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Commonwealth v. Brown

Superior Court of Pennsylvania

May 4, 2018

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES EDMUND BROWN, III Appellant

          Appeal from the Judgment of Sentence July 6, 2017 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003259-2015

          BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

          OPINION

          SHOGAN, J.

         James Edmund Brown, III ("Appellant"), appeals from the judgment of sentence entered July 6, 2017, in the Court of Common Pleas of Westmoreland County. We affirm in part and vacate and remand in part.

         The charges in this case stem from the investigation of a missing gun. On March 26, 2015, in Derry Borough, Westmoreland County, Thomas Magdic ("Magdic") was working as a paratransit driver for Veterans Cab Company. N.T., 4/5-6/17, at 50. At trial, Magdic testified that on that date, he had a leather jacket with him that was draped over the driver's seat of the vehicle he was driving. Id. at 52. Magdic explained that the manner in which the jacket was draped over the seat made some of the jacket accessible to the backseat passenger. Id. at 52-53. Magdic stated that the right bottom pocket of the jacket contained a loaded Beretta pistol. Id.

          Magdic picked up Appellant at his residence and transported him to Latrobe Hospital. N.T., 4/5-6/17, at 56, 72. After taking Appellant to the hospital, Magdic transported three other fares before returning to the hospital to get Appellant. Id. at 72-73. Appellant entered the backseat of the car on the passenger side but later slid over behind the driver's seat when Magdic picked up another fare. Id. at 55-56. Magdic testified that at some point during that trip, he felt a tug on his jacket and felt the back of his seat being pushed. Id. at 57. Although concerned about his gun, Magdic waited to check his jacket until he transported the occupants to their designated locations. Id. at 57-58.

         Upon investigation and while parked outside of Appellant's residence, Magdic discovered that his gun was missing from his jacket pocket. N.T., 4/5-6/17, at 58. He reported the missing gun to the Derry Borough Police Department. Id. at 58. The chief of police responded to the scene, spoke to Magdic regarding the missing gun, and then proceeded to Appellant's residence and questioned him about the missing gun. Id. at 58, 116-118. The chief conducted a pat-down of Appellant and a cursory search of the home but did not find the gun. Id. at 118. Appellant told officers that he did not have Magdic's gun. Id. at 118.

         The chief of police subsequently received calls indicating that Calvin Flemming ("Flemming") possessed the gun in question. N.T., 4/5-6/17, at 121-122. The investigating officer contacted Flemming, and Flemming led the officer to the gun, which was hidden in the woods behind Flemming's residence. Id. at 123-126. Flemming informed the officer that he received the gun from Appellant. Id. at 128-129.

         Flemming testified that Appellant was his wife's uncle. N.T., 4/5-6/17, at 83-84. Flemming explained that some time after April 12, 2015, Appellant contacted him and asked him to take the gun. Id. at 84-86. Appellant paid him $50.00 for doing so. Id.

         At trial, Appellant denied taking Magdic's gun. N.T., 4/5-6/17, at 196-197. He also denied asking Flemming to take the gun, or paying Flemming to hide it. Id. at 196-198. Also during trial, the Commonwealth introduced evidence via a stipulation, that Appellant previously was convicted of robbery on May 2, 2008, and aggravated assault on August 14, 2009. Id. at 164-165, Commonwealth's Exhibits 10, 11, and 12.[1]

         The trial court summarized the procedural history of this case as follows:

On or about July 28, 2015, [Appellant] was charged with the following offenses:
1. Count One: Theft by Unlawful Taking - Movable Property, in violation of 18 Pa. C.S.A. § 3921(a),
2. Count Two: Receiving Stolen Property, in violation of 18 Pa. C.S.A. § 3925(a),
3. Count Three: Possession of a Firearm Prohibited, in violation of 18 Pa. C.S.A. § 6105(a)(1), and
4. Count Four: Firearms Not to Be Carried Without a License, in violation of 18 Pa. C.S.A. § 6106(a)(1).
On February 16, 2017, prior to the commencement of trial, [Appellant] filed Motions in Limine including a Motion for a Bifurcated Trial on Count Three. A hearing was held before this [c]ourt on the same day. During the hearing, defense counsel argued that although the Commonwealth must present evidence that [Appellant] was disqualified from possessing a firearm, that evidence should be introduced in the second phase of the trial after the jury determined guilt or innocence of the underlying charges as to not prejudice [Appellant]. Defense counsel alleged that if the jury was to hear this upfront, the jury would assume that [Appellant] has a history of violence. After arguments, the [c]ourt granted [Appellant's] Motion to Bifurcate Counts One, Two, and Four from Three; however, the [c]ourt held that the Commonwealth was at liberty to decide how it wanted to proceed.
On April 5, 2017, [Appellant] proceeded to a jury trial before this [c]ourt.1 On April 6, 2017, the jury returned a verdict of guilty of all of the above-referenced charges.[2] Sentencing was deferred
1 [Appellant] also proceeded to a jury trial at Case Number 4206 C 2016. At Case Number 4206 C 2016, [Appellant] was charged with two counts of Intimidation of Witness, in violation of 18 Pa.C.S.A. § 4952(a)(2) and (a)(3). At the conclusion of this trial, the jury returned a verdict of "Not Guilty" on both counts.
pending a Pre-Sentence Investigation. On July 6, 2017, [Appellant] was sentenced by this [c]ourt as follows: At Count Three, [Appellant] was sentenced to forty-two (42) months to eight (8) years incarceration at the Department of Corrections. He was given credit for time served and directed to have no direct or indirect contact with the victim. At Count Four, [Appellant] was sentenced to forty-two (42) months to eight (8) years incarceration concurrent to Count Three. At Count One, [Appellant] was sentenced to two (2) to four (4) years incarceration concurrent to Count Three. Count Two merged with Count One for purposes of sentencing. The sentence imposed was outside of the mitigated range of the Pennsylvania Sentencing Guidelines for the reason that [Appellant] participated in jail GED classes and CRS programs.
On July 11, 2017, the Sentencing Order was amended to reflect that at Count Four, [Appellant] was sentenced to forty-two (42) months to seven years incarceration concurrent to Count Three. All of the other terms and conditions of the July 6, 2017 Order of Court [were] to remain in full force and effect. [Appellant] did not file any Post-Sentence Motions. On August 4, 2017, [Appellant] filed a Notice of Appeal to the Pennsylvania Superior Court. On or about August 14, 2017, this [c]ourt entered an Order of Court directing [Appellant] to file a Concise Statement of Errors Complained of on Appeal within twenty-one days. On September 5, 2017, [Appellant] filed said statement and raised the following two issues: (1) Whether the trial court erred in granting his Motion for a Bifurcated Trial on the charge of Possession of a Firearm Prohibited in a manner, which allowed for the jury to be exposed to the fact that [Appellant] had prior convictions on his record for the violent offenses of Robbery and Aggravated ...

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