Com. v. Barrow, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES BARROW :
:
Appellant : No. 606 EDA 2019
Appeal from the Judgment of Sentence Entered October 1, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003610-2016
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 28, 2020
Appellant, James Barrow, appeals from the judgment of sentence
entered on October 1, 2018, as made final by the denial of his post-sentence
motion on January 30, 2019, following his jury trial convictions for first-degree
murder,1 robbery-inflicting serious bodily injury,2 burglary,3 carrying a firearm
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502.
2 18 Pa.C.S.A. § 3701(a).
3 18 Pa.C.S.A. § 3502(a).
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without a license,4 carrying a firearm on public streets or public property in
Philadelphia,5 and possession of an instrument of a crime.6 We affirm.
The trial court accurately summarized the relevant facts of this case as
follows.
During the early morning hours of August 24, 2009, [Appellant]
broke into the home of Akia Harris, at 2591 Shields Street in
Philadelphia[, Pennsylvania], where [] Kamara Joseph
[(“Joseph”)] was sleeping on the couch. [Appellant] pistol
whipped [Joseph], duct taped his wrists and ankles behind his
back[,] duct taped his face, and began to strangle [Joseph] with
a shoe string. [Appellant] then shot [Joseph] in the head once
with a revolver. After stealing a few items from the home,
[Appellant] fled the premises. [Akia] Harris, who was not home
the night of the murder, returned home the afternoon of August
24[, 2009] and discovered [Joseph’s] body.
There were no witnesses to the murder and for almost seven
years[,] the case remained unsolved. On February 1, 2016,
[Appellant] made a [telephone] call to the [Federal Bureau of
Investigation (“FBI”)] in Delaware and subsequently confessed to
the murder of [Joseph], as well as the double murder of Nakeisha
Finks [(“Finks”)] and Jonathan Pitts [(“Pitts”)], both of whom were
also duct taped before being shot in the head with a revolver.
[Thereafter, the Commonwealth criminally charged Appellant.]
Trial Court Opinion, 5/14/19, at 1-2 (internal citations omitted).
On January 10, 2018, Appellant filed a motion to suppress, in which he
sought to suppress his confession. Appellant argued that mental deficiencies
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4 18 Pa.C.S.A. § 6106(a).
5 18 Pa.C.S.A. § 6108.
6 18 Pa.C.S.A. § 907(a).
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prevented him from executing a valid waiver of his Miranda7 rights and, as
such, law enforcement obtained his confession in violation of the Fourth, Fifth,
Sixth and Fourteenth Amendments of the United States Constitution as well
as Article I, Section 9 of Pennsylvania’s Constitution. Appellant’s Motion to
Suppress, 1/10/18, at *1-5 (un-paginated). The trial court heard evidence
regarding suppression on April 9, 2018, April 13, 2018 and April 18, 2018.
Thereafter, on June 11, 2018, the trial court denied Appellant’s motion and
concluded that Appellant “gave his various statements to authorities
knowingly, intelligently, and voluntarily.” N.T. Hearing, 6/11/18, at 20.
Appellant’s jury trial commenced September 24, 2018. The
Commonwealth introduced the video recording of Appellant’s confession
during trial. See N.T. Trial, 9/25/18, at 165; see also Trial Court Opinion,
5/14/18, at 2. In addition, the Commonwealth introduced various crime scene
photographs during trial which depicted Joseph, Finks, and Pitts bound and
gagged, as well as their gunshot wounds. See N.T. Trial, 9/25/18, at 141-144
and 155-157.
On October 1, 2018,8 the jury found Appellant guilty of the
aforementioned crimes. That same day, the trial court sentenced Appellant
to a mandatory term of life imprisonment without the possibility of parole for
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7 Miranda v. Arizona, 384 U.S. 436 (1966).
8The notes of testimony erroneously indicate that the jury found Appellant
guilty of the aforementioned crimes and the trial court sentenced Appellant on
November 1, 2018.
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the charge of first-degree murder. N.T. Trial, 10/1/18, at 33. For Appellant’s
other charges, the trial court sentenced him to an aggregate term of 28½ to
57 years’ incarceration. Id. at 35. The court ordered that this sentence run
concurrently to Appellant’s life sentence. Id. Appellant filed a post-sentence
motion on October 10, 2018, which the trial court denied on January 30, 2019.
This timely appeal followed.9
Appellant raises the following issues on appeal:
I. Did the trial court commit reversible error by denying [A]ppellant’s
[m]otion to [s]uppress [s]tatements [and] ruling that such
statements were given knowingly, intelligently, and voluntarily[?]
II. Did the trial court commit reversible error, despite [its] cautionary
instruction, by allowing the Commonwealth to introduce into
evidence and otherwise display numerous . . . inflammatory,
graphic, cumulative, and irrelevant [photographs?]
III. Did the trial court commit reversible error by denying [A]ppellant’s
[m]otion for [j]udgment of [a]cquittal [when the Commonwealth
failed to present sufficient evidence to sustain Appellant’s
convictions for carrying a firearm without a license and carrying a
firearm on public streets or public property in Philadelphia?]
Appellant’s Brief at 4-5.
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9 Appellant filed a notice of appeal on February 27, 2019. On March 8, 2019,
the trial court entered an order directing Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on May 14, 2019.
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In his first issue, Appellant argues that the trial court erred in denying
his motion to suppress.10 Specifically, Appellant asserts that his confession
should have been suppressed because of his “negating mental deficits”
prevented him from knowingly, intelligently, and voluntarily waiving his
Miranda rights. Appellant’s Brief at 8. We disagree.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
Our standard of review in addressing a challenge to a trial court's
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains un[-]contradicted when read in the context of the record.
… Where the record supports the findings of the suppression
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “It is within the suppression court's sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
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10 The Commonwealth argues that Appellant “waived his challenge to the
suppression court’s denial of his motion” because he failed to include the
“complete transcripts from the suppression motion in the certified record.”
Commonwealth’s Brief at 9. In general, “[a]n appellant's failure to provide
the reviewing court with a complete certified record results in the waiver of
the claim.” Commonwealth v. Little, 879 A.2d 293, 301 (Pa. Super. 2005).
This Court, however, obtained the transcripts from the hearings conducted on
April 9, 2018, April 18, 2018, and June 11, 2018. In addition, we analyzed
the exhibits entered into evidence during the various proceedings.
Accordingly, Appellant’s omission did not hamper our review and, as such, we
will address the merits of his claim.
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testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006). Moreover, our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1087 (Pa. 2013).
It is well settled that the police must administer Miranda warnings to
all individuals subjected to custodial interrogation.
It is a fundamental precept of constitutional law that a suspect
subject to a custodial interrogation by police must be warned that
he has the right to remain silent, that anything he says may be
used against him in court, and that he is entitled to the presence
of an attorney. Miranda, 384 U.S. at 469. If an individual is not
advised of those rights prior to a custodial interrogation, any
evidence obtained through the interrogation is inadmissible at
trial. In re K.Q.M., 873 A.2d 752, 755 (Pa. Super. 2005). The
Miranda safeguards are triggered “whenever a person in custody
is subjected to either express questioning or its functional
equivalent.” Rhode Island v. Innis, 446 U.S. 291, 292 (1980).
Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015)
(parallel citations omitted).
A defendant, however, “may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384
U.S. at 444. Notably, our Supreme Court has repeatedly held that “’there is
no per se rule that a defendant's waiver of his constitutional rights is defective
merely because his mental illness distorts [the] defendant's perceptions of
reality.’” Commonwealth v. Mitchell, 105 A.3d 1257, 1267 (Pa. 2014)
(citation omitted). Rather,
[t]he voluntariness standard of Miranda requires that the
prosecution prove by a preponderance of the evidence that the
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waiver is knowing and intelligent. This requires a two-step
analysis. First, the waiver must have been voluntary in the sense
that it was an intentional choice made without any undue
governmental pressure; and, second, that the waiver must have
been made with a full comprehension of both the nature of the
right being abandoned and the consequences of that choice.
[Commonwealth v. Logan, 549 A.2d 531, 537 (Pa. 1988)
(citation omitted).]
Thus, in the suppression realm, the focus is upon police conduct
and whether a knowing, intelligent and voluntary waiver was
effected based on a totality of the circumstances, which may
include consideration of a defendant's mental . . . condition[.]
Commonwealth v. Cox, 686 A.2d 1279, 1287 (Pa. 1996). When
a defendant alleges that his waiver or confession was involuntary,
the question is not whether the defendant would have confessed
without interrogation, but whether the interrogation was so
manipulative or coercive that it deprived the defendant of his
ability to make a free and unconstrained decision to confess.
[Commonwealth v. Sepulveda, 55 A.3d 1108, 1136-1137 (Pa.
2012 (quotation marks and quotations omitted).]
Id. at 1268 (parallel citations omitted).
During a hearing conducted on June 11, 2018, the trial court stated its
findings of fact with regard to the various suppression hearings.
[One:] On February 1, 2016, [Appellant] . . . a long time
Philadelphia, [Pennsylvania] resident, was living with his
mother[,] Barbara Barrow[,] in Wilmington, Delaware.
Two: [Appellant] on February 1, 2016 contacted the FBI office in
Delaware and advised the call taker that he wanted to confess to
various crimes, including robbery and homicide.
Three: The FBI call taker obtained contact information from
[Appellant] and advised him that someone would follow up.
Four: FBI Special Agent Scott Duffy returned [Appellant’s] call on
the very same day, and [Appellant] advised him that he wanted
to talk to authorities about some robberies committed in
Philadelphia. The agent arranged to meet [Appellant] on February
3, 2016.
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Five: FBI Agent Duffy then reached out to Police Officer John
Benham[,] . . . a Philadelphia police officer assigned to the FBI.
In addition, Detective Dan Gruzzi[,] . . . a Delaware State agent[,]
was [ ] enlisted in this effort.
Six: On February 3, 2016, Duffy and Gruzzi went out to meet
[Appellant] at a community center selected by [Appellant as
Appellant] informed Agent Duffy that he did not want police
coming to his home to interview him.
Seven: Upon arrival at the pre-arranged location, [Appellant]
approached the agents' car and the men introduced themselves
to each other. [Appellant] then voluntarily entered the car and
the men drove to a Delaware State police station.
Eight: Agent Duffy, in response to a question from the prosecutor
while on direct examination, advised this court that [Appellant]
was not under arrest and the men only made small talk en route
to the police station.
Nine: Upon arrival at the Delaware police station, the men then
entered an interior room. And from that point on, the
conversation was videotaped. There was more small talk
including [Appellant] showing his various tattoos to the law
enforcement agents.
Ten: At that point the law enforcement agent stated: So you want
to tell on yourself -- that's unusual. You are not under arrest, but
I'm going to give you your [Miranda] warnings. Thereafter, the
standard warnings were read to [Appellant.]
[11]: The defendant then waived his right to have a lawyer
present, and signed the form under the words Waiver of Rights,
[which was] also read to him[.] And that document was marked
as Commonwealth Exhibit [four]. Thereafter, [Appellant] engaged
in a conversation with [the] law enforcement agent[s] during
which time he admitted to the perpetration of various criminal
offenses in Philadelphia, including [various] robberies[.]
[12]: It should be noted that, as clear from the video, [Appellant]
was not subjected to any physical or emotional coercion. In
addition he was fed, given bathroom breaks and provided
cigarettes. Also, [Appellant] was not under the influence of either
drugs or alcohol.
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[13]: Thereafter, following a break, [Appellant] continued his
conversation with the law enforcement agents and told them
about two homicides. One where a single black male was killed
by him. And [a] second wherein he killed two people, a black male
and a black female. Despite [the defense’s] contention[] that
[Appellant] was [led to confess] by voices, he, during the course
of this audio proceeding never mentioned hearing voices.
[14]: [Appellant] was then moved across the hall to another room
in the same building, and thereafter Police Officer John Benham
questioned him about the two homicides.
[15]: Police Officer John Benham stated he was an officer assigned
to the Homicide Unit working with an FBI joint task force. He
stated he had been asked to research the various crimes
[Appellant] had confessed to committing.
[16]: Upon his arrival at the Delaware police station, Benham
entered the room and commenced an interview with [Appellant]
with the following words:
First question: Did they read you your rights? [Appellant]
answered yes. Did you understand them? [Appellant]
answered yes.
[17]: Police Officer Benham then proceeded to interview
[Appellant] on video first about the robberies, then the homicide.
[18]: Police Officer Benham asked [Appellant] if he was willing to
go to Philadelphia for a follow-up interview because he, Benham,
knew very little, if anything, about the two homicide cases. Yet
he continued to interview -- continued his interview with
[Appellant] -- until Homicide Detectives Tim Bass and George
Pirrone . . . arrived.
[19]: After introducing [Appellant] to the homicide detectives,
Police Officer Benham was finished with his involvement, and
[Appellant] agreed to return to Philadelphia with the detectives.
[20]: On February 4, 2016 at or about 5:00 a.m., Homicide
Detective Gregory Santamala interviewed [Appellant] inside [the]
police homicide unit. Santamala was the initial assigned detective
in the instant case, to wit [the] homicide of Kamara Joseph
committed on August 24, 2009 in the 2500 block of Shield Street
[Philadelphia, Pennsylvania.]
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[21]: Detective Santamala read [Appellant] his Miranda warnings
and asked if he understood them. After [Appellant] stated yes,
he signed the waiver form marked in this courtroom as
Commonwealth's Exhibit [eight]. The Court finds there was no
coercion or intimidation.
[22]: [Appellant] gave a videotaped statement admitting to the
homicide of [Joseph]. A written summary of the admission was
prepared and read to [Appellant] on the videotape by Detective
Robert Hesser . . .[the summary of] which [Appellant] adopted.
[23]: Thereafter, [Appellant] was interviewed by the detectives
assigned in the homicide of the two victims[, Pitts and Finks.]
Detective Joseph Bamberski, who first met [Appellant] inside the
homicide unit on [February 4, 2016] at 5:00 p.m., was the
assigned [detective] in that investigation. There was a break and
the statement resumed at 7:00 p.m. That case is not part of the
trial now before this [c]ourt.
[24]: Nevertheless, Detective Bamberski read [Appellant] his
Miranda rights. And after [Appellant] stated he understood
them, he was asked to sign the waiver part, and he did so.
[Appellant] then gave a videotaped confession outlining how he
killed the victims in the double homicide case.
[25]: On February 4, 2016, the aforementioned Officer Benham,
returned to Philadelphia and met with [Appellant] again in the
homicide unit. He stated he wanted to question [Appellant] in his
capacity as a member of the joint task force about the various
robberies which he thought might be federalized.
[26]: He gave [Appellant] Miranda warnings by reading them to
him from the standard waiver card. After being warned of his
rights, [Appellant] stated he understood them and signed the
waiver card, evidencing same.
[27]: Thereafter, Officer Benham took an interview which was
videotaped. However, he learned that Southwest Detectives
Division had taken over the homicide investigation.
[28]: Thereafter, Detectives Conway and Daly interviewed
[Appellant] on video about the robberies. Those crimes are not
part of this trial.
[29]: During the course of the testimony on the motion, reference
was made to a chronology prepared by police investigators which
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included time and place of the warnings and waivers. [Appellant]
never asked for a lawyer or to stop any of the interviews. Further,
the chronology reflects that [Appellant] was fed, given breaks,
food and cigarettes, and that he slept inside the interview room.
[30]: In addition, none of the police personnel ever stated that
[Appellant] told them he heard voices or that voices told him to
confess to any of the crimes at issue. … In fact, neither of the
expert witnesses who later testified in this case stated that
[Appellant] told them he heard voices. The only witness in these
proceedings who stated [Appellant] told her he heard voices was
his mother.
[31]: At the conclusion of the Commonwealth's case in chief[,]
[Appellant] called a neuropsychologist, [Dr.] Carol Armstrong, as
an expert witness.
[32]: [Dr.] Armstrong testified to her evaluation of [Appellant]
which included, among other things, a review of his medical
records and an assessment interview wherein various
psychological tests were administered.
[33]: [Dr.] Armstrong found that [Appellant] had a number of
mental deficiencies; that he carried a diagnosis of Unspecified
Schizophrenia Spectrum and other psychotic disorders, with an IQ
of 75 which she characterized as Intellectual Disability.
[34]: It was [Dr.] Armstrong's opinion that [Appellant’s]
constellation of mental impairments rendered him incapable of
knowingly, intelligently and voluntarily waiving his Miranda
rights.
[35]: On rebuttal the Commonwealth called its expert witness;
one [Dr.] Kirk Heilbrun. . . a forensic psychologist.
[36]: [Dr.] Heilbrun also performed an evaluation which consisted
of an interview with [Appellant], review of medical records and
the administration of various psychological tests.
[37]: [Dr. Heilbrun] determined that [Appellant], although he had
underlying psychological deficiencies with an IQ of 75, should be
characterized not as Disabled but as Borderline.
[38]: [Dr. Heilbrun’s] opinion, including findings on the Miranda
Rights Comprehension Instrument -- hereafter referred to as
MRCI -- was that [Appellant] had sufficient ability to understand
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and appreciate the Miranda warnings and to meaningfully waive
[the] same.
N.T. Hearing, 6/11/18, at 6-17. Based upon the aforementioned findings of
fact, the trial court concluded that Appellant “gave his various statements to
authorities knowingly, intelligently and voluntarily.” Id. at 20. Upon review,
we agree with the trial court’s determination that, based upon the totality of
the circumstances, suppression was unwarranted.
Herein, the Commonwealth demonstrated that law enforcement did not
coerce or threaten Appellant in order to obtain his confession. To the contrary,
Appellant, himself, “reached out to law enforcement authorities, and once
Mirandized told them things . . . about this homicide and other crimes that
could only have been known by the perpetrator, the victim, and/or the
investigators.” N.T. Hearing, 6/11/18, at 18. Moreover, during interrogation,
Appellant “was not denied any of the comforts he requested.” N.T. Hearing,
4/18/18, at 198. The evidence showed that Appellant slept for “approximately
14 hours,” and that police gave him “pizza,” “Chinese [food], pastries, water,
[and] soda,” as well as cigarettes whenever Appellant requested. Id. Thus,
there is no evidence that Appellant made his confession as a result of any
undue governmental pressure.
Similarly, we conclude that Appellant was aware of “both the nature of
the right being abandoned and the consequences of that choice.” Logan, 549
A.2d at 537. As the Commonwealth pointed out, Appellant has had multiple
interactions with the criminal justice system. Indeed, Appellant was arrested
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“ten or more” times, entered “four guilty pleas,” received three guilty verdicts
after trials, and attended multiple probation violation hearings. N.T. Hearing,
4/18/18, at 196. In addition, Appellant’s responses in the administration of
the MRCI further demonstrate his knowledge of the nature of his Miranda
rights. As the trial court explained,
[t]he following are questions put to [Appellant] and his responses
in administration of the MRCI.
Question: What do[es] you have the right to remain silent
and do not have to say anything mean?
Answer: It means you don't have to agree to anything, say
anything, don't have to cooperate.
Question: What is meant by anything you say can and will
be used against you in the court of law?
[Answer:] It means if you tell us you've done something,
we're going to use your statement against you and put you
in prison.
Question: What is meant by you have the right to talk to a
lawyer of your choice before we ask you questions and also
to have a lawyer here with you the whole time we ask
questions?
[Answer:] That means you should get an attorney. You
have the right to get an attorney if you would like to have
one. You don't have to be interrogated without a lawyer
present.
Question: What is meant by if you cannot hire a lawyer and
you want one, we will see that you have one provided to you
free of charge before we ask you any questions?
[Answer:] It means we're going to get you an attorney. If
you don't have money, the court system gonna [sic] give
you a lawyer.
Question: What is meant by if you're willing to give us a
statement, you have a right to stop any time you wish?
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[Answer:] It means I could have stopped whenever I
wanted to.
N.T. Hearing, 6/11/18 at 18-20. Thus, Appellant clearly understood the
nature of the rights being abandoned. Appellant also understood that the
“consequence[] of his decision would be jail time [as] he [repeatedly]
attempted to bargain for federal prison as opposed to state prison.” Id. at
20. Based upon all of the foregoing, we conclude that Appellant knowingly,
intelligently, and voluntarily made inculpatory statements to police.
Accordingly, the trial court did not err in denying suppression.
In his second issue, Appellant claims that the trial court erred in
admitting various photographs of Joseph, as well as Finks and Pitts, into
evidence during his trial. Appellant’s Brief at 16-19. As our Supreme Court
previously explained:
The admissibility of photographs falls within the discretion of the
trial court and only an abuse of that discretion will constitute
reversible error. See Commonwealth v. Freeman, 827 A.2d
385, 405 (Pa. 2003), citing Commonwealth v. Baez, 720 A.2d
711, 726 (Pa. 1998), cert. denied, 528 U.S. 827 (1999).
The test for determining whether photographs are admissible
involves a two-step analysis. “First, the court must decide
whether a photograph is inflammatory by its very nature. If the
photograph is deemed inflammatory, the court must determine
whether the essential evidentiary value of the photograph
outweighs the likelihood that the photograph will improperly
inflame the minds and passions of the jury.” Baez, 720 A.2d at
726, citing Commonwealth v. Marshall, 643 A.2d 1070, 1075
(Pa. 1994).
Commonwealth v. Malloy, 856 A.2d 767, 776 (Pa. 2004) (parallel citations
omitted).
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In this matter, the Commonwealth proffered photographs of Joseph,
Finks, and Pitts, which were taken at both crimes scenes. N.T. Trial, 9/25/18,
at 141-144 and 155-157. The trial court admitted these photographs over
Appellant's objection. Id. at 6-31. On appeal, Appellant argues that
admission of the photographs was an abuse of discretion because, according
to Appellant, the photographs were “inflammatory, graphic, [and]
cumulative.” Appellant's Brief at 16. Specifically, Appellant argues that the
admission of several photographs depicting “three separate bound, gagged,
and bloodied dead bodies,” is inflammatory and likely invoked the jury's
compassion and sympathy. Id. Furthermore, Appellant argues that he
“offered to stipulate that ‘three people were shot and killed.’” Id. at 17-18
(citation omitted). Therefore, Appellant believes that the photographs were
irrelevant and unnecessary. Id.
We find no abuse of discretion in the trial court's admission of the
photographs. As the trial court explained, “the photographs were not
inflammatory.” Trial Court Opinion, 5/14/19, at 8. Indeed, the “majority of
the photographs featured very little blood, and those that did feature blood[,]
were displayed in black and white instead of color.” Id. Moreover, the
photographs were not irrelevant. In fact, the photographs “provided essential
evidentiary value” as they “show[ed] the nature of [Joseph’s] wounds and
[assisted] the jury [in] understanding the testimony [of] the assigned
detectives and the forensic pathologist.” Id. Furthermore, despite concluding
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that the photographs were not inflammatory, the trial court issued a
cautionary instruction to the jury. The court stated:
Ladies and gentlemen, the photographs you see now and other
photographs of [Joseph] are admitted into evidence for the
purpose of showing the nature of the wounds he received as well
as the conditions at the scene upon the arrival of the police
officers, family members and other investigators.
They are also admitted to help you understand the testimony of
the various witnesses who refer to them.
This photograph and the series of photographs to which I address
are not pleasant to look at, but you should not allow them to stir
up your emotions to the prejudice of [Appellant].
Your verdict must be based on a rational and fair consideration of
all of the evidence and not on passion or prejudice against
[Appellant,] against the Commonwealth or anyone else connected
to this case.
N.T. Trial, 9/25/18, at 96-97. We therefore conclude that Appellant's appeal
of the admission of the photographs is without merit.
Appellant's final claim challenges the sufficiency of the evidence to
support his convictions for carrying a firearm without a license as well as
carrying a firearm on public streets or public property in Philadelphia. These
claims are completely undeveloped and are, thus, waived. Commonwealth
v. Spotz, 18 A.3d 244, 324 (Pa. 2011). Further, and in the alternative, we
conclude that Appellant's sufficiency claims fail, as the claims are meritless.
See Commonwealth v. Markman, 916 A.2d 586, 606 (Pa. 2007) (“[w]here
a decision rests on two or more grounds equally valid, none may be relegated
to the inferior status of obiter dictum”), quoting Commonwealth ex rel. Fox
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v. Swing, 186 A.2d 24, 26 (Pa. 1962); see also Commonwealth v. Reed,
971 A.2d 1216, 1220 (Pa. 2009) (where Superior Court determined that
appellant's claims were both waived and meritless, the merits-based decision
“was a valid holding [and] constitutes the law of the case”).
We review Appellant's sufficiency of the evidence challenges under the
following standard:
The standard we apply in reviewing the sufficiency of 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 may 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. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)
(citations omitted).
Appellant's sufficiency claims require little discussion. Appellant first
argues that the evidence was insufficient to support his conviction under 18
Pa.C.S.A. § 6106(a)(1). According to Appellant, because the firearm was not
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produced during trial, “the Commonwealth did not prove the barrel length to
qualify as a firearm.” Trial Court Opinion, 5/14/19, at 10; see also Appellant’s
Brief at 20-21. This claim fails.
In relevant part, section 6106(a)(1) provides:
... 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 fixed place of business, without a valid and
lawfully issued license under this chapter commits a felony of the
third degree.
18 Pa.C.S.A. § 6106(a)(1).
For purposes of Section 6106, a “firearm” is defined as:
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.
Contrary to Appellant’s claims, the Commonwealth did present sufficient
evidence to sustain his conviction under Section 6106(a)(1). Indeed, the
Commonwealth introduced into evidence the video-recording of Appellant’s
confession, in which he stated that, in committing the murder of Joseph, he
used a revolver. N.T. Trial, 9/25/18, at 165 and 192. Moreover, Officer John
Cannon of the Philadelphia Police Department testified during Appellant’s trial
as an expert in firearms identification and comparison. Id. at 117-150.
During his testimony, he showed two firearms to the jury, a revolver and a
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semi-automatic handgun, and explained the difference between the two. Id.
at 124-133. Officer Cannon testified that, even without recovering the actual
murder weapon, it was his opinion that a revolver was used during the
incident. Id. at 145. He came to this conclusion by analyzing the type of
bullet recovered from Joseph’s head. Id. at 143-146. Accordingly, even
without producing the firearm at Appellant’s trial, the Commonwealth
presented sufficient evidence to sustain his conviction for a violation of Section
6106(a)(1).
Next, Appellant argues that the Commonwealth failed to prove that he
violated Section 6108. Appellant argues that the Commonwealth did not show
that he carried the firearm “in a vehicle or concealed it on or about his person”
and, as such, did not present sufficient evidence to sustain his conviction for
a violation of Section 6108. Trial Court Opinion, 5/14/19, at 10; see also
Appellant’s Brief at 20-21. This claim also lacks merit.
The offense of carrying firearms on public streets or public property in
Philadelphia, 18 Pa.C.S.A. § 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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Herein, in addressing this issue, the trial court concluded:
With regards to concealment, [Appellant] used both his hands to
open the window to get into the house, necessitating the firearm’s
concealment while he entered the premises. N.T. [Trial,]
9/25/[18], at 183-187. [Thus,] the jury was free to infer that the
firearm was concealed as [Appellant] made his way to [] Harris’s
home. Therefore, the Commonwealth met its burden[.]
Trial Court Opinion, 5/14/19, at 11. When viewing the evidence presented in
the light most favorable to the Commonwealth, we agree with the trial court
and conclude that the evidence presented was sufficient to convict Appellant
under Section 6108.
Because Appellant is not entitled to relief for any of his claims, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/20
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