Com. v. Dukes, F.

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2021
• Docket: 1621 EDA 2020
• Status: Unpublished

Opinion

J-S25030-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANKIE DUKES : : Appellant : No. 1621 EDA 2020

Appeal from the Judgment of Sentence Entered June 19, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006912-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: Filed: December 23, 2021

Frankie Dukes appeals the judgment of sentence imposed on his

convictions for Possession of a Firearm Prohibited, Firearms Not to be Carried

Without a License, Possession of a Controlled Substance, and Possession of

Drug Paraphernalia.1 On appeal, he challenges the sufficiency of the evidence

to sustain his convictions for the firearms offenses. We reverse Dukes’

conviction for Firearms Not to be Carried Without a License, affirm the

remaining convictions, and remand for resentencing.

On October 5, 2018, around 9:15 a.m., Pennsylvania State Trooper

Matthew Brennan was on vehicular patrol southbound on Interstate 95. N.T.,

1/15/20, at 10-11. He observed a Dodge Chrysler minivan following too ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1); 35 P.S. §§ 780-113(a)(16), 780-113(a)(32), respectively. J-S25030-21

closely to another vehicle and ran the registration, which had expired in

August 2018. Id. at 11-12. Trooper Brennan activated his lights and sirens

and initiated a traffic stop, approaching the passenger side of the car. See id.

Dukes identified himself by name and provided a Delaware identification card

but did not have a driver’s license. Id. at 14. Trooper Brennan detected the

strong odor of marijuana and requested Dukes’ license, insurance, and

registration. Id. at 15-16. Dukes was nervous, stuttering, and glassy-eyed.

The car was not registered to Dukes, but to a woman he claimed was his

girlfriend. Id. at 17-18.

Trooper Brennan requested backup and searched the vehicle. Id. at 20-

21. He later testified, “My immediate observation was to the front passenger

side seat. It had a drawer that was attached to the seat. I pulled out the

drawer and I immediately observed a black pistol. It appeared loaded. It was

– I believe it was a Polish P-64 handgun.” N.T., 1/15/20, at 21. Police

recovered 67 small plastic bags filled with marijuana from a panel

compartment inside the vehicle above the rear driver’s side tire. Id. at 21-22.

Following Dukes’ arrest, 10 bags of cocaine were located in his front pant area,

two Percocet pills from inside his right sock, and an additional “white pill” in

his jacket. Id. at 25.

At Dukes’ bench trial, the Commonwealth and defense counsel

stipulated to the results of the drug lab report, namely, that the drugs had

been tested and “they are what they are.” Id. at 28-29. The Commonwealth

introduced evidence that Dukes did not have a license to carry firearms and,

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based upon Dukes’ prior convictions for PWID and firearms offenses, counsel

stipulated that he was a person who was not to possess firearms. Id. at 86-

87. The prosecution did not introduce into evidence either the firearm police

recovered or photographs of the firearm or of any ammunition. Id. at 2, 20-

22, 86-87. Nor did the Commonwealth proffer expert testimony or a ballistic

report. Id. Trooper Brennan stated that the firearm “appeared loaded” and

that he believed the gun was a Polish P-64 handgun. He did not testify about

the caliber, weight, size, or any of the firearm’s other relevant details. Id.

Dukes was convicted of the firearms and drug offenses listed above and

received an aggregate sentence of six to 12 years of incarceration and an

aggregate of one year of consecutive probation. Dukes filed post-sentence

motions and a timely notice of appeal.

On appeal, Dukes raises the following issues:

1. Whether the evidence is insufficient to sustain the convictions for count three, persons not to possess firearms, and count four, firearms not to be carried without a license, since the prosecution failed to prove beyond a reasonable doubt that [Dukes] actually or constructively possessed the alleged firearm?

2. Whether the evidence is insufficient to sustain the conviction for count four, firearms not to be carried without a license, since the prosecution failed to prove beyond a reasonable doubt that [Dukes] possessed an actual “firearm” as 18 Pa. C.S.[A.] § 6102 defines one, especially where the prosecution presented no evidence regarding the purported firearm’s size?

3. Whether the evidence is insufficient to sustain the conviction for count three, persons not to possess firearms, since the prosecution failed to prove beyond a reasonable doubt that [Dukes] possessed an actual “firearm” as 18 Pa.

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C.S. § 6105(i) defines one, especially where the prosecution presented no evidence that the purported firearm was designed or readily convertible to expel any projectile by action of explosive?

Dukes’ Br. at 5.

All three of Dukes’ issues challenge the sufficiency of the evidence to

sustain his convictions for firearms offenses. Essentially, he argues that

because the vehicle was not registered to him, the Commonwealth did not

prove that he actually or constructively possessed the firearm. Dukes’ Br. at

13. He also contends that the evidence does not support the conviction for

Firearms Not to be Carried Without a License because the prosecution did not

present any evidence of, among other things, the firearm’s barrel length. See

id. at 22. Finally, he contends that the Commonwealth did not prove Persons

Not to Possess Firearms because there was no evidence that the firearm was

operable. See id. For ease of analysis, we will address Dukes’ second and

third issues first.

When reviewing a challenge to the sufficiency of the evidence, we are

“required to view the evidence in the light most favorable to the verdict winner

giving the prosecution the benefit of all reasonable inferences to be drawn

from the evidence.” Commonwealth v. Neysmith, 192 A.3d 184, 189

(Pa.Super. 2018) (citation omitted). Our standard of review is de novo and

our scope of review is plenary. Id. “Evidence will be deemed sufficient to

support the verdict when it establishes each material element of the crime

charged and the commission thereof by the accused, beyond a reasonable

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doubt.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence. Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019).

Further, the trier of fact is free to believe all, some, or none of the evidence.

Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016). When

performing sufficiency review, “this Court may not substitute its judgment for

that of the factfinder, and where the record contains support for the

convictions, they may not be disturbed.” Commonwealth v. Smith, 146 A.3d

257, 261 (Pa.Super. 2016).

Dukes contends that the evidence was insufficient to convict him under

18 Pa.C.S.A. § 6106 because the Commonwealth did not prove the barrel

length, an essential element of the crime. Dukes’ Br. at 21.

The offense of Firearms Not to be Carried Without a License 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). For purposes of this statute, a “firearm” is “[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 concedes that the evidence is insufficient to support

a conviction for this crime because there was no evidence at trial of barrel

length. See Com.’s Br. at 10; Commonwealth v. Todd, 384 A.2d 1215, 1217

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(Pa. 1978) (superseded by statute).2 Our review confirms the concession.

Accordingly, we vacate the conviction.

Next, Dukes contends that the evidence was insufficient to support his

conviction for Possession of a Firearm Prohibited because there was no

evidence that the firearm was designed, or could readily be converted, to

expel projectiles by the action of an explosive. Dukes Br. at 25 (citing 18

Pa.C.S.A. § 6105(i)). The Commonwealth responds that Trooper Brennan in

his testimony identified the make and model of the firearm and said it

appeared loaded. Commonwealth’s Br. at 6-8. The Commonwealth avers that

the court applied common sense to infer that the firearm was loaded with

bullets and that it therefore must have been designed to fire ammunition. Id.

at 8-9. In response, Dukes points out that Trooper Brennan never testified

that the object was loaded with bullets, only that it was “loaded,” and that

there was no support in the record for the contention that the object contained

actual centerfire or rimfire cartridges. Dukes’ Reply Br. at 8-9.

The subsection of Persons Not to Possess under which Dukes was

convicted requires the Commonwealth to prove, beyond a reasonable doubt,

that Dukes: (1) possessed, used, controlled, sold, transferred, or

manufactured a firearm; and (2) had been adjudicated delinquent for a ____________________________________________

2 In 1995, the General Assembly amended Section 6102 to include the word “length” following the word “barrel” and Section 6105 to include its own, current definition of firearm. See Commonwealth v. Gillespie, 821 A.2d 1221, 1224 (Pa. 2003). Thus, while the length of the barrel is no longer an essential element of Section 6105, the definition of Section 6102 still applies with regard to Section 6106. See, e.g., Gillespie, 821 A.2d at 1224.

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disabling offense. See 18 Pa.C.S.A. § 6105(c)(7). A firearm is defined in this

section as “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.” 18 Pa.C.S.A. § 6105(i).

In Commonwealth v. Thomas, 988 A.2d 669 (Pa.Super. 2009), this

Court held that

[t]he statutory language [of section 6105] is clear, and it does not require proof that the weapon was capable of expelling a projectile when it was seized; on the contrary, the fact that a person can be prosecuted simply for possessing a semiautomatic pistol frame refutes this notion because the frame requires additional parts, e.g., a slide and barrel, in order to fire a bullet.3 Thus, the use of the terms “frame” and “receiver” in section 6105(i) demonstrates that the legislature sought to eliminate the operability requirement articulated in [Commonwealth v.] Layton[, 307 A.2d 843 (Pa. 1973),] for purposes of this section. 3 The frame of a semiautomatic pistol is the portion of the weapon that houses the trigger and bears a serial number that must be recorded whenever a complete pistol or pistol frame is transferred through a federal firearms licensee (“FFL”) to a new owner. Other gun parts such as barrels, slides, triggers, firing pins, and magazines are not regulated in this manner and may be purchased from the manufacturer or other vendors without the assistance of an FFL. The definition of firearm codified at 18 Pa.C.S. § 6105(i) and § 6106(e) is consistent with the federal government's view that the frame of the weapon is a firearm, even if it cannot fire ammunition due to a missing barrel, trigger, or other necessary components.

Thomas, 988 A.2d at 672.

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Regardless of the lack of a ballistics report or other evidence, Trooper

Brennan testified that the gun in question was a particular make and model

of pistol. This testimony alone was sufficient to support an inference that it

was “designed” to expel a projectile by action of an explosive, and supports

the conviction. Thomas, 988 A.2d at 672; Beasley, 138 A.3d 45. Dukes’

argument lacks merit.

Finally, Dukes argues that the evidence is insufficient to support his

convictions because the Commonwealth did not prove that he possessed the

firearm. He maintains that he did not make any movements towards the gun

and was only operating another person’s van containing the gun. Dukes’ Br.

at 13-19.

Since the firearm in question was not found on Dukes’ person, the

Commonwealth was required to establish “constructive possession” of the

firearm. See Smith, 146 A.3d at 263. We have explained that constructive

possession is an inference of possession, requiring proof of “conscious

dominion,” which is “the power to control the contraband and the intent to

exercise that control.” Commonwealth v. Parker, 847 A.2d 745, 750

(Pa.Super. 2004) (citation and internal quotation marks omitted). The

Commonwealth may prove constructive possession by the totality of the

circumstances. We do not view individual pieces of evidence in isolation. See

id.

Dukes was only person in the vehicle, unlike the cases he cites in

support of his argument. Dukes possessed the keys to the vehicle and troopers

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observed him in it, with the gun at issue in an unlocked box within his reach.

Accordingly, the evidence was sufficient to prove that he constructively

possessed the handgun. Parker, 847 A.2d at 750.

We therefore reverse Dukes’ conviction for Firearms Not to be Carried

Without a License and affirm the remaining convictions. As the sentences for

Dukes’ firearms convictions were consecutive, we vacate the judgment and

remand for resentencing, to ensure the court’s overall sentencing scheme is

not disturbed. See Commonwealth v. Thur, 906 A.2d 552, 569-70

(Pa.Super. 2006).

Judgment of sentence vacated. Conviction on Firearms Not to be Carried

Without a License reversed. Remanded for resentencing. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/21

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