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[U] Commonwealth v. Moultrie

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TYRONE DEON MOULTRIE Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of December 11, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at Nos.: CP-02-CR-0011862-2011, CP-02-CR-0012305-2012

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

WECHT, J.

Tyrone Deon Moultrie ("Appellant") appeals his December 11, 2012 judgment of sentence. Appellant contends that the evidence adduced at trial by the Commonwealth was insufficient to prove that he possessed a firearm. We affirm.

The learned trial court aptly recited the facts and procedural history of this case as follows:

On September 5, 2011, at approximately 9:30 PM, Jennifer Yokel heard a "pop, pop, pop" sound coming from the direction of her home's front window. She went to the window and saw [Appellant] on the sidewalk, with his arm in the air, shooting a gun. Ms. Yokel recognized the shooter as her next-door neighbor who had moved in about a month or so before this incident. She asked him what he was doing and she called 911. [Appellant] walked away[,] sideswiping his foot to clear spent shell casings from the sidewalk.
When police arrived at the scene, they went to [Appellant's] residence. There the police recovered a gun from [Appellant's] girlfriend's purse. The police also recovered casings from the street. After [Appellant] was Mirandized,[1] he stated [to Officer Viskovicz] that he and his girlfriend had been robbed as they sat on their front porch, and that [Appellant] went after the robber and shot at him as he fled.
A video recording of the incident was obtained by the police and introduced into evidence at trial. Witness testimony indicated that the video showed [Appellant] shooting the firearm. The firearm seized was submitted to the crime lab and was found to be in good operating condition. The crime lab further determined that it was the gun that fired the casings recovered from the street. Finally, evidence was presented that [Appellant] was not licensed by the Commonwealth of Pennsylvania to carry a firearm, and that [Appellant] had been convicted of robbery in 1999.

Trial Court Opinion ("T.C.O."), 5/16/2013, at 2-3.

Appellant was charged with persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1); carrying a concealed firearm without a license, 18 Pa.C.S. § 6106; and tampering with or fabricating physical evidence, 18 Pa.C.S. § 4910(1). On September 20, 2012, the trial court granted Appellant's motion to sever the charge of persons not to possess a firearm, so that it could proceed non-jury. Appellant continued with a jury trial on the remaining charges, with the persons not to possess non-jury trial occurring simultaneously. On the same day, the jury returned a verdict of guilty on the charge of carrying a concealed firearm without a license, and not guilty on the charge of tampering with evidence. Also that day, the trial court convicted Appellant on the charge of persons not to possess a firearm. On December 11, 2012, Appellant was sentenced to serve a term of five to ten years' incarceration. See Order of Sentence, 12/11/2012.

On January 9, 2013, Appellant filed a timely notice of appeal. On January 16, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18, 2013, Appellant filed a Rule 1925(b) statement.[2]

Appellant raises the following issue for our consideration:

Was the evidence insufficient as a matter of law to prove the crimes of person not to possess a firearm and carrying a firearm without a license beyond a reasonable doubt insofar as the Commonwealth's key witness could not possibly have identified [Appellant] as the person she saw in the street holding a gun; it was not possible to tell from the videotape who, if anyone, fired a gun; and it could be inferred from testimony that [Appellant] made ...

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