J-S44027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FREDRICK GORDON,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1518 EDA 2017

Appeal from the Judgment of Sentence March 20, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002140-2016, CP-51-CR-0002142-2016

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED AUGUST 06, 2018

Frederick Gordon (Appellant) appeals from the judgment of sentence 

imposed after the trial court convicted him of multiple charges, including 

persons not to possess firearms and theft from a motor vehicle, the latter 

graded as a felony of the third degree (“F3”).

1

 Appellant challenges the 

sufficiency of the evidence as to these two convictions. We hold that Appellant 

is entitled to relief. Therefore, we affirm in part, reverse in part, and remand 

for resentencing.

The Commonwealth charged Appellant at two dockets with multiple 

crimes related to Appellant breaking into two parked cars and taking items, 

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1 See 18 Pa.C.S.A. §§ 3934(b)(2) (theft from a motor vehicle is graded as an 

F3 when it is the third or subsequent offense within a 5-year period), 6105

(persons not to possess firearms).
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including a gun, from one of the cars. His case proceeded to trial on January 

6, 2017. One of the victims and a police officer testified, and the 

Commonwealth played surveillance video. Significantly, although Appellant 

had an extensive prior criminal history, the Commonwealth did not introduce 

any evidence of it at trial. See N.T. Sentencing, 3/20/17, at 4, 11 (Appellant’s 

criminal history included 29 convictions, which included theft and aggravated 

assault, 35 commitments, 30 probation violations, and 23 probation 

revocations). Appellant did not testify or present any evidence. At docket 

CP-51-CR-0002140-2016 (“Docket 2140”), the trial court found Appellant 

guilty of persons not to possess firearms, firearms not to be carried without a 

license, carrying firearms on public streets in Philadelphia,

2

theft from a motor 

vehicle — graded as an F3, and receiving stolen property.3 At docket CP-51-

CR-0002142-2016 (“Docket 2142”), the court found him guilty of resisting 

arrest,4 as well as additional counts of theft from a motor vehicle — graded as 

an F3, and receiving stolen property.

On March 20, 2017, the trial court sentenced Appellant at Docket 2140 

as follows: (1) 4 to 8 years’ imprisonment for persons not to possess firearms; 

(2) 2 years’ probation for theft from a motor vehicle; and (3) 2 years’ 

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2 18 Pa.C.S.A. §§ 6106, 6108.

3 18 Pa.C.S.A. § 3925(a).

4 18 Pa.C.S.A. § 5104.
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probation for receiving stolen property, to run concurrently with the other 

probationary term; and (3) no further penalty on his remaining firearms 

convictions. At Docket 2142, the court sentenced Appellant to: (1) 1 to 2 

years’ imprisonment for receiving stolen property, to run concurrently with 

the sentence for persons not to possess a firearm; and (2) no further penalty 

on the resisting arrest or remaining theft from a motor vehicle conviction. 

Appellant’s aggregate sentence was thus 4 to 8 years’ imprisonment and a 

consecutive 2 years’ probation.

Appellant filed a timely post-sentence motion at Docket 2140, which was 

denied on April 26, 2017. He did not, however, file a post-sentence motion 

at Docket 2142. Appellant filed notices of appeal at both dockets on May 10, 

2017. Both the trial court and Appellant complied with Pennsylvania Rule of 

Appellate Procedure 1925.

On June 16, 2017, this Court issued a rule to show cause why the appeal 

at Docket 2142 should not be quashed as untimely, where no post-sentence 

motion was filed. See Pa.R.Crim.P. 720(A)(2)(a), (3) (if defendant files a 

timely post-sentence motion, notice of appeal shall be filed within 30 days of 

order deciding the motion, but if defendant does not file a timely postsentence motion, notice of appeal shall be filed within 30 days of imposition 

of sentence). Appellant’s counsel filed a response agreeing that the appeal at 

Docket 2142 was untimely, and this Court quashed that appeal by order dated

July 18, 2017. Accordingly, only the appeal at Docket 2140 is before us.
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Appellant presents the following issues for our review:

[1.] Was not the evidence insufficient to convict [A]ppellant of 

persons not to possess a firearm, 18 Pa.C.S. § 6105, where there 

was no evidence that he had a predicate conviction under 18 

Pa.C.S. § 6105(b) or met the criteria of 18 Pa.C.S. § 6105(c)?

[2.] Were not the convictions for theft from a motor vehicle 

improperly graded as felonies of the third degree, where no 

evidence was presented to prove either offense was [A]ppellant’s

third or subsequent offense within a five-year period?

Appellant’s Brief at 2.

“In 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, is sufficient to prove every element of the offense beyond a reasonable 

doubt.” Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009). 

“[W]hen interpreting a statute, our courts must give plain meaning to the 

words therein. See 1 Pa.C.S.A. §§ 1901, 1903.” Commonwealth v. James, 

863 A.2d 1179, 1182 (Pa. Super. 2004).

Our Crimes Code defines the offense of persons not to possess firearms 

as follows:

(a) Offense defined.

(1) A person who has been convicted of an offense 

enumerated in subsection (b) . . . 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.

* * *
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(b) Enumerated offenses. —

The following offenses shall apply to subsection (a):

[List of offenses]

(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. . . .

(2) A person who has been convicted . . . under . . . The 

Controlled Substance, Drug, Device and Cosmetic Act . . . .

18 Pa.C.S.A. § 6105(a)(1), (b), (c). Generally, “[i]n order to obtain a 

conviction under 18 Pa.C.S. § 6105, the Commonwealth must prove beyond 

a reasonable doubt that the defendant possessed a firearm and that he was 

convicted of an enumerated offense that prohibits him from possessing . . . a 

firearm.” Thomas, 988 A.2d at 670 (emphasis added).

Pennsylvania’s theft from a motor vehicle statute states in pertinent 

part:

(a) Offense defined. — A person commits the offense of theft 

from a motor vehicle if he unlawfully takes or attempts to take 

possession of, carries away or exercises unlawful control over any 

movable property of another from a motor vehicle with the intent 

to deprive him thereof.

(b) Grading.

* * *

(2) When the offense is a third or subsequent offense within 

a five-year period, regardless of the amount involved and 

regardless of the grading of the prior offenses, an offense 

under this section is a felony of the third degree.
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18 Pa.C.S.A. § 3934(a), (b)(2).

In his first issue, Appellant avers that the evidence was insufficient to 

support his conviction of persons not to possess firearms, where the 

Commonwealth presented no evidence that he was previously convicted of an 

offense enumerated in Subsection 6105(b), nor evidence that he met any of 

the criteria in Subsection (c).

In his second issue, Appellant alleges that the evidence was insufficient 

to support his conviction of theft from a motor vehicle graded as a third-degree 

felony. Appellant contends that the Commonwealth failed to present any 

evidence that the theft charge was his third or subsequent offense within a 5-

year period, as required by Subsection 3934(b)(2).

In its opinion, the trial court acknowledges that while Appellant has been 

convicted of multiple offenses preventing him from possessing a firearm under 

Section 6105, “the Commonwealth neglected to introduce the quarter sessions 

file or a criminal extract to establish” these convictions. Trial Court Opinion, 

1/12/18, at 11. With respect to Appellant’s F3-graded theft from a motor 

vehicle conviction, the trial court likewise states that the trial “record does not 

contain any evidence establishing that this was his third or subsequent theft.” 

Id. at 12. The trial court thus suggests that Appellant’s convictions of persons 

not to possess firearms and theft from a motor vehicle should be reversed. 

Id. at 7. The Commonwealth agrees with the trial court’s assessment, based 

on its concession that “proof of [Appellant’s] criminal record was not presented 
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at trial.” Commonwealth Brief at 4. The Commonwealth states that 

Appellant’s other convictions “remain valid.” Id.

After careful review of the trial transcript, the trial court’s opinion, and 

the parties’ briefs, we agree with the trial court’s analysis. Although 

Appellant’s extensive criminal history was discussed at sentencing, the 

Commonwealth did not present any evidence at trial to establish that 

Appellant met any of the criteria under Subsection 6105(b) or (c) that would 

prohibit him from possessing a firearm, or that, for an F3 grading of theft from 

a motor vehicle pursuant to Subsection 3934(b)(2), this was his third or 

subsequent offense within a 5-year period. See 18 Pa.C.S.A. §§ 3934(b)(2), 

6105(a)-(c). Accordingly, with respect to Docket 2140, we reverse Appellant’s 

convictions of persons not to possess firearms and theft from a motor vehicle.5 

Because our disposition disrupts the trial court’s overall sentencing scheme, 

we remand for resentencing.

Affirmed in part and reversed in part. Case remanded for resentencing. 

Jurisdiction relinquished.

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5 Because the appeal at Docket 2142 was quashed, we do not disturb any of 

the convictions, including theft from a motor vehicle, at that docket.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/6/18