J-S29020-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MASAI GREEN : : Appellant : No. 517 WDA 2024
Appeal from the Judgment of Sentence Entered November 2, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010315-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MASAI HODARI GREEN : : Appellant : No. 518 WDA 2024
Appeal from the Judgment of Sentence Entered November 2, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005408-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MASAI GREEN : : Appellant : No. 519 WDA 2024
Appeal from the Judgment of Sentence Entered November 2, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005095-2023 J-S29020-25
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MASAI GREEN : : Appellant : No. 520 WDA 2024
Appeal from the Judgment of Sentence Entered November 2, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005096-2023
BEFORE: NICHOLS, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM BY SULLIVAN, J.: FILED: June 23, 2026
Masai Green (“Green”) appeals from the judgment of sentence following
his convictions of, inter alia, attempted homicide, two counts of aggravated
assault, multiple violations of the Uniform Firearms Act (“VUFA”), recklessly
endangering another person (“REAP”), flight to avoid apprehension, two
counts of possession with intent to deliver, tampering with evidence, and
persons not to possess firearms.1 Green asserts the trial court improperly
admitted hearsay evidence, and erred by denying his double jeopardy motion;
he also asserts the evidence was insufficient to sustain his conviction of
possession of firearms prohibited, and the trial court imposed an illegal
sentence. We affirm all of Green’s convictions except his second conviction
for possession of firearm which we vacate. Because our disposition may affect
____________________________________________
1 See 18 Pa.C.S.A. §§ 901(a), 2701(a)(1), (4), 2705, 5126(a), 6106(a)(1),
4910(1), 6105(a)(1), 35 P.S. § 780-113(a)(30).
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the trial court’s overall sentencing scheme, we vacate all of Green’s sentences
and remand for resentencing in accordance with this decision.
Green’s first joint trial with co-defendant, Aaron Tipton (“Tipton”), ended
in a mistrial when it was discovered during cross-examination that Sergeant
Christoper Duncan (“Sergeant Duncan”) of the Wilkinsburg Police Department
wrote a police report the Commonwealth did not produce in discovery.
Prior to his second trial, Green moved for a discharge from prosecution
on double jeopardy grounds because the Commonwealth did not produce
Sergeant Duncan’s report.2 In January 2023, the court held a hearing on
Green’s motion. Assistant District Attorney Kate Kelly Robb (“ADA Robb”)
testified she was assigned to Green’s case at the pretrial conference stage in
2019, and Tipton’s upon his arrest in 2020, and was the sole ADA assigned to
those cases. See N.T., 1/25/23, at 9-11. ADA Robb discussed her trial
preparation, including her contact with the police department and the affiant
in the case to ensure she had obtained all discoverable information. ADA Robb
also testified she compared Allegheny County’s police file to the District
Attorney’s office file for any discrepancies, and the files included reports by
multiple county detectives. See id. at 11-16. ADA Robb testified she never
saw or heard about Sergeant Duncan’s report until he mentioned it on cross- ____________________________________________
2 Sergeant Duncan’s report stated the shooting victim referred to Green as “SB Higler” (whereas another report identified him as “Higler”) and co- defendant Tipton as “Tip,” or “TIP” (whereas another report identified him as “Tips”). See N.T., 10/25/22-10/26/22, at 90-103, 107-09.
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examination at trial. See id. at 19-24. ADA Robb testified she reviewed and
produced Detective Kevin L. McCue’s (“Detective McCue”) report which
detailed Sergeant Duncan’s participation in the case and had no reason to
believe Sergeant Duncan created a separate report after speaking to Detective
McCue. See id. at 24-34. Sergeant Duncan did not return ADA Robb’s phone
call prior to trial to discuss the case and when ADA Robb spoke to him on the
day of trial, he did not mention he prepared a report. See id. at 34. Finally,
ADA Robb testified Sergeant Duncan’s report contained less specificity than
Detective McCue’s report, which she had received and produced in discovery.
See id. at 35-38.
Allegheny County Detective Darren Gerlach, the lead detective on the
case, testified he first learned of Sergeant Duncan’s report during that officer’s
testimony at the first trial; until that moment, he believed Sergeant Duncan
had conveyed all the information he had to Detective McCue, who prepared a
report summarizing Sergeant Duncan’s observations. See id. at 60-67.
At the conclusion of the hearing, the court held the issue under
advisement. In late May 2023, the trial court denied Green’s double jeopardy
motion. It found ADA Robb believed she had possessed all the reports in this
case, reasonably concluded no other report existed given the thoroughness of
Detective McCue’s report, and only learned of Sergeant Duncan’s report during
his cross-examination at trial. See Trial Court’s 1925(b) Opinion, 5/31/23, at
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4. Accordingly, the failure to produce the report was a Brady3 violation but
the prosecutor did not commit reckless conduct precluding retrial. See id. at
6.
The record discloses the following facts adduced at Green’s second trial.4
On March 9, 2019, Martin Page (“Page”) was driving in Wilkinsburg when he
saw a person later identified as fifteen-year-old A.B., fall to his knees. When
Page stopped his car and approached, A.B. said he had been shot. A.B.
pointed to the wound in his left chest and asked Page to call his mother. See
N.T., 7/14/23, at 38-44.
Sergeant Duncan responded within two minutes to a report of a man
shot on Montier Street and found A.B. passing in and out of consciousness.
A.B. told Sgt. Duncan “SB Higler” and “Tip” or “Tips” shot him. See id. at 46-
52. Police found fourteen .45 fired cartridge cases (“FCCs”) one block away
on Maple Street in two groupings of seven. See id. at 61-66, 70-76.
3 See Brady v. Maryland, 373 U.S. 83 (1963).
4 Appellant fails to include in his brief a concise statement of facts and a citation to the record to where they may be found, in violation of Pa.R.A.P. 2117(a)(4). We remind counsel that this Court will not act as a party’s advocate, nor will scour the record on an appellant’s behalf. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007). We also note with displeasure that neither the trial court nor the Commonwealth has provided a summary of the facts necessary to review the issues raised on appeal.
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Detective McCue, part of the team assigned to investigate the shooting,
contacted Wilkinsburg Police Detective Brandon Rourke (“Detective Rourke”)5
to see if he knew anyone who went by the street names “Tip” and “Higgler”
or “S.B. Higgler.” Detective Rourke knew Aaron Tipton and Green from
previous encounters. He told Detective McCue those aliases belonged to
Tipton and Green, who associated with each other. See id. at 92-98.6
Allegheny County Detective Greg Renko (“Detective Renko”), who did
not know either defendant, created photo arrays for use in a possible
identification. See id. at 101-108. Detective McCue conducted a recorded
interview of A.B. at Children’s Hospital the day after the shooting, which was
admitted into evidence at trial, in which A.B. identified “Tip” and “Hig” as the
men who shot him. When shown the arrays, A.B. identified Green and Tipton
from the arrays as the men who shot him and initialed their photographs. See
id. at 123-31, 134, 138-39, 143-44.
At trial, A.B. testified he remembered being shot eight times but stated
he does not know either Green or Tipton, did not recall giving a statement to
police, or identifying Green and Tipton from photo arrays. See id. at 112-22.
5 Detective Rourke received a subsequent promotion to the rank of Lieutenant.
For ease of reference, we refer to him using his rank at the time of the events described.
6 Tipton has “Tip” tattooed on his arm. See N.T., 7/14/23, at 132.
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At trial, Detective Rourke testified that on March 13, 2019,
approximately four days after the shooting, he was driving an unmarked car
on the 1800 block of McNary Boulevard, around 11:00 a.m., when a vehicle
drove directly at him at high speed. He stated he turned his car around and
attempted to make a traffic stop of the vehicle. He testified the vehicle
stopped, a man, later identified as Green, tripped getting out and dropped a
silver semi-automatic weapon. Green got up, picked up his gun and fled on
foot. After a car and foot pursuit, police detained him and recovered, inter
alia, twenty-one packets of drugs from his person, which contained fentanyl
and synthetic heroin in excess of ten grams.7 After a K-9 search, police
recovered a Taurus .45 semi-automatic weapon from the path of Green’s
flight. See id. at 145-55, 159, 170-77, 181. Detective Michael Slatcoff of the
Pittsburgh Bureau of Police Narcotics testified as a narcotics expert that the
drugs were possessed with the intent to deliver. See id. at 181-96.
Thomas Morgan, a forensic scientist at the Cuyahoga County, Ohio,
Regional Forensic Science Laboratory and an expert in Firearm and Toolmark
analysis, examined the FCCs recovered from the shooting scene and the Tarus
.45 semi-automatic Green discarded, and determined the gun Green
possessed fired seven of the recovered FCCs. See id. at 200-16.
7 One bag also contained cocaine. See N.T., 7/14/23, at 195.
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The parties stipulated to the admission of A.B.’s medical records and
further stipulated that neither Green nor Tipton had a valid permit to carry a
concealed weapon on the date of the shooting. See id. at 228-29.
The jury convicted Green of the above-described offenses. See N.T.,
7/18/23, at 130-34.8 It then separately convicted him of persons not to
possess firearms. See id. at 153-54.9 In November 2023, the trial court
imposed a cumulative sentence of 410 to 840 months of imprisonment. Green
filed a post-sentence motion. The trial court granted a motion for judgment
of acquittal on the charges of flight to avoid apprehension and carrying a
firearm without a license but denied the motion for a new sentencing hearing.
Green timely appealed and he and the court complied with Pa.R.A.P. 1925.
On appeal, Green raises four issues for our review:
I. Did the trial court err in authorizing the admission, as substantive evidence under Pa.R.E. 803.1(4), of A.B.’s recorded out-of-court statement insofar as it did not meet the admissibility requirements of Pa.R.E. 803.1(4), and was not admissible under any other recognized exception to the rule against hearsay?
II. Did the trial court err in denying [] Green’s Motion to Dismiss/Bar Prosecution under the Fifth Amendment to the United States Constitution and Article 1, Section 10 of the Pennsylvania Constitution insofar as the Commonwealth’s failure to disclose Brady evidence constituted at least a conscious disregard of a substantial risk that [] Green would be deprived of a fair trial as a result?
8 The jury convicted Tipton of aggravated assault and recklessly endangering
another person. See N.T., 7/18/23, at 134.
9 This Court ordered Green’s appeals to be consolidated. See Order 6/21/24.
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III. Was the evidence insufficient as a matter of law to support two convictions for Possession of Firearm Prohibited[?] Additionally, or in the alternative, was [] Green unlawfully convicted and sentenced twice for the same offense of Possession of Firearm Prohibited in violation of the Fifth Amendment to the United States Constitution and Article 1, Section 10 of the Pennsylvania Constitution?
IV. Did the trial court err in applying 18 Pa.C.S.[A.] §1102(c) when it imposed a sentence of 230 to 460 months’ imprisonment for Criminal Attempt Homicide . . . in the absence of a jury finding of serious bodily injury arising from such offense, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000)?
Green’s Brief at 3.
Green’s first claim asserts the trial court admitted evidence in violation
of Pa.R.E. 803.1(4).
Our standard of review requires us to review a trial court’s admission of
evidence for an abuse of discretion. An abuse of discretion is the overriding
or misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will, or partiality, as shown
by the evidence of record.” Commonwealth v. Vance, 316 A.3d 183, 189
(Pa. Super. 2024).
Hearsay is defined as a statement that “(1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers to prove
the truth of the matter asserted in the statement.” Pa.R.E. 801(c). See also
Commonwealth v. Manivannan, 186 A.3d 472, 482 (Pa. Super. 2018)
(defining hearsay).
Pennsylvania Rule of Evidence 803.1 Exceptions to the Rule Against Hearsay -- Testimony of Declarant
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The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross- examination about the prior statement:
***** (1) Prior Inconsistent Statement of Declarant-Witness. A prior statement by a declarant-witness that is inconsistent with the declarant-witness’s testimony and:
***** (C) is a verbatim contemporaneous electronic recording of an oral statement.
*****
(4) Prior Statement by a Declarant -Witness Who Claims an Inability to Remember the Subject Matter of the Statement. A prior statement by a declarant-witness who testifies to an inability to remember the subject matter of the statement, unless the court finds the claimed inability to remember to be credible, and the statement:
(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed or adopted by the declarant; or
(C) is a verbatim contemporaneous electronic recording of an oral statement.
Pa.R.E. 803.1. “The purpose of this hearsay exception is to provide against
the ‘turncoat witness’ who once provided a statement, but now seeks to
deprive the use of this evidence at trial.” Comment Pa.R.E. 803.1.
Green asserts the trial court erroneously admitted A.B.’s out-of-court,
tape-recorded statement identifying the shooters. Green asserts that because
A.B. stated he recalled the subject matter of the statement, i.e., being shot,
but did not remember who shot him or remember giving a recorded
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statement, see Green’s Brief at 26-30, his identification of the shooters was
inadmissible under Rule 803.1(4). Green asserts the trial court failed to make
any factual findings to support the conclusion A.B. was faking memory loss,
and A.B.’s receipt of anesthesia and recent surgery explained his memory loss.
See id. at 31-33. Green further claims A.B.’s statement was not admissible
under Pa.R.E. 803.1(1) because A.B. was not questioned on direct
examination about the contents of his prior statement. See id. at 33-34,
citing Commonwealth v. Romero, 722 A.2d 1014 (Pa. 1999).10
The trial court found A.B. was a “turncoat witness” who feigned memory
loss, as demonstrated by the fact he recalled events immediately before,
during and after the shooting including speaking to Page immediately after
the shooting and being transported to the hospital, but did not recall his
interview and could not identify his own voice on a recorded statement. See
Trial Court Opinion, 10/9/24, at 5.
The trial court did not abuse its discretion by admitting evidence of
A.B.’s out-of-court statement. As the Comment to Pa.R.E. 803.1(4) explicitly
states, the exception was created to prevent a turncoat witness who gives a
statement to prevent the use of that evidence at trial, as A.B. attempted to
10Green also argues the statement is inadmissible under Pa.R.E. 803.1(1), because the statement was not offered until after A.B. testified, 803.1(3), because A.B. not did vouch for the reliability of the record, and 803.12(2), because A.B. denied making a statement identifying the shooters. See Green’s Brief at 34-35.
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do here. Although he gave a tape-recorded statement in which he repeatedly
identified Green and Tipton, by their nicknames, as the men who shot him,
had previously identified them at the scene and later identified them from a
photo array, A.B. attempted to deprive the Commonwealth of the use of his
recorded statement by asserting he did not “really remember the whole
conversation or anything” when he identified Green and his conspirator in his
statement to police, see N.T. 7/14/23, at 116, does not know SB Higler or
Tip, see id. at 114, and does not recall his identification of Green and his
conspirator at the scene and later from a photo array, see id. at 117-18.
Based on A.B.’s very selective memory – which permitted him to recall: what
he was doing and where he was going when he was shot, speaking to Page
immediately after being shot, and being taken to the hospital – but not any of
his multiple identifications of the shooters by their nicknames and from their
photographs – the trial court found A.B. was feigning memory loss. The
statement was accordingly admissible under Pa.R.E. 803.1(4)(C).11
Further, even if the trial court had erred in admitting A.B.’s statement,
that error would be harmless because A.B. identified Green and his conspirator
at the scene as the shooters using their nicknames, demonstrating his
familiarity with them, and Green was arrested four days later, moments after
11 Accordingly, we do not address Green’s assertions that the evidence did not
satisfy other hearsay exceptions, except to note that the Commonwealth’s decision not to introduce A.B.’s statement until after his testimony restricted its ability to avail itself of some of those exceptions.
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discarding the gun used to shoot A.B. See Commonwealth v. Hairston, 84
A.3d 657, 671 (Pa. 2014) (stating a defendant is entitled to a fair trial, not a
perfect one, and holding that an error is harmless where, inter alia, it does
not prejudice the defendant or the prejudice was de minimis).
Green next asserts the trial court erred by failing to preclude his retrial
because the Commonwealth failed to disclose Sergeant Duncan’s report.
Our standard and scope of review are well settled:
An appeal grounded in double jeopardy raises a question of constitutional law. This [C]ourt’s scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo[.] To the extent that the factual findings of the trial court impact its double jeopardy ruling, we apply a more deferential standard of review to those findings.
Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.
Commonwealth v. Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super. 2021)
(internal citations and brackets omitted). While our review is not “blindly
deferential” to the trial court’s credibility determinations, we nevertheless
recognize that “[a] fact-finder who hears witness testimony first-hand is able
to take into account not only the words that are spoken and transcribed, but
the witnesses’ demeanor, tone of voice, mannerisms, and the like.”
Commonwealth v. Johnson, 231 A.3d 807, 818 (Pa. 2020) (internal
citations omitted).
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This Court has recently set forth the current state of the law on this
issue as follows:
The Double Jeopardy Clauses of the both the federal and Pennsylvania constitutions protect a defendant from repeated criminal prosecutions for the same offense. The purpose of this prohibition against double jeopardy is prevent the government from making repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continued state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.
Commonwealth v. Krista, 271 A.3d 465, 469–70 (Pa. Super. 2022)
(citations and emphasis omitted). We simultaneously recognized that a retrial
following a mistrial does not ordinarily offend double jeopardy protections and
that dismissal of charges on double jeopardy grounds not only punishes the
prosecutor but the public at large, which has a reasonable expectation that
people charged with crimes will be fairly prosecuted. Therefore, “dismissal of
charges is an extreme sanction that should be imposed sparingly,” where the
most blatant and egregious circumstances exist. See id., quoting
Commonwealth v. Burke, 780 A.2d 1136, 1144 (Pa. 2001).
In Johnson, supra, the Supreme Court expanded the definition of
prosecutorial overreaching that bars mistrial from instances of intentional
misconduct designed to provoke a mistrial and those where the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial to instances in which prosecutorial misconduct “not
only deprives the defendant of his right to a fair trial, but is undertaken
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recklessly, that is, with a conscious disregard for a substantial risk that such
will be the result.” Id. The Court made it clear that it is still true that not
every instance of error by the Commonwealth requires a finding that retrial is
barred:
In reaching our present holding, we do not suggest that all situations involving serious prosecutorial error implicate double jeopardy under the state Charter. To the contrary, we bear in mind the countervailing societal interests . . . regarding the need for effective law enforcement, and highlight again that, in accordance with long-established double-jeopardy precepts, retrial is only precluded where there is prosecutorial overreaching – which, in turn, implies some sort of conscious act or omission.
Id. at 826 (citation omitted, emphasis in original). Overeaching, the Court
explained, “is conduct that reflects a fundamental breakdown in the judicial
process where the prosecutor, as representative of an impartial sovereign, is
seeking conviction at the expense of justice.” Id. at 824. As this Court has
further explained, even where a prosecutor engages in willful misconduct,
double jeopardy protections do not deliberately bar retrial; such a bar exists
where the prosecutor’s misconduct is a deliberate act overreaching and not
an isolated incident. See Krista, 271 A.3d at 474. Thus, prosecutorial
misconduct barring retrial does not occur when a prosecutor states the
appellant should take the stand if he wants to explain what happened, see id.
at 475, or when a prosecutor fails to produce exculpatory material in the
mistaken belief the undisclosed letter was a recent fabrication, see
Commonwealth v. King, 271 A.3d 437, 450 (Pa. Super. 2021).
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Green asserts Sergeant Duncan’s report was “materially dissimilar” to
Detective McHugh’s report because it states A.B. identified the shooters by
their nicknames, whereas Sergeant Duncan’s report states A.B. provided
slightly different nicknames. See Green’s Brief at 38-39. He asserts the
prosecutor testified she never asked Sergeant Duncan if he wrote a report and
never met with him prior to trial. Green faults the lead detective on the case
for failing to release the nature of Sergeant Duncan’s testimony. Accordingly,
he asserts he is entitled to a discharge of prosecution. See id. at 39-42.
The trial court, which conducted an evidentiary hearing on Green’s
claim, stated the Brady violation here did not rise to the level of reckless
conduct. It noted the prosecutor received numerous reports from officers
investigating the case, “and reasonably inferred that no reports were missing.
Neither Sergeant Duncan nor anyone affiliated with the case provided the
Duncan report to Robb or notified her of its existence.” See Trial Court
Opinion, 10/9/24, at 9. It noted Detective McCue’s report covered the matters
in Sergeant Duncan’s report, which supported the prosecutor’s belief Sergeant
Duncan had not written a separate report. Accordingly, the trial court denied
a motion to bar mistrial on double jeopardy grounds.
The record supports the trial court’s determination. ADA Robb testified
at the double jeopardy hearing she contacted the police department and the
affiant in the case to ensure she had obtained all discoverable information and
compared the Allegheny County police file to the District Attorney’s office file
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for any discrepancies. She testified she never saw or heard of Sergeant
Duncan’s report until he mentioned it in his testimony on cross-examination
and that from her review of Detective McCue’s report detailing Sergeant
Duncan’s participation in the case, she had no reason to believe Sergeant
Duncan had created an additional report. Moreover, when she spoke to
Sergeant Duncan on the day of trial, he did not mention he prepared a report.
Detective Gerlach, the lead detective on the case, testified he first learned of
Sergeant Duncan’s report during that officer’s testimony at the first trial, and
believed that Sergeant Duncan had conveyed all the information he had to
Detective McCue, who prepared a report summarizing Sergeant Duncan’s
observations. The trial court found ADA Robb believed she had possessed all
the reports in this case, reasonably concluded no other report existed given
the thoroughness of Detective McCue’s report, and only learned of Sergeant
Duncan’s report during his trial testimony. Plainly, the prosecutor’s conduct
did not constitute overreaching or the attempt to subvert the judicial process,
and the trial court properly decline to bar retrial on double jeopardy grounds.
See Krista, 271 A.3d at 475; King, 271 A.3d at 450.
Green’s third issue asserts the evidence was insufficient to establish two
convictions for possession of firearms by person prohibited or, alternatively,
he was twice convicted of the same offense in violation of double jeopardy.
The crime of possession of a firearm by a prohibited person is committed
where a person possesses a firearm despite having a disqualifying conviction.
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See 18 Pa.C.S.A. § 6105. Possession is ongoing conduct that continues as
long as a person is in unlawful possession of a firearm. See Commonwealth
v. Gross, 101 A.3d 28, 34 n.5 (Pa. 2014). A conviction violates double
jeopardy where a person is convicted twice for the same offense. See
Commonwealth v. Hill, 238 A.3d 399, 409 (Pa. 2020).
Green asserts, and the record does indicate, the Commonwealth argued
the gun he discarded immediately before his arrest was, in fact, the same gun
he used to shoot the victim four days earlier. See Green’s Brief at 43. He
asserts that even viewed in the light most favorable to the Commonwealth,
the evidence demonstrates he continuously possessed the gun at issue and
section 6105 does not require proof of intent beyond mere possession, and he
could not properly be convicted of two offenses for a single act. See Green’s
Brief at 43-49, citing Commonwealth v. Woods, 710 A.2d 626, 631-32 (Pa.
Super. 1988) (reversing multiple firearms possession sentences where the
appellant shot one person and then shot at another person minutes later with
the same gun). Alternatively, Green asserts he was punished twice for the
same crime in violation of double jeopardy. See Green’s Brief at 49-51
(distinguishing Commonwealth v. Andrews, 768 A.2d 309 (Pa. 2001),
because it involved PIC and conspiracy convictions).
The trial court distinguished Woods because it involved separate
convictions for using a firearm and possessing the firearm within a brief time
frame on a single day, whereas Green was convicted of using the firearm in
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the shooting here and controlling it in a separate encounter four days later
with police, so even if the possession was continuous, Green committed
separate offenses. See Trial Court Opinion, 10/9/24, at 10-11.
In Andrews, the appellant committed a gunpoint robbery on one day
and unrelated gunpoint robberies the next day. Andrews raised sufficiency
and double jeopardy challenges to his receipt of multiple convictions for
possession of an instrument of crime (“PIC”) asserting his gun possession was
a single, continuous event. See Andrews, 768 A.2d at 312-13. The Supreme
Court noted Andrews was convicted of conspiracy and determined the jury
could properly have found he manifested a separate intent to use the gun
criminally as part of each conspiratorial agreement.
The Commonwealth asserts under the circumstances of this case,
Green’s claim that his gun possession was a single, continuous offense should
be regarded as a factual defense he failed to present below. See
Commonwealth’s Brief at 36. It further asserts Green’s two convictions were
separate in time, date, location, and factual circumstances and constituted
multiple offenses. See id. at 37.
We do not agree with the Commonwealth’s theory that Green had the
burden to show his possession of the firearm was continuous to escape liability
for two separate convictions for person not to possess a firearm. Additionally,
we agree with Green that section 6105 is a possessory offense and that
Andrews is distinguishable because it was a different charge and the jury in
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that case found a separate intent to employ the firearm criminally as part of
each conspiratorial agreement.
We recognize this is a close call legally and factually and there is no
controlling precedent on point. We further agree with the Commonwealth that
despite the continuous nature of gun possession, the passage of time is
certainly a factor to be considered in determining whether such possession
was discontinuous, warranting distinct and additional counts. Here, however,
the manner in which the Commonwealth presented and argued this case,
undermines its assertion that Green’s possession was discontinuous based
solely on the four days between the shooting and the car stop and subsequent
flight.
To that end, we note the Commonwealth consolidated the cases
together into a single prosecution, and presented evidence to link the gun
found in Green’s possession four days after the shooting with the shell casings
found at the scene. Significantly, the Commonwealth presented a ballistic
expert’s testimony that unequivocally linked the gun to the previous shooting.
In essence, as a matter of procedure and proof, the theory the Commonwealth
presented to the jury that linked Green’s possession of the gun at both crime
scenes showed continual possession. Because the Commonwealth
consolidated the cases and used the later gun possession to prove Green’s
possession and use of the same gun four days earlier, the inescapable
inference it presented to the jury was that Green continually possessed the
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gun. Accordingly, as a matter of sufficiency, not constitutional law, we vacate
Green’s second section 6105 conviction. In light of this disposition the trial
court’s overall sentencing scheme may be disturbed. Thus, we vacate Green’s
sentences and remand for resentencing consistent with this memorandum.
See Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006).
Green’s final issue asserts his sentence of nineteen years and one-
month to thirty-eight years and four months of imprisonment pursuant to 18
Pa.C.S.A. § 1102(c) exceeds the statutory maximum and is illegal because
the jury did not determine his actions resulted in serious bodily injury to A.B.
See Green’s Brief at 51-52. Green also acknowledges that in
Commonwealth v. Cruz, 320 A.3d 1257 (Pa. Super. 2024) (en banc), this
Court held we may conduct a harmless error analysis where a trial court
violates Apprendi12 by imposing an enhanced sentence without a factual
finding by a jury. See Green’s Brief at 54. Green also contends he was
charged with attempted murder but convicted of attempted murder causing
serious bodily injury, which he claims is incompatible with Pennsylvania
Supreme Court precedent and the Sixth Amendment. See id. at 57-58.
Without citing Cruz, the trial court held Green’s sentence was not illegal.
See Trial Court Opinion, 10/9/24, at 14.
12 See Apprendi v. New Jersey, 530 U.S. 466 (2000).
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The Commonwealth asserts Green was charged with, and convicted of,
aggravated assault for attempting to cause or causing serious bodily injury,
and it cannot be disputed that A.B. suffered serious bodily injury as a result
of being shot eight times. The Commonwealth also notes Green was convicted
of aggravated assault - causing serious bodily injury, having been instructed
by the trial court about what constitutes serious bodily injury. See
Commonwealth’s Brief at 39-41. Finally, it asserts we held in Cruz an
Apprendi violation is subject to a harmless error analysis, we are bound by
the en banc decision in Cruz, and the victim clearly suffered serious bodily
injury. See Commonwealth’s Brief at 41-42.
In Cruz, the defendant was charged with, inter alia, attempted murder
and aggravated assault because of a stabbing he facilitated by physically
restraining a man to allow a conspirator to stab him. Cruz contended his
enhanced sentence for attempted murder was illegal under Apprendi because
although the court charged the jury regarding serious bodily injury for the
purposes of aggravated assault, it did give a similar charge concerning
attempted murder. This Court held the error was harmless because the jury
was charged about serious bodily injury (albeit for a different crime), and it
could not be disputed the victim suffered serious bodily injury.
We are bound by the en banc Court’s determination in Cruz that
harmless error applies to Apprendi violations. Here, as in Cruz, the trial
court charged the jury about the nature of serious bodily injury for the
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purposes of aggravated assault, see N.T., 7/17/23, 95-97. We conclude the
trial court’s failure to define serious bodily injury when specifically discussing
attempted murder was harmless error where the court defined serious bodily
injury in discussing aggravated assault and there can be no dispute the victim,
who was shot eight times, suffered serious bodily injury. Accordingly, Cruz
compels the denial of relief on Green’s claim.
All convictions except Green’s second conviction for possession of
firearm by persons prohibited affirmed. Second conviction for possession of
firearms by persons prohibited reversed. Sentences vacated and case
remanded for resentencing in accordance with this decision.
Affirmed in part, reversed in part. Sentence vacated. Case remanded.
Jurisdiction relinquished.
DATE: 06/23/2026
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