J-A08036-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTIN GREEN : : Appellant : No. 1645 EDA 2024
Appeal from the Judgment of Sentence Entered January 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000608-2023
BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 30, 2025
Martin Green (“Green”) appeals from the judgment of sentence following
his convictions for possession of a firearm prohibited (“person not to
possess”), possession of an instrument of crime (“PIC”), simple assault, and
recklessly endangering another person (“REAP”). 1 Following our careful
review, we affirm the judgments of sentence for possession of a firearm
prohibited, PIC, and simple assault, and vacate the REAP conviction.
The trial court provided the following factual history:
At [Green’s] trial, Charletta Taylor (hereinafter “[]Taylor”) testified that, on September 12, 2022, at approximately 10:00 p.m., she was seated inside her parked car near her home on the 100 block of N. Paxon Street in Philadelphia . . .. In the passenger seat of the vehicle was her 17-year-old daughter [D.] While preparing to exit the car, [] Taylor reached to retrieve her bag from the backseat and her daughter suddenly screamed her name. When she turned, she saw [Green] (her cousin) on a ____________________________________________
1 See 18 Pa.C.S.A. §§ 6105(a)(1), 907, 2701(a), and 2705. J-A08036-25
bicycle next to the driver’s side window holding a black semi- automatic handgun. His arm was extended, and he was pointing the gun at her in the car. [Green] was silent but stared at her intently with his finger on the trigger, then she heard two clicks. [] Taylor and her daughter ran from the vehicle to 52nd Street where they hid in an alleyway until a pedestrian encountered them. Afterwards she flagged down the police, who drove them back to her car, but [Green] was gone. She then went to the district and made a report.
The parties [later] stipulated that a search warrant was executed on [Green’s] home following the incident for ballistic evidence, but the only item recovered was mail in [Green’s] name. The parties also stipulated that [Green] was ineligible to possess a firearm pursuant to [s]ection 6105 of the Pennsylvania Criminal Code.
Trial Ct. Op., 8/16/24, at 3 (citations to the record omitted). Green was
charged with several offenses arising from this incident, and he opted for a
non-jury trial, at the conclusion of which Green was acquitted of some charges
not relevant to this appeal, and he was convicted of the offenses stated above.
The trial court ordered a pre-sentence investigation report (“PSI”) and
a mental health evaluation. At sentencing, the trial court, having reviewed,
inter alia, the PSI and Green’s mental health evaluation, imposed a sentence
of ten to twenty years of imprisonment for person not to possess, a
consecutive term of two to four years of imprisonment for the PIC conviction,
a consecutive term of one to two years of incarceration for simple assault, and
no further penalty for REAP. See N.T., 1/26/24, at 29-34; accord Sentencing
Order, 1/26/24. Green filed a post-trial motion challenging the sufficiency of
the evidence for his person not to possess and REAP convictions, see Mot. for
Reconsideration of Verdict, 1/26/14, which the trial court denied. See Order,
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1/26/24. Green additionally filed a timely post-sentence motion for
reconsideration of the sentence, see Mot. for Reconsideration of Sentence,
2/5/24, which the trial court denied by operation of law. See Order, 6/5/24.
Green timely appealed, and both he and the trial court complied with Pa.R.A.P.
1925.
Green raises the following issues for our review:
1. Did the trial court err in overruling the defense’s objection to [Taylor’s] lay opinion about whether [] Green held a genuine firearm in his hand where that opinion was based on improper speculation?
2. Was the evidence insufficient for a conviction under [section] 6105 where the object described by the complaining witness could not have been a genuine firearm?
3. Should the [section] 6105 charge have been graded as a misdemeanor of the first degree where there was no evidence at trial that [] Green had been convicted of a disqualifying felony?
4. Was the evidence insufficient for a conviction for recklessly endangering another person where all evidence showed that [] Green’s purported gun was not loaded?
Green’s Br. at 1-2.
In his first issue, Green challenges the trial court’s admission of
testimony by Taylor that Green possessed a firearm because it was improper
lay opinion testimony. Our standard of review for evidentiary issues is as
follows:
The admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Accordingly, a ruling admitting evidence will not be disturbed on appeal unless that ruling reflects
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manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support to be clearly erroneous.
Commonwealth v. Berry, 172 A.3d 1, 3 (Pa. Super. 2017) (internal
citations, quotations, and brackets omitted).
Pennsylvania Rule of Evidence 701 addresses the admission of opinion
testimony by lay witnesses and provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Pa.R.E. 701.
This Court has explained that lay witnesses are generally permitted to
express opinions related to their observations on a range of subject areas
based on their personal experiences that are helpful to the factfinder, and
pursuant to Rule of Evidence 104(a), the trial court uses its discretion to
determine whether the lay opinion is helpful to the factfinder. See Berry,
172 A.3d at 3-4. This Court has rejected the argument that a witness need
be an expert or have specialized knowledge to testify that a weapon is a
firearm. See, e.g., Commonwealth v. Melvin, 572 A.2d 773, 777 (Pa.
Super. 1990) (holding that the “courts have never held that [expert]
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testimony is necessary, however, and testimony by lay witnesses has always
been sufficient” to show that a weapon is a firearm).
Green argues in his first issue that the trial court improperly admitted
Taylor’s lay opinion testimony that the weapon he used during this incident
was a real firearm as opposed to a replica because Taylor’s testimony about
the firearm was “speculative.” See Green’s Br. at 10-11.
The trial court considered Green’s issue and concluded it merits no relief
because Taylor was a fact-witness “providing fact-based information as a
layperson from her personal observations and experiences on the night of the
event.” Trial Ct. Op., 8/16/24, at 6. The trial court reasoned that Taylor’s
testimony “was rationally based on her perception and was essential to a . . .
determination of the fact at issue.” Id. at 7. Notably, the trial court did not
state that Taylor gave an opinion about whether the firearm was real as
opposed to a replica, nor did it give any indication that it relied on such an
opinion.
Following our review, we conclude Green has failed to show an abuse of
discretion in the trial court’s evidentiary ruling permitting Taylor to testify
about what she witnessed the night of this incident. Our review of the
testimony reveals that Taylor did not opine that the firearm was either a
replica or a real firearm; instead, she explained the appearance of the firearm
as being a black semi-automatic-style firearm (as opposed to a revolver),
explained that Green had his finger on the trigger, and she thereafter heard
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two clicks, but nothing was ejected from the barrel. See N.T., 7/10/23, at
15-27. These facts that Taylor testified are rationally based on her
perceptions, helpful to determining a fact of issue, i.e., whether Green
brandished an object that appeared to be a semi-automatic-style firearm, and
not based on specialized knowledge. See Pa.R.E. 701; Melvin, 572 A.2 at
777. Accordingly, Green’s argument—that the trial court abused its discretion
by admitting Taylor’s testimony that Green brandished a firearm at her—
merits no relief.
In his second issue, Green argues the evidence was insufficient to
sustain his conviction for person not to possess because, he asserts, the
Commonwealth failed to prove beyond a reasonable doubt that the firearm
was real.
Our standard of review for sufficiency issues is as follows:
As a general matter, our standard of review of sufficiency claims requires that 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. 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 doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the
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presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336–37 (Pa. Super. 2019)
(internal citation and indentation omitted).
Section 6105(a)(1) provides, in relevant part, that persons convicted of
certain offenses “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). Thus, possession
of a firearm is an element of the offense. See Commonwealth v.
Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014). However, an operable
firearm need not be entered into evidence at trial; rather, based on the
testimony of a victim, “[a] reasonable [factfinder] may, of course, infer
operability from an object which looks like, feels like, sounds like[,] or is like,
a firearm.” Commonwealth v. Yaple, 357 A.2d 617, 618 (Pa. Super. 1976).
See also Commonwealth v. Robinson, 817 A.2d 1153, 1161-62 (Pa.
Super. 2003) (testimony by victim that she was robbed by attackers
possessing handguns sufficient to establish possession of a firearm). That a
firearm fails to function, for example due to the absence of a main spring,
does not preclude a conviction under section 6105 provided the object is
designed to expel bullets. See Commonwealth v. Thomas, 988 A.2d 669,
670-71 (Pa. Super. 2009). Where a witness has seen guns previously, that
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witness’s testimony that she observed a defendant with a gun is sufficient to
establish possession. See Commonwealth v. Santana, 311 A.3d 562 (Pa.
Super. 2023) (unpublished memorandum at *2) (rejecting the appellant’s
argument that where the Commonwealth does not introduce a gun into
evidence, testimony by a single lay witness is insufficient to establish the
appellant possessed a firearm and expert testimony is required and the
Commonwealth must prove operability); 2 Robinson, 817 A.2d at 1161-62
(holding that the victim “testified that all three attackers possessed handguns.
This is all that is necessary. That no gun was found . . . is not dispositive of
the sufficiency of the evidence”).
Green argues in his second issue that the object he brandished at Taylor
could not have been a real firearm because it did not “behave like a real
handgun,” and because, he alleges, Taylor testified Green pulled the trigger
twice and she heard two clicks, but the gun failed to fire. See Green’s Br. at
13. He argues that if the gun jammed, then he would not have been able to
pull the trigger a second time. See id. at 14. Alternatively, if he dry-fired
the gun, i.e., fired it while unloaded, he again would not have been able to
pull the trigger again without pulling back the slide. See id. Thus, Green
concludes, the object he wielded could not have been a real firearm. See id.
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2 See also Pa.R.A.P. 126(b) (this Court may cite unpublished memoranda filed after May 1, 2019 for persuasive value).
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at 15. Therefore, the evidence was insufficient to prove that he possessed a
firearm.
The trial court concluded that Taylor’s testimony proved beyond a
reasonable doubt that Green brandished a firearm at her. The court explained
that it found Taylor credible, and she specifically described the firearm as a
black semi-automatic handgun. See Trial Ct. Op., 8/16/24, at 8.
Following our review, we conclude the evidence in the light most
favorable to the Commonwealth—as our standard of review requires—
establishes that Green possessed a firearm. Taylor testified that though she
did not regularly handle firearms, she was familiar with firearms from “life in
general,”3 and she was able to distinguish a revolver from a semi-automatic
in appearance. N.T., 7/10/23, at 25, 27-28. Further, while Taylor testified
she heard two clicks, and that she saw Green’s finger on the trigger, she did
not testify that each click was associated with a pull of the trigger. We decline
Green’s invitation to infer that the firearm was not a firearm simply because
it failed to function. See Thomas, 988 A.2d at 670-71 (failure of a firearm
to expel a bullet does not preclude a conviction under section 6105); Yaple,
357 A.2d at 618 (a factfinder may infer an object that looks like a real firearm
is in fact an operable firearm); Santana 311 A.3d 562 (testimony by a victim
3 Taylor additionally referenced seeing firearms in movies, which the trial court
cited, but on which we do not rely. See N.T., 7/10/23, at 27.
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that a defendant used a firearm is sufficient evidence for a section 6105
conviction).
In his third issue, Green asserts his conviction for section 6105 should
have been graded as a misdemeanor, and the evidence was insufficient to
support the grading of the conviction as a felony.
Section 6105(a)(1) is graded as a first-degree felony if the offender has
committed certain felonies enumerated in 6105(b) and was in physical control
of the firearm. See 18 Pa.C.S.A. § 6105(a.1)(1.1)(i)(B). However, the
offense can be graded as low as a third-degree misdemeanor. See id.,
§ 6105(a.1)(3)(i). As it is relevant to our disposition, we also note that where
a stipulation is involved, that stipulation is “a declaration that the fact agreed
upon is proven, and a valid stipulation must be enforced according to its
terms.” Commonwealth v. Perrin, 291 A.3d 337, 345 (Pa. 2023) (internal
citation, quotations, and brackets omitted).4
Green acknowledges his stipulation at trial that he was ineligible to
possess a firearm for purposes a section 6105; however, because it was not
expressly stated what the specific offense was for which he was previously
convicted, Green contends the evidence was insufficient to support a felony
4 The ability to stipulate “is not unfettered,” and does not extend to “matters
affecting the jurisdiction, business, or convenience of the courts,” nor does it extend to determinations of witness credibility. See Perrin, 291 A.3d at 345.
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grading, and, accordingly, the conviction should be graded as a misdemeanor.
See Green’s Br. at 19-20.
The trial court considered Green’s issue and concluded it not only lacks
merit, but is disingenuous because of the stipulation and Green’s knowledge
of his prior disqualifying felony convictions for murder and possession of a
controlled substance with intent to deliver, as reflected in his PSI. See Trial
Ct. Op., 8/16/24, at 10 & n.2.5
Following our review, we conclude Green’s argument is wholly meritless.
We note that the criminal information charging Green with section 6105
graded the offense as a first-degree felony. See Information, 3/1/23. Against
this backdrop, and thus with full notice of the charge and the factual basis the
Commonwealth alleged in support thereof, Green stipulated at trial that he
was a person not to possess per section 6105; and the Commonwealth,
following Green’s stipulation, rested. See N.T., 7/10/23, at 30. Green cannot
now contest that the evidence was insufficient to show he was a person not
to possess, an offense graded in the information as a first-degree felony. This
Court has rejected the same argument recently in Commonwealth v.
Williams, 326 A.3d 416 (Pa. Super. 2024) (unpublished memorandum at *3-
*4), which we find persuasive. Accordingly, this issue warrants no relief.
5 Green does not contest the information in his PSI but asserts that it was not
introduced at trial and therefore cannot be considered as evidence for purposes of his conviction. See Green’s Br. at 21.
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In his fourth and final issue, Green argues the evidence was insufficient
to support his REAP conviction. It is unlawful for a person to “recklessly
engage[] in conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S.A. § 2705.
Green argues that there is no evidence of record that the firearm he
brandished at Taylor was loaded, and because REAP requires more than
apparent ability to inflict harm, the evidence was insufficient to sustain his
REAP conviction. Green cites this Court’s decision in Commonwealth v.
Gouse, 429 A.2d 1129 (Pa. Super. 1981) in support of his position. In Gouse,
the defendant, Gouse, was in a vehicle and pointed a shotgun at two people
in a vehicle that had pulled up next to him. The situation de-escalated; and
at a later trial where REAP was at issue, there was no evidence that the
shotgun was loaded. Gouse was convicted of REAP, and this Court reversed
and discharged Gouse, concluding that the evidence was insufficient to show
that Gouse’s conduct made it “reasonably foreseeable that death or serious
bodily injury would be caused to the occupants of the car as a result of []
Gouse’s conduct,” even if there were the possibility that the victims attempted
to rapidly accelerate the car to escape. Id. at 1131.
The trial court acknowledged Gouse, but, citing Commonwealth v.
Reynolds, 835 A.2d 720, 727-28 (Pa. Super. 2003), concluded that the
“surrounding circumstances” at the time Green brandished his firearm were
sufficient to sustain his REAP conviction. The trial court additionally noted
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that it is “unknown if the gun was loaded” because it was never found, but
reasoned that Taylor and her daughter were “essentially trapped” in the
vehicle with limited access to escape when Green pointed the firearm at
Taylor, which placed her and her daughter in danger. See Trial Ct. Op.,
8/16/24, at 11-12. Additionally, the Commonwealth argues that the location
being a “congested urban environment” which Taylor and her daughter had to
run through to escape from Green presented the dangerous surrounding
circumstances for purposes of his REAP conviction. See Commonwealth’s Br.
at 16.
Following our review, we are constrained to vacate Green’s REAP
conviction. The trial court conceded that it is unknown whether the gun was
loaded, and our review of the record also reveals no basis from which one may
infer that the firearm was loaded. Thus, Green’s REAP conviction must rest
on the surrounding circumstances. See Reynolds, 835 A.2d at 727-28.
This Court in Reynolds explained that the surrounding circumstances
must be “inherently dangerous,” if the firearm is unloaded, examples of which
include pointing a gun at a person driving a “passenger-filled car at fifty miles
per hour on a public highway,” or pointing a pistol into a crowded bar. Id. at
728. Here, it was approximately ten p.m., and the location was near Taylor’s
home. See N.T., 7/10/23, at 12-13. After Taylor and her daughter fled from
Green, it was in an area where there was a mix of businesses and houses, but
there was no evidence that the area involved was at the time “congested,” as
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the Commonwealth suggests, and thereby inherently dangerous for Taylor and
her daughter to be running through at this time of night. Cf. Commonwealth
v. Trowbridge, 395 A.2d 1337, 1341, 1341 n.15 (Pa. Super. 1978)
(concluding that pointing an unloaded gun at police officers on a public street
“in itself does not create a danger of death or serious bodily harm,” where the
officers were “alone on a deserted street in the middle of the night and
standing behind their cars,” and there was “no danger to vehicular traffic or
pedestrians, and no crowd of people to panic”). Thus, we conclude the
evidence was insufficient to sustain Green’s conviction for REAP.
While we affirm the judgment of sentence for person not to possess,
PIC, and simple assault, for the foregoing reasons, we are constrained to
vacate Green’s conviction for REAP. However, because the trial court
sentenced Green to no further penalty for his REAP conviction, see N.T.,
1/6/24, at 31; Order, 1/26/24 (sentencing order), and we affirm the judgment
of sentence in all other respects, our disposition does not upset the trial court’s
sentencing scheme. Accordingly, we need not remand for resentencing. See
Commonwealth v. Thur, 906 A.2d 552, 570 (Pa. Super. 2006).
Judgment of sentence affirmed in part. Conviction for REAP vacated.
Jurisdiction relinquished.
President Judge Lazarus joins this memorandum.
Judge McLaughlin files a concurring and dissenting memorandum.
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Date: 9/30/2025
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