.
Tripline also identified Appellant at trial as the shooter. She was initially
uncertain because his face at trial was obscured by a Covid face mask. When
Appellant removed his mask, Tripline identified him by nodding in his direction
and stating, “He is sitting right there.” Id. at 67–68.
Tripline’s daughter, N.T., testified and gave a consistent version of
events to that of her mother. She was eight years old at the time of the
incident and eleven at the time of trial. The defense stipulated to her
competence. While N.T. was unable to identify Appellant in open court, she
remembered a detective showing her a photo array shortly after the shooting.
A detective showed her multiple photographs and she selected the third
photograph as the shooter. The detective said N.T. appeared very
understanding about the photo array process. He confirmed that N.T.
immediately selected and signed the third image. Detective Miles, who
prepared the photo array, confirmed that the image was Appellant. N.T. did
not have any conversations with her mother about the incident on the porch
prior to making the identification.
When police officers arrived at the shooting scene, the victim
approached them with two visible gunshot wounds in his stomach. He was
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transported to Temple University Hospital and treated. Other officers arrived
and located two 9-millimeter Luger fired cartridge casings on the porch of
1857 East Tioga Street.
The victim, who had not been cooperative with police in the aftermath
of the shooting, testified as a defense witness. He claimed he did not know
who shot him because he could not see his assailant. He confirmed there
were other people on the porch at the time. He asserted he did not learn
about Appellant being accused until he received a subpoena one week before
trial.
The parties stipulated that Appellant did not have a valid license to carry
a firearm. There was also a stipulation that Appellant was ineligible to carry
a firearm under 18 Pa.C.S.A. § 6105 based on a previous conviction in Virginia.
The parties also stipulated that Appellant’s mother would testify to his
character for peacefulness and that Tripline had a prior conviction for crimen
falsi.
On March 9, 2021, the court found Appellant guilty of all charges other
than attempted murder and deferred sentencing until June 21, 2021. On June
15, 2021, Appellant filed a motion challenging the verdicts as being against
the weight of the evidence. On June 21, 2021, the court denied the motion
and imposed sentence.
Appellant filed post-sentence motions challenging the weight of the
evidence, which the court denied. Appellant filed a timely appeal, and both
Appellant and the court complied with Pa.R.A.P. 1925.
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Appellant raises two issues in this appeal:
Is the evidence sufficient, as a matter of law, to convict
[Appellant] of the crimes of possessing a firearm without a license
and carrying a firearm in Philadelphia as set forth in 18 Pa.C.S.A.
§§ 6106 and 6108 of the Crimes Code where the evidence of
record does not establish that the item allegedly used by
[Appellant] had a barrel length or overall length which satisfied
the definition of firearm as that term is defined in 18 Pa.C.S.A.
§ 6102?
Is the verdict of guilty against the weight of the evidence and so
contrary to the evidence that it shocks one’s sense of justice under
the circumstances of this case?
Appellant’s Brief at 7.
Appellant first challenges the sufficiency of the evidence underlying his
convictions for weapons charges under Sections 6106 and 6108 of the Crimes
Code. “Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013).
When 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
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the fact-finder to 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).
Section 6106 and Section 6108 are part of the Pennsylvania Uniform
Firearms Act, 18 Pa.C.S.A. §§ 6101-6128. Section 6106 makes it a crime for
“any person” to carry “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 ....” 18 Pa.C.S.A.
§ 6106(a)(1).
Section 6108 provides:
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.
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The Uniform Firearms Act defines “firearm” as “[a]ny pistol or revolver
with a barrel length less than 15 inches ... or any pistol, revolver, rifle or
shotgun with an overall length of less than 26 inches.” 18 Pa.C.S.A. § 6102.
The Commonwealth may prove the length of the barrel with circumstantial
evidence. Commonwealth v. Jennings, 427 A.2d 231, 235 (Pa. Super.
1981) (length of weapon can be determined from what an object “looks like,
feels like, sounds like or is like”). For example, in Commonwealth v.
Rozplochi, 561 A.2d 25 (Pa. Super. 1989), during a bench trial,
[one eyewitness] testified that appellant initially concealed the
weapon inside a manila envelope. She described the envelope as
“about this high” and “not too wide”. Although the record before
us does not reveal the length of the envelope, the judge would
have been able to estimate this length by observing [the
eyewitness’s] hand motions when she described the envelope as
“about this high”. The judge could then have concluded that the
length of the gun barrel was less than the length of the envelope.
In addition, the judge also heard [a second eyewitness] testify at
the robbery trial that appellant’s weapon was a “small black gun”
...
Id. at 31. We reasoned that the evidence satisfied the Uniform Firearms Act’s
definition of barrel length:
Although the finder of fact did not observe the gun itself, the finder
of fact observed a witness who indicated the dimensions of the
envelope in which the gun was contained. The finder of fact was
a judge and as such is presumed to know the law. See
Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa. Super.
1989). Moreover, none of the evidence of record indicates that
the gun had an exceptionally long barrel length and appellant has
never offered to come forward with any evidence which would
show that the gun was not a firearm.
Id. at 31-32.
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Here, as in Rozplochi, the Commonwealth introduced sufficient
circumstantial evidence of barrel length. N.T. testified that she saw the gun
during the shooting, and she described it as “small and black.” N.T. 3/5/21,
at 117. She also testified she saw the shooter pull the gun from his waistband
before shooting the victim. It is a reasonable inference that a weapon that is
two feet and two inches in length or greater would be extremely unlikely to
be concealed in the waistband of one’s pants. This, combined with N.T.’s
testimony that the gun was “small and black,” entitled the court to infer that
the gun was shorter than two feet and two inches in length. See
Commonwealth v. Biggs, 248 A.3d 455, 2021 WL 21767, *5 (Pa. Super.
2021) (memorandum) (evidence that defendant pulled his gun from waist of
his pants sufficient for jury to infer that gun possessed had barrel length of
less than 15 inches).2
Tripline’s testimony also corroborated the gun length. While she initially
testified that she did not see the gun, N.T. 3/5/21, at 68, the Commonwealth
introduced her prior statement in which she told detectives that she saw it.
Id. at 80–87. She confirmed that she saw the gun, a “black nine automatic.”
Id. at 84. She also told detectives that she looked up after Appellant fired
the first shot, saw him holding the gun in his hand, and saw him fire a second
shot. Id. at 81. Her description of the gun as a “black nine automatic” that
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2See Pa.R.A.P. 126(b) (unpublished non-precedential memorandum decisions
of Superior Court filed after May 1, 2019 may be cited for their persuasive
value).
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permitted the reasonable inference that she was describing a black nine
millimeter handgun. Her assertion that Appellant was able to hold and fire
the gun using one hand rather than two supports the same inference. See
Commonwealth v. King, 251 A.3d 1266, 2021 WL 1157989, *4 (Pa. Super.
2021) (evidence was sufficient to prove barrel length where an eyewitness
testified the defendant was holding the firearm with one hand, seemingly
waving it around, and a trooper characterized the firearm as a “pistol”).
Further corroborating her testimony was the physical evidence discovered at
the scene, two 9-millimeter Luger fired cartridge casings on the porch. Id.By contrast, there was no evidence tending to suggest that the gun was
exceptionally long. Rozplochi, 561 A.2d at 31-32 (noting that there was no
evidence indicating gun had an exceptionally long barrel length).
Accordingly, Appellant’s challenge to the sufficiency of the evidence
relating to the barrel length of his firearm fails.
In his second argument, Appellant contends that the trial court abused
its discretion by find that the weight of the evidence supports his convictions.
We hold that this ruling was a proper exercise of the court’s discretion.
“To grant a new trial on the basis that the verdict is against the weight
of the evidence, ... the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Commonwealth v.
Childs, 63 A.3d 323, 327 (Pa. Super. 2013). “On review, an appellate court
does not substitute its judgment for the finder of fact and consider the
underlying question of whether the verdict is against the weight of the
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evidence, but, rather, determines only whether the trial court abused its
discretion in making its determination.” Commonwealth v. Lyons, 79 A.3d
1053, 1067 (Pa. Super. 2013). A new trial should not be granted based on a
“mere conflict” in the testimony, or because a different judge faced with the
same facts would have arrived at a different conclusion. Commonwealth v.
Widmer, 744 A.2d 745, 752 (Pa. 2000).
Appellant claims that the verdict is shocking because Tripline merely
“guessed” during trial that he was the shooter. Appellant’s Brief at 35.
Appellant mischaracterizes Tripline’s testimony. Trial took place during the
COVID-19 pandemic, and Appellant was wearing a face mask. When Tripline
was asked whether she saw the shooter in court, she initially said, “I guess
that is him. I can’t really tell because I can’t see his face.” N.T. 3/5/21, 67.
The court asked Appellant to lower his mask, at which point Tripline readily
identified him, “He is sitting right there.” Id. Her in-court identification was
corroborated by her pre-trial statement in which she identified Appellant as
the shooter. She stated during the interview that she knew Appellant from
his relationship with the victim’s sister, Willis. Id. at 83. At the end of her
interview, she signed a single photo positively identifying Appellant as the
assailant. Id. at 87. The trial court, as finder of fact, was free to weigh “both
[her] statement to police as well as [her] testimony at trial . . . and free to
believe all, part, or none of the evidence presented.” Commonwealth v.
Hanible, 836 A.2d 36, 39 (Pa. 2003). We cannot second-guess the court’s
decision to credit this evidence.
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Appellant also claims that Tripline’s memory was “fuzzy” because she
was drinking on the day of the incident. Appellant’s Brief at 37. Once again,
Appellant misconstrues Tripline’s testimony. Tripline testified that she was
not drinking enough to blur her memory. N.T. 3/5/21, at 102–03. Detective
Bender noted that she did not appear to be intoxicated or inebriated at all
when he interviewed her later that night. Id. at 129–132. Tripline testified
that the details of the incident were fresher in her mind when it occurred in
2018 than when she testified in March of 2021. Id. at 103–04. She also
acknowledged that she did not want to be present in court on March 5, 2021.
Id. at 64. Indeed, at one point when she claimed an inability to remember,
defense counsel questioned her competence. Id. at 76–77. The trial court
responded, “She is competent. You can cross-examine her. Let’s not use
excuses when people don’t want to testify. She has been very clear about
what she saw and what she didn’t see so far.” Id. at 77. It was within the
court’s discretion to balance all of this evidence and credit the evidence
pointing to Appellant as the shooter.
Appellant’s weight argument also suffers from the fact that Tripline’s
daughter, N.T., corroborated Tripline’s identification of Appellant as the
shooter. Prior to trial, N.T., then eight years old, identified Appellant as the
shooter. N.T. 3/5/21, at 70, 109. Although N.T. was unable to identify
Appellant at trial, she remembered a detective showing her a photo array on
the evening of the shooting. Id. at 116, 121–22. She selected the third
photograph as the shooter. Id. at 121–22. Importantly, N.T. confirmed she
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did not discuss the incident with her mother prior to making the identification.
The detective who sat with N.T. during the array confirmed she selected the
third photograph and noted she appeared very understanding about the photo
array process. Id. at 25, 26. The detective who prepared the array confirmed
the third photograph was Appellant.3 Id. at 139. Once again, the court had
the discretion to accept N.T.’s pretrial identification as evidence of Appellant’s
guilt.
Appellant refers us to Commonwealth v. Kloiber, 106 A.2d 820 (Pa.
1954), in which our Supreme Court held that
where the witness is not in a position to clearly observe the
assailant, or he is not positive as to identity, or his positive
statements as to identity are weakened by qualification or by
failure to identify defendant on one or more prior occasions, the
accuracy of the identification is so doubtful that the Court should
warn the jury that the testimony as to identity must be received
with caution.
Appellant’s Brief at 36-37 (citing Kloiber, 106 A.2d at 826-27). To begin,
Kloiber is not applicable. Kloiber defines the circumstances in which the
court must instruct the jury to view a witness’s identification with caution. In
this case, trial was non-jury, so Kloiber is not applicable. Nonetheless,
Appellant attempts to bolster his reliance on Kloiber by arguing that the
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3 While Appellant claims in his brief that N.T. was not competent to testify
during trial, Appellant stipulated to her competency during trial. Id. at 113.
The only person who objected to N.T.’s competency was her mother, Tripline,
who strenuously argued that N.T. was incompetent due to her concern of
retaliation by Appellant. Id. at 111 (Tripline’s statement to court that “you
don’t know what he[’s] capable of”).
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verdict was against the weight of the evidence because the witnesses were
“not positive as to [Appellant’s] identity.” Id. at 827. As discussed above,
however, the weight of the evidence demonstrates that (1) Tripline was
positive about Appellant’s identity, (2) N.T. was positive when police
detectives interviewed her on the night of the incident, and (3) both Tripline
and N.T. were in a position to clearly observe Appellant shoot McCutchen.
Next, Appellant argues that Tripline’s and N.T.’s identifications were
undermined by the victim, McCutchen, who testified as a defense witness.
Appellant’s Brief at 39. McCutchen testified that Appellant was not his
assailant, but he admitted he did not know who shot him. N.T. 3/8/21, at 55.
The trial court was of course not obligated to credit McCutchen’s version of
events over other witnesses. At most, this created a “mere conflict” in the
testimony, Widmer, 744 A.2d at 752, which the court had the authority to
resolve.
Appellant argues the trial should have ascribed greater weight to both
Tripline’s crimen falsi convictions and Appellant’s proffered reputation
evidence from his mother. The mere existence of crimen falsi evidence did
not require the court to acquit Appellant. Commonwealth v. Murphy, 134
A.3d 1034, 1039–40 (Pa. 2016) (rejecting challenge to weight of the evidence
where jury was made aware of Commonwealth witness’s contact with criminal
justice system, including crimen falsi convictions); Commonwealth v.
Dunkins, 229 A.3d 622, 634 (Pa. Super. 2020) (weight claim meritless where
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prosecution witness had crimen falsi conviction because it was exclusively
within jury’s province as fact-finder to assess credibility of prosecution
witnesses and weigh evidence at trial). Similarly, it was within the trial court’s
province to weigh Appellant’s proffered reputation evidence as it saw fit.
Commonwealth v. Price, 616 A.2d 681, 685 (Pa. Super. 1992).
Finally, Appellant argues that there was no physical, forensic, or video
evidence inculpating him. Appellant’s Brief at 40. Such evidence, however,
is not necessary to convict. The trial court found “enough consistencies within
the testimonies of both [] Tripline and N.T. to find them credible and conclude
that even in the absence of physical, forensic, or video evidence inculpating
Appellant, he was the individual who shot McCutchen.” Trial Court Opinion,
4/12/22, at 19.
For these reasons, Appellant’s challenge to the weight of the evidence
does not entitle him to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2022
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