J-S55034-16


                                  2016 PA Super 187

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DARIAN SMITH,

                            Appellant                   No. 2207 EDA 2015


             Appeal from the Judgment of Sentence July 20, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007896-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 25, 2016

        Darian Smith (“Appellant”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County, which, sitting

as finder-of-fact in Appellant’s waiver trial, convicted him of possession of a

firearm with altered manufacturer’s number.1          Sentenced to one and one-

half to three years’ incarceration, Appellant challenges the sufficiency and

weight of the evidence—including a chain of custody argument—and

contends the trial court denied his pre-sentence motion for extraordinary

relief in error. We affirm.

        The trial court aptly summarizes the procedural and factual histories of

the case sub judice as follows:

____________________________________________


1
    18 Pa.C.S. § 6110.2.



*Former Justice specially assigned to the Superior Court.
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     On May 12, 2015, Defendant Darian Smith proceeded to trial
     before [the trial court], sitting without a jury. Defendant was
     convicted of Possession of a firearm with altered manufacturer’s
     number (18 Pa.C.S. § 6110.2).

     On June 12, 2015, Defendant filed a Post-trial motion, which
     motion was denied at the time of sentencing on July 20, 2015.
     NT 7/20/15 at 9. On that date, Defendant was sentenced to 1 ½
     -3 years imprisonment.[fn]

     [fn] The parties agreed that Defendant’s prior record score under
     the Sentencing Guidelines was 0, and his offense gravity score
     was 9, yielding a sentencing range of 12-24 month[s], plus or
     minus 12. NT 7/20/15 at 10.

     Police Officer Christopher Culver and his partner, Officer Alice,
     went to a home on North 32 Street on May 16, 2014, at about
     9:30 PM, to execute a material witness warrant for Defendant.
     NT 5/12/15 at 6-7, 13. The door was answered by Defendant’s
     mother. As the officers, who were in full uniform, were speaking
     with her, they saw Defendant come down the stairs, look in their
     direction and run to the back of the house. NT at 7-8. After
     determining that the back door was locked on the inside, the
     officer[s] proceeded into the basement, where they found
     Defendant hiding under the stairs. NT at 8-10. On a dresser,
     Officer Culver observed a gun magazine, a bag full of bullets and
     a silver .25 caliber Raven firearm. NT at 9-12. The room where
     the dresser was located, the only non-storage room in the
     basement, also contained a bed, a television, shoes and boxes of
     sneakers. NT at 9, 11, 22, 28. There was also mail and
     information cards on the dresser. NT at 12.

     Subsequently, Officer Culver examined the gun he had first seen
     on the dresser. The gun had something wrapped around the
     handle, and there was a part missing from the rear area of the
     gun, in the area of the striking mechanism. NT at 19-21.

     Subsequently, Detective Michael Rocks came to the scene, which
     was secured by police, to execute a search warrant. NT at 27,
     30. On top of the dresser in the basement, Detective Rocks
     recovered three identification cards in the name of Defendant.
     NT at 28-29; C-1 (a-c).



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      Police Firearms Examiner Norman DeFields testified by
      stipulation as an expert in the field of firearms examination and
      testing. NT at 37. In his capacity as a co-examiner, DeFields
      examined the firearm seized from the basement dresser. NT at
      37-38. DeFields rendered an opinion that the firearm was
      designed to expel a projectile. NT at 38-39. He further testified
      that a tool of some sort had been used to abrade or grind off the
      serial numbers located on the back strap area of the gun’s grip.
      NT at 39-44.

Trial Court Opinion, filed January 11, 2016, at 1-2.

      Appellant presents the following questions for our review:

      1. Whether the trial court erred in finding that the evidence was
         sufficient to show as a matter of law that appellant was guilty
         of VUFA 6110.2 possession of a firearm with the
         manufacturer number altered because the Commonwealth
         failed to prove beyond a reasonable doubt that appellant was
         (1) in possession of a firearm and (2) that the firearm had an
         obliterated serial number?

      2. Whether the trial court erred in finding that the
         Commonwealth established the proper chain of custody for
         the inoperable firearm that was recovered?

      3. Whether the verdict was against the greater weight of the
         evidence and shocks the conscience, was manifestly
         unreasonable, and was not supported by the law where the
         evidence presented at trial clearly established that: (1) the
         appellant was coming from upstairs inside of the property and
         was merely present in the house where an inoperable firearm
         was recovered from the basement, (2) appellant was not in
         possession of the firearm, and (3) based on the
         Commonwealth’s expert the manufacturer number on the
         firearm was clearly visible and was not altered?

      4. Whether the trial court erred and committed an abuse of
         discretion by denying appellant’s motion for extraordinary
         relief that was filed prior to sentencing wherein appellant
         requested a new trial based on (1) the Commonwealth’s
         failure to prove all of the elements of the crime of VUFA
         6110.2 beyond a reasonable doubt, and (2) the verdict was
         against the greater weight of the evidence because appellant

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         was merely present inside of the residence where the firearm
         was recovered, appellant was not in possession of the
         firearm, and based on the testimony of the Commonwealth’s
         own expert the firearm was not altered?

Appellant’s brief at 4-5.

      Appellant first argues there was insufficient evidence to support his

conviction relating to the firearm.    His conviction requires that he be in

possession of a weapon, he argues, and the evidence did not establish that

he was (1) in constructive possession of (2) an actual firearm (3) with an

obliterated manufacturer’s number. We disagree.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.        Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa.Super. 2007) (citation omitted).      “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.”     Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa.Super. 2005)).         However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, this Court may

not substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the



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evidence presented.      Commonwealth v. Hartle, 894 A.2d 800, 804

(Pa.Super. 2006).

     Section 6110.2 states, in relevant part:

     Possession of firearm with altered manufacturer’s number

     (a)     General rule.—No person shall possess a firearm which has
             had the manufacturer’s number integral to the frame or
             receiver altered, changed, removed or obliterated.

     (b)     Penalty.—A person who violates this section commits a
             felony of the second degree.

     (c)     Definition.—As used in this section, the term “firearm”
             shall have the same meaning as that term is defined in
             section 6105(i) (relating to persons not to possess, use,
             manufacture, control, sell or transfer firearms), except that
             the term shall not include antique firearms as defined in
             section 6118 (relating to antique firearms).

18 Pa.C.S § 6110.2.

     Appellant first contends the Commonwealth failed to prove the item

recovered was a “firearm” because it was inoperable, and no testimony or

evidence was offered to explain either why the gun was inoperable or that it

could be made operable.      Initially, we note that Appellant has waived this

argument for his failure to include it in his court-ordered Pa.R.A.P. 1925(b)

statement.    Greater Erie Indus. Dev. Corp. v. Presque Isle Downs,

Inc., 88 A.3d 222, 223 and 227 (Pa.Super. 2014) (en banc ) (holding issues

not included in the Rule 1925(b) statement are waived).

     Even if Appellant had preserved this argument, we would reject it.

Under 18 P.S. § 4628, the predecessor of 18 Pa.C.S. § 6105, the


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Pennsylvania Supreme Court held that the Commonwealth was required to

prove     the   operability   of   the    firearm   to   prove   possession.   See

Commonwealth v. Layton, 307 A.2d 843, 845 (Pa. 1973) (superseded by

statute, 18 Pa.C.S. § 6105); 18 P.S. § 4628 (repealed).              In Layton, the

Pennsylvania Supreme Court found that since Section 4628 “‘was obviously

intended to cover only objects which could cause violence by firing a shot,’ a

defendant could not be convicted under the Act unless the weapon he

possessed was capable of firing a projectile.” Commonwealth v. Zortman,

985 A.2d 238, 242 (Pa.Super. 2009) (quoting Layton, 307 A.2d at 844).

        However, after the legislature modified the definition of a firearm to its

present version at 18 Pa.C.S. § 6105,2 this Court held that

        [t]he statutory language is clear, and it does not require proof
        that the weapon was capable of expelling a projectile when it
        was seized; on the contrary, the fact that a person can be
        prosecuted simply for possessing a semiautomatic pistol frame
        refutes this notion because the frame requires additional parts,
        e.g., a slide and barrel, in order to fire a bullet.[] Thus, the use
        of the terms “frame” and “receiver” in section 6105(i)
        demonstrates that the legislature sought to eliminate the

____________________________________________


2
 A “firearm,” at Section 6105, Persons not to Possess, Use, Manufacture,
Control, Sell, or Transfer Firearms, is defined as follows:

        (i) Firearm.--As used in this section only, the term “firearm”
        shall include any weapons which are designed to or may readily
        be converted to expel any projectile by the action of an explosive
        or the frame or receiver of any such weapon.

18 Pa.C.S. § 6105(i).




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      operability requirement articulated in Layton for purposes of
      this section

Commonwealth v. Thomas, 988 A.2d 669, 672 (Pa.Super. 2009).

Accordingly, because a gun need not be operable to qualify as a firearm for

purposes of Section 6110.2, Appellant may not prevail on the argument that

the gun recovered from his home was inoperable.

      Appellant next assails his conviction as unsupported by evidence that

he was in constructive possession of the firearm. Because Appellant was not

in physical possession of the firearm in question, the Commonwealth was

required to establish that he had constructive possession of the seized item

to support his convictions.    See   Commonwealth v. Kirkland, 831 A.2d

607, 611 (Pa.Super. 2003) (holding where contraband a person is charged

with possessing is not found on person, Commonwealth required to prove

constructive possession).     Constructive possession is an inference arising

from a set of facts that possession of the contraband was more likely than

not. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004).

      Constructive possession may be proven by circumstantial evidence and

the “requisite knowledge and intent may be inferred from examination of the

totality of the circumstances.” Commonwealth v. Clark, 746 A.2d 1128,

1136 (Pa.Super. 2000) (quoting Commonwealth v. Haskins, 677 A.2d

328, 330 (Pa.Super. 1996)). Moreover, we review circumstantial evidence

under the same standard as direct evidence, i.e., that a decision by the trial

court will be affirmed “so long as the combination of the evidence links the



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accused to the crime beyond a reasonable doubt.” Commonwealth v.

Johnson, 818 A.2d 514, 516 (Pa.Super. 2003) (citations omitted).

        Our review of the record, conducted in the light most favorable to the

Commonwealth, leads to the conclusion that Appellant had the intent and

ability to control the firearm. Specifically, testimony established that other

items found on the basement dresser where the firearm was recovered

included a sneaker box, sneakers, three identification cards belonging to

Appellant—including his driver’s license listing the residential address in

question—and a letter addressed to him. Coupled with Appellant’s flight into

the    basement,     which     demonstrated      a    consciousness    of     guilt,   see

Commonwealth v. Jones, 570 A.2d 1338, 1349 (Pa.Super. 1990) (holding

finder of fact may infer a consciousness of guilt from person’s flight or other

evasive conduct upon observing police presence), this evidence, although

circumstantial, sufficed to establish that Appellant was in constructive

possession     of   the   firearm.       Therefore,    Appellant's    claim     that   the

Commonwealth failed to present sufficient evidence to prove constructive

possession of the firearm lacks merit.

        The final aspect to Appellant’s sufficiency challenge is that evidence

failed to prove his guilt under Section 6110.2 for possessing a firearm with

an altered manufacturer's number,3 because the firearms expert testified he

____________________________________________


3
    Section 6110.2 provides, in relevant part:
(Footnote Continued Next Page)


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was able to make out the number upon his examination. At trial, however,

the expert clarified that someone had clearly attempted to remove the

number by mechanical means—most likely a grinder or some kind of circular

tool—but that he was still able to see the numbers when placed under

magnification:

      Q [Prosecutor]: Officer DeFields, in your expert opinion, is it a
      coincidence that in all the areas of that gun, the only area that
      has significant discoloration, or what we’ve characterized as
      scratch marks or rubbing off, was to the serial number?

      A:   No, that’s not uncommon. We get firearms all the time
      where the serial number has been obliterated through abrasion,
      gouging, and pounding.

      And that’s why we have different techniques of recovering the
      serial numbers. Had we not been able to see that, under
      magnification, then we would have done a chemical serial
      number restoration. And it’s just a technique to recover serial
      numbers.

      Q:    And just to put a finer point on it, Officer, is it your opinion
      that the serial number, in this case, was altered?

      A:     It’s not altered. You can still see it. But someone, clearly,
      tried to remove it.

      ***
      [trial court entertains and overrules several defense objections]

                       _______________________
(Footnote Continued)

      (a) General rule.--No person shall possess a firearm which has
      had the manufacturer's number integral to the frame or receiver
      altered, changed, removed or obliterated.

18 Pa.C.S. § 6110.2.




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     Q:    And when I say altered, I’m talking about what you
     described earlier as somebody taking a circular tool or some kind
     of – can you just describe that.

     [trial court again overrules defense objections]

     A:     Your Honor, someone has clearly taken some kind of a
     tool, and through abrasion, taken the tip of this off. This is not
     consistent with normal wear and use. As you can see this gun
     was made sometime between the ‘70s and the ‘90s. And you
     can clearly see, from the reset of it, there’s no more wear like
     this. This, to me, in my opinion, someone took a tool and tried
     grinding this part off.

N.T. at 42-44.

     When considered in its entirety, the expert’s testimony confirms that

the manufacturer’s number on the firearm had been mechanically abraded to

such a degree that it was no longer legible unless magnification was

employed. This degree of degradation of the number—rendering it illegible

by ordinary observation—satisfied the statutory requirement that an

alteration or change to the number be apparent on the firearm.        In this

respect, the expert’s opinion that the number had not been “altered”

because it was unnecessary to use chemical means to enhance remnants of

a number ostensibly removed did not bear on the legal question of

culpability under Section 6110.2, for it was not for the firearms expert to

define any of the four discrete terms used in the statute. The value of his

testimony, instead, lay in his reporting the means by which discernment of

the number was capable, and his testimony that only extraordinary means—

in this case, magnification—enabled observation of the number established

culpability under Section 6110.2.      Accordingly, Appellant’s sufficiency

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argument as it pertains to the alteration of the manufacturer’s number on

his firearm is without merit.

       Remaining for disposition are Appellant’s weight of the evidence

challenges, which comprise arguments that the trial court erred in denying

his post-trial claims pertaining to alleged gaps in the chain of custody of the

firearm4 and to his constructive possession of the firearm.          An appellate

court's standard of review when presented with a weight of the evidence

claim is distinct from the standard of review applied by the trial court.

Appellate review of a weight claim is a review of the exercise of discretion,

not of the underlying question of whether the verdict is against the weight of

the evidence. Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa.Super.

2013) (quotation marks, quotations, and citations omitted). In order for an

appellant to prevail on a challenge to the weight of the evidence, “the

evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.” Commonwealth v. Sullivan, 820 A.2d 795,

806 (Pa.Super. 2003) (quotation marks and quotations omitted).

       First, Appellant challenges the trial court’s discretion in failing to grant

a new trial given what he asserts was the Commonwealth’s failure to

establish a proper chain of custody for the firearm recovered from

____________________________________________


4
   To the extent Appellant directs this chain of custody claim to the
admissibility of the gun, we find that the testimony of Officer Culver,
discussed infra, laid a proper foundation for admission.



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Appellant’s home.    Specifically, counsel for appellant objected when the

Commonwealth presented Detective Michael Rocks to testify to the property

receipt number for the firearm because Detective Rocks had not been at the

property when the firearm was seized. The objection, which was leveled at

the admissibility of the evidence, was, therefore, based on questions as to

whether the firearm in evidence was actually the one seized from the

basement.

      A claim asserting such a gap in the chain of custody of evidence goes

to the weight of evidence and not to its admissibility. See Commonwealth

v. Penn, 132 A.3d 498, 505-06 (Pa.Super. 2016) (citing Commonwealth

v. Free, 902 A.2d 565, 573 n.6 (Pa.Super. 2006) (“[the defendant]

complains that the discrepancies between the reports and the photographs,

coupled with the absence of the evidence itself, leaves questions as to

whether the marijuana depicted in the photographs was actually the

evidence seized from Appellee in this case .... [I]ssues regarding chain of

custody concern the ‘weight that is to be afforded evidence’….”)). Here, we

discern no abuse of the trial court’s discretion in denying a new trial on this

issue, as a reasonable inference was made, through the testimonies of the

arresting officer, Officer Chris Culver, and Detective Michael Rocks that the

gun entered into evidence was the gun recovered from Appellant’s home.

Officer Culver testified to observing a silver, .25 caliber Raven handgun on

the dresser, to recovering the firearm and seeing that the scene was secured

until detectives arrived to search the house, and to recognizing the gun that

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was later placed in police custody as the gun that he saw in Appellant’s

home. N.T. at 12, 19-20. Detective Rocks confirmed that uniformed officers

secured the scene until the detectives’ arrival, and he identified Officer

Culver’s signature on the property receipt for the gun. Appellant may not

prevail on this claim.

      Nor is there evidentiary support for his weight claim directed at the

issue of constructive possession of the gun. Appellant points to the totality

of evidence that he was coming from upstairs and not the basement when

officers saw him in his boxer shorts and that both male and female articles

of clothing were found in the basement as suggesting he was merely present

in the house and did not exercise domain over items located in the

basement.    However, the evidence also included testimony that Appellant

raced toward the basement upon seeing the officers and that identification

cards belonging to him were found on the dresser alongside the firearm.

Such evidence, as noted supra, provided a strong connection between

Appellant and the firearm and belies his position of merely being present in

the home. Nothing about the trial court’s order denying Appellant’s motion

for reconsideration with respect to his possession of the gun or any other

element to the Section 6110.2 conviction shocks the conscience.

      Judgment of sentence is AFFIRMED.

      Judge Dubow joins this Opinion.

      Judge Lazarus files a Concurring Opinion.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016




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