Com. v. Carter, Z. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ZONDEL CARTER :
: No. 1405 EDA 2016
Appellant
Appeal from the Judgment of Sentence April 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008975-2014
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2018
Appellant, Zondel Carter, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
convictions for possessing an instrument of crime (“PIC”) and resisting arrest.
He challenges the sufficiency of the evidence to support his convictions. We
affirm.
The relevant facts and procedural history of this case are as follows. On
April 11, 2014, two uniformed officers responded to reports of an armed
robbery. Police saw Appellant walking out of a nearby alleyway and noticed he
matched the description of the robber. They ordered him to stop. Instead,
Appellant pulled what appeared to be a semiautomatic firearm from his
waistband, threw it on the ground, and ran away.
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* Retired Senior Judge assigned to the Superior Court.
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The officers gave chase. When one of the officers was close, Appellant
turned and charged headlong at the one officer. The two men grappled until
the other officer tackled the pair. The officers subdued Appellant after
approximately thirty seconds. The officers also collected the gun Appellant had
discarded. Though the officers believed it to be a semiautomatic weapon at
the time Appellant threw it on the ground, upon further inspection they
discovered it was a BB gun1 with the orange plastic tip painted black.
Appellant was arrested and charged with robbery and related crimes.
The victim could not identify Appellant at the preliminary hearing, and failed
to appear for trial. Consequently, the Commonwealth nolle prossed all charges
except PIC, resisting arrest, and offensive weapons.2 After a bench trial, the
court found Appellant guilty of PIC and resisting arrest and not guilty of the
offensive weapons charge. The court later sentenced Appellant to one to five
years’ incarceration. Appellant timely filed a notice of appeal and complied
with the requirements of Pa.R.A.P. 1925(b).
On appeal, Appellant challenges the sufficiency of the evidence to
support his convictions. Our standard of review for a challenge to the
sufficiency of the evidence is to determine whether, when viewed in a light
most favorable to the verdict winner, the evidence at trial and all reasonable
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1“[A] gun that uses air pressure to fire small metal balls (called BBs).”
Merriam-Webster Dictionary, available at https://www.merriam-
webster.com/dictionary/BB%20gun, retrieved 2/15/18.
2 18 Pa.C.S.A. §§ 907(a), 5104, and 908(a), respectively.
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inferences therefrom are sufficient for the trier of fact to find that each
element of the crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See Commonwealth
v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we
do not assess credibility nor do we assign weight to any of the testimony of
record.” Id. (citation omitted). Therefore, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen
two equally reasonable and mutually inconsistent inferences can be drawn
from the same set of circumstances….” Commonwealth v. Woong Knee
New, 47 A.2d 450, 468 (Pa. 1946).
We begin with the PIC conviction. Appellant argues BB guns are not
designed for criminal use. Appellant contends the Commonwealth failed to
present evidence regarding the gun’s capability of lethal use. Appellant
maintains that walking with a BB gun is not a criminal act. And he asserts his
flight from police was unrelated to his possession of the BB gun. Thus, he
concludes the Commonwealth failed to present sufficient evidence to support
his conviction for PIC. We disagree.
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In order to prove possession of an instrument of crime, the
Commonwealth must show that the defendant “possesses any instrument of
crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). The statute
defines an instrument of crime as “[a]nything specially made or specially
adapted for criminal use” or “[a]nything used for criminal purposes and
possessed by the actor under circumstances not manifestly appropriate for
lawful uses it may have.” 18 Pa.C.S.A. § 907(d). A BB gun with its toy
markings disguised may be considered “specially adapted for criminal use”
under the PIC statute. Commonwealth v. Brown, 23 A.3d 544, 561 (Pa.
Super. 2011).
“PIC, by its definition, is an inchoate crime, meaning that a defendant
only has to intend to employ the instrument of crime criminally; a defendant
need not actually employ it or complete an associated crime.”
Commonwealth v. Moore, 103 A.3d 1240, 1252 (Pa. 2014) (citation
omitted). “[R]ather, the focus is on whether the defendant possesses the
instrument for any criminal purpose.” Commonwealth v. Naranjo, 53 A.3d
66, 71 (Pa. Super. 2012) (emphasis in original). The defendant’s criminal
purpose provides the basis for his liability; that purpose may be inferred from
the circumstances surrounding the possession of the instrument of crime. See
Commonwealth v. Andrews, 768 A.2d 309, 318-319 (Pa. 2001).
“Intent can be proven by direct or circumstantial evidence; it may be
inferred from acts or conduct or from the attendant circumstances.”
Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation
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omitted). Although a factfinder may infer criminal intent beyond a reasonable
doubt based on circumstantial evidence, intent may not be inferred based on
mere possession. See In re A.V., 48 A.3d 1251, 1254 (Pa. Super. 2012).
Here, police responded to reports of an armed robbery in a quiet
residential neighborhood, late at night. They spotted Appellant furtively
walking out of an alleyway near a crime scene. When the officers asked
Appellant to stop, he instead threw what the officers believed to be a
semiautomatic weapon on the ground. Appellant then attempted to flee. Once
caught, Appellant offered no explanation for why he possessed the disguised
BB gun, or his reasons for discarding it when alerted to the presence of the
officers.
In his brief, Appellant mischaracterizes his own actions as demonstrative
of mere possession. Based on the foregoing, we disagree. Appellant possessed
an item specially adapted for criminal use, the disguised BB gun, under
circumstances not manifestly appropriate for lawful uses that such a gun might
have. That Appellant was not convicted of robbery or any underlying criminal
activity is irrelevant. PIC is an inchoate crime; the Commonwealth was not
obligated to prove the existence of an underlying criminal offense. See
Moore, 103 A.3d at 1252; Naranjo, 53 A.3d at 71-72. Thus, we decline to
grant relief on Appellant’s PIC sufficiency challenge.
Turning to Appellant’s second claim, he contests the sufficiency of the
evidence convicting him of resisting arrest. Appellant posits that his conduct
did not require substantial force to overcome.
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A person commits a misdemeanor of the second degree if,
with the intent of preventing a public servant from effecting a
lawful arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to
overcome the resistance.
18 Pa.C.S.A. § 5104. Our Court has upheld a conviction for resisting arrest
where a defendant ran away and struggled with officers to avoid being
handcuffed. See Commonwealth v. Clark, 761 A.2d 190, 193-194 (Pa.
Super. 2000).
Here, both arresting officers testified at Appellant’s bench trial. Officer
James Putro testified that he was chasing Appellant down the street when
Appellant suddenly charged at him head-on. See N.T., Trial, 3/3/15, at 25.
Officer Putro and Appellant began wrestling, but he was unable to subdue
Appellant. See id. Officer Putro stated he required the assistance of the
second officer, Officer Stan Galiczynski, to control Appellant. See id. Officer
Galiczynski testified that he was forced to tackle both men to the ground, in
order to restrain Appellant. See id., at 12. Officer Putro explained how
Appellant continued to struggle even after both officers attempted to place
him in handcuffs: “[Appellant] was just actively resisting, flailing his arms and
trying to tuck underneath to clench his hands so we were unable to grab each
hand.” Id., at 25.
Given the officers’ testimony, we find the Commonwealth presented
sufficient evidence to convict Appellant of resisting arrest. Appellant’s conduct
took the force of two police officers to overcome. Thus, Appellant’s sufficiency
challenge is without merit.
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As Appellant is due no relief on either sufficiency claim, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/18
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