Com. v. Greenlee, J. , 212 A.3d 1038 ( 2019 )

J-A10035-19
2019 PA Super 184COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON GREENLEE :
:
Appellant : No. 1331 EDA 2018
Appeal from the Judgment of Sentence April 17, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002494-2016
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
OPINION BY GANTMAN, P.J.E.: Filed June 10, 2019
Appellant, Jason Greenlee, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial convictions for possession of a controlled substance and persons not to
possess a firearm.1 We reverse Appellant’s conviction for persons not to
possess a firearm, vacate the judgment of sentence, and remand for
resentencing.
The relevant facts and procedural history of this case are as follows.
On February 26, 2007, Appellant received an aggregate sentence of four (4)
to ten (10) years’ incarceration for possession with intent to deliver (“PWID”),
criminal conspiracy, persons not to possess a firearm, and possession of an
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1 35 P.S. § 780-113(a)(16) and 18 Pa.C.S.A. 6105(a)(1), respectively.
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instrument of crime (“PIC”). Appellant was released on parole on June 2,
2011, subject to special conditions governing his parole. While on parole, on
January 13, 2016, Appellant admitted to his parole agent, Caleb Tyson, that
Appellant had used marijuana and tested positive for use of marijuana and
benzodiazepine, in violation of the terms of his parole. That same day, parole
agents searched Appellant’s home and discovered in his bedroom a baggie of
marijuana, a bottle of medication made out to another individual, a loaded
handgun, and a bag of ammunition. The Commonwealth subsequently
charged Appellant with persons not to possess a firearm and possession of a
controlled substance. On July 15, 2016, Appellant filed a suppression motion,
which the court denied following a hearing on August 15, 2016. On February
14, 2018, Appellant proceeded to a bench trial. The court heard testimony
from Agent Tyson, parole agent Michael Van Osten, and police officer
Christopher McCue, who all testified on behalf of the Commonwealth.
In its opinion, the trial court accurately summarizes the trial testimony
of Agent Tyson as follows:
[A]gent, Caleb Tyson, testified that on January 12, 2016, he
went out to 1457 Stevens Street in the city and county of
Philadelphia, to make a field contact or home visit
with…Appellant whom he had started supervising in 2015.
Agent Tyson testified that when he first entered the
residence that day he could smell a strong odor of marijuana
in the residence. Agent Tyson asked…Appellant if anybody
had been smoking marijuana and Appellant told him that no
one had. At that point, Agent Tyson requested a urine
sample from…Appellant and they went upstairs. Agent
Tyson testified that while they were upstairs to get the urine
sample, he had asked Appellant what room he stays in and
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Appellant identified the front room of the house to the left
when you go upstairs. … Appellant was unable to give a
urine sample so Officer Tyson requested that Appellant
report the following day to his office to give one.
The following day on January 13, 2016, Agent Tyson
testified that Appellant reported to his office and provided a
urine sample which came back positive for marijuana and
benzodiazepine. At this time, based on what Agent Tyson
had observed at the house the prior day and the positive
urine, Appellant was taken into custody. Agent Tyson along
with his supervisor and other agents then took Appellant
back to the house located at 1457 Stevens Street to search
the residence. When they got to the house, Appellant’s
mother answered the door and the agents informed her that
they needed to search the residence for belief of a parole
violation by Appellant. There was also a young female at
the residence who the agents believed to be Appellant’s
girlfriend. …
After doing a common search of the downstairs for
everyone’s safety, Agent Tyson testified the agents went
upstairs to search what had been identified as Appellant’s
room. Officer Tyson testified that he searched next to the
bed, and subsequently [located] to the left of the bed, a
shoe box on the floor that he opened and he found inside a
small bag of suspected marijuana and pills labeled Milon Al
which is a benzodiazepine which was prescribed to Michael
Hutchinson.
(Trial Court Opinion, filed July 11, 2018, at 2-4) (internal citations to record
omitted).
During cross-examination of Agent Tyson, Appellant introduced as
Exhibit D2 a June 2011 “Order to Release on Parole/Reparole” (“Parole
Order”). (N.T. Trial, 2/14/18, at 23; Parole Order, Appellant’s Brief at Exhibit
“D”). The Parole Order contains information related to Appellant’s release on
parole from incarceration on the 2007 judgment of sentence. At trial,
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Appellant elicited testimony from Agent Tyson that Appellant’s residency
address on the Parole Order differs from the address where parole agents
discovered contraband in January 2016. In addition to a parole residency
address, the Parole Order contains minimal information regarding Appellant’s
2007 judgment of sentence. Specifically, the Parole Order lists under the
heading “Offense(s)/Charge(s)” the following: “DRUG-M/S/D OR PWI TO CC
DRG-M/S/D OR PWI TO” and “PERSONS NOT TO POSS USE, ETC FIREARMS
PIC (GENERALLY)”. (Parole Order, Appellant’s Brief at Exhibit “D”). The Parole
Order also indicates Appellant received an aggregate sentence of four to ten
years’ incarceration on February 26, 2007. (Id.)
After Agent Tyson testified, the trial court heard the testimony of Agent
Van Osten and Officer McCue, which the court accurately summarizes in its
opinion as follows:
Parole Agent Michael Van Osten, one of the other agents
searching the house, testified…that he was in Appellant’s
bedroom searching the dresser when he found a small bag
with some ammunition in it underneath some male clothing
[in] the uppermost drawer. He also testified that in the next
drawer down underneath some more male clothing, he
found a loaded revolver.
Upon finding the drugs and guns, the agents immediately
called the Philadelphia Police Department. Police Officer
Christopher McCue testified at trial that on that day he and
his partner were serving as backup for the parole agents
and they were called to go to the location of 1457 Stevens
Street. Upon arrival at that location, the officers were
directed upstairs by the parole agents to…Appellant’s
bedroom to recover the drugs and the gun. After recovering
the items, the officers took Appellant to be processed and
the narcotics and guns were placed on a property receipt.
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(Trial Court Opinion at 4-5) (internal citations to record omitted). At the
conclusion of testimony, the parties stipulated as follows: (1) an analyst from
the Philadelphia Police Department laboratory would testify the drugs, which
the agents discovered in Appellant’s bedroom, tested positive as marijuana
and Alprazolam; and (2) police would testify they identified the handgun that
the agents found as a .32 caliber revolver and determined it was operable.
Subsequently, the court admitted all the exhibits into evidence. On February
14, 2018, the court convicted Appellant of one count each of persons not to
possess a firearm and possession of a controlled substance.
On April 13, 2018, Appellant filed a post-verdict motion for extraordinary
relief, requesting an arrest of judgment on the conviction for persons not to
possess a firearm, because the Commonwealth had not proved Appellant was
currently disqualified from possessing a gun under Section 6105. Following a
hearing on April 17, 2018, the court denied Appellant’s post-verdict motion.
That same day, the court sentenced Appellant to a term of three (3) to six (6)
years’ incarceration for the persons-not-to-possess conviction, with no further
penalty for the possession-of-a-controlled-substance charge.
On May 8, 2018, Appellant filed a timely notice of appeal. The court
ordered Appellant on May 14, 2018, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). On May 31, 2018, Appellant
filed a timely Rule 1925(b) statement and a contemporaneous request for
leave to file a supplemental concise statement upon receipt of notes of
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testimony from the trial court proceedings. By order dated June 1, 2018, the
court granted Appellant’s request.2 On June 22, 2018, Appellant filed a
supplemental Rule 1925(b) statement.
Appellant limits our appellate review to the following issue:
WAS NOT THE EVIDENCE INSUFFICIENT TO CONVICT
[APPELLANT] OF 18 PA.C.S.A. § 6105 (PERSONS NOT TO
POSSESS FIREARMS) IN THAT THERE WAS NO PROOF THAT
HE HAD ONE OF THE ENUMERATED CONVICTIONS THAT
WOULD MAKE HIM A PERSON PROHIBITED FROM
POSSESSING A FIREARM UNDER THE STATUTE?
(Appellant’s Brief at 3).
When examining a challenge to the sufficiency of the evidence:
The standard we apply…is whether viewing all the
evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-finder
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. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record
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2 The certified docket entries indicate the court’s June 1st order permitting
Appellant to file a supplemental concise statement was docketed on various
dates in May 2018, although the court did not order the Rule 1925(b)
statement until May 14, 2018, and Appellant did not file for an extension until
May 31, 2018.
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must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all,
part or none of the evidence.
This standard is equally applicable in cases where the
evidence is circumstantial, rather than direct, provided that
the combination of evidence links the accused to the crime
beyond a reasonable doubt.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),
appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations, quotation
marks, and emphasis omitted).
Appellant argues the Commonwealth failed to meet its burden to
establish beyond a reasonable doubt that Appellant was prohibited from
possessing a firearm under Section 6105, as of January 2016. Appellant
submits the Commonwealth did not introduce any evidence Appellant had
been previously convicted of a disqualifying offense under Section 6105.
Appellant avers the Parole Order does not specify whether Appellant was
convicted of or merely charged with, inter alia, possession with intent to
deliver (“PWID”) PWID and persons to possess a firearm in 2007. Appellant
maintains that even if the Parole Order demonstrates Appellant was convicted
of PWID in 2007, it does not establish the alleged PWID conviction constituted
a disqualifying offense under Section 6105. Appellant contends the Parole
Order also does not cite a subsection of the PWID statute, indicate what illegal
substance was involved, or establish what sentence the court imposed on each
conviction. Appellant claims the Parole Order does not indicate his alleged
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2007 PWID conviction carried a potential maximum sentence of two years’
incarceration, which would render him ineligible to possess a firearm under
Section 6105 in January 2016.
Appellant further argues that even if the Parole Order establishes he was
convicted under Section 6105 in 2007, the Parole Order does not contain
information about that offense to prohibit him from possessing a firearm in
January 2016. Appellant contends the Parole Order does not indicate whether
the 2007 Section 6105 conviction stemmed from Appellant having been
previously: (1) convicted of an enumerated disqualifying offense, which would
have precluded him from possessing a firearm under Section 6105
permanently; or (2) included him among one of several classes of individuals
temporarily prohibited from possessing a firearm. Appellant submits the trial
evidence is insufficient to support his conviction for persons not to possess a
firearm. Appellant concludes this Court should vacate his current conviction
for persons not to possess a firearm.
In response, the Commonwealth initially argued the Parole Order, by its
purpose and nature, establishes Appellant was convicted of and sentenced on
the offenses denoted in the document. The Commonwealth contended
Appellant necessarily had a disqualifying prior conviction under Section 6105
prior to 2007, on the grounds that the Parole Order demonstrates Appellant
was convicted of persons not possess a firearm in 2007. The Commonwealth
averred the 2007 conviction for a violation of Section 6105 alone showed that
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Appellant was prohibited from possessing a firearm in January 2016. The
Commonwealth adjusts its position in its sur-reply brief, however, to agree
with Appellant that the Parole Order does not show the specific offenses or
the bases for Appellant’s convictions in 2007. The Commonwealth concedes
it presented insufficient evidence at trial to prove Appellant was prohibited
from possessing a firearm as of January 2016. The Commonwealth concludes
this Court should reverse Appellant’s conviction for persons not to possess a
firearm and vacate the judgment of sentence. For the following reasons, we
agree.
Section 6105 of the Pennsylvania Uniform Firearms Act provides, in
relevant part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
* * *
(c) Other persons.— In addition to any person who has
been convicted of any offense listed under subsection (b),
the following persons shall be subject to the prohibition of
subsection (a):
* * *
(1) A person who is a fugitive from justice. …
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(2) A person who has been convicted of an offense under
the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, or
any equivalent Federal statute or equivalent statute of any
other state, that may be punishable by a term of
imprisonment exceeding two years.
(3) A person who has been convicted of driving under
the influence of alcohol or controlled substance as provided
in 75 Pa.C.S.[A.] § 3802 (relating to driving under influence
of alcohol or controlled substance) or the former 75
Pa.C.S.[A.] § 3731, on three or more separate occasions
within a five-year period. For the purposes of this paragraph
only, the prohibition of subsection (a) shall only apply to
transfers or purchases of firearms after the third conviction.
(4) A person who has been adjudicated as an
incompetent or who has been involuntarily committed to a
mental institution for inpatient care and treatment under
section 302, 303 or 304 of the provisions of the act of July
9, 1976 (P.L. 817, No. 143), known as the Mental Health
Procedures Act. …
(5) A person who, being an alien, is illegally or
unlawfully in the United States.
(6) A person who is the subject of an active protection
from abuse order issued pursuant to 23 Pa.C.S.[A.] § 6108,
which order provided for the relinquishment of firearms
during the period of time the order is in effect. This
prohibition shall terminate upon the expiration or vacation
of an active protection from abuse order or portion thereof
relating to the relinquishment of firearms.
(7) A person who was adjudicated delinquent by a court
pursuant to 42 Pa.C.S.[A.] § 6341 (relating to adjudication)
or under any equivalent Federal statute or statute of any
other state as a result of conduct which if committed by an
adult would constitute an offense under sections 2502,
2503, 2702, 2703 (relating to assault by prisoner), 2704,
2901, 3121, 3123, 3301, 3502, 3701 and 3923.
(8) A person who was adjudicated delinquent by a court
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pursuant to 42 Pa.C.S.[A.] § 6341 or under any equivalent
Federal statute or statute of any other state as a result of
conduct which if committed by an adult would constitute an
offense enumerated in subsection (b) with the exception of
those crimes set forth in paragraph (7). This prohibition
shall terminate 15 years after the last applicable delinquent
adjudication or upon the person reaching the age of 30,
whichever is earlier.
(9) A person who is prohibited from possessing or
acquiring a firearm under 18 U.S.C.[A.] § 922(g)(9)
(relating to unlawful acts). …
* * *
18 Pa.C.S.A. § 6105(a)(1), (c) (effective December 16, 2008, to January 2,
2017) (emphasis added).
In other words, an individual commits an offense under Section 6105 if
the individual (1) possessed, used, controlled, sold, transferred, or
manufactured a firearm (or obtained a license to do any of the foregoing
activities); and (2) has been convicted of a specific type of offense listed in
Section 6105(b) or 6105(c), or meets one of the miscellaneous conditions set
forth in Section 6105(c). 18 Pa.C.S.A. § 6105(a)(1). Under Section 6105, A
previous conviction under The Controlled Substance, Drug, Device, and
Cosmetic Act (“CSA”), 35 P.S. §§ 780-101 et seq., constitutes a disqualifying
offense only if the drug offense is punishable by more than two years’
incarceration. 18 Pa.C.S.A. § 6105(c)(2). Additionally, Section 6105
precludes firearm possession of individuals under certain enumerated
circumstances, some of which may be temporary. 18 Pa.C.S.A. § 6105(c)(1),
(3), (5), (6), (8). For example, subsections (c)(1), (c)(5), and (c)(6)
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respectively prohibit an individual from possessing a gun if that person is a
fugitive, an illegal alien of the United States, or subject to an active protection
from abuse (“PFA”) order. 18 Pa.C.S.A. § 6105(c)(1), (5), (6). Section 6105
does not prohibit an individual from possessing a firearm, however, once that
individual is no longer fleeing justice or in the United States unlawfully, or the
PFA order against the individual has expired or been vacated. Id.
Section 780-113 of the CSA, defines and sets forth penalties for PWID.
See generally 35 P.S. § 780-113. To establish the offense of PWID, the
Commonwealth must prove beyond a reasonable doubt that the defendant
possessed a controlled substance with the intent to deliver it.
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). Section
780-113 establishes several offenses proscribing the delivery of controlled
substances. See e.g., 35 P.S. § 780-113(a)(1), (30), (32), (33), (36). The
CSA sets forth different sentences for the various offenses defined in Section
780-113(a). 35 P.S. § 780-113(b)-(o). Section 780-113 provides some PWID
offenses are punishable by a potential maximum sentence of more than two
years’ imprisonment. See 35 P.S. § 780-113(f)(1)-(3), (l). Other PWID
offenses, however, carry a potential maximum incarceration term not to
exceed one year. See 35 P.S. 780-113(b), (f)(4), (i). The sentence for each
PWID offense differs depending upon several factors, including the specific
offense committed, the controlled substance involved, the schedule
classification of that controlled substance, the intended receiver of the
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controlled substance, and whether the offender had committed PWID
previously. See 35 P.S. § 780-113(b), (f) ,(i), (l).
Instantly, Appellant received on February 26, 2007, an aggregate
sentence of four to ten years’ incarceration for PWID, criminal conspiracy,
persons not to possess a firearm, and PIC. While on parole in January 2016,
Appellant admitted having used marijuana and tested positive for marijuana
and benzodiazepine, in violation of the terms of his parole. During a resultant
search, parole agents discovered marijuana, Alprazolam, a loaded handgun,
and ammunition in Appellant’s bedroom.
At Appellant’s bench trial, the Commonwealth’s witnesses testified to
the circumstances surrounding the search of Appellant’s bedroom and the
contraband that the parole agents discovered there. During cross-
examination of Appellant’s parole agent, Agent Tyson, Appellant introduced
the Parole Order. The Parole Order provides, inter alia, minimal information
regarding the convictions underlying Appellant’s 2007 judgment of sentence.
Under the heading “Offense(s)/Charge(s),” the Parole Order lists the
following: “DRUG-M/S/D OR PWI TO CC DRG-M/S/D OR PWI TO” and
“PERSONS NOT TO POSS USE, ETC FIREARMS PIC (GENERALLY)”. (Parole
Order, Appellant’s Brief at Exhibit “D”). The Parole Order notes the court
sentenced Appellant on February 26, 2007, to an aggregate term of four to
ten years’ incarceration. (Id.) At the conclusion of testimony, the parties
made two stipulations: (1) a Philadelphia Police Department laboratory analyst
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would testify the laboratory identified the drugs from Appellant’s bedroom as
marijuana and Alprazolam; and (2) police would testify to the type of handgun
agents found in Appellant’s bedroom and that the handgun was operable.
Immediately following trial, the court convicted Appellant of one count each
of possession of a controlled substance and persons not to possess a firearm.
On this record, the Commonwealth concedes it failed to prove beyond a
reasonable doubt that Section 6105 prohibited Appellant from possessing a
firearm as of January 2016. At trial, the Commonwealth introduced no
evidence Appellant (1) had been previously convicted of an offense
disqualifying him from gun possession under Section 6105(b); or (2) that
Appellant met in January 2016 any of the several enumerated conditions
precluding an individual from possessing a firearm under Section 6105(c).
Rather, the trial court relied upon the Parole Order to establish Appellant was
prohibited from firearm possession under Section 6105, because the Parole
Order demonstrated Appellant had committed a disqualifying offense in 2007.
The Parole Order, however, provides too little detail about Appellant’s 2007
convictions and judgment of sentence to sustain Appellant’s current conviction
for persons not to possess a firearm.
Specifically, the Parole Order does not demonstrate Appellant
committed any of the disqualifying offenses enumerated in Section 6105(b).
Regarding Section 6105(c), the Parole Order suggests Appellant was convicted
in 2007 of, inter alia, PWID and persons not to possess a firearm, both of
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which could possibly but not definitively disqualify Appellant from future gun
possession or for how long the prohibition would last. The Parole Order,
however, does not include the following information about Appellant’s 2007
PWID offense: the specific PWID offense Appellant committed; the controlled
substance involved; the schedule classification of the controlled substance;
the intended recipient of the controlled substance; and whether Appellant had
committed that same or another kind of PWID offense prior to 2007. See 35
P.S. § 780-113(b), (f), (i), (l). Thus, the Parole Order does not establish
Appellant’s 2007 PWID conviction carried a potential maximum sentence of
more than two years’ incarceration. See 35 P.S. § 780-113(b), (f), (i), (l).
As such, the Parole Order does not demonstrate Appellant’s 2007 PWID
conviction constituted a disqualifying offense under Section 6105 in 2016.
See 18 Pa.C.S.A. § 6105(c)(2).
Furthermore, the Parole Order does not provide the grounds for
Appellant’s conviction of persons not to possess a firearm in 2007. The Parole
Order fails to indicate whether Appellant had been convicted of one of the
offenses enumerated in Section 6105(b) prior to 2007, which would have
prohibited Appellant from possessing a gun in January 2016. Notably, the
Parole Order also does not demonstrate whether the Commonwealth
established Appellant met in 2007 any of the Section 6105(c) conditions, and
if so, which condition. Because several of the Section 6105(c) conditions are
temporary, the Parole Order gives insufficient detail to prove Appellant
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currently met the same prohibitive Section 6105(c) condition he had met in
2007. See 18 Pa.C.S.A. § 6105(c)(1), (5), (6). Although the Parole Order
suggests Appellant was convicted of persons not to possess a firearm in 2007,
the Parole Order fails to support Appellant’s current Section 6105 conviction.
See Orr supra; 18 Pa.C.S.A. § 6105(a)(1). On this record and without more,
the Commonwealth did not meet its burden to prove beyond a reasonable
doubt that Appellant was prohibited from possessing a firearm in January
2016. See Orr supra; 18 Pa.C.S.A. § 6105(a)(1).
Based upon the foregoing, we reverse Appellant’s conviction for persons
not to possess a firearm, vacate the judgment of sentence in its entirety, and
remand for resentencing on the remaining possession of a controlled
substance conviction. See Commonwealth v. Bartrug, 732 A.2d 1287(Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding
sentencing error on one count in multi-count case generally requires all
sentences for all counts to be vacated so court can restructure entire
sentencing scheme). See also Commonwealth v. Goldhammer, 512 Pa.
587, 593, 517 A.2d 1280, 1283 (1986), cert. denied, 480 U.S. 950, 107 S.Ct.
1613, 94 L.Ed.2d 798 (1987)) (stating generally if appellate court alters
overall sentencing scheme, then remand for re-sentencing is proper).
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2019
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