J-S84005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DARRYL PALMER,
Appellant No. 3086 EDA 2014
Appeal from the Judgment of Sentence of September 29, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013136-2013
BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED January 12, 2017
Appellant, Darryl Palmer, appeals from the judgment of sentence
entered on September 29, 2014 in the Court of Common Pleas of
Philadelphia County. We affirm.
At the conclusion of a three-day trial on April 11, 2014, a jury found
Appellant guilty of carrying a firearm on a street or public place in
Philadelphia (18 Pa.C.S.A. § 6108) and the trial court found Appellant guilty
of persons not to use or possess firearms (18 Pa.C.S.A. § 6105). Thereafter,
on September 29, 2014, the court sentenced Appellant to an aggregate
punishment of six to 13 years’ incarceration.1
____________________________________________
1 Appellant received five to 10 years’ imprisonment for persons not to possess firearms and one to three years for carrying a firearm on the streets of Philadelphia.
* Former Justice specially assigned to the Superior Court. J-S84005-16
Appellant filed a timely notice of appeal on October 28, 2014. On
March 26, 2015, Appellant timely complied with the trial court’s order to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925. With leave of court, Appellant later supplemented his concise
statement with filings submitted on March 27, 2015 and November 10,
2015. This matter is now ripe for consideration.
Appellant raises a single question for our review:
Was not the evidence insufficient to support Appellant’s [firearms convictions], where the verdict rests upon unreliable evidence, speculation, and conjecture?
Appellant’s Brief at 3.
Appellant argues on appeal that his convictions rest upon insufficient
evidence that he possessed a firearm during the incident in question.
Specifically, Appellant contends that the testimony of Ronald Leach, the
Commonwealth’s eyewitness to the relevant events, was unbelievable and
that 911 recordings of Leach’s reports to police constituted unreliable
hearsay. Appellant therefore reasons that the Commonwealth needed to
prove constructive possession, which it failed to do since the evidence
merely showed Appellant in proximity to a firearm that was equally
accessible to others. These claims are meritless.
Our standard of review for a sufficiency challenge is well settled.
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
-2- J-S84005-16
reasonable inferences to be drawn from the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “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.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). Nevertheless, “the Commonwealth need not establish guilt to a mathematical certainty.” Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence”). 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. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. 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 presumption of innocence.” Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038–1039 (Pa. Super. 2002)). 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. See Brewer, 876 A.2d at 1032.
Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (parallel
citations and quotation omitted).
We have carefully reviewed the certified record, the submissions of the
parties, and the opinions of the trial court. Based upon our review, we
conclude that the trial court has adequately and accurately addressed the
contentions raised by Appellant and we adopt its sufficiency analysis as our
-3- J-S84005-16
own. In particular, we agree with the trial court’s determination that Leach’s
testimony, together with the 911 recordings, provided the jury with
sufficient proof upon which to find, beyond a reasonable doubt, that
Appellant possessed a firearm on the date in question. See Trial Court
Opinion, 6/30/15, at 10-11. Moreover, we decline Appellant’s invitation to
reconsider the weight and credibility of the evidence adduced by the
Commonwealth, as our standard of review forbids such an undertaking.
Accordingly, we direct the parties to include a copy of the trial court June 30,
2015 opinion with all future filings relating to our disposition of this appeal.
Judgment of sentence affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/12/2017
-4- Circulated 01/12/2017 11:49 AM
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA ·CRIMINAL TRIAL DIVISION.
CQMM:ONWEAL TH . ...
vs.
SUPERIOR COURT DARRYL PALMEI{ 3086 EDA- 2014
OPlNlON·
BRINKLEY, J. JUNE 30, 20.1s
Defendant Darryl Palmer was found guilty of two violations of the Uniform Firearms Act
(VUF;\): Carrying a Firearm on a Street oi· Public Place in Philadelphia, §6108; and Carrying a
Firearm as . a Person. Notto Use or Possess Firearms, § 6105.. This Court sentenced: Defendantto
an aggregate term of 6 to l3 years state incarceration. Defendant appealed this judgment of
sentence and raised the following issues on appeal: ( 1) whetherthe evidence was sufficient to
find.Defendant guilty of viol~tin~VUFA§ 6108 and § q 105; (2) whether the trial court properly
petmitted·the·Comi:nonwealthtointroduce inio evidence shotgun casings recovered in.a lot
adjacent to Defendant's brother's house; and (3) whether the trial court properly permitted the Commonwealth to tell the.jury in its closing argument that lack of financial resources prevented
the police department'from conducting certain testing. This Court's judgment pf sentence ~ouJd
be affirmed. PROCE'lJlJRAL HISTORY
Ori· September ,5 ;: 2013 ,. 'Defendant. was arrested after a neighbor called the police and reported an argument with a gunshot firedoutside his house. Defendant was charged with
~grava:ted..assault, po_~:sessioi;i. of aninstrument of crime (PIG); carryinga firearm on the public
streets of Ph1ladeJphh((VUFA.·§ '6i08)and carrying-a firearmas a person not to use or possess firearms (V.UFA.§ 6'105). On April 9, iO'J 4, Defendant .appeared before 'this .Court for a trial by Jury. On April i1,.
2.014; tnej.ur;v found Defendantguilty of carryinga firearm onthe public streets.. of Philadelphia,
vtJFA § 6l08. The. jury found him .not guilty of aggravated assault and PIC; Following the
verdict, counsel stipulated that.Defendantwas statutorily prohibited 'from carrying a.firearm; As
a::·re~ult, this Court found Defendant guilty of carrying ::i firearm as a person.not touse or possess
firearms, :VlJFA § 6105~
On Septernb er 29, 2014, afterreview of a mental heal th eval uation and presentence
jQ..Y,estig@tion report, this Courtsentenced Defendant to 5 to lP yearsstate incarceration on the
VUFA § ·61.0.5.· pharge, arid- l lo 3 years state incarceratioaon the \rtJFA:·§6~ os charge, 'to run
consecutively foran aggregate term of6 to 13 years state incarceration. Defendant Wf!.S ordered
to receive dual diagnesis and anger management treatment, earn his GED;:.ol>t~Ur job' training, and.upon release.iseek and maintain. employment. On October 28, 2014, Defendant appealed this
Judgment of sentence to the Superior Court. On January 15, 20 is, this· Courtordered. that defense
ceunsel.file.a Concise Statement bf Errors Complained ofon Appeal in accordance with Pa. R.A.P, 1925(b). Defense counsel'filed a Petition toExtend Time. to File Concise Statement.of"
Errorsbased upon the-stenographer' s failure to. transcribe counsel's opening and closing
.statements-as requested, All notes of testimony from the trial were completed and uploaded to
2 the CourtReporting System on March 3, 2015. On March 12, -2015, this Court granted defense
counsel' s request for-an extension of tillle· and defense counsel'filed a Statement of-Errors on
March 26, 1;015, AnAmended Statement of En ors was filed n~ncpro tune on Marth 27; 2015.
FACTS From April9-l l, 2()14, Defendant appeared before this Court for a.jury trial. Ronald.
Leach ("Leach'i.) testified first for the Co01monwealth. Leach stated that on the morning of
September 5,..2013; he-wasasleepin.his Kensingtonhome.on the l 90Qblock ofEast Clearfield
when he was awakened bythe sounds of'rnen arguing in loud. voices outside. Leach looked
outside his-bedroom window and saw three. men, including Defendant, another black male (later
identified as Defendant's brother Dante Geary), and an unknown Latino male (later identified as
Joshua Perez), standing and-shouting nextto Leach's car. Geary and Perez had emerged from
the .house directly across the: street from Leach's. Defendant was holding a large shotgun in a
"pistol grip." Leach sawPerez retrieve anitem fromhis right .. hand pocket, stick iton the front
right-tire of Leach's car, and.then back away. A few seconds later, Perez went back, picked up the object, andput it inside his.right' frontsock, Perez crossed the street, followed by Geary and
Defendant, Defendant approached Perez and. hit him with the. butt of the shotgun. Leach turned.
away from his window and then heard a single gunshot. He.immediately called the police and
described the Defendant, the gunman, as a'heavy-set black male wearing a.white shirt. Leach
testified-that he called the po Hee again aftcdhey hadarrived on the scene when he.noticed that
Perez hadreturned to-the area and was sitting on a bicycle at the erid 9fthe street, watching the
police activity. Leach later met with police detectives and gave a statement. He also looked at
-photographs and identified' Defendant.Geary and Perez as the men who were outside his home
arguing, Leach told detectives-that Defendanthad been holding a shotgun and that he had "butt-
} . 3. stroked" Perez with the gun. Leach testifiedthara few days after the shotgun incident, Geary
.. · approached him and . asked, "What did you tell the police about my brother"? Leachfurther
testified that on the morning of'trial, Geary· sat in: a parked caroutside of Leach's house and said,
"I need .to .talk to you;" as Leach walked past. Leach further testified that. he.. had seen Geary.almost d~ily since the incident happened butthat Geary had 'spoken to him only onthose
,•
Police.Officer Phillip l;ewis ('10fficerLewi~'').testifiech1extforthe Commonwealth. He
testified that on September 5, 2013, he. wascarrying out.his duties as a, routine patrol officer with
his. partnef Officer 'Benz when they received information over the policeradio that there was a·
man on Clearfield Street with ashotguri. When they-arrived on the scene, Officer Lewis
observedtwo blackmales arguing.. Heidentified one:ofthose men as Defendant, Officer Lewis
testified.that he and Officer Benz detained the two then. Defendant told police thathe had beet}
in an.argument-with ·hjs brotherthat morning, One of the.men told ·the officers that he lived at
1916 East Clearfield-Street, so: Officer Lewiswalkedtowards . . the house. . Adjacentto the house,.
he·obser.ved an empty lot with a table set µp. Oi:i the·JabJ.e., heobserved drug packaging paraphernalia: He also observed red shotgun shells on the table and. ground. As Officer Lewis
wasexamining these. items, he .stepped ona hard object on the ground covered .by a.blue plastic
tarp. He lifted the tarp and observed a shotgun sleeve marked. "Cabela's, '' .a well-known hunter 's
outfitting company. Officer 'Lewrs'testlfied 'thathe opened'the sleeve: and o bserved ~ .gray and -,
black Moss.shotgun. Insidethe gun, there were two live rounds.and . one spent round,... meaning
that the gun .had been.fired, Defendant and.his brother were arrested and transported to the police
stationforprocessing. Officer Lewistestified.that bothDefendant and.his brother refused to
press criminal charges ·againstthctother. Officer Lewiecompleted a 75-4~ form, and in it,
4 described Defendant as a heavy-set black- mail wearing. a white shirt and blue Jeans. (N. T, 419/l 4,
p; l09Ml36). ••• •
Police Officer Christopher Benz testified next for the Commonwealth. He statedthat on
September S, 2013, h.e arid his partner, Officer Lewis, responded to a report ofa man with a
shotgun OIJ. the. 1900 block of Clearfield street. He detained Defendant, who was wearing a.white
shirt, andDefendant's brotherDonte Geary, who was wearing a blue shirt (N.T. 4/10/14, p, 4M
10).
Next, Police Officer Zhao Chen testified that QC responded to a call oh the 1900 block Of
Clearfield Street. From· underneath a bicycle next to 1916 East Clearfield Street; Officer Chen
recovered a bundle of 14 clear plastic baggies filled with smaller blue glassine paper stamped
"heat" containing a white substance, later identified as· heroin. Officer Chen detained a Hispanic
man, JoshuaPerez, wearing a black shirtand green shorts, who seemed very interested in the
situation and did not disburse when asked to do so by police. Officer Chen asked Perez afew
questions.ranhis information through the computer; and then released him without arrest. Later,
Officer Chen interviewed Mr. Leachand spoke with him about Perez. Jd. at 10:-1.8.
Police Officer Marco Padilla testified next. He stated, that he transported Defendant to the
police station-for. processing and that, as a result, he completed a 229 form. Officer Padilla stated thatat-the time. of Defendant's arrest; he was wearing a white shirt, blue jeans and sneakers; Id .
at2s.:2s.
Next, Detective Dennis Demas testified forthe Commonwealth. He stated that he
executed a search warrant at 191 (> East Clearfield Street; searching for any additional firearms or
related evidence. He did not recover any further evidence inside the house; ho-Wever, he did
recover two spent 12-gauge . fired shotgun shells from. the . vacant Iotnext to the house. Detective
5 Demas stated that he surveyed the area for strike marks but did not locate arty; He also looked for
--··-fonctiorring··video cameras on nearby homes-and businesses in the area but was unable to locate
any, .ll!, ~t 28~40.
Qn cross-examination, Detective Demas testified that he did not.request a gunshot
residue test on Defendant's clothing or hands because this was not a case of mistaken identity;
Leach positively identified Defendant ·a::i the man with the gun. He farther testified- that he ·decided notto have-the shotgun checked for fingerprints because it was already "contaminated"
as several people had touched it. Id. 40.:.47.
Donte Geary roeary••) testified next for.the Commonwealth; He stated that be lived at 1916 East Clearfield Street with his-child's mother and her family. Defendant visited him there
"sometimes." On the morning ofSeptember 5~ 2013, he and Defendant were arguing because
Defendant ..disrespected" Geary's child's mother-and they Were shouting at each other on the
sidewalkeutside of the house. Gearytestified thatPerezwasoutside on the sidewalk.a few
houses away, . but he, was not involved in their disagreement. Geary stated that . he and Defendant
were about to go their separate ways when the police arrived, Geary testified that Defendant.did
not have a: firearm. and there were "no shots fired at all." He continued to deny ever hearing gunshots that morning even after the Commonwealth played the recorded 911 calls from that
morning, wherein three separate neighbors on. Clearfield Street reported to the. police that they heard a gunshot. Geary testified thaf he did not remember what his brother was wearing that
day, Hefurther stated tli;:t't.bothliis household and the neighbors next door use the vacant lot
. adjacent to his house. Id. at 58-95.
Next? Joshua Perez ("Pere:l') testified for the Commonwealth. He stated thathe wa~
incarcerated on an unrelatedmatter and that he had notbeen threatened or promised anything in
6. exchange for .his ·testimony. He testified that on the morning ofSeptember 5~ '2013, he was
"outstde smoking a cigarette-on a step. about ablock away from 1900 Clearfield Street, when he
heard "a 'commotion going on" so. he. rode his bicycle uver 'to investigate. Perez stated that he
heard ·people arguing and then heard a single gunshot, When he arrived at the scene, he saw the
police, Defendant and Geary. . Perez testified that he circled. 'the. block on his bicycle; and as f1e. .
rode past the second time, the police detained him. Perez testified -,that the police. believed he bad
agun but released him shortly thereafter. He fnrther testified that he· Geary was his friend but
that he· only knew Defendant as "Man." He stated that-he did 'notsee anyone with. a firearm and
·he could not rememberwhat clothinganyone was wearing. Perez.denied that.anyone hit.him on
the head with a shotgun and be denied ever approaching.Leach's house. Id. 'at 98~123,
Next, counsel .intrcduced .evidence by way of stipulation by and 'between couns el. First,
.counsel stipulated that on· September 5,:2.01.J, Defendant did not havea valid license to carry. firearms ora valid sportsman's. firearm permit. Second, counsel stipulated that the shotgun, two
shotgun rounds'and ene fired shotgun shell.were recovered ·by Officer Lewis, that these were
submitted to th~: Firearms Identification'Unitfor examination, that theshotgun was. test-fired ~11-d
was operable, and that allthree shotgun shells were.analyzed and.it was determined they were all
fired from that particular.shotgun . Third, counsel stipulated thatthe recorded ·911 calls and the
police radio transmissionsweremade on the rnoming ofSeptember 5,:2013. Last, counsel
stipulated That Officer.Chendid not observe anyinjuries on Joshua Perez when.heinteracted withhim. At.the-conclusion of stipulations, the Commonwealth published its exhibits to the.jury,
moved its documents into· evidence, and rested; Defense counsel then . moved -its ex hibits into
evidence and. rested,
7 After the jury was excused> defensecounsel moved for a judgment of acquittal on the
charge-ef'aggravated assault, This-C9urt·denied . the-motion>. finding. . that the Commonwealth.had
met its minimum burden. and it was up to the jury to make a credibility determination as to which
witnesses' version of even ts to believe. The jury returned a verdict of not guilty on the cliarge$. of aggravated assaul t and
possession ofaninstrument of crime. The jury found Defendant guilty of carryingafirearm.on
the public streets ofPhiladelphia, VUF A § 6108.
'I"bis Court then conducted a -waiver trial with respect to the. charge of carrying a firearm
as a person not to use. or possess firearms, VUF A § 6105. Counsel stipulated that Defendant WdS.
statutorily ineligible to .possess a firearm. The Court found Defendant guilty of this charge.
On September 29, 2014, Defendant appeared before this Courtfor sentencing. Defense
counsel argued that Defendant had a traumatic childhood and had entered the system at 14 years
old when he became too difficult for his grandmother to control. Defense counsel recommended
concurrent sentences. The Commonwealth argued that Defendant had a long criminal history and
that his crimes were escalating .in .serionsness. He recommended an aggregate sentence of 7 to 14
years mcarceration plus one. year reporting probation. This Court sentenced Defendant toS. to 1 Q
years state incarceration on me VUFA § 6105 charge and 1 to. 3 years state incarceration on the VUFA.. § 6108 'charge;to run consecutively, for an aggregate sentence of 6 to 13 years state
incarceration; This Court ordered that Defendant undergo dual diagnosis treatment and anger
management treatment while in custody, earn his GED. and upon release, seek and maintain employment. He was further ordered to pay mandatory court costs at a rate of $25 per month.
8 ISSUES ·-··· I,, ·----WH,t.HEJ.tXHE EV-IDENCE..WAS.S.UFFICJ.ENTFO-R. . TJ,JE.JURYT..0-FIN:O ..--- · P.EFENO.AJIT Gl11Ll'Y QF C.ARRYING A FIREARM ON'.PUBLI(J°.STREETS IN PHILADELPHIA; VUFA 6108. ANJ) CARRYIN'C A FIR.EA.Ri.'1.AS A P.ERS:ON. NOT TQ JJSE OR POSSES$ FlREARMS, VUF A.§ 6105 ..
It W:iIETB,ER Tilt TRIAL COURT ERRED WHEN IT -P.ERMITTE]) THE .COMMONWEALTH TO iNTRODUCEINTO EVIDENCE THE SHOTGlJN CASINGS.RECOVERED BY POLlCE. lN THE VACANT LOT NEXT TO GE;ARY~-S HOUSE ..
UL WiIETHEE- THETRIAL COURT ERRED.IN ALLOWING THE COMMONWEALTH TO REFER IN.ITS CLOSING ARGUMENT TOTHE :cri'Y'S·EC()NOJ.\iiic-CO.NDITIONS AS A .REASON FOR.THE POLICE.'·S· FAILURETO CO.N.DUCTGUNSHOT RESIOtJE ANUFINGER.PlUNT TESTING.
DISCUSSION
I. -~~~~~1:Nc:.o~~=~~:;~!~- § J;>HILADEJ,PlllA/VUFA g~~~~~~:.~;i~~~sIN. 6108 ANt>.CAMYllN:G A FIREAfu'VI AS.A · PtRSON .NOT TO uss OR.POSSESS· FIREARMS, VUF A·§ 6105.
The evidence adduced a~ trial 'was sufficient.fer the jury to find Defendant g\iiHy of
carrying a firearm on public streets in Philadelphia, in violation of section . .§'6.108 of the Unifonn Firearms Act; andcarryinga firearm as a person not.tc use.or possess firearms in violation of section § 6JQ~ of the Uniform Firearms Act . .
A._ S.ufficiency . of the Evidence .
A review ofthe sufficiencyofthe evidencetosupport a convictiontequlres-thatthe
evidence. be-reviewed inthe light most favorabletothe Commonwealth as the verdictwinner. Commonwealth v. Walter, 2004 PA Super, 14t-849·A:2d 265; 26T(20.04) (citing
Goinmoriwealth v. Ro'se,. 463 Pa. Super. 2647 344'A2tt, 874, 925 {1975)). The Commonwealth is
also entitled to all favorable inferences which may be drawn from. the.evidence .. Col!l.~onwealt~
v._S_anch~z, ;2006.Pa;'LEXJS 183~ ,(2006)(cjtip.g Coggppnwealtpy. Collim;, 500 Pa. 46, 50; 703
9 A2(1 41.8, 4 20· ( I 997)). ·with.in tqls frfu,Qework, the evidence put forth. by the Common weal th
. wil_l be.considered .su.fficlerit-if..(t establishes eaeh-material-el ement. 0£. the crime-bey ond-a-»
reasonable. doubt, evenif by wholly circumstantial.evidence ... Commonwealth v. Dargan, 200.~
PA Super, 74~:897 A.2d 496,. 503 .(2006}(citing . . Qo,rrimonwealth . . v. Distefano., . 200.1 .PA Super
238, 782 A.2d 574, 582.(2001)).
When determining whether the evidence :is sufficient to.support a ~uilty verdict, the.
appellate court must consider all bf the. evidenceactually received. at trial, id·. . However, the trier ... · .~
of facr is entitled, to believe all, part.or none of'theevidence received at trial, and the appellate
court cannot.substitute. its judgment fo.r·¢at of the. fact-finder. Commonwealth v. Fds_bie,,2006
PA Super. 430, 889 A,2d 127l;.J274 (20.0~) (citing DiSt~funo, 782A.2d at 574);
. Coninionwealth . ' v.. Kim, 2005 \ i>A. Super. . 3.8.1, ~:8.8 A.2d.. 847, 851 (200S}(citihgCommo.n.2tealth .
. v. Champney; 574J~a 43 :,, 83i A2d.403 ,. 40.8 (2Q03))~ The facts and circumstances established
by the Commonwealth need not eliminate.any possibility of the defendant'sinnocence; rather,
any doubt is to'be-resolvedby the. fact-finder unless-the evidenceis so weak and inconclusive:
that.asa marterof.lawnoprobability of'factceuld be concloded:·.Qommonwealth v.. Lambert,
2002 PASuper .. 82, 795' A.2c_i 1010 (2002) (citing,Comm0nweaJth v. Cassidy; 447 Pa. Super.
192, 194, 668A.·241143, 1144{1,'995)).
:8. VUFA.§.610.8 and VVFA§·6:105 ..
Under Pennsylvania law, ''[n:Jo person· shall carry a firearm.zifle or .shotgun at arty time
upon the public streetsorupon anypublic property in a cityof'fhe first class unless such person
is licensed to c~ry a firearm" OJ:'·\S exempt' from licensing. 1 g· !>a.Cs.§ .61..08 .. Lack of a. license
is not an element.ofthis statutory provision. Com;momye~th v. I-io..pkins, 200·0 PA Su.per 47JI
18, 747 A.2d 910, 917 (Pa. $uper. Ct. 2000Y(citing·cornmonwea1th 'v, ·Ford1 3'1$ Pa.Super, 2Jl, 461 A.2d 1281, 1287 (1983). 11As withany crime, the factfinder may infer guiltfrom the totality
of'the circumstances, so long as the evidence-reasonably supports the factfinder's conclusion."
Id. "The factfinder's determination that a defendant carried. a weapon on a public street in
Philadelphia will be affirmed if the evidence ofrecord reasonably supports this conclusion," Jg,1_
Last,.aperson whohasbeenconvicted of any offense enumerated in 18 Pa:C.S. § 6105(b) or
whose conductmeets the. criteriaset.forth iii 18 Pa.C.S. § 6105(c) cannot/'possess, use, control,
sell, transferor manufaeture] ... ] a.flrearm in thisCommonwealth:" 18 l,a.C.S. §.6105(a)(l).
In the case at bar, Defendant was properly found guilty ofviolating two sections ofthe
U nif orm Firanns Act: carrying .a firearm op public streets in Philadelphia, §6108; and carrying a
firearm as a person not to possess a firearm, § 610~. f\.t trial, Leach testified that. in the early
· hours of September 5, 2013, he woke up to the sound pf men arguing outside his house. He
looked out his window and saw Defendant standing on the sidewalk near Leach's car, holding a
larg¢ shotgun "in a pistol grip." When he turned away from the window, he heard a gunshot and
immediately called the :police. He described the gunman.as a heavy-set blackmale wearing a
white.shirt.Later.Leach-was interviewed by detectives and identified Defendant in a photo array
as the man whohad been.holding theshotgun, Officer Lewis testifiedthat whenhe arrivedon the
scene- in response to a radio call about a gunman in the area, he observed Defendant.and his
brother arguingin front of 1916 Clearfield Street.Jn a vacant lot adjacent to the house; Officer
Lewis recovered a shotgun with two.live rounds and one spent.round, In his arrest report, Officer
Lewis described Defendant as a "hca:vy.;set black . male wearing a white shirt and.blue.jeans,"
Officer Benz testified ·that Defendant was wearinga white shirt when he. was. detained. Officer
Padilla: testified that he transported Defendant to the police station for processing. and that Defendant was wearing a white shin, bluejeans and sneakers. Last.afterthe jury found
11 D~fcndant guilty of carrying a firearm on public streets in Philadelphia, counsel stipulated that
Defendant wasstatutorily prohibited from carrying a firearm..
This evidence was sufficient to sustain Defendant's firearms convictions. The jury heard
Leach's eyewitness testimony that Defendant was carrying a shotgun while he was outside on the
sidewalk on Clearfield Street. Leach 's description. of Defendant as a heavy-set black male in a
white shirt was recorded repeatedly in written reports by the arresting officers-that day .
. . Additionally, although Perez denied seeing anyone With a firearm, he testified that he heard
people arguing, followed by a gunshot; and that when he rode his bike over to see what was
. goingon, he saw Defendant-and his brother Donte on the sidewalk. From .the totality ofthe
clrcumstanocs.the jury properly inferred that Defendant was carrying a firearm on a public street
in.Philadelphia, and, as a result, found him guilty of this charge. Since the jury found himguilty
of carrying a firearm, "1J,d counsel stipulated that Defendant. was statutorily prohibited from
carrying firearms, this CorntproperJyfpurrdpefe~dant .guilty of carrying a firearm, as a perso~
notto~ use or possess. firearms. Accordingly,. . . Defendant's convictions should be affirmed..
II. THIS COURT PROPERLY PERi'11TTED THE COMMONWEALTH TO INTRODUCE INTO EVID.ENC~ TWO SHOTGUN CASINGS RECOVERED · BY POLICE IN THE VACANT LOT; ·
This Court properly allowed the Commonwealth tcintroduce into evidence shotgun
casings recovered by police in the vacantJot next to 1916 East Clearfield Street Defendant
argued that the shotgun casings should have been excluded because they "had no probative value
and Were unduly prejudicial" to Defendant's case: This claim is Without merit.
It is Well established that the admissibility of evidence is solely within the discretion of
the trial. court and its decision will not be disturbed on appeal absent an abuse of that discretion .
. An abuse of discretion is notmerely an error of judgment, but is rather the overriding cir
12 misapplication :oftfie law or an exercise of'judgmentthat is.manifestly unreasonable, orthe res-ult
of bias, prejudice, ill-w.Ui or' partiality, as shown by the evidence of record .. Commonwealth v:
. . 2005 PA Super 272, 880 A.2d ·68.2, 685. (2005). (quoting Commonwealth Watfley,. . . . v. Dent,. 837 A..2d 571, 577' (J;>A Super, 20Q3))i Wherethe trialcourt hasstated a'~'reason·forits decision, the
scope of review is limited tp an.examinaticn'of the stated. reason." Gornmmi\.vealth. v, Q'·Brien,
2003 PA S.uper.425, 836 A.2d 96~, 96.8: (20Q3)(q.u,oting Co~mornyealth v. :Horvath, 2·00JPA
Super227,)81.A.2d 1243,12.46:(20'01)). "A discretionary rule cannot be overturned simply
because areviewing court disagrees with 1p~ trial court's conclusion:" Id. (quoting
Comh1.onwealthv. Cohen; 519:P~·. 55?, 60~ A.2d. 1212, 12is (1992)), To constitute reversible
error, a.;1 evidentiary ruling must not only be .erroncous, but also harmful or prejudicial to the
complaining party, Cornmorrwealthv. Lopez;.2'012 PA:Super 16'1, 57 AJd 74., 8-l (20'q) (citing·
McN'an.amori v. Washko, 906 A.2d 1259.; 1268~69. (Pa.Super,2006)). An evidentiary error of the
trial court will 'be deemed 'harmless on appeal where the appellate court is.convinced, 'beyond a
reasonable . doubt. . . .. . 'that. the error.could '. . . . . not . have contributed to the. verdict. Commonwealth ' . v.
DeJf!sus.• 584 Pa. 29, 88.0' A.2d 60&, 614 (2005).(cifing Commoiiwe~th v. s·t6ry, 476 Pa. 39l,
383 A.2d 155, 194-66 (l979)).
It iswell settled that all relevant evidence is admissible, except JIB otherwise providedby
Jaw. Pa:R.R402. 'Evidence is relevantif it has any tendency to make a fact more or Jess probable than it would be withoutthe evidence arid the factis of.consequence in determining the action.
Pa.R.E. 40 I. Tue 'court niay exclude relevant evidence ifits probative value is outweighed by a
danger. of one or · moreef ~QC following: unfair prejudice, confusing the. issues, misleading the
Jury, undue delay, wastin~ time, or needlessly presenting cumulative evidence. Pa.RI{ 403.
n In the case.at . . bar.. this Court.properly allowed the Commonwealth to introduce the
shotgun casings into evidence. At trial, Detective Demas testified that he recovered two spent 12-
gauge Winchester shotgun shells from the vacant ]ot next to 1916 East Clearfield Street. One of
the shells was on the table; the other was in the grass. This was the same vacantlot where
officers recovered the loaded shotgun itself The Commonwealth showed Detective Demas
photographs of the. area and be. confirmed where helocated each shell casing. Defense counsel
objected, arguing thatthe shotgun casings recovered were "irrelevant," "not probative of
anything," and "certainly prejudicial." The Commonwealth. responded that the defense's theory
of the case was that thepolicefailedto adequately investigate this matter, To the contrary, these
spell casings were recovered after the police executed a search warrant and were indicative of the
police properly conducting their investigation. The Commonwealth further argued that theshell
casings wcre.importani because.ballistic analyses indicated that they were fired from the very
same ~hotgun found: in the vacant lot, This Court ruled in favor of the Commonwealth, stating
that defense counsel failed to object when a prior witness, Officer Lewis, testified regarding the
shell casings, Moreover, the Court.found that there was no prejudice because the fired shotgun
casings) along with the shotgun and other items recovered in tlrc vacant lot, were all recovered
concurrently and in connection with the same investigation. (N.T. 4/10/14, p. 32~26).
The Court did not abuse. its discretion when it allowed 'Commonwealth.to introduce
evidence of the spent shotgun casings because they were relevant to the Commonwealth's case
and were not unduly prejudicial-to Defendant. First, the spent shotgun casings were relevant as
Defendant was charged with carrying a firearm on the public streets of Philadelphia. Leach
testified that he saw Defendant brandishing a shotgun.and then striking Perez with it ..Leach
further testified that he heard a gunshot after he turned away.from the window, Police later
14 'recovered ashotgunand spent: shell Casings in thevacant lot in close proximity to where
-Defendant-hadbeenarguing withPerez and-Geary, Thus; the recovered shell.casings were
relevant evidence to t]ie case at bar. Second, as discussed.above, defense counsel argued that the police did not conduct, a.
thorough investigation: into thfo matter. She questioned both Detective Demas and Police. Officer
Lewis as JQ why they"~ld not request gunshot residuetests on Defendant's clothing and 'hatids.
'She wanted'to.know J.4y the polite did not tryto recover fingerprints from the shotgun, Defense
counsel also -inquired as to.whether they" thoroughly canvassed the· neighborhood for additional.
witnesses . and.suspects, (l'{T. 4/9/14, 143-1.45, 147.,.i48~N.T. 4110114, 4'0:-47). Since defense . l . . . counsel drew into question the police Investigation itself, the Commonwealth properly countered
with evidenceof'the.investigatorytools employed bythepolice, including-the search for and I • • • ' '
recovery of evidence. ·
Last, there was no prejt1dice to Defendant. Priot to . Detective Demas' testimony
regarding the shell casin~s, and the Cornmonwealta's introduction ofphotographs of the vacant
1ot~.:Offic~r Lewis already bad testified about.discovering the shotgun shells on the table and
wound in-the vacantlot. Officer Lewis further-testified regarding the shotgun itself in the
···cabeh{s'; shotgun sleeve, and told .thejury that Inside thegun there 'were two Jive-rounds an.d
'one spentround, meaning that the gt1n hadbeen fired. Defense counsel didnot object.to any of
this testimony. (N; T. 4/9/14, p. l) 8-121 ). Additionally, counsel actually stipulated.to the.
ballistics report. At the conclusion of the Commonwealth's case-in-chief the jury was told: Stipulation is furtherthatthe shotgunwastest-fired.end itwas operable. Also, the shotgun and allthree fired shotgun shells were microscopicallyexamined. Through examination -and the comparison of the shotgun and the· three fired shotgun shells, 'if was determined that all three shotgun shells'had been fired from-that particular shotgun. The shotgun is apumpaction shotgun, which
15 means thafafter the. trigger is pulled, ·the projeetiveor-bullet comes out of'the front -of the shotgun, and the shotgun sh~ll remains in the shotgun, The.fired shotgun shell is ejected from the . shotgun only· after the shotgun i.s pumped again'. The factthat there is one fired shotgun shell recovered in (sic) the shotgun indicates that the .shctgunwas not pumped: after it had last been fired. Ms. Zeccardi :_[def~n_sG counsel] and 1 both signed those stipulations,
(N .T. 4/l0/14,_._p. 129-BO~. thus·,"the Commonwealth' s introduction of the
shotgur; shells Into evidence was cumulative and. did not prejudice.Defendant in.
anyway. . Since this Court.'c()'tnmitted noerror, .. thejury's ' .. finding.ofguilt should be
affirmed.
III.. IT WAS l'l(JTJMPROPER :F9R THE:-COMMONWE:ALTH ro REJ<'ER TO THE CIT°V'.S 13;CON'QMIC·:coNDITlONS IN ITS CLOSI-NG ARGUMENT.
The Commonwealth did not commit proseoutorial.misconduct when it referenced the dty
of Philadelphia's poor economic conditions in its closing argument, Defendant.argues that the
Commonwealth should not.have been permitted to. "explain that the economic conditions in
Philadelphia were the reason why the police department failed to conduct certain testing"
because the Commonwealth ·''did.'.not present any evidence-to. support-this conclusion. ,,_ This.
claim is withoutmerit,
Whil¢."~fdoslng-argum.ent must. be based upon evidence in the record Of reasonable inferences therefrom, a prcsec utor J.S permitted to. respond to defense evi dence and enaa~e in
oratoricalflair. C9nimonwecilth v. Culver; 2012.PA Super 172, 51 A3d 8-86, 87·8 (2012) (cit-ihg . l • .. • ' ..
(Jommonwealth-v. Basemore, 5J:5 Pa,. 512, 582 .A.2d 8.61.; 8.69 ( 1990)). Allegedly improper
remarks. of a prosecutor during closing arguments must be viewed in the context of the closing
-argument as a whcle,.. Comrnomyealth v;_.Srr:iitb~ 604Pa. 126, 985 A.2d 886, 907 (2009) (quoting
Coil;lmonw,ealth.v. 'W,·ashin,zj~n, 549-oPa. ).2, 700 A..2d·400,·4@?-08.(t9.97)). However, even an
otherwise improper . comment maybe . appropriate . if it is in fair response todefense counsel's
16 remarks, Comm·onwea!Jlrv. Burno, 96 A.~d 956, 974 (~a: Super. 2014) (quoting,Comm...Q.n.wi:alth
v: Elli:ott; . . 80 .2d 415,443 . (Pa.·2013). Furthermore.a prosecutor's comments do notconstitute '
reversible error unless their unavoidable.effect was to prejudice the jury, forming in: their minds a:
fixed bias andhestilitytewards.the defendant so that they could not weigh the evidence
objectivelyand render a true verdict.Jd. in the case at bar, the. AssistantDiatrict Attorney.did not engagein prosecutorial misconduct whert he explained to the.jurythatDefendant's clothinghad not been tested'for
gunshot residueandtheshotgunhad not. 'been checked for fingerprints due.to the city's limited
economic resources. Specifically, he stated:
if I had: fingerprints, they .could say, well} What aboutthe DNA . .And then, I'd have.fingerprints.and DNA., and theycould say. where' s the video? I've got all of'that, and. then they could s~y1 well, why don't you have mote evidence? That's their right.
But at the beginning oftais trial, M.s{ Z~ccardL[c;lef~n:s.e counsel] said, this: is Commonwealth versus Darryl Palmer and I .have all the. resources .of the Commonwealth to: bring: .Let' s talk about that. All the resources of the Commonwealth. What does that mean? " • •' ,' , I , ,
You .all when you' were-selected, y9u said. you're from Philadelphia. The Judge told you touse your common sense. You know this .. The entire economy is struggling. 'Our city· has. a deficit. We close schools, We. fire teachers; _pay freezes, We close libraries. This is reality.
·1 wish I had police officers orapolicedepartment that-could just do everysingle test regardless of cost, regardless of expense, on every single case, 'they can't, ·
Lprosecute in Philadelphia, I'm proud.of'thai, This is reality .. It's not a 'TV'ehow. Ifs not some movie.' It'a reality. There. are costs. Our ",city has to make choices. They determine when· to. do these things and when not to do. these things. And: like Detective Demas said, sometimes you try to. get fingerprints arid you can't get 'em.
17 (N:l. 4/11/14.~ .P: 28-29). This· explanation for the. police failure to conduct these tests was in
direct response to the defense's theory ofthe ease, specifically that the police conducted a less
than thorough investigation into this matter; Ai trial, defense counsel Ms. Zeccardi. questioned ·
Detective Demas on cross-examination regarding. the police officers.' failure to request gunshot
residue tesis on.Defendant' s clothing .and·.hands·ro prove· 'that he-actually had fired the. shotgun
that day. She further pressed him as to why he chose not to . have theshotgun.checked for
fingerprints. Detective.Demas testified 'that he. did not request-gunshot residue tests nor did he
have the firearm fingerprinted because there was an, eyewitness, 'Mr, Leach, who had. positively
identified Defendantas the.shooter. Ms .. Zeccardiasked Officer Lewis the same questions; he
testified thathe did not.attempt to preserve the fingerprints on the firearm because it was already
containinatedand that he did not guard the. Defendant's clothing or. hands for a gunshot residue .
rest.,
In addition, in her own closing argument, Ms, Zeccardi argued that the police had failed
to do "basic police work" by failing' fo conduct tests thatwould produceI'neutral 'evidence."
(N.T.4111/14, p. 15-16) ..'~he told the.jury:
There are very few things 'in a trial thatare neutrai.Medical records, injurtes caused, that's neutral. There 's gunshot residue on the· T-shirt and jeans. Thaf·s neutral .. The defendants' [sicjprints are or arenot on the gun, That's neutral. Not one piece of neutral evidence wasput before you, not because · they couldn't have it, but because DetectiveDemas who is not-it is not his job to call [Defendantj.guilty.. That's not his job.
That's your job. But he elected not.to do. thevery things that would have.either buttressed the Commonwealth's case or knocked it.out of the park, Either. there'sgunshot residue or there's not, But they didn't give you tpiit because I knew: I had a witness. ·
18 The Commonwealth's closing remarks regarding the police. officers' decision not to
conduct a gunshot residue test or check for fingerprints on the shotgun directly respond to
defense counsel's closing arguments about allegedly shoddy police work.and "neutral evidence,"
as well as hercross-examinations of Detective Demas and Officer Lewis; Moreover, it reiterates
Detective Demas' testimony regarding his reason for declining to request these tests; specifically
that there was a positive identification by an eyewitness so these tests would have been
superfluous and a waste of resources, These comments were all infair response to defense
arguments arid were riot improper when viewed in the context of counsel's closing arguments as
a whole. Furthermore, there was no harmto Defendant. As.stated above, "a prosecutor's
comments do not constitute reversible error unless their unavoidable effect was to prejudice the.
jury, forming in their minds a fixedbias andhostility ~ow~rds the defendant so that they could
not weigh the evidence objectively and render a trueverdict," This is notthe case here; The Commonwealth's closing arguments regarding the economic ·hardshipsfacirig Philadelphia in no
way -prejudiced Defendant or prevented the j'ury from rendering a true verdict based upon the
evidence. Thus, the Commonwealth did not make improper remarks in its closing argument and
the jury's verdict should be affirmed ..
19 ... .,• ...
.CONCLUSION After reviewing the. applicable case· law, statutes, and testimony, this Court committed no
erron Thejury properly: found Defendant.guilty of carrying a firearm on the public streets of
Philadelphia; VUFA § 61.08. This Court..p.i:operly found Defendant ~ii ty.of carrying a firearm as
a: pets.oil nctto-usccr possess firearms, VUFA § (i:10$. In addition, this Court properlj; permitted the Commonwealth to introduce into evidence the spen,t.shot~tm. casings recovered along. with
the shot&11n in the vacant lot. f.,a:st, the Commonwealthdid not improperly · reference the city of Philadelphia's financial dlfficulties in its closing argument. Accordingly, this-Court's.judgment
of sentence should be affirmed.
BY THE COURT:·
~,~;~
20·