Com. v. Moses, S.
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
SHAWN MOSES Appellant No. 185 EDA 2016
Appeal from the Judgment of Sentence December 4, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003521-2012
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016 Shawn Moses brings this appeal from the judgment of sentence imposed on December 4, 2015, in the Court of Common Pleas of Philadelphia County. Moses was found guilty by a jury of firearms not to be carried without a license, 18 Pa.C.S. § 6106(a)(1), a felony of the third degree, and carrying firearms on public streets or public property in Philadelphia, 18 Pa.C.S. § 6108, a misdemeanor of the first degree. The trial court sentenced Moses to three to six years’ incarceration on the charge of firearms not to be carried without a license, and four years of reporting probation on the charge of carrying firearms on public streets or public property in Philadelphia. The sole claim raised by Moses is a challenge to the sufficiency of the evidence sustaining his firearms convictions. Based upon the following, we affirm.
The facts underling this appeal were summarized by the trial court:
On March 2, 2012, around 10:30 P.M., [Moses] was arrested on [the] 100 block of Edgewood Street in the City and County of Philadelphia. Under his clothing [Moses] had a 9 millimeter Glock handgun which contained ten (10) 9 millimeter Luger rounds of ammunition at the time of his arrest. A stipulation by and between counsel allowed Exhibit C-11, the Firearms Identification Unit (FIU) report, to be moved into evidence. The FIU report stated that the handgun had a four (4) inch barrel and was operable. A certificate of non-licensure from the Pennsylvania State Police was also stipulated to and admitted into evidence as Exhibit C-12. At trial, [Moses] testified that he purchased the firearm in Georgia and went through a background check and registry. [Moses] confirmed he did not have a license to carry a firearm in Pennsylvania nor Georgia.
Trial Court Opinion, 4/22/2016, at 2.
Our review of a challenge to the sufficiency of the evidence is well established:
The standard we apply in reviewing the sufficiency of the 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 [this] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need 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. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012).
Moses’s sufficiency challenge rests on his claim he believed the gun he purchased in Georgia did not require a permit and therefore he believed he was excused from obtaining a license in Pennsylvania. Specifically, he asserts:
[Moses] testified that he purchased the gun in Georgia. He maintained that the gun was legally purchased in Georgia. He maintained that according to Georgia law, he was entitled to possess the gun without a license. [Moses] testified that he had brought the gun to a photography and recording studio where he worked. The gun was used as a prop for a photograph. At the time of his arrest, he was returning to his home. He kept the gun at home for protection, but he was going to store it in a safe.
[Moses] testified that he believed that as a matter of fact the gun was legal.
Moses’s Brief at 15.
To address Moses’s argument, we turn to the Pennsylvania Crimes Code provisions at issue, 18 Pa.C.S. §§ 6106 and 6108.
Section 6106 of the Crimes Code provides: “A person who carries a firearm in any vehicle or a 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. § 6106(a)(1). Therefore, the Commonwealth must prove (a) that the weapon was a firearm; (b) that the firearm was unlicensed; and (c) that where the firearm was concealed on or
about the person, it must be outside his home or place of business. Commonwealth v. Lopez, 565 A.2d 437, 439 (Pa. 1989). Section 6106(b) enumerates sixteen exceptions to Section 6106(a).
Moses was also convicted under Section 6108 of the Crime Codes, which 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. § 6108.
Because neither Section 6106 nor 6108 provide the requisite intent, the specific mens rea is that which is provided in 18 Pa.C.S. § 302. Section 302 states that “[w]hen the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person act intentionally, knowingly, or recklessly.” 18 Pa.C.S. § 302(c). Pursuant to Section 302(b)(3):
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(3). Recklessness may be demonstrated by
circumstantial evidence. Commonwealth v. Hogan, 468 A.2d 493, 496 (Pa. Super. 1983).
Moses asserts that his testimony demonstrates a “mistake of fact” that disproves the required element of criminal intent, and therefore the Commonwealth has failed to prove all the elements of the crimes charged against him. However, because this sufficiency challenge is based on Moses’s own self-serving assertions, which the jury was free to disregard, it is unavailing. See Commonwealth v. Sinnott, 30 A.3d 1105, 1110–1111 (Pa. 2011).
Furthermore, Moses’s belief “that the gun was legal” 1 is a mistake of law, which is not a defense. See 18 Pa.C.S. § 304, Official Comment (“Generally speaking, ignorance or mistake of law is no defense.”); Commonwealth v. Henderson, 938 A.2d 1063, 1067 (Pa. Super. 2007) (“[I]it is axiomatic that ignorance of the law is not a defense.”).
Here, Moses does not claim, for instance, that he believed a document he possessed was a valid license, when it was not — which would be a “mistake of fact.” Rather, Moses’s claim is he believed he did not need to have a Pennsylvania gun license, because he believed he did not need one in
1 Moses’s Brief at 15.
Georgia.2 Even if reasonable, Moses’s subjective belief that he was excused from obtaining a Pennsylvania license is a “mistake of law” that does not provide a defense to the charged firearms offenses.
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