Commonwealth v. Jones

858 A.2d 1198, 2004 Pa. Super. 331, 2004 Pa. Super. LEXIS 2786
Superior Court of Pennsylvania·Decided August 25, 2004·Published·Cited by 42 cases

Opinions

OLSZEWSKI, J.:

¶ 1 This is an appeal from a judgment of sentence against appellant for three, violations of the uniform firearms act (VUFA). We affirm in part and reverse and remand in part. The facts of this case are as follows:

Officer Thomas Peters testified that in the morning of November 10, 2000, he was working as a plainclothes officer with his partner, Officer Gary Harkins. He received information over the police radio regarding a suspect in the vicinity where they were driving, Eighth and Mercy Streets in Philadelphia. They saw appellant, who matched the description, being the same height, wearing the same clothing and hairstyle. The officers approached appellant and identified themselves as police. Immediately, appellant began to run. The officers gave chase. Officer Peters was directly behind him by no more than ten to fifteen feet throughout the chase. At one point, from about three feet behind appellant, Officer Peters saw appellant reach into the front of his pants and then with his right hand pull out and drop a black gun to the curb. Appellant continued to run and hid himself in an alley behind a row of abandoned houses. Officer Peters radioed to his backup exactly where the gun had been dropped and indicated he needed assistance chasing appellant. Within minutes backup arrived but appellant had hidden himself well. After it seemed the police left the area, appellant, who had been hiding on the roof, began to descend using a tree leaning near the roof. Officer Peters surprised him when he reached the bottom and he ran again. Backup officers were able to apprehend him about one block away in the 700 block of Winton Street.
Officer Anthony Crawford testified that he was responding to the radio call of a man with a gun when he heard Officer Peter’s call that the suspect, whom he was chasing, dropped the gun near 7th and Cantrell Streets. Shortly thereafter, Officer Crawford found the gun and prepared the related property receipt. The gun was a black semi-automatic weapon with a clip containing four rounds of live ammunition.

Trial Court Opinion, 10/6/2003 at 1-3.

¶ 2 Appellant was charged with violating 18 Pa.C.S.A. § 6105, persons not to possess, use, manufacture, control, sell or transfer firearms; 18 Pa.C.S.A. § 6106, firearms not to be carried without a license; and 18 Pa.C.S.A. § 6108, carrying firearms on public streets or public property in Philadelphia. Appellant’s first two trials in this matter ended in a mistrial. Appellant was found guilty of all charges in his third trial. Appellant was sentenced to an aggregate term of incarceration of eight and one-half to seventeen years. This appeal followed.

¶ 3 Appellant raised three issues for our review. First, appellant argues that the trial court erred by providing the jury with an illustration of reasonable doubt during a re-reading of the jury charge. Our standard of review of a jury charge is well settled. “We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy ... rather [we] evaluate] whether the charge sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.” Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d 217, 218-19 (1996). “[W]e must review the charge as a whole.” Commonwealth v. Spotz, 563 [1201] Pa. 269, 759 A.2d 1280, 1290 (2000). “Error cannot be predicated on isolated excerpts of the charge ... it is the general effect of the charge that controls.” Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 314 (1999). “An instruction will be upheld if it clearly, adequately and accurately reflects the law. The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court’s instruction accurately conveys the law.” Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 580 (2002). “A verdict will not be set aside if the instructions of the trial court, taken as a whole, and in context, accurately set forth the applicable law.” Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1068 (1995).

¶ 4 In the case sub judice, the trial court made the following charge to the jury on reasonable doubt:

[T]he Commonwealth has the burden of proving the defendant’s guilt by proving every essential element of the offenses charged. And the Commonwealth must prove each of these elements beyond a reasonable doubt. A reasonable doubt is a doubt of such substance that if it occurred in connection with a matter of great importance in your own affairs, it would cause you to restrain from acting. Now, a reasonable doubt does not mean beyond all possible doubt, or beyond the shadow of a doubt, or to a mathematical certainty. A reasonable doubt is more than mere possible doubt or fanciful doubt or guess. Reasonable doubt must arise out of the evidence or out of the lack of evidence and not out of any extraneous matter. It must be a real doubt, and it may not be an imagined doubt or a manufactured doubt used to avoid carrying out an unpleasant duty. If you believe a reasonable doubt exists as to the guilt of the defendant or as to any of the facts upon which his guilt depends, then it will be your duty to find the defendant not guilty. If you do not find reasonable doubt, then it is your duty to find the defendant guilty.

N.T. 3/12/2003 at 127-28. During deliberations, the jury requested clarification on the above charge. The trial judge re-read his original charge on reasonable doubt after which he stated:

Now, an example that the Court sometimes thinks of in terms of reasonable doubt to Alústrate reasonable doubt, if you went down to Market Street at noon, and decided that you wanted to cross in the middle of the street, you might have, with all the traffic going back and forth at a very fast pace and things of this nature, you might have a reasonable doubt as to whether or not you could get across the street without being hit by a car.
However, if you go there at midnight, and there are no other cars there, and you look back and forth, then it would not be reasonable at that point, in the Court’s estimation, to think that you might get hit by a car. It doesn’t mean you might not, but generally speaking it would be reasonable to think that you might get hit at noon, not reasonable to think you might get hit at midnight when there is no traffic.
Does that help anybody? All right. You may resume your deliberations.

N.T. 3/13/2003 at 7. Appellant objected to the use of the illustration and now seeks a new trial on all charges because, as appellant argues, the Alustration was “confusing and inept, littered with double negatives, ... leaving] even those with advanced knowledge of the law wondering ‘just what is the Commonwealth’s burden?” ’ Appellant’s Brief at 13. We disagree.

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Commonwealth v. Jones, 858 A.2d 1198, 2004 Pa. Super. 331, 2004 Pa. Super. LEXIS 2786 (Pa. Ct. App. 2004).

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