Opinion
J. A21028/16 No. 2865 EDA 2015
09-15-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LANIER JAMES, A/K/A JAMES LANIER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008145-2014 BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.:
Appellant, Lanier James, appeals from the Judgment of Sentence entered by the Philadelphia County Court of Common Pleas following his conviction by a jury of Carrying a Firearm Without a License, Carrying a Firearm in Public in Philadelphia, Possession of an Instrument of Crime, and Fleeing or Attempting to Elude Police Officer. After careful review, we affirm on the basis of the trial court's Opinion.
18 Pa.C.S. § 6106; 18 Pa.C.S. § 6108; 18 Pa.C.S. § 907; and 75 Pa.C.S. § 3733, respectively.
We adopt the facts as set forth by the trial court. See Trial Court Opinion, filed 12/21/15, at 3-11. In summary, Appellant's accomplice, Braheem Owens, shot and killed the victim on a West Philadelphia street on May 28, 2014. After shooting the victim, Owens entered Appellant's car and Appellant sped away from the scene with an officer in pursuit. Several blocks away, Appellant and Owens exited the car and fled on foot. After a brief pursuit, police apprehended Appellant in possession of a firearm that matched six fired cartridge casings recovered from the scene of the shooting.
On May 28, 2015, the jury convicted Appellant of Carrying a Firearm Without a License, Carrying a Firearm in Public in Philadelphia, Possession of an Instrument of Crime, and Fleeing or Attempting to Elude Police Officer. On August 14, 2015, the trial court imposed a term of six to twelve years' imprisonment, followed by seven years' probation. Appellant filed a Notice of Appeal on September 8, 2015. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
The jury acquitted Appellant of First-Degree Murder and Criminal Conspiracy.
Appellant presents three issues for our review:
1. The evidence was insufficient as a matter of law to support [Appellant's] conviction for Carrying a Firearm Without a License in violation of 18 P.S. §6106, where the Commonwealth failed to present evidence that [Appellant], Lanier James, did not possess a valid license and where proof of [Appellant's] non-licensure was an essential element of the offense.
2. The evidence was insufficient as a matter of law to support [Appellant's] conviction for Fleeing or Attempting to Elude
Police in violation of 75 P.S. §3733, where the Commonwealth failed to present evidence that [Appellant], Lanier James, willfully failed or refused to bring his vehicle to a stop in response to a "visual and audible signal" to bring his vehicle to a stop or fled or attempted to elude pursuing police in a vehicle, as a opposed to on foot, after he parked his car and ran from the police.Appellant's Brief at 4 (capitalization omitted).
3. The trial court erred by allowing the prosecutor, in closing argument, to argue facts not in evidence and by permitting the prosecutor to tell the jury that [Appellant] falsified his identity to the police and gave the name of James Lanier, as opposed to Lanier James, when he was arrested where the record and non-record evidence suggested that the police made the clerical mistake of juxtaposing [Appellant's] name at the time of his arrest.
Appellant first challenges the sufficiency of the evidence supporting his convictions for Carrying a Firearm Without a License and Fleeing or Attempting to Elude Police Officer. We review claims challenging the sufficiency of the evidence by considering 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." Commonwealth v. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014).
The trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—may choose to believe all, part, or none of the evidence. Id. at 40. Moreover, a jury may base a conviction solely on circumstantial evidence. Id. In conducting our review, the appellate court may not weigh the evidence and substitute its judgment for that of the fact-finder. Id. at 39-40.
The relevant statutes provide the following:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
18 Pa.C.S. § 6106(a)(1).(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, ... without a valid and lawfully issued license under this chapter commits a felony of the third degree.
§ 3733. Fleeing or attempting to elude police officer
75 Pa.C.S. § 3733.(a) Offense defined. --Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense as graded in subsection (a.2).
The Honorable Genece E. Brinkley, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellant's sufficiency challenges. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 12-16 (concluding: (1) there was sufficient evidence to support Appellant's conviction for Carrying a Firearm Without a License because (i) police recovered the firearm from Appellant's waistband and (ii) the certificate of non-licensure contained sufficient identifying information, including Appellant's name, home address, and date of birth; and (2) there was sufficient evidence to support Appellant's conviction for Fleeing or Attempting to Elude Police Officer because Appellant fled past a uniformed officer with his gun drawn at a high rate of speed after his passenger shot and killed the victim and the officer tried to stop Appellant's vehicle by chasing after Appellant while shouting over his radio).
Appellant next challenges the prosecutor's closing argument and avers that the prosecutor improperly argued facts not in evidence. In addressing prosecutorial misconduct alleged to have occurred during closing argument, our Supreme Court has provided the following guidance:
In accord with the long-standing principle that a prosecutor must be free to present his or her arguments with logical force and vigor, this Court has permitted prosecutorial advocacy as long as there is a reasonable basis in the record for the [prosecutor's] comments. Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. Furthermore, the prosecution must be permitted to respond to defense counsel's arguments. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered.
It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of any testimony. However, it is well within the bounds of proper advocacy for the prosecutor to summarize the facts of the case and then ask the jury to find the accused guilty based on those facts.
The standard by which the court considers allegations of improper prosecutorial comments is a stringent one:
Commonwealth v. Chmiel , 30 A.3d 1111, 1146-47 (Pa. 2011) (citations omitted, emphasis in original).Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict.
After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 17-20 (concluding the prosecutor's remarks about the issue regarding Appellant's name constituted fair response to Appellant's closing argument alleging "shoddy paperwork" and disparaging the Commonwealth's investigation).
The parties are instructed to attach a copy of the trial court's December 21, 2015 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/15/2016
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