J-S23027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
    CURTIS PALMORE                        :
                                          :
                     Appellant            :   No. 517 EDA 2015

        Appeal from the Judgment of Sentence Dated January 20, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012494-2012


BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                               FILED JULY 20, 2017

       Appellant, Curtis Palmore, appeals from the judgment of sentence

imposed after he was convicted of possessing a firearm while prohibited,

carrying a firearm without a license, and carrying a firearm in public in

Philadelphia.1 We affirm.

       The trial court summarized the facts presented at trial as follows:

             On July 7, 2012 on the 5500 block of Harmer Street in
       Philadelphia, several members of the Howell family, who reside
       on that block, were having a barbeque in celebration of a
       birthday. Also present at the party was [Appellant,] who at the
       time was a close friend of one of the Howell family members who
       lived on the block, Charnea Howell. During the course of the
       party, one of the members of the Howell family, Gregory, spilled
       a tray of grease from the grill on [Appellant]. A cousin of

1
   18 Pa.C.S. §§ 6105, 6106 and 6108. In addition to the firearms offenses,
Appellant was charged with aggravated assault and possessing an
instrument of crime, but was acquitted of those charges. All of the charges
were tried before a jury except the first firearms offense (possession of a
firearm while prohibited); that one offense was tried before the trial court.
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      Charnea Howell, Nadirah Howell, offered to remedy the
      situation; however, [Appellant] began calling her offensive
      names which prompted Nadirah to throw her drink in
      [Appellant’s] face. A scuffle ensued between [Appellant] and
      several male members of the Howell family. [Appellant] ran
      away from the cookout.

             Several minutes later, [Appellant] returned to the party.
      He instigated another fight with the male Howell family
      members. During the course of the fight, [Appellant] pulled a
      silver gun from his waist area and fired once, striking Daywone
      Howell in the leg. Daywone was taken to a local hospital and
      several hours later positively identified [Appellant] after being
      shown a photo array.

Trial Court Opinion, 4/22/16, at 2 (citations to notes of testimony and

footnote omitted).

      Appellant was convicted of the aforementioned firearms charges on

October 28, 2014. On January 20, 2015, the trial court sentenced him to an

aggregate 7½ to 15 years’ incarceration.2    Appellant filed a post-sentence

motion for reconsideration of sentence on January 28, 2015, which the trial

court denied on February 4, 2015.     On February 17, 2015, Appellant filed

this timely appeal.

      Appellant presents two issues for our review:

    1. Did the trial court err by overruling the objection of defense
       counsel to testimony from Charnea Howell [consisting of]
       hearsay statements asserting that Appellant Curtis Palmore shot
       the complainant?



2
  Appellant’s sentence consists of 5 to 10 years’ incarceration for prohibited
possession of a firearm, a consecutive 2½ to 5 years’ incarceration for
carrying a firearm in public in Philadelphia, and a concurrent 3½ to 7 years’
incarceration for carrying a firearm without a license.


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   2. Was the evidence insufficient to support a conviction for firearm
      offenses?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that he was prejudiced by the

admission of the hearsay statement of Charnea Howell to Philadelphia Police

Detective Francesco Campbell that she “heard gunshots and the people at

the cook out said my cousin Daywone Howell was shot by [Appellant].”

Appellant’s Brief at 16, citing N.T., 10/23/14, at 57.           Although this

statement was contained in the written police report, and at trial Ms. Howell

admitted to saying it to Detective Campbell, she contradicted herself and

testified that the statement was not true, and specifically that it was “a lie.”

N.T., 10/23/14, at 57-58.     Ms. Howell also stated that law enforcement

“fabricated the statement.” Id. at 61.

      The trial court explained that it properly allowed Ms. Howell’s hearsay

statement for impeachment purposes, stating, “impeachment of a witness

with a hearsay statement is not expressly barred by the Pennsylvania Rules

of Evidence.” Trial Court Opinion, 4/22/16, at 4. The trial court reiterated,

“the use of this statement was solely for impeachment purposes which was

proper under Pa.R.E. 613 and not being offered for its truth,” and “the

statement regarding what Ms. Howell heard from people at the cookout was

not offered for its truth but solely to impeach the testimony of Ms. Howell.”

Id. at 5.




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      Our standard of review of a trial court’s evidentiary rulings, including

rulings     on   the   admission   of    hearsay,   is   abuse   of    discretion.

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014).                  An abuse of

discretion is not merely an error of judgment, but is the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record.     Commonwealth v. Dent, 837 A.2d 571, 577

(Pa. Super. 2003).

      Pennsylvania Rule of Evidence 613(b) sets forth the requirements for

using extrinsic evidence of a witness’s prior inconsistent statement:

      (b) Extrinsic Evidence of a Witness’s Prior Inconsistent
      Statement. Unless the interests of justice otherwise require,
      extrinsic evidence of a witness's prior inconsistent statement is
      admissible only if, during the examination of the witness,

      (1)    the statement, if written, is shown to, or if not written, its
             contents are disclosed to, the witness;

      (2)    the witness is given an opportunity to explain or deny the
             making of the statement; and

      (3)    an adverse party is given an opportunity to question the
             witness.

Pa.R.E. 613(b).

      Referencing Rule 613(b), this Court has concluded that hearsay

testimony in which the witness related a prior inconsistent statement was

property admitted for purposes of impeachment.             Commonwealth v.

Charleston, 16 A.3d 505, 527 (Pa. Super. 2011), abrogated on other

grounds by In re L.J., 79 A.3d 1073 (Pa. 2013). In Charleston, we found

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no abuse of discretion by the trial court in permitting hearsay testimony

from the victim’s mother in a murder prosecution, where the mother

testified that a witness/neighbor had told her that prior to the murder the

defendant had told the witness/neighbor that he intended to rob the murder

victim, but later denied the statement. We determined that the statement

to the victim’s mother was admissible because the hearsay testimony was

not admitted for the truth of the matter asserted, but to impeach the

witness/neighbor who denied that the defendant made the statement to her.

Id. Explaining that the mother’s testimony qualified as extrinsic evidence of

a prior inconsistent statement, we said:

           Upon review, we conclude the court did not abuse its
     discretion in admitting the evidence under Rule 613(b).
     Subsection one of the rule was complied with because the
     Commonwealth disclosed to [the witness/neighbor] the contents
     of her statement to [the mother]. The Commonwealth also
     complied with subsection two because it asked [the
     witness/neighbor] if she made the statement and she denied
     making it. Finally, subsection three was satisfied, as the defense
     was given an opportunity to question [the witness/neighbor].
     Therefore, [the mother’s] testimony in which she relayed [the
     witness/neighbor’s] prior inconsistent statement was property
     admitted for purposes of impeachment.

16 A.3d at 527.

     Similarly, in this case, we conclude the trial court did not abuse its

discretion in admitting the hearsay statement of Charnea Howell because the

written statement to Detective Campbell was disclosed to Ms. Howell, Ms.

Howell was given an opportunity to explain or deny the statement, and




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Appellant had the opportunity – and did in fact – question Ms. Howell on

cross-examination. See N.T., 10/23/14, at 97-120; 131-133.

      Appellant asserts that “the importance of the hearsay testimony

cannot be underestimated [because] there was never any trial testimony

which identified Appellant as the shooter. Only prior statements supported

the case of the Commonwealth.” Appellant’s Brief at 23. This is not true.

Although Jamar Howell and Daywone Howell also recanted at trial the

statements they had made to police, Nadirah Howell, who initially testified at

trial that she had not seen the shooting, conceded – after being questioned

about her statements to police – that Appellant was the shooter. See, N.T.,

10/24/14, at 148 (“I didn’t see anything”); 170 (“How am I supposed to

remember something that happened two years ago?”); 184-185 (“Q:

Ma’am, what did you see the defendant do when he got close to Daywone?

A: I didn’t see him shoot Daywone. He just shot”); 186-187 (“Q: You saw

this shooting Ma’am?    A:   Yes”); 188 (“Q:    Is [your statement to police

identifying Appellant as the shooter] accurate? Is it true Ma’am? A: Yes.

Um, but I never knew his name”).

      Further, the Commonwealth presented testimony of Philadelphia police

officers who testified to initial eyewitness identifications by the witnesses

who later recanted their statements.      Lieutenant Cumberton Marshmond

testified that Charnea Howell identified Appellant as the shooter.       N.T.,

10/24/14, at 267-285. Detective Carl Valentine testified that Jamar Howell

identified Appellant as the shooter.   N.T., 10/24/14, at 15-36.    Detective

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James Horn testified that Daywone Howell – the victim – identified Appellant

as the shooter. N.T., 10/23/14, at 37-42. Given the context of the entire

record, we find no merit to Appellant’s first issue regarding the admission of

Charnea Howell’s hearsay statement.

      In his second issue, Appellant assails the sufficiency of the evidence

supporting his convictions. We recently reiterated our established standard

of review for sufficiency claims as follows:

             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. 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.        However, the Commonwealth need not
      establish guilt to a mathematical certainty, and it may sustain its
      burden by means of wholly circumstantial evidence. 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. Lastly, we note that the
      finder of fact is free to believe some, all, or none of the evidence
      presented.

Commonwealth v. Smith, 146 A.3d 257, 261–62 (Pa. Super. 2016)

(internal citations and quotation marks omitted).

      Appellant’s sufficiency argument fails. Within his brief at pages 19-20

and 24-25, Appellant generally asserts that the evidence was insufficient to

support his firearms convictions because “the testimony at trial was

consistent with no identification of Appellant” and “the factfinder could not

have reasonably determined from the evidence adduced that all of the

necessary elements of firearm offenses were established . . . particularly

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where [Appellant] was found not guilty of aggravated assault, simple assault

and possession of an instrument of a crime.”     Appellant’s Brief at 19, 24.

Neither of Appellant’s assertions is accurate.

      First, and as discussed above, there was trial testimony that Appellant

used a firearm. In addition, we note that the Commonwealth nolle prossed

the simple assault charge, so that Appellant’s representation that he was

acquitted of that charge is not accurate. See Trial Court Opinion, 4/22/16,

at 3, n5.   The jury’s acquittal of Appellant on the charges of aggravated

assault and possessing an instrument of crime does not mean that Appellant

could not be convicted of the firearms offenses. See Commonwealth v.

Moore, 103 A.3d 1240, 1246 (Pa. 2014) (recognizing the Pennsylvania “line

of cases which overwhelmingly permit inconsistent verdicts in a variety of

contexts,”).3

      With regard to the elements of Appellant’s three firearms convictions,

the statutes read:

      § 6105. Persons not to possess, use, manufacture,
      control, sell or transfer firearms

      (a)   Offense defined.-- 1) A person who has been convicted
            of an offense enumerated in subsection (b), within or

3
  In Moore, the Supreme Court held that the defendant’s conviction for
possession of an instrument of crime could be sustained even though the
defendant had been acquitted of related offenses involving the use of that
instrument of crime, and that, although the defendant’s murder and
attempted murder acquittals “might be logically inconsistent with” his PIC
conviction, “in light of our enduring acceptance of inconsistent verdicts in
Pennsylvania, we conclude that the acquittals are not grounds for reversal.”
103 A.3d at 1250.


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           without this Commonwealth, regardless of the length of
           sentence or whose conduct meets the criteria in subsection
           (c) shall not possess, use, control, sell, transfer or
           manufacture or obtain a license to possess, use, control,
           sell, transfer or manufacture a firearm in this
           Commonwealth. . . .

     (b)   Enumerated offenses.--The following          offenses   shall
           apply to subsection (a):
           ...
           Section 2502 (relating to murder).


     § 6106. Firearms not to be carried without a license

     (a) Offense defined.--

           . . . any person who carries a firearm in any vehicle or any
           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.


     § 6108. Carrying firearms on public streets or public
     property in Philadelphia

           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. §§ 6105, 6106 and 6108.

     The trial court correctly observed that under Section 6105, Appellant’s

prior murder conviction prohibited him from carrying a firearm. Trial Court




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Opinion, 4/22/16, at 6.4 The trial court stated, “both counsel stipulated that

[Appellant] has a prior conviction for murder from April 7, 1995. Therefore,

both elements of the charge of 18 Pa.C.S. § 6105 were established beyond a

reasonable doubt.” Id. at 6-7.

      Relative to carrying a firearm without a license under Section 6106,

the Commonwealth introduced into evidence at trial a certificate of non-

licensure to which defense counsel agreed.          N.T., 10/28/14, at 30-31;

Exhibit C-40.     The prosecutor explained to the jury that “this document

indicates that [Appellant] does not have a license to carry a firearm in the

Commonwealth of Pennsylvania.       Doesn’t have a license or a sportsman

firearm permit.    That is what the document says.”      When the prosecutor

asked to move the exhibit into evidence, Appellant’s counsel responded

“[t]here is no objection.” N.T., 10/28/14, at 31.

      Finally, it follows that the evidence was sufficient to convict Appellant

of illegally carrying a firearm in Philadelphia, under Section 6108, where

Appellant was found to have possessed a firearm without a license and

without any statutory exemption in the City of Philadelphia.

      Based on the foregoing, we find no merit to Appellant’s sufficiency

claim. We therefore affirm the judgment of sentence.

4
   The trial court also explained that “[s]ince an element of [possession of a
firearm by a prohibited person] is that [Appellant] has a murder conviction,
this charge was bifurcated from the initial jury trial so as to not prejudice
[Appellant]. Following the jury trial [Appellant] elected to waive his right to
a jury trial on this charge [and the conviction was rendered by the trial
court].” Trial Court Opinion, 4/22/16, at 6.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2017




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