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filed: October 16, 1987.


Appeal from an Order entered August 22, 1986 in the Court of Common Pleas of Allegheny County at No. CC8603049A.


Dan Fitzsimmons, Assistant District Attorney, Pittsburgh, for Com., appellant.

Shelley Stark, Assistant Public Defender, Pittsburgh, for appellee.

Wieand, Kelly and Popovich, JJ.

Author: Kelly

[ 367 Pa. Super. Page 110]

The Commonwealth appeals from an order granting arrest of judgment and discharge following the conviction of appellee, Michael Coleman, of two violations of the Uniform Firearms Act. We vacate the order granting arrest of

[ 367 Pa. Super. Page 111]

    judgment, reinstate the verdicts of guilt, and remand for imposition of sentence.


On March 6, 1986, at 7:30 p.m., appellee entered a crowded beer and pizza shop in Pittsburgh, Pennsylvania, produced a .32 caliber automatic pistol, and fired a shot into the ceiling. No one saw appellee actually fire the shot. However, the owner of the bar, George Gregory (hereinafter "the owner"), and the bouncer, James T. Moore (hereinafter "the bouncer"), turned instantly, and observed appellee with a gun in his upraised hand and smoke from the discharge encircling his head. (N.T. 7/30/86 at 9, 23, 25-7). The owner, who was familiar with guns, was able to identify the gun as a black metal .32 or .38 caliber automatic with a barrel length of three and one-half to four inches in length. (N.T. 7/30/86 at 10-11, 36). The bouncer, who had heard guns discharged before, testified that the noise sounded like a gunshot and that the gun was a dark colored automatic revolver. (N.T. 7/30/86 at 23-4). The owner was eight feet from appellee; the bouncer was ten feet away from appellee. (N.T. 7/30/86 at 15, 23). There was ample lighting in the bar. (N.T. 7/30/86 at 10).

Appellee lowered the gun, engaged the safety, and stuck the gun in the front of his trousers. (N.T. 7/30/86 at 12, 15, 24). The owner produced a .45 caliber revolver he kept in a drawer behind the bar. (N.T. 7/30/86 at 9). The owner and the bouncer escorted appellee out of the bar; a friend of appellee placed himself between appellee and the bouncer on the way out, thereby preventing the bouncer from disarming appellee. (N.T. 7/30/86 at 9, 24).

The owner testified that he watched appellee leave, called the police, talked to the police, the investigating officers arrived, and then the appellee returned and was arrested -- all in fifteen seconds. (N.T. 7/30/86 at 9, 13-14). The bouncer, on the other hand, testified that fifteen minutes elapsed before appellee returned and was arrested. (N.T. 7/30/86 at 24-5, 27). The investigating police officer testified

[ 367 Pa. Super. Page 112]

    that on the night of the incident he was told by either the owner or the bouncer (he could not recall which) that appellee had been thrown out of bar, returned about fifteen seconds later and then left again and did not return until about ten minutes later, after the police had arrived. (N.T. 7/30/86 at 31, 33). Both the owner and the bouncer positively identified appellee at the time of arrest and again at the trial; neither exhibited the least hesitancy or doubt. (N.T. 7/30/86 at 14, 18, 25, 31).

Appellee was searched at the time of his arrest; no gun was discovered. (N.T. 7/30/86 at 31). A spent cartridge case from a .32 caliber automatic revolver was found under a cigarette machine about five feet directly behind where appellee had been standing with the gun in his upraised hand. (N.T. 7/30/86 at 31-32, 36, 45). The Commonwealth's firearms expert testified that markings on the cartridge case indicated that the cartridge was struck by a rectangular and pointed firing pin distinctive of a few types of spanish automatic loading pistols; there was an ejector mark on the cartridge case as well. (N.T. 7/30/86 at 46). Both the owner and the expert explained that a properly operating automatic revolver automatically expels the spent cartridge when the gun is fired. (N.T. 7/30/86 at 38, 45-47).

At the request of the police, the owner got a ladder and retrieved a slug from the plaster ceiling above the spot where appellee stood with the gun in his upraised hand. (N.T. 7/30/86 at 16, 32). The owner testified that he had never seen anyone else shoot into the ceiling before, and that his partner had never mentioned any such incident to him. (N.T. 7/30/86 at 20). The expert indicated that the slug was without rifling marks, and was probably the light core of a jacketed bullet; the weight of the fragment was consistent with that of a .32 caliber bullet. (N.T. 7/30/86 at 48). However, the expert conceded that he could not be certain that the spent cartridge case and slug came from the same bullet or the same gun. (N.T. 7/30/86 at 50). He also conceded that because lead is soft and grains can be

[ 367 Pa. Super. Page 113]

    lost as it strikes or passes through various objects, the slug could conceivably have come from a higher caliber bullet. (N.T. 7/30/86 at 48). Finally, the expert testified that although the age of the spent cartridge case and slug could not be ascertained with any degree of certainty, the spent cartridge case did not show signs of weathering conditions and the lead slug did not appear to be heavily oxidized. (N.T. 7/30/86 at 51).

Appellee was charged by information with: carrying a firearm without a license, 18 Pa.C.S.A. § 6106; former convict not to own a firearm, 18 Pa.C.S.A. § 6105; and recklessly endangering another person, 18 Pa.C.S.A. § 2705. On July 30, 1986, appellee waived his right to a jury trial and was tried by a judge. Following the presentation of the Commonwealth's case, appellee entered a demurrer to each of the charges. The trial judge sustained the demurrer to the recklessly endangering another person charge but denied the motion as to the firearms charges. Appellee thereupon rested without presenting any evidence. The trial court found appellee guilty of both the firearms charges.

On August 5, 1986, appellant filed a motion in arrest of judgment which stated:

1. The Commonwealth failed to establish the defendant's guilt as to Count I and Count II [the firearms offense] beyond a reasonable doubt.

2. In particular the Commonwealth failed to establish that the defendant had in his possession an operable firearm, as required by the Uniform Firearms Act.

On August 11, 1986, appellee was directed to present, at a hearing to be held on August 22, 1986, a concise, written statement of matters to be argued to the court at the time of argument. On August 22, 1986, appellee presented the court with a "Statement of the Issue Presented" which asserted that the Commonwealth failed to establish beyond a reasonable doubt that the gun, which the witnesses stated they saw in ...

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