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COMMONWEALTH PENNSYLVANIA v. PHILLIP LEROY BRYANT (03/29/85)

filed: March 29, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
PHILLIP LEROY BRYANT, APPELLANT



COUNSEL

Timothy M. Carland, Public Defender, Industry, for appellant.

Edward J. Tocci, District Attorney, Beaver, for Commonwealth, appellee.

McEwen, Olszewski and Popovich, JJ. Olszewski, J., files a concurring opinion.

Author: Popovich

[ 341 Pa. Super. Page 125]

This is an appeal by appellant, Phillip Leroy Bryant, from the concurrent sentences of 2 1/2 to 5 years imposed by the

[ 341 Pa. Super. Page 126]

Court of Common Pleas of Beaver County for convictions of firearms not to be carried without a license and former convict not to own a firearm. We reverse in part and affirm in part.

The facts, viewed in a light most favorable to the verdict-winner, reveal that on July 5, 1982, at approximately 7:28 p.m., City of Beaver Falls police officer Lloyd Haswell received a radio call to proceed to the rear of 705 Ninth Avenue to investigate "a complaint that a Leroy Phillip Bryant had a weapon in his possession" and he had been firing it. The officer knew appellant for some 15 years and that he had been convicted previously.

Upon the officer's arrival at the scene, he walked around to the side of the house. As he approached the rear of the residence, a juvenile by the name of Goosby ran past him. He then observed two men, one of whom was appellant, get up from the porch floor. Upon doing so, appellant and the second individual saw the officer and tried to enter the house through the back entrance. The officer then stated he saw "a .357 Magnum sticking out from the coat of Mr. Bryant, and at that time [he] grabbed the gun and the coat at the same time and placed Mr. Bryant under arrest." The weapon contained three live rounds. Thereafter, Bryant was patted down "real quick" to assure the officer that he (Bryant) had no other weapons on his person.

At trial, in contrast to the content of the suppression hearing recounted supra, Bessy Wise recalled looking out of her front door and seeing appellant, whom she knew for about two years as the father of her daughter's child born out of wedlock, walking on the railroad tracks next to her house in the company of one Anderson, appellant's cousin who resided at 705 Ninth Avenue. Although Ms. Wise "didn't know which of them was doing the shooting," she heard a weapon fired three times and "they were doing the shooting."

Officer Haswell repeated what he had testified to at the suppression, with the resultant admission of the weapon seized from appellant into evidence as Commonwealth's

[ 341 Pa. Super. Page 127]

Exhibit No. 1. The officer also testified that as of July 5, 1982, the arrest date, he believed appellant resided with his (appellant's) mother at 728 Sixth Avenue rear, Beaver Falls, Pennsylvania. The officer was sure of the address because "[t]his is the ['official'] address that he [appellant] gave the dispatcher at the time of booking." A review of the record confirms this point.

James Mittica was the next witness to take the stand. He testified to appellant being a parolee under his supervision since the 1st of March, 1982, for a 2-7-year prison term for a 1978 burglary conviction. This fact was substantiated by the Clerk of Courts of Beaver County (Pam O'Rourke), whose record search produced the conviction just mentioned at case No. 545 of 1978.

To establish appellant's lack of a license to carry a firearm, the prosecution produced the assistant chief of police for the City of Beaver Falls (Richard Pegg). He outlined his duties as the record keeper and issuer of a 12-month gun permit for residents of the City; to-wit:

They fill out an application prior to the purchase of a weapon and they enter their name, address, social security number, whether they have ever been arrested, serial number, make, description of the weapon, and then what I do is after I receive the application I run a records check on them through the FBI and the state police and local police departments and if they have ever been arrested before we don't issue a gun permit to them.

A check of the police ledger, containing the names of those individuals to whom licenses were issued for one year prior to and after the 5th day of July, 1982, by the City of Beaver Falls police department, revealed that no gun permit had been issued to either a ...


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