Com. v. Hill, M. , 210 A.3d 1104 ( 2019 )

J-S10021-19
2019 Pa. Super. 164
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MICHAEL HILL
Appellant No. 551 EDA 2018
Appeal from the Judgment of Sentence January 23, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0001445-2017
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J.*
OPINION BY STABILE, J.: FILED MAY 22, 2019
Appellant, Michael Hill, appeals from his judgment of sentence of 27½-
55 years’ imprisonment following a jury trial for forty convictions arising from
a gun trafficking enterprise. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
The Commonwealth alleged that [Appellant] was the principal in
the corrupt organization he created to straw-purchase guns and
sell them to ineligible buyers. The case proceeded to a jury trial.
Alcohol, Tobacco, Firearms, and Explosives (ATF) Agent Patrick
Smith testified to having experience as a police officer, state fire
arms instructor, ATF training, Interstate training with Nexus, and
experience examining over a thousand firearms. Part of Agent
Smith’s job consisted of assisting local law enforcement with
firearms tracing, or tracing a firearm from the manufacturer to
distributor to gun store to the original purchaser of the firearm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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[He] has been involved in over 200 investigations involving the
illegal transfer of firearms. [He] was qualified as an expert in the
area of legal and illegal transfer of firearms.
Agent Smith explained that firearms trafficking is the illegal
procurement and dissemination of firearms. In order to legally
purchase a firearm, a federal firearms licensed dealer, or FFL, sells
an individual a firearm. A FFL is an individual who has “been
deemed by the authority of the ATF to conduct in the business of
selling, purchasing, and transferring firearms.” These FFL’s, or
firearm venders, must have a physical business location, but can
conduct business in other locations such as a gun show. An
original purchaser is the person who buys a firearm directly from
a FFL, and they must fill out paperwork to have the firearm
transferred to them. Federally, a purchaser would fill out an ATF
Form 4473, and in Pennsylvania, a buyer fills out a record of sale
from the Pennsylvania State Police. A background check is
performed, and based on the results of the background check, the
firearm will be transferred or it will not. A FFL must retain the ATF
4473 for 20 years, but common practice among FFL’s is to keep
the paperwork for the entire life of the FFL. The forms contain
information about the original purchaser and the firearm
purchased.
Question 11A on the ATF 4473 asks: “Are you the actual
transferee/buyer of the firearm or firearms listed on this form?
Warning: if you are not the actual transferee/buyer, if you are
acquiring a firearm on behalf of other persons, if you are not the
actual transferee/buyer, licensee cannot transfer the firearms to
you. Exception: if you are picking up a firearm for another person,
you are not required to answer 11A and may proceed to question
B.” Box 33 on the State form also asks: “Are you the actual buyer
of the firearm?” Both forms contain a certification that the buyer
has read and understood the form, and understand that if they
are not the actual transferee/buyer, that is a crime punishable as
a felony under federal law and may violate state law. The buyer
also certifies that he understands making a false oral or written
statement is a crime punishable as a felony under federal law and
may violate state law.
Agent Smith explained that a straw purchase occurs when a
firearm is purchased through illegal means. An individual who is
legally allowed to purchase a firearm goes to a FFL and buys a
firearm with the intention of not purchasing it for [himself].
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Agent Smith identified a firearm recovered by the Philadelphia
police that he was asked to investigate, a Springfield XDS 45,
Serial Number 53202131 .45 caliber pistol which he traced back
to the original purchaser of Philippe DeJohnette on March 27,
2015. The investigation became a joint investigation with the
Montgomery County Detective Bureau after they recovered a
Ruger P-90 Serial Number 62248810 .45 caliber pistol which
Agent Smith traced back to the original purchaser of Corey
DeJohnette. Agent Smith also identified paperwork which he used
as part of his investigation that revealed purchasers of other
weapons, including a Smith & Wesson Serial Number purchased
by Jared Martz, and a Glock model 20 Serial Number YLV688 also
purchased by Jared Martz.
Philippe DeJohnette testified that he was friends with [Appellant],
and the first discussion he had with [Appellant] was about
firearms. [Appellant] wanted to know if Philippe DeJohnette was
able to legally purchase firearms, which he was. Philippe
DeJohnette agreed to buy firearms for [Appellant] because he
needed money for his mother who was sick. They went to the
Oaks gun show on February 15, 2015, and [Appellant] drove
Philippe DeJohnette there. If [Appellant] liked a gun, he would
indicate that with a nod of his head, and Philippe DeJohnette
would get that gun. [Appellant] also said that if the police ever
contacted Philippe about the gun, he could get it back from
[Appellant]. At the gun show, Philippe purchased guns with
money from [Appellant]. Philippe DeJohnette then took one gun
home and left the other with [Appellant]. Philippe DeJohnette also
went to another gun show with [Appellant] on March 21, 2015 and
bought another gun for [Appellant] and another for himself.
Philippe DeJohnette then went with [Appellant] to another gun
show on March 27, 2015, and [Appellant] offered drugs in
exchange for purchasing guns. [Appellant] gave Philippe
DeJohnette money to purchase two more guns.
There was a stipulation by and between counsel that [Appellant]
was statutorily prohibited from possessing a firearm.
[Appellant]’s house was searched, and a black Glock gun box was
recovered with serial number XXM241, [as well as] a Glock 21 .45
serial number XXM241, Glock 20 .10 serial number VLE688,
ammunition, a Glock .45 magazine, an extended magazine, a XP-
2022 firearm with a bullet in the chamber, a firearm with
obliterated serial number, a holster, and a box with more
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ammunition. Police also found cell phones and a pay stub for
[Appellant] in the same area as the weapons and paraphernalia.
Police likewise recovered a Smith & Wesson gun box serial number
SAF0428, and another gun box serial number 53202131 with 98
live rounds of ammunition. A nylon gun case with magazine and
ammunition, two empty magazines with pistol attachments, a
scope, a gun grip, and a gun stock (frame) were recovered as
well. Agent Smith identified some of the items recovered from
[Appellant] like the scope, grip, certain ammunition, and
attachments as only being used on long guns, specifically for an
SKS variant.
Corey DeJohnette testified that on December 18, 2015,
[Appellant] picked him up and took him to the Oaks gun show.
They walked around the gun show, and [Appellant] picked out a
few guns. [Appellant] provided the money to purchase the guns,
a P-Ruger 90 serial number 662488 and a Phoenix HP25 serial
number 4451219. Corey DeJohnette left both guns with
[Appellant].
Chad Hill testified that he knew [Appellant] as “Kevin,” and that
Kevin was his drug dealer. Chad also knew an individual, Jared
Martz, as “Face.” Face also sold drugs for [Appellant]. Chad’s
brother Andrew or “Drew” Person also sold drugs for [Appellant].
Chad was asked by [Appellant] if he could get anyone to buy him
firearms, as Chad was not able to buy firearms legally, but he
talked to Mr. Martz, and Mr. Martz went with [Appellant] to buy
guns. On August 6, 2016, Chad went to the Eagle Arms Gun Show
in Philadelphia with [Appellant] and Mr. Martz. [Appellant] paid
the entrance fee, and then Mr. Martz got a gun, however he didn’t
have any of his own money on him that day. [Appellant] then
took the gun with him when they dropped him off at this house.
Chad Hill also went with Mr. Martz and [Appellant] to French Creek
Outfitters on October 25, 2016. Mr. Martz and Chad got drugs,
and [Appellant] got another gun. The Commonwealth also
presented cell phone call detail records that corroborated the
locations of Chad Hill with [Appellant] during various straw
purchases.
Jennifer Bender went with [Appellant] to a gun show on December
18, 2016, who[m] she knew as “Kev.” Ms. Bender was to report
the gun she bought as stolen. They went to the Philadelphia Expo
Center with “Tech”, or Anthony Walker, who Ms. Bender had not
met before. Tech paid the fee to get in, and both men selected a
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gun. Tech added two more guns while Ms. Bender was filling out
the paperwork. The system flagged Ms. Bender, so she could not
purchase the guns there until further investigation was done.
Anthony paid the fees for the guns.
Lieutenant Echevarria was qualified as an expert in the field of
jargon and code or language interpretation. The Commonwealth
also presented cell phone call detail records that corroborated the
locations of the various co-defendants with [Appellant] during
various straw purchases. Lieutenant Echevarria testified to text
conversations that he interpreted as negotiations for a SK long
gun for $700. [Appellant] also states in his text messages that he
has an HK gun for an unknown individual, but that gun was never
recovered. ATF Agent Smith then testified that all of the
purchases by Mr. DeJohnette, Mr. Person, Ms. Bender, and Mr.
Martz had indicators of straw purchasing.
[Appellant] gave a written statement where he told police that
Face gave him a few guns to hold onto. [Appellant] also admitted
to having someone else buy him another gun on three occasions,
two with “Face” and one with “some other guy.” [Appellant’s] co-
defendant, Anthony Walker, testified in his own defense, and
[stated that he] had known [Appellant] for more than 20 years.
On December 18, 2016, Mr. Walker testified that he believed he
and [Appellant] were going to the gun show in Oaks so that he
could buy himself a gun. Mr. Walker claimed to pay for his own
admission to the gun show, and testified that he purchased an
extra magazine, bullets, and target paper. Mr. Walker testified
that [Appellant] made his own purchases and Ms. Bender
attempted to make a purchase. Mr. Walker testified that he did
not assist anyone in filling out paperwork, returned to
[Appellant]’s home, watched a game, played with [Appellant]’s
children, and then left the home before being pulled over by
police.
[Appellant] was found guilty of Corrupt Organizations, Criminal
Conspiracy-Unlawful Sale or Transfer of a Firearm, Criminal Use
of a Communication Facility, Unsworn Falsification-Glock 21, serial
number XXM241, 6 counts of Dealing in Proceeds of Unlawful
Activity, 6 counts Unlawful Sale or Transfer of a Firearm-Makes
Any Materially False Written Statement, Unsworn Falsification-
Springfield XDS, serial number 53202131, Glock 34, serial
number XVL654, 3 counts of Unsworn Falsification, Unsworn
Falsification-Ruger P90, serial number 66248870, Phoenix HP25,
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serial number 4451219, Unsworn Falsification-Smith & Wesson
99, serial number SAF0428, Unsworn Falsification-Glock 20SF,
serial number YLV688, Unsworn Falsification-Ruger P95 DAO,
serial number 31507796, Ruger P95 DAO, serial number
31508952, and 2 counts of Criminal Attempt-Unlawful Sale or
Transfer of a Firearm-Makes Any Materially False Written
Statement.
Thereafter, the Commonwealth presented evidence to the jury of
a stipulation that [Appellant] was convicted on October 3, 2013 of
Possession with the Intent to Deliver. The jury was then charged
on Person Not to Possess. [Appellant] was found guilty of 8 counts
of Person Not to Possess for possession of the following weapons-
HK 9MM, Sig Sauer SP2022 with obliterated serial number, Glock
21 serial number XXM241, Springfield XDS serial number
S3202131, Glock 34 serial number XVL654, Ruger P90 serial
number 66248870, Phoenix HP25 serial number 4451219, Smith
& Wesson 99 serial number SAF0428, and a Glock 20SF serial
number YLV688. [Appellant] was also found guilty of 2 counts of
attempted Person Not to Possess for the following weapons-Ruger
P95 DAO serial number 31507796, and a Ruger P95 DAO serial
number 31508952.
At sentencing, the Commonwealth presented evidence, over
defense objection, of where two of the illegally sold firearms ended
up. This case began on August 20, 2016 when a robbery with a
shooting occurred in West Pottsgrove, Montgomery County. Police
recovered a Ruger P90 .45 caliber gun which they traced back to
Corey DeJohnette. In the robbery, Darrell Johnson was convicted
of trying to rob Anthony Gibbons and then shooting him in the foot
and back as he tried to flee. Another firearm was recovered from
Jeremy Harris, who is a Person not to Possess. Four guns
attributable to [Appellant] had not been recovered at the time of
sentencing, and remained on the street. This court specifically
acknowledged that [Appellant] “did not do the shooting; did not
do the conduct that resulted in the injury directly. The court will
weigh the evidence as it relates to any nexus between your client
and the guns and how they reached the end user for those
purposes only, and I will give it the proper weight.” [Appellant]
presented two character witnesses, and had family members
present.
This Court sentenced [Appellant] to 2½ to 5 years of incarceration
on Count 1 Corrupt Organizations, a concurrent 2½ to 5 years of
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incarceration on Count 2 Conspiracy-Corrupt Organizations, no
further penalty on counts 12-20 Unsworn Falsification, 2½ to 5
years of incarceration on Counts 21-27 Dealing in Proceeds of
Unlawful Activities running concurrent to each other and all other
sentences, a concurrent 2½ to 5 years of incarceration on count
28 Conspiracy to Unlawful Transfer, a concurrent 2½ to 5 years
of incarceration on count 38 Making Materially False Written
Statements, a consecutive 5 to 10 years of incarceration on each
of counts 39-42 Making Materially False Written Statements
running consecutive to each other and the prior sentence, a
concurrent 5 to 10 years of incarceration on counts 43-44 Making
Materially False Written Statements, Counts 54-55 Attempted
False Statements merged with Count 28 Conspiracy-False
Statements, a concurrent 1 to 2 years of incarceration on count
58 Criminal Use of a Communication Facility, a concurrent 5 to 10
years of incarceration on Counts 65-67, 69-71, and 73-74 Person
Not to Possess, counts 75-76 attempt-Person Not to Possess
merged, and a consecutive 5 to 10 years of incarceration for
Possession of a Firearm with an Altered Manufacturers Number.
In total, [Appellant] was sentenced to 27½ to 55 years with credit
dating to December 19, 2016.
On February 13, 2018, [Appellant] filed a timely Notice of Appeal.
[Appellant] and the Montgomery County Public Defender’s Office
requested that new counsel be appointed to represent him in his
appeal. This court granted that request, and appointed new
counsel for direct appeal. This court then granted a lengthy
extension for counsel to file a concise statement so that the
transcript could be prepared and counsel for [Appellant] could
familiarize himself with the record. Thereafter, a timely concise
statement was filed on August 15, 2018.
Trial Court Opinion, 9/12/18 (“Trial Ct. Op.”), at 1-9 (citations to record
omitted; some capitalization omitted).
Appellant raises the following issues in this appeal:
1. Whether the evidence was insufficient to sustain a conviction
for Dealing in Proceeds of Unlawful Activities, 18 Pa.C.S.A. § 5111,
inasmuch as there was no evidence of a financial transaction with
proceeds of illegal activity.
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2. Whether the evidence was insufficient to sustain a conviction
for Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(1), inasmuch as
[Appellant] was merely an organized criminal, and there was no
evidence that he received income from a pattern of racketeering
activity in the acquisition, establishment or operation of any
enterprise.
3. Whether the evidence was insufficient to sustain a conviction
for Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(4), when there
was no evidence of a conspiracy to violate the provisions of that
statute.
4. Whether the evidence was insufficient to sustain a conviction
for Possession of Firearm with Altered Manufacturer’s Number,
18 Pa.C.S.A. § 6110.2, inasmuch [as] there was no evidence that
[Appellant] knew that the number had been obliterated.
5. Whether the Trial Court erred in its charge to the jury regarding
Corrupt Organizations by referring to “Michael Hill’s organization.”
6. Whether the trial court’s sentence of total confinement for a
period of not less than 27½ years nor more than 55 years [of
imprisonment] was manifestly unreasonable and excessive.
Appellant’s Brief at 5-6.
In his first four issues on appeal, Appellant challenges the sufficiency of
the evidence underlying his convictions for dealing in proceeds of unlawful
activities, two subsections of corrupt organizations, and possession of firearms
with altered manufacturer numbers. When reviewing the sufficiency of the
evidence, we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, were sufficient to prove every element
of the offense beyond a reasonable doubt. Commonwealth v. Diamond, 83
A.3d 119, 126 (Pa. 2013). “[T]he facts and circumstances established by the
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Commonwealth need not preclude every possibility of innocence.”
Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–26 (Pa. Super. 2016).
It is within the province of the fact-finder to determine the weight to be
accorded to each witness’s testimony and to believe all, part, or none of the
evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–93 (Pa. Super.
2015). The Commonwealth may sustain its burden of proving every element
of the crime by means of wholly circumstantial evidence. Commonwealth
v. Crosley, 180 A.3d 761, 767 (Pa. Super. 2018). As an appellate court, we
may not re-weigh the evidence and substitute our judgment for that of the
fact-finder. Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super.
2015).
We first address Appellant’s conviction for dealing in unlawful proceeds
under 18 Pa.C.S.A. § 5111, which provides in relevant part:
(a) A person commits a felony of the first degree if the person
conducts a financial transaction under any of the following
circumstances:
(1) With knowledge that the property involved, including stolen or
illegally obtained property, represents the proceeds of unlawful
activity, the person acts with the intent to promote the carrying
on of the unlawful activity.
18 Pa.C.S.A. § 5111(a)(1).
Section 5111(f) defines “financial transaction” as “a transaction
involving the movement of funds by wire or other means or involving one or
more monetary instruments. The term includes any exchange of stolen or
illegally obtained property for financial compensation or personal gain.” Id.
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The same subsection defines “unlawful activity” as “any activity graded a
misdemeanor of the first degree or higher under Federal or State law.” Id.
“Section 5111 thus presents explicit language which clearly defines unlawful
activity as any felony or first degree misdemeanor, and targets the dealing in
proceeds derived from any of those various illegal activities.”
Commonwealth v. Barnhart, 722 A.2d 1093, 1096 (Pa. Super. 1998).
The evidence satisfies Section 5111’s element of “unlawful activity.”
Appellant gave money to other persons (Corey DeJohnette, Phillippe
DeJohnette, Jared Martz, and Jennifer Bender) that they used to make straw
purchases of firearms. The straw purchasers carried out this scheme through
unsworn falsifications on ATF 4473 forms that they were purchasing the
firearms for themselves when in fact they were purchasing the firearms for
Appellant. See 18 Pa.C.S.A. § 4904. Appellant unlawfully transferred these
firearms to other individuals in violation of 18 Pa.C.S.A. § 6111. Appellant
concedes that he committed all of these crimes. See Appellant’s Brief at 30
(“the Commonwealth proved that [Appellant] aided his straw purchasers in
committing unsworn falsification, conspiracy and unlawful transfer of
firearms”).
Further, the evidence demonstrates that Appellant engaged in “financial
transactions” involving the “proceeds of unlawful activity.” The financial
transactions were Appellant’s transfers of money to the straw purchasers for
the purpose of purchasing firearms. The proceeds of unlawful activity was the
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money that Appellant gave the straw purchasers. Appellant stated in a text
message that he could not purchase any more guns until he sold the firearms
already in his possession. The inference thus arises that the funds Appellant
furnished to straw purchasers were proceeds from his illegal sales of firearms.
For these reasons, we reject Appellant’s challenge to the sufficiency of
the evidence underlying his conviction for dealing in proceeds of unlawful
activity.
Next, we address Appellant’s two convictions for corrupt organizations
under 18 Pa.C.S.A. § 911. His first conviction was for violating subsection
911(b)(1), which provides in relevant part:
It shall be unlawful for any person who has received any income
derived, directly or indirectly, from a pattern of racketeering
activity in which such person participated as a principal, to use or
invest, directly or indirectly, any part of such income, or the
proceeds of such income, in the acquisition of any interest in, or
the establishment or operation of, any enterprise.
18 Pa.C.S.A. § 911(b)(1). Section 911(h) defines several terms within
subsection (b)(1). “Racketeering activity” constitutes “an act which is
indictable under any of the following provisions of this title: . . . Chapter 49
(relating to falsification and intimidation) . . . [and] section 5111[.]”
18 Pa.C.S.A. § 911(h)(1)(i). “Pattern of racketeering activity” consists of “a
course of conduct requiring two or more acts of racketeering activity one of
which occurred after the effective date of this section.”1 18 Pa.C.S.A.
____________________________________________
1 Section 911 became effective in 1972.
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§ 911(h)(4). Finally, “enterprise” means “means any individual, partnership,
corporation, association or other legal entity, and any union or group of
individuals associated in fact although not a legal entity, engaged in commerce
and includes legitimate as well as illegitimate entities and governmental
entities.” 18 Pa.C.S.A. § 911(h)(3).
Here, Appellant’s multiple convictions for unsworn falsification under
Section 4904, which he declines to challenge on appeal, are alone sufficient
to prove a “pattern of racketeering activity.” Additional proof of this pattern
arises from Appellant’s convictions for dealing in the proceeds of unlawful
activities, the sufficiency of which we have confirmed above. Finally, Appellant
does not challenge the evidence of an “enterprise.” Nor can he, since the
evidence demonstrates that he and the straw purchasers formed an
association in fact to carry out illegal purchases of firearms.
Appellant’s second corrupt organizations conviction was for violating
Section 911(b)(4), which provides: “It shall be unlawful for any person to
conspire to violate . . . paragraph[] (1) . . . of this subsection.” The evidence
reflects that Appellant conspired with the straw purchasers to engage in a
pattern of racketeering acts, specifically, a series of unsworn falsifications
made for the purpose of purchasing firearms.
Accordingly, we reject Appellant’s challenge to the sufficiency of the
evidence underlying his corrupt organizations convictions.
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Next, Appellant argues that the evidence was insufficient to sustain his
conviction for possession of a firearm with an altered manufacturer’s number
under 18 Pa.C.S.A. § 6110.2. To prove this offense, the Commonwealth must
demonstrate that the defendant possessed a firearm “which has had the
manufacturer’s number integral to the frame or receiver altered, changed,
removed or obliterated.” Id. “The Crimes Code requires that the
Commonwealth prove that a defendant acted intentionally, knowingly, or
recklessly with respect to the obliterated manufacturer’s number on the
firearm.” Commonwealth v. Jones, 172 A.3d 1139, 1145 (Pa. Super.
2017).
In Jones, this Court reasoned as follows:
In Commonwealth v. Shore, [] 393 A.2d 889 ([Pa. Super.]
1978), while interpreting a related statute [18 Pa.C.S.A. § 6117,
Altering or obliterating marks of identification], this Court held
that the defendant’s possession of a firearm with an altered serial
number, and his subsequent attempt to get rid of it, was sufficient
evidence of his guilty knowledge of its altered condition, and, thus,
sustained the defendant’s conviction.
In the instant case, Appellant conceded he possessed the gun with
an obliterated serial number, and did so long enough to use it to
shoot the victim. The evidence also showed that Appellant
continued to possess the gun long enough to secret it away under
garbage bags of clothing in the back of a closet. Moreover, the
Commonwealth’s firearms expert testified that that the gun’s
serial number had been tampered with to such a degree that the
serial number's full restoration was impossible.
Considering all of the evidence of record in the light most
favorable to the Commonwealth as the verdict-winner, we
conclude that the Commonwealth presented sufficient direct and
circumstantial evidence of Appellant’s mental culpability to sustain
his jury conviction. From the evidence presented, the jury was
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free to infer that, like the defendant in Shore, Appellant had
knowledge of the gun’s altered condition. Additionally, based on
the jury’s observations of the degree of serial number’s
obliteration and the length of time during which he possessed the
gun, it was reasonable for the jury to infer that Appellant knew
that the serial number had been obliterated. For the same reason,
it is likewise reasonable for the jury to conclude that, in the time
he possessed, used, and hid the weapon, Appellant would have
felt the damage to the weapon caused by the extensive
obliteration.
Id. at 1145-46.
The trial court herein concluded that this case is virtually the same as
Jones.
Here, almost identically to Jones, in [Appellant’s] statement he
admits to possessing the gun with the obliterated serial number.
That gun [was] found in the hamper of his bedroom, and the
Commonwealth’s expert was unable to restore the serial number,
concluding that it had been completely obliterated. [Appellant]
was in possession of the gun long enough to get it to his home
and secret it away in his hamper. The gun also was so altered
that the Commonwealth’s expert was unable to restore the serial
number. Consistent with Jones and Shore, this is sufficient
evidence of [Appellant’s] mens rea to support the jury’s guilty
verdict.
Trial Ct. Op. at 21. We agree with this analysis. Additionally, the
Commonwealth accurately points out that Appellant knew the firearm’s serial
number because he kept this particular firearm among his personal clothing
items, loaded with a round in the chamber, and with his holster. Accordingly,
Appellant’s challenge to the sufficiency of the evidence underlying his
conviction for possession of a firearm with an altered manufacturer’s number
fails.
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In his fifth issue on appeal, Appellant contends that the trial court
prejudiced the jury during jury instructions by stating that the Commonwealth
“has charged that Michael Hill’s organization is an enterprise. You must
ask whether the entity that the Commonwealth has charged fits the definition
of ‘enterprise’ under the law.” N.T., 10/23/17, at 229. Appellant argues that
this language constituted an expressed opinion by the trial court that Appellant
in fact had an “organization,” and that the only question was whether the
organization constituted an enterprise. This argument does not warrant relief.
We review jury instructions for abuse of discretion. Commonwealth
v. Soto, 202 A.3d 80, 98 (Pa. Super. 2018). We must read the charge as a
whole; error will not be predicated upon an isolated excerpt.
Commonwealth v. Batty, 169 A.3d 70, 78 (Pa. Super. 2017).
Here, the trial court charged the jury as follows:
The Commonwealth has the burden of proving the defendant
guilty beyond a reasonable doubt. If it meets that burden, then
the defendant is no longer presumed innocent and you should find
him guilty. On the other hand, if the Commonwealth does not
meet its burden, then you must find the defendant not guilty. Do
not draw any inference because of repetition. Do not single out
any individual rule or instruction and ignore the others . . . .
Consider all of the instructions as a whole and each in light of the
others.
***
The next element involves a term that has a particular meaning
under the corrupt organizations law. The term is enterprise. In
this case, the Commonwealth has charged that Michael Hill’s
organization is an enterprise. You must ask whether the entity
that the Commonwealth has charged is an enterprise and that it
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fits the definition of enterprise under the law. This term can mean
a variety of things, some of which are very easy to understand.
Under the law, an enterprise can mean an individual; an
enterprise can be engaged in legitimate or illegitimate activities.
The defendant does not need to know everyone who is proven to
be a part of the enterprise. Finally, the enterprise must be
engaged in some sort of commerce, that is, must be engaged in
buying or selling some products or services, legal or otherwise.
Unless you find beyond a reasonable doubt that Michael Hill’s
organization is an enterprise, you must find the defendant not
guilty of the corrupt organizations offense. If you find Michael
Hill’s organization is an enterprise, consider the next element . . .
Notes of Testimony, Trial, 10/23/17 at 211-12, 229-30.
These instructions adequately presented the applicable law. The trial
court informed the jury that the Commonwealth bore the burden of proving
its case beyond a reasonable doubt, including the element of an “enterprise.”
The court did not direct the jury to find that an enterprise existed; it merely
defined this term for the jury and instructed the jury to decide whether the
Commonwealth proved its existence. Neither did the court direct the jury to
find that Appellant had an “organization.” The court merely advised that the
Commonwealth alleged Appellant had an “organization.” Thus, Appellant’s
claim of error fails.
Finally, Appellant argues that his sentence of 27½-55 years’
imprisonment is unreasonable and excessive. Appellant is not entitled to
relief.
Appellant’s claim that the trial court considered an impermissible factor
at sentencing is a challenge to the discretionary aspects of sentencing. It is
well-settled that “[t]he right to appeal a discretionary aspect of sentence is
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not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.
2011). Rather, where an appellant challenges the discretionary aspects of a
sentence, we should regard his appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we
stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170. We evaluate on a case-by-case basis whether a particular issue
constitutes a substantial question about the appropriateness of sentence.
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
Here, Appellant timely appealed from his judgment of sentence, argued
that his sentence was excessive at the time of sentencing, and included a
Pa.R.A.P. 2119(f) statement in his brief. Further, he raised a substantial
question, namely whether his sentence was excessive in conjunction with an
assertion that the trial court failed to consider mitigating factors such as his
non-violent history and difficult childhood. Therefore, we will address the
substance of Appellant’s argument.
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“When imposing a sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,
the court should refer to the defendant's prior criminal record, his age,
personal characteristics and his potential for rehabilitation.” Id. 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.” Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988). Further, where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code. Moury, 992 A.2d at 171 (combination of PSI and standard
range sentence, absent more, cannot be considered excessive or
unreasonable).
Here, the trial court reviewed Appellant’s PSI, so it was presumably
aware of relevant information concerning his character and weighed this
information along with mitigating statutory factors. The trial court explained
its reasons for Appellant’s sentence as follows:
The Court imposed consecutive sentences on 6 counts. This Court
imposed no further penalty on eight counts, and concurrent
sentences on 21 counts. Additionally, all sentences imposed were
standard range sentences. Considering the conduct at issue, and
the number of illegal firearms that [Appellant] put out into the
community in the hands of people deemed unfit to possess them,
the sentence was reasonable. This Court considered [Appellant’s]
history, the guidelines, the nature of the offenses, and the effect
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of the community. There is no abuse of discretion, and
[Appellant’s] sentence should be affirmed.
Trial Ct. Op. at 34-35. We conclude that the trial court acted within its
discretion in fashioning this sentence. The jury convicted Appellant of forty
criminal offenses in connection with a gun trafficking enterprise that placed
multiple illegal firearms on the streets and in the hands of individuals who
were not permitted to have them.
Judgment of sentence affirmed.
Judge Colins joins the opinion.
President Judge Emeritus Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/19
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