Com. v. Francis, O.

Superior Court of Pennsylvania

Com. v. Francis, O.

DecidedOctober 22, 2015

Docket501 WDA 2014

StatusUnpublished

This text of Com. v. Francis, O. (Com. v. Francis, O.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Francis, O., (Pa. Ct. App. 2015).

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Opinion

J-A23004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : OWEN FRANCIS, : : Appellant : No. 501 WDA 2014

Appeal from the Judgment of Sentence entered on February 10, 2014 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0013746-2013

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 22, 2015

Owen Francis (“Francis”) appeals from the judgment of sentence

imposed following his conviction of two counts each of recklessly

endangering another person (“REAP”) and simple assault, and one count

each of aggravated assault, terroristic threats, and a carrying a firearm

without a license.1 We vacate Francis’s judgment of sentence for aggravated

assault and carrying a firearm without a license, affirm Francis’s convictions

of simple assault and terroristic threats, and remand for resentencing.

Francis and the victim, Chanel Palmer (“Palmer”), began dating in April

2012. On December 15, 2012, while watching television with Francis,

Palmer received a text message. Francis and Palmer argued about the text

message. During the argument, Palmer held her one-year-old daughter in

1 See 18 Pa.C.S.A. §§ 2705, 2701, 2702, 2706, 6106. J-A23004-15

her arms, and Palmer’s two-year-old daughter sat on the couch. Francis told

Palmer he was going to leave, after which he gathered his belongings. The

two continued to argue, at which time Francis head-butted Palmer on the

forehead and struck Palmer with his closed fist. At the time, Palmer still

held her daughter. After being struck, Palmer put her daughter down.

Francis went to the second floor, as the two continued to argue. Upon

returning to the first floor, Francis grabbed Palmer by the neck, holding her

against the wall. Francis threw Palmer to the ground, still choking her. As

Francis continued to strike Palmer, he pulled out a gun and held it to

Palmer’s head. Francis told Palmer that if she continued to scream, he

would pull the trigger. Palmer stopped screaming, and Francis released her.

However, Francis continued striking Palmer with a closed fist. Palmer

gathered her children and proceeded to the first floor exit door. Francis

grabbed Palmer’s phone and smashed it on the floor. Then, as he left the

residence, Francis threatened to kill Palmer and her grandmother if he saw

them again.

Officer Elvis Duratovic (“Officer Duratovic”) responded to the scene, at

which time he found Palmer, crying hysterically. Officer Duratovic observed

that Palmer had severe injuries to her head and face, and that her mouth

was bleeding. Based upon Palmer’s difficulty speaking and her injuries,

Officer Duratovic believed that “there was a pistol whipping[.]” N.T.,

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2/10/14, at 7. During his investigation, Officer Duratovic discovered that

Francis did not have a license to carry a firearm.

After a non-jury trial, the trial court found Francis guilty of the above-

described charges. For his conviction of carrying a firearm without a license,

the trial court sentenced Francis to two to four years in prison, followed by a

five-year term of probation. For his conviction of aggravated assault, the

trial court imposed a concurrent prison term of two to four years, followed

by five years of probation.2 Francis timely filed a post-sentence Motion,

which the trial court denied. Thereafter, Francis filed the instant timely

appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

Francis presents the following claim for our review: “Was the evidence

sufficient to support the conclusion[,] beyond a reasonable doubt[,] that

[he] committed the offenses of aggravated assault and carrying a firearm

without a license?” Brief for Appellant at 6.

Francis claims that the Commonwealth failed to establish that he, in

fact, possessed a deadly weapon, and that he used that weapon to assault

Palmer. Id. at 15. Francis contends that Palmer “was not familiar with guns

at all,” and described it only as being black and silver. Id. According to

Francis, the Commonwealth’s evidence is “wholly insufficient to allow a

conclusion that the object in question ‘looks like, feels like, sounds like, or is

2 The trial court imposed no further sentence as to Francis’s convictions for REAP, simple assault and terroristic threats.

-3- J-A23004-15

like, a firearm.’” Id. at 16 (quoting Commonwealth v. Layton, 307 A.2d

843, 844 (Pa. 1973)). Francis argues that “[n]o evidence of any kind exists

on the record to establish that [he] had or used any pistol that could be

made to shoot a bullet.” Brief for Appellant at 16.

In reviewing a challenge to the sufficiency of the evidence, we

evaluate the record “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. Bibbs, 970 A.2d 440, 445 (Pa. Super.

2009) (citation omitted).

Evidence will be deemed sufficient to support the verdict when it established each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence. Significantly, [we] may not substitute [our] judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed.

Id. (citation and quotation marks omitted). It is within the province of the

fact finder to determine the weight to be accorded each witness’s testimony

and to believe all, part, or none of the evidence introduced at trial.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

Francis first challenges the sufficiency of the evidence underlying his

conviction of aggravated assault, 18 Pa.C.S.A. § 2702(a)(4). A person is

guilty of aggravated assault under that subsection if he “attempts to cause

or intentionally or knowingly causes bodily injury to another with a deadly

weapon[.]” Id. The Crimes Code defines a “deadly weapon,” as

-4- J-A23004-15

[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

Id. § 2301. Section 2301 provides no definition for the term “firearm.”

The term “firearm” is defined in thirteen separate sections of the

Crimes Code. Crimes Code section 908(c) (prohibited offensive weapons),

defines a firearm as “[a]ny weapon which is designed to or may readily be

converted to expel any projective by the action of an explosive or the frame

or receiver of any such weapon.” Id. § 908(c). Substantially similar

definitions are used in Crimes Code sections 913 (possession of firearm or

other dangerous weapon in court facility), 2702.1 (assault of law

enforcement officer), 2707.1(d) (discharge of a firearm into an occupied

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