Commonwealth v. Dukes

270 A.3d 1161 (Table)

COMMONWEALTH of Pennsylvania

v.Frankie DUKES, Appellant

No. 1621 EDA 2020

Superior Court of Pennsylvania.

Filed: December 23, 2021

MEMORANDUM BY McLAUGHLIN, J.:

Frankie Dukes appeals the judgment of sentence imposed on his convictions for Possession of a Firearm Prohibited, Firearms Not to be Carried Without a License, Possession of a Controlled Substance, and Possession of Drug Paraphernalia.¹ On appeal, he challenges the sufficiency of the evidence to sustain his convictions for the firearms offenses. We reverse Dukes’ conviction for Firearms Not to be Carried Without a License, affirm the remaining convictions, and remand for resentencing.

On October 5, 2018, around 9:15 a.m., Pennsylvania State Trooper Matthew Brennan was on vehicular patrol southbound on Interstate 95. N.T., 1/15/20, at 10-11. He observed a Dodge Chrysler minivan following too closely to another vehicle and ran the registration, which had expired in August 2018. Id. at 11-12. Trooper Brennan activated his lights and sirens and initiated a traffic stop, approaching the passenger side of the car. See id. Dukes identified himself by name and provided a Delaware identification card but did not have a driver's license. Id. at 14. Trooper Brennan detected the strong odor of marijuana and requested Dukes’ license, insurance, and registration. Id. at 15-16. Dukes was nervous, stuttering, and glassy-eyed. The car was not registered to Dukes, but to a woman he claimed was his girlfriend. Id. at 17-18.

Trooper Brennan requested backup and searched the vehicle. Id. at 20-21. He later testified, "My immediate observation was to the front passenger side seat. It had a drawer that was attached to the seat. I pulled out the drawer and I immediately observed a black pistol. It appeared loaded. It was – I believe it was a Polish P-64 handgun." N.T., 1/15/20, at 21. Police recovered 67 small plastic bags filled with marijuana from a panel compartment inside the vehicle above the rear driver's side tire. Id. at 21-22. Following Dukes’ arrest, 10 bags of cocaine were located in his front pant area, two Percocet pills from inside his right sock, and an additional "white pill" in his jacket. Id. at 25.

At Dukes’ bench trial, the Commonwealth and defense counsel stipulated to the results of the drug lab report, namely, that the drugs had been tested and "they are what they are." Id. at 28-29. The Commonwealth introduced evidence that Dukes did not have a license to carry firearms and, based upon Dukes’ prior convictions for PWID and firearms offenses, counsel stipulated that he was a person who was not to possess firearms. Id. at 86-87. The prosecution did not introduce into evidence either the firearm police recovered or photographs of the firearm or of any ammunition. Id. at 2, 20-22, 86-87. Nor did the Commonwealth proffer expert testimony or a ballistic report. Id. Trooper Brennan stated that the firearm "appeared loaded" and that he believed the gun was a Polish P-64 handgun. He did not testify about the caliber, weight, size, or any of the firearm's other relevant details. Id.

Dukes was convicted of the firearms and drug offenses listed above and received an aggregate sentence of six to 12 years of incarceration and an aggregate of one year of consecutive probation. Dukes filed post-sentence motions and a timely notice of appeal.

On appeal, Dukes raises the following issues:

1. Whether the evidence is insufficient to sustain the convictions for count three, persons not to possess firearms, and count four, firearms not to be carried without a license, since the prosecution failed to prove beyond a reasonable doubt that [Dukes] actually or constructively possessed the alleged firearm?

2. Whether the evidence is insufficient to sustain the conviction for count four, firearms not to be carried without a license, since the prosecution failed to prove beyond a reasonable doubt that [Dukes] possessed an actual "firearm" as 18 Pa. C.S.[A.] § 6102 defines one, especially where the prosecution presented no evidence regarding the purported firearm's size?

3. Whether the evidence is insufficient to sustain the conviction for count three, persons not to possess firearms, since the prosecution failed to prove beyond a reasonable doubt that [Dukes] possessed an actual "firearm" as 18 Pa. C.S. § 6105(i) defines one, especially where the prosecution presented no evidence that the purported firearm was designed or readily convertible to expel any projectile by action of explosive?

Dukes’ Br. at 5.

All three of Dukes’ issues challenge the sufficiency of the evidence to sustain his convictions for firearms offenses. Essentially, he argues that because the vehicle was not registered to him, the Commonwealth did not prove that he actually or constructively possessed the firearm. Dukes’ Br. at 13. He also contends that the evidence does not support the conviction for Firearms Not to be Carried Without a License because the prosecution did not present any evidence of, among other things, the firearm's barrel length. See id. at 22. Finally, he contends that the Commonwealth did not prove Persons Not to Possess Firearms because there was no evidence that the firearm was operable. See id. For ease of analysis, we will address Dukes’ second and third issues first.

When reviewing a challenge to the sufficiency of the evidence, we are "required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence." Commonwealth v. Neysmith , 192 A.3d 184, 189 (Pa.Super. 2018) (citation omitted). Our standard of review is de novo and our scope of review is plenary. Id. "Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000). The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Dix , 207 A.3d 383, 390 (Pa.Super. 2019). Further, the trier of fact is free to believe all, some, or none of the evidence. Commonwealth v. Beasley , 138 A.3d 39, 45 (Pa.Super. 2016). When performing sufficiency review, "this Court may not substitute its judgment for that of the factfinder, and where the record contains support for the convictions, they may not be disturbed." Commonwealth v. Smith , 146 A.3d 257, 261 (Pa.Super. 2016).

Dukes contends that the evidence was insufficient to convict him under 18 Pa.C.S.A. § 6106 because the Commonwealth did not prove the barrel length, an essential element of the crime. Dukes’ Br. at 21.

The offense of Firearms Not to be Carried Without a License makes it a crime for "any person" to carry "a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license ...." 18 Pa.C.S.A. § 6106(a)(1). For purposes of this statute, a "firearm" is "[a]ny pistol or revolver with a barrel length less than 15 inches ... or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches." 18 Pa.C.S.A. § 6102.

The Commonwealth concedes that the evidence is insufficient to support a conviction for this crime because there was no evidence at trial of barrel length. See Com.’s Br. at 10; Commonwealth v. Todd , 384 A.2d 1215, 1217 (Pa. 1978) (superseded by statute).² Our review confirms the concession. Accordingly, we vacate the conviction.

Next, Dukes contends that the evidence was insufficient to support his conviction for Possession of a Firearm Prohibited because there was no evidence that the firearm was designed, or could readily be converted, to expel projectiles by the action of an explosive. Dukes Br. at 25 (citing 18 Pa.C.S.A. § 6105(i) ). The Commonwealth responds that Trooper Brennan in his testimony identified the make and model of the firearm and said it appeared loaded. Commonwealth's Br. at 6-8. The Commonwealth avers that the court applied common sense to infer that the firearm was loaded with bullets and that it therefore must have been designed to fire ammunition. Id. at 8-9. In response, Dukes points out that Trooper Brennan never testified that the object was loaded with bullets, only that it was "loaded," and that there was no support in the record for the contention that the object contained actual centerfire or rimfire cartridges. Dukes’ Reply Br. at 8-9.

The subsection of Persons Not to Possess under which Dukes was convicted requires the Commonwealth to prove, beyond a reasonable doubt, that Dukes: (1) possessed, used, controlled, sold, transferred, or manufactured a firearm; and (2) had been adjudicated delinquent for a disabling offense. See 18 Pa.C.S.A. § 6105(c)(7). A firearm is defined in this section as "any weapons which are 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.A. § 6105(i).

In Commonwealth v. Thomas , 988 A.2d 669 (Pa.Super. 2009), this Court held that

[t]he statutory language [of section 6105 ] is clear, and it does not require proof that the weapon was capable of expelling a projectile when it was seized; on the contrary, the fact that a person can be prosecuted simply for possessing a semiautomatic pistol frame refutes this notion because the frame requires additional parts, e.g. , a slide and barrel, in

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