Commonwealth v. Gainer

7 A.3d 291, 2010 Pa. Super. 189, 2010 Pa. Super. LEXIS 3259, 2010 WL 3990833
CourtSuperior Court of Pennsylvania
DecidedOctober 13, 2010
Docket1610 WDA 2009
StatusPublished
Cited by36 cases

This text of 7 A.3d 291 (Commonwealth v. Gainer) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gainer, 7 A.3d 291, 2010 Pa. Super. 189, 2010 Pa. Super. LEXIS 3259, 2010 WL 3990833 (Pa. Ct. App. 2010).

Opinion

OPINION BY

STEVENS, J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following Ap *292 pellant’s conviction on the charges of carrying a firearm without a license, 18 Pa. C.S.A. § 6106, and possession of a firearm with an altered manufacturer’s number, 18 Pa.C.S.A. § 6110.2. Appellant’s sole contention is that the evidence was insufficient to sustain his conviction for carrying a firearm without a license under Section 6106 since the Commonwealth failed to prove the firearm was “operable.” 1 We affirm.

In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Clark, 746 A.2d 1128 (Pa.Super.2000) (en banc). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183, 185 (1993) (citation omitted). Although a conviction must be based on “more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.” Commonwealth v. Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990) (citation omitted). “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. Wright, 846 A.2d 730, 736 (Pa.Super.2004).

The relevant facts are as follows: Appellant was arrested and, represented by counsel, he proceeded to a bench trial on April 2, 2009, at which the sole testifying witnesses were Pittsburgh Police Officer Dan Hartung and Jason Very. Specifically, Officer Hartung testified that, at approximately 8:00 a.m. on July 1, 2008, he was dispatched to the 400 block of 39th Street for a report of “males doing drugs in a white van” near the basketball courts. N.T. 4/2/09 at 8-9. Officer Hartung, who was in full uniform and operating a marked police vehicle, arrived at the location and observed people playing basketball. N.T. 4/2/09 at 9-10. He exited his vehicle with his police dog and walked towards the basketball courts, at which time he made eye contact with Appellant, who turned and walked in the opposite direction away from Officer Hartung towards a line of trees. N.T. 4/2/09 at 10. Officer Hartung observed Appellant carrying a blue bag directly in front of him as if he were trying to conceal it. N.T. 4/2/09 at 11. Officer Hartung anticipated where Appellant would exit the tree line and met Appellant as he walked down a path towards 39th Street. N.T. 4/2/09 at 12. Appellant, who was no longer carrying the blue bag, blurted out, “I don’t have anything, you can search me.” N.T. 4/2/09 at 13. Officer Hartung waited for back-up officers to arrive and then he walked up the path, finding the blue bag at the top of the path. N.T. 4/2/09 at 13-14. Based on his experience and training, Officer Har-tung felt the outside of the thin blue nylon bag and felt what he believed to be a small caliber firearm. N.T. 4/2/09 at 15. He opened the bag and discovered inside a twenty-two caliber semi-automatic firearm with an obliterated serial number. 2 N.T. 4/2/09 at 15. Officer Hartung submitted *293 the gun to the crime unit and crime laboratory. N.T. 4/2/09 at 26.

Jason Very, who is a firearms examiner for the Allegheny County Medical Examiner’s Office, 3 indicated that a twenty-two long rifle caliber Sedeo Pistol, SP-22, was submitted to the laboratory on July 10, 2008, with regard to Appellant’s case. N.T. 4/3/09 at 34. As to the operability of the gun, the following relevant exchange occurred:

Q: And what type of operating condition was this gun in when you received it?
A: When I received the firearm it was in [an] inoperable condition.
Q: Can you explain just so the record is clear what is an inoperable condition of a firearm, how was it inoperable?
A: The basic condition that I received the pistol in you could not discharge a round. It took a little bit of work to get the firearm to be operable.
Q: But was it eventually made operable?
A: It was, yes.
Q: I’m going to show you what I have marked for identification purposes as Commonwealth’s Exhibit No. 3.
[ADA]: Your Honor, may I approach the witness?
THE COURT: You may.
BY [ADA]:
Q: The gun is locked for the safety of everyone?
[DEFENSE COUNSEL]: Your Hon- or, may I also approach the witness so I can observe.
THE COURT: Of course.
BY [ADA]:
Q: Is this the gun that was submitted to you in regard to this case?
A: Yes, it is.
[ADA]: May I take the lock off that weapon to show you exactly the essential issue in this part of the case?
THE COURT: Yes, just don’t point it at me.
[ADA]: With the court’s permission may I stand here to show you what I’m talking about when I question him.
THE COURT: Yes. [Defense counsel], you can come up if you like.
[ADA]: I have shown [defense counsel] this situation before.
THE COURT: Okay.
BY [ADA]:
Q: Mr. Very, could you explain for the Judge while showing him right now with my flashlight that I have in my hand, and could you explain what I am pointing at?
A: What you are looking at, Your Hon- or, is at the twelve o’clock position on the chamber of the pistol here you see a half moon indent circle. What happens with the rim when you fire the pistol, the firing pin is not center — doesn’t hit the center of the cartridge. What it does is hits on the rim of the cartridge. So, if there is not a cartridge in the chamber when you dry fire the pistol it will hit on the rim of the chamber. That will cause what we call a burr. It just deforms the metal over time.

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Cite This Page — Counsel Stack

Bluebook (online)
7 A.3d 291, 2010 Pa. Super. 189, 2010 Pa. Super. LEXIS 3259, 2010 WL 3990833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gainer-pasuperct-2010.