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Commonwealth v. Thomas

September 17, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RICHARD THOMAS, APPELLANT



Appeal from the Judgment of Sentence of March 5, 2008, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0002796-2007.

The opinion of the court was delivered by: Bowes, J.

BEFORE: ORIE MELVIN, BOWES and DONOHUE, JJ.

OPINION

¶ 1 Richard Thomas appeals from the judgment of sentence imposed after he was convicted at a bench trial of persons not to possess firearms under 18 Pa.C.S. § 6105. We affirm.

¶ 2 The trial court summarized the relevant facts as follows:

At trial, the Commonwealth presented the testimony of Philadelphia Police Officer Thomas Farrell. On December 15, 2006, at approximately 12:45 a.m., Officer Farrell and his partner, Officer Rapone, responded to [a] police radio call regarding a shooting in the area of 3466 North Phillips Street in the city and county of Philadelphia, Pennsylvania. Upon arriving at the location, the officers observed Appellant standing in the middle of the block. After looking in the direction of the approaching officers, Appellant threw a handgun against the wall of 3448 Phillips Street. The impact broke the gun, a revolver, in two [pieces]. The handle was detached from the receiver, the latter of which consisted of the chamber, ammunition, barrel, and firing mechanism. Appellant then picked up the receiver portion of the gun and threw it over a fence into an adjacent vacant lot. Officer Farrell then climbed over the fence and retrieved the receiver. Because Appellant did not have a permit to carry the gun, Officer Farrell placed him in custody.

The parties stipulated at trial that the firearm in question was a.22 caliber handgun loaded with seven live rounds. It was further stipulated that [if] the police ballistician [was called] to testify, he would confirm that the gun was later test fired and found to be inoperable due to a missing main spring. He [also] would have testified that the gun was submitted to him in two pieces, with "impact damage to the front portion of the barrel and top strap, grip grab [sic] broken off..., left side grip panel missing and black tape wrapped around the grips."

Trial Court Opinion, 9/10/08, at 2-3 (citations to record omitted).

¶ 3 Based on this evidence, Appellant, who had prior felony convictions, was convicted of persons not to possess firearms and sentenced to four to eight years incarceration followed by two years probation. This timely appeal followed, wherein he argues that the evidence was insufficient to sustain his conviction because the Commonwealth stipulated that the handgun recovered by Officer Farrell was inoperable.

¶ 4 Our standard of review is well-settled. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Jones, 954 A.2d 1194 (Pa.Super. 2008). As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Id. Any question of doubt is for the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances. Commonwealth v. Perez, 931 A.2d 703 (Pa.Super. 2007).

¶ 5 In order to obtain a conviction under 18 Pa.C.S. § 6105, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a firearm and that he was convicted of an enumerated offense that prohibits him from possessing, using, controlling, or transferring a firearm. The term "firearm" is defined in that section as any weapon that is "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). In the instant case, the trial court determined that Appellant violated the statute because he possessed a weapon that was designed to fire ammunition. Moreover, insofar as the revolver was found to be inoperable due to the absence of a main spring, the court concluded:

[I]t is entirely reasonable to infer that the spring was missing solely by reason of Appellant's attempted destruction of the gun. That is, but for Appellant's attempt to prevent the police from recovering the weapon, it is reasonable to conclude that the gun would not have broken into pieces, the spring would have been in place, and the weapon would have been operable after Appellant's arrest.

Trial Court Opinion, 9/10/08, at 6-7.

ΒΆ 6 Appellant does not dispute that the revolver was designed to expel bullets or that he attempted to destroy it in the presence of the arresting officer; he simply maintains that a defendant cannot be convicted under section 6105 unless the weapon is found to be operable. In leveling this argument, Appellant relies upon Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973), and Commonwealth v. ...


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