Appeal from the Judgment of Sentence March 16, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009849-2008, MC-51-CR-0019450- 2008, MC-51-CR-0019451-2008, MC-51-CR-0019452-2008
BEFORE: BOWES, LAZARUS, and WECHT, JJ.
James R. Moore appeals from the judgment of sentence of seven and one-half to fifteen years imprisonment that was imposed after a jury convicted him of possession of an instrument of crime ("PIC") and a violation of the Uniform Firearms Act ("VUFA"), persons not to possess. We reverse Appellant's conviction of PIC, affirm his VUFA conviction, and remand for re- sentencing.
Appellant was charged with numerous offenses based upon events that occurred on April 13, 2008, at an illegal establishment located at 5915 W. Girard Avenue, Philadelphia. The business in question, a virtual farrago of vice, provided drugs, alcohol, and prostitutes to its patrons and was euphemistically referred to by the parties as a speakeasy. On the day in question, a shooting erupted among patrons at that establishment;
Vincent Dennis, Gerald Stewart, Reginald Mailey and Appellant all were shot, and Mailey died as a result of his injuries.
Appellant was charged with attempted murder, aggravated assault, simple assault, reckless endangerment with respect to both Stewart and Dennis, and murder as to Mailey. In addition, he was charged with possession of an instrument of crime and three VUFA offenses. The aggravated assault, simple assault, reckless endangerment, and two of the firearms violations were nolle prossed. Appellant proceeded to a jury trial on two counts of attempted murder, and one count each of murder, possession of an instrument of crime, and the VUFA offense of persons not to possess firearms. The trial was bifurcated, and the trial of the VUFA matter was deferred.
During the first phase, the Commonwealth presented evidence that Appellant initiated the shooting, but Appellant claimed that he acted in self- defense and the other shooting victims were the aggressors. The jury acquitted Appellant of all homicide and attempted homicide counts, but convicted him of the PIC offense. Following this phase of the jury trial, evidence regarding the VUFA count was presented to the jury. After the parties stipulated that Appellant's criminal record prevented him from obtaining a license for a weapon, Appellant was convicted of persons not to possess a firearm. After judgment of sentence was imposed, Appellant filed a post-sentence motion, which was denied, and this appeal ensued. He asks that we consider, "Is the Defendant entitled to an arrest of judgment on all charges where there was insufficient evidence to establish that the Defendant unlawfully possessed a firearm in violation of VUFA, Section 6105 and where there was insufficient evidence to establish that the Defendant was guilty of the crime of PIC where the Defendant had been acquitted on the charge of Murder?" Appellant's brief at 3.
Our standard of review when considering a challenge to the sufficiency of the evidence is as follows:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Adams, 39 A.3d 310, 323 (Pa.Super. 2012) (quoting Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa.Super. 2011) (en banc)).
At approximately 2:30 a.m. on April 13, 2008, Appellant and Stewart admittedly had a confrontation at the speakeasy. The Commonwealth evidence established that after this event, Appellant went to his car, retrieved a weapon, returned to 5915 W. Girard Avenue, and began to fire indiscriminately with an assault pistol. Stewart and two bystanders, Dennis and Mailey, were struck with bullets. Stewart claimed that after Appellant began shooting, Stewart discovered a gun on the floor and returned fire, striking Appellant in the left thigh and right knee. Appellant left the establishment while still in possession of his weapon, entered his car, and drove away. Police stopped Appellant within minutes of the incident and recovered the gun from the front passenger's seat.
Appellant's version of events was markedly different; he maintained that after his fight with Stewart, gunfire erupted in the establishment. Appellant said that he retrieved a weapon located in the speakeasy because he knew where it was hidden and that he returned gunshots in self-defense. The jury was instructed on self-defense. The jury's acquittal of Appellant of the only charges submitted to it in connection with any activities that constituted crimes, i.e. the various homicide charges, reflects its acceptance that Appellant acted in self-defense.
After careful consideration of the applicable law, we conclude that since the jury acquitted Appellant of committing any crime with the firearm that he possessed, his conviction for PIC is infirm. PIC is defined as follows: "A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally." 18 Pa.C.S. § 907(b). Our Supreme Court has ruled that if a defendant is acquitted of all crimes that the Commonwealth alleged that the defendant committed with a firearm or weapon, then that defendant cannot be convicted of PIC. This ruling flows from the elements of the crime, which unequivocally require that the weapon or firearm be employed ...