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[U] Commonwealth v. Holloway

Superior Court of Pennsylvania

January 14, 2014



Appeal from the Judgment of Sentence August 30, 2012 in the Court of Common Pleas of Franklin County Criminal Division at No.: CP-28-CR-0001283-2011




Appellant, Craig Justin Holloway, appeals from the judgment of sentence imposed after his jury conviction of two counts of persons not to possess, use, manufacture, control, sell, or transfer firearms.[1]

In February 2010, pursuant to a private sale, Appellant purchased ammunition in Franklin County from now-retired Pennsylvania State Police Corporal Bradley T. Hutzell. The next day, Appellant bought a .22 caliber Remington rifle from Hutzell, later called Hutzell to say it was inoperable, and then purchased a .30-06 Remington rifle from Hutzell in exchange for the .22.

A few months later, in the fall of 2010, Hutzell learned from the State Police's daily e-bulletins that Appellant was a person of interest. Because authorities in Huntington County were interested in Appellant, Hutzell contacted them and learned that Appellant is a convicted murderer who cannot legally possess firearms. Thereafter, Trooper Andrew Corl, an investigator in Huntington, filed the above firearm charges against Appellant in Franklin County, where the sales had occurred.

At Appellant's April 19, 2012 trial, the Commonwealth presented the testimony of Hutzell and Trooper Corl, and Appellant testified on his own behalf. The parties stipulated that Appellant had a prior conviction for murder of the third degree and conspiracy, and could not own firearms. On the same day, the jury convicted Appellant of the two counts of person not to possess.

On August 30, 2012, with the benefit of a pre-sentence investigation report (PSI), the court sentenced Appellant to concurrent terms of not less than five nor more than ten years' incarceration for the two counts. The court denied Appellant's post-sentence motion on November 19, 2012 and Appellant timely appealed. He also filed a timely statement of errors complained of on appeal pursuant to the trial court's order. See Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on January 31, 2013, in which it relied, in large part, on the November 19, 2012 opinion on the post-trial motions.[2] See Pa.R.A.P. 1925(a).

1. Whether the trial court erred in finding the evidence sufficed to prove guilt beyond a reasonable doubt in that the intent of knowingly possessing the prohibited firearms cannot be inferred from the totality of the circumstances?
2. Whether the trial court abused its discretion in denying the motion for new trial asserting that the verdict was against the weight of the evidence due to the omissions of identification and of corroborating records?
3. Whether the suppression court abused its discretion in excluding from the cross-examination of the witness who sold the firearms and identified the Appellant as the purchaser impeachment evidence on compliance with federal laws on record-keeping by sellers who are firearms dealers?
4. Whether the sentencing court abused its discretion in imposing sentence without considering a sentence in the mitigated range of the Sentencing Guidelines, stating that there was no mitigated range, and so restrained its exercise of discretion contrary to the fundamental norms of the sentencing process?

(Appellant's Brief, at 7-8).

In Appellant's first issue, he argues that the evidence was insufficient to prove that he "had the necessary intent to knowingly possess the firearms prohibited by 18 Pa.C.S.[A]. § 6105(a)(1)." (Appellant's Brief, at 14). This issue lacks merit.

Our standard of review of a challenge to the sufficiency of the evidence is well-settled:

In reviewing sufficiency of evidence claims, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all the elements of the offense. Additionally, to sustain a conviction, the facts and circumstances which the Commonwealth must prove, must be such that every essential element of the crime is established beyond a reasonable doubt. Admittedly, guilt must be based on facts and conditions proved, and not on suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. 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 fact finder is free to believe all, part, or none of the evidence presented at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa.Super. 2011), appeal denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).

Section 6105 of the Pennsylvania Crimes Code provides, in pertinent part: "A person who has been convicted of an offense enumerated in subsection (b) . . . 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." 18 Pa.C.S.A. 6105(a)(1). Hence, in order to establish all the elements of persons not to possess firearms, "the Commonwealth must prove that a person possessed a firearm and had a prior conviction of an offense listed in 18 Pa.C.S.[A.] section 6105(b)." Commonwealth v. Williams, 911 A.2d 548, 551 (Pa.Super. 2006) (citation omitted).

In this case, the parties stipulated to the fact that Appellant had a 1983 conviction for an enumerated crime under subsection (b). (See Trial Court Opinion, 11/19/12, at 7; N.T. Trial, 4/19/12, at 3-4 (the trial court noting that "for all practical purposes . . . that's tantamount to a stipulation to the first element that the Commonwealth needs to prove of the two elements of the offense")); see also 18 Pa.C.S.A. § 6105(b). Furthermore, at trial, Hutzell identified Appellant in open court as the man to whom he sold the two Remington rifles. (See N.T. Trial, 4/19/12, at 27-28). Therefore, viewing the evidence in the light most favorable to the Commonwealth, we conclude that the trial court properly found that the evidence was sufficient to sustain the convictions of persons not to possess firearms.[3] See 18 Pa.C.S.A. § 6105(a)(1), (b); Moreno, supra at 136; Williams, supra at 551. Appellant's issue lacks merit.

In Appellant's second issue, he claims that the trial court abused its discretion in denying his motion for a new trial where the verdict was against the weight of the evidence. (See Appellant's Brief, at 18-20). We disagree.

Our standard of review of a challenge to the weight of the evidence is well-settled:

[T]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice.

Moreno, supra at 135 (citation omitted). To succeed on a challenge to the weight of the evidence, "the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the [C]ourt." Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa.Super. 1998), appeal denied, 739 A.2d 165 (Pa. 1999) (citation omitted).

Appellant argues that:
[B]etween the stale identification of [him] from an electronically-generated periodical, which, also, was not produced at trial, and . . . other omissions, the weight of the evidence suggests that no sales of firearms between Mr. Hutzell and [Appellant] took place so that the conscious [sic] had to [be] shocked by the guilty verdict.

(Appellant's Brief, at 19). Appellant's claim fails.

As stated previously, Appellant stipulated that he had been convicted of an offense listed under section 6105(b) of the Crimes Code. (See N.T. Trial, 4/19/12, at 3; Trial Ct. Op., at 7). Therefore, the Commonwealth did not need to prove the first element, prior conviction of a section 6105(b) offense, of persons not to possess. See 18 Pa.C.S.A. § 6105(a)(1), (b); (see also N.T. Trial, 4/19/12, at 4). It established the second element, possession, when it presented Mr. Hutzell's eyewitness testimony that he sold two firearms to Appellant. (See N.T. Trial, 4/19/12, at 27-28). Moreover, we decline what is, in effect, Appellant's invitation to re-weigh the evidence. (See Appellant's Brief, at 18-20). Therefore, we conclude that the evidence in this case was not "so tenuous, vague, and uncertain that the verdict shocks the conscience of the [C]ourt", and we will not disturb the jury's verdict. Shaffer, supra at 200 (citation omitted).

In Appellant's third issue, he argues that the trial court abused its discretion when it excluded cross-examination of Hutzell, because "[t]he objective of [the] proffered cross-examination was to impeach [him] for failing to keep any written record of gun sales." (Appellant's Brief, at 21). This issue does not merit relief.

"It is clear that the trial court has the discretion to determine the scope and limits of cross-examination and that [an appellate] Court cannot reverse those findings absent a clear abuse of discretion or an error of law." Commonwealth v. Rivera, 983 A.2d 1211, 1230 (Pa. 2009), cert. denied, 560 U.S. 509 (2010) (citation and internal quotation marks omitted).

Here, the trial court observed that:
[T]he legality of the transactions between [Appellant] and Hutzell was immaterial to the case, and especially to whether there was sufficient evidence to convict [Appellant]. The legality of the transactions (on Hutzell's end) was a collateral matter. . . . Put simply, the legality of the transactions themselves has no bearing on the legality of [Appellant's] possession of the two rifles.

(Trial Ct. Op., at 9). We agree with the court's observation.

"Impeachment through extrinsic evidence is not generally allowed on matters collateral to the issues at trial." Commonwealth v. Bailey, 469 A.2d 604, 612 (Pa.Super. 1983) (citations omitted); see also Commonwealth v. Holder, 815 A.2d 1115, 1119-20 (Pa.Super. 2003), appeal denied, 827 A.2d 430 (Pa. 2003) (finding trial court properly precluded impeachment where it concerned collateral matter).

In this case, because the parties stipulated that Appellant had been convicted of an enumerated offense under section 6105(b), the only issue at trial was whether Appellant improperly possessed a firearm. (See N.T. Trial, 4/19/12, at 4; Trial Ct. Op., at 7; Appellant's Brief, at 9); see also 18 Pa.C.S.A. § 6105(a)(1), (b); Moreno, supra at 136; Williams, supra at 551. Therefore, whether Hutzell "fail[ed] to keep any written record of gun sales" was a collateral issue, and we conclude that the trial court did not abuse its discretion or commit an error of law when it precluded Appellant from impeaching Hutzell about this alleged failure. (Appellant's Brief, at 21; see also N.T. Trial, 4/29/12, at 32-33); Holder, supra at 1119-20; Bailey, supra at 612. Appellant's third issue does not merit relief.[4]

In Appellant's fourth issue, he argues that the court abused its discretion when it found that the Sentencing Guidelines precluded it from sentencing Appellant in the mitigated range. (See Appellant's Brief, at 26-29). This issue challenges the discretionary aspects of Appellant's sentence, which "must be considered a petition for permission to appeal." Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.Super. 2011) (citation omitted). To preserve claims relating to the discretionary aspects of a sentence properly, they must first be raised with the trial court. See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011). Further,

[t]he Rules of Appellate Procedure mandate that, to obtain review of the discretionary aspects of a sentence, the appellant must include in his brief a Concise Statement of Reasons Relied Upon for Allowance of Appeal. See Pa.R.A.P. 2119(f). This statement must raise a substantial question as to whether the trial judge, in imposing sentence, violated a specific provision of the Sentencing Code or contravened a "fundamental norm" of the sentencing process.

Kelly, supra at 640.

Here, Appellant has met the procedural requirements of raising his issue with the trial court and including a Rule 2119(f) statement in his brief. (See Post-Sentence Motion, 9/10/12, at 1-2; Appellant's Brief, at 24-25). Further, Appellant's statement raises a substantial question by claiming that the sentencing court misapplied the Sentencing Guidelines. (See Appellant's Brief, at 24-25); Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super. 2007) ("A claim that the sentencing court misapplied the Sentencing Guidelines presents a substantial question.") (citation omitted). Accordingly, we will review the merits of Appellant's issue.

It is well-settled that:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation. Where the sentencing court had the benefit of a presentence investigation report ("PSI"), we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks omitted).

Further, section 303.9 of the Sentencing Guidelines provides, in pertinent part, that:

When the guideline sentence recommendation exceeds that permitted by 18 Pa.C.S[A.] § 1103 and § 1104 (relating to sentence of imprisonment for felony and misdemeanor) and 42 Pa.C.S.[A.] § 9755(b) and § 9756(b) (relating to sentence of partial and total confinement) or other applicable statute setting the maximum term of confinement, then the statutory limit is the longest guideline sentence recommendation. For the purposes of the guidelines, the statutory limit is the longest legal minimum sentence, which is one-half the maximum allowed by law.

204 Pa. Code § 303.9(g) (emphasis added).

In this case, because of Appellant's prior record and offense gravity scores, his recommended guideline sentence was 120 months' imprisonment, with a mitigated-range sentence of 108 months. See id. at § 303.16. However, the statutory limit was sixty-months.[5] See id. at §§ 303.9(g), 1103(2). Therefore, the court properly found that it was precluded from sentencing Appellant to a mitigated-range sentence of 108 months because it would have exceeded the sixty-month statutory limit. (See N.T. Sentencing, 8/30/12, at 14-15); see also 204 Pa. Code § 303.9(g); 1103(2). Hence, Appellant's sentence of not less than sixty nor more than 120 months' incarceration was "appropriate under the Sentencing Code." Griffin, supra at 937.

Moreover, we observe that the trial court had the benefit of a PSI and is presumed to have been aware of all relevant factors, see id., and, in fact, noted that it would not go below the Guidelines:

[Appellant] committed a serious crime. He traded and possessed firearms, something that he is not allowed to do. The [Offense Gravity Score] reflects the crime's significance. Furthermore, he has a [Prior Record Score] of [Repeat Violent Offender]. [Appellant] was convicted of murder and conspiracy to commit murder. [Thirty] years later, he is still subject to parole, which shows the indelible nature of his prior offenses. The General Assembly and Sentencing Commission intended to punish harshly violent offenders who possess firearms. We are cognizant that [Appellant] appears to have led a mostly law-abiding life since his release from state prison. But that factor does not override the seriousness with which the Legislature wishes the court to treat [Appellant's] convictions given his prior record. A sentence below the Guidelines is not acceptable in this case.

(Trial Ct. Op., at 6; see also N.T. Sentencing, 8/30/12, at 14-15).

Hence, based on the court's reasoning and our own review of the record, we conclude that the court properly exercised its discretion when it sentenced Appellant to not less than sixty nor more than 120 months' imprisonment. 204 Pa. Code § 303.9(g); see also Griffin, supra at 936-37; (N.T. Sentencing, 8/30/12, at 15). Appellant's fourth issue lacks merit.

Judgment of sentence affirmed. Judgment Entered.

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