J-S55011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HEZEKIAH JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1390 EDA 2017

Appeal from the Judgment of Sentence December 1, 2016

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

No(s): CP-51-CR-0012873-2015

BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2018

Appellant, Hezekiah Johnson, appeals from the judgment of sentence 

entered on December 1, 2016, following his bench trial convictions for persons 

not to possess a firearm and recklessly endangering another person (REAP).1 

Upon review, we affirm the convictions, but we are constrained to vacate the 

judgment of sentence and remand for resentencing. 

The trial court summarized the facts of this case as follows:

On October 14, 2015, [Appellant] was sitting on the front porch 

of his home located [on] South Robinson Street, in the city and 

county of Philadelphia. At approximately 1:00 a.m., witness 

Danielle Freeman approached the front porch that was occupied 

by [Appellant] and his brother, James Hart. Ms. Freeman 

approached [Appellant] and Mr. Hart with the intention of asking 

for a cigarette. As Ms. Freeman spoke with [Appellant], two men 

approached from the corner at Ludlow Street and immediately 

began firing weapons at Ms. Freeman, Mr. Hart, and [Appellant]. 

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1

 18 Pa.C.S.A. §§ 6105(a)(a)(1) and 2705, respectively.
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The assailants did not speak or attempt to engage in any 

conversation with the three people on the front porch[.]

In response to the attack, Ms. Freeman, Mr. Hart, and [Appellant] 

immediately sought refuge inside the home. [Appellant’s] sister 

and her two-year-old child were in the home when the three 

entered from the porch. After the three ran into the home from 

the porch, and approximately [60] seconds after the shots began, 

[Appellant’s] sister, LaToya McLellan, called 911. Ms. Freeman, 

believing herself to be injured, immediately laid down on the floor 

of the home and watched [Appellant] disappear somewhere into 

the interior of the home. Around the one-minute mark from when 

the three entered into the home, Ms. [McLellan] dialed 911. 

[...T]wo minutes after the previous gunfire had [begun],

[Appellant] exited the home through the front door back onto the 

front porch. Immediately upon exiting the home onto the front 

porch, at least another two or three gunshots were heard, after 

which [Appellant] re-entered the house through the front door and 

proceeded to the upstairs level of the home.

Philadelphia police arrived within one to two minutes from the 

time the 911 call was placed. Upon arrival, officers noticed that 

the front window of [the residence] had been shot out. Officers 

proceeded immediately into the home and encountered three men 

coming down the stairs from the upstairs level of the home into 

the living room. Officers took the three males into custody due to 

their profuse sweating, heavy breathing, and nervous appearance. 

The officers observed spent cartridge casings on the front porch[.] 

Philadelphia police searched the street and located six more 

cartridges in the vicinity[.] At that time, [Appellant] was placed 

under arrest and taken into custody.

Trial Court Opinion, 1/26/2018, at 1-2 (record citations omitted).

The case proceeded as follows:

On May 26, 2016, a waiver trial was conducted in front of the trial 

court,[2] after which [Appellant] was subsequently found guilty of 

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2

 At trial, the Commonwealth presented three, recorded prison conversations 

between Appellant and his mother and an unidentified third party. See N.T., 

5/26/2016, at 46-48. During those conversations, Appellant asked if the “hot” 
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[the aforementioned charges]. On December 1, 2016, [Appellant] 

was sentenced by the court to an aggregate term of five to ten 

years[’] incarceration. [More specifically, the trial court sentenced 

Appellant to five to ten years of imprisonment with a concurrent 

sentence of one to two years for REAP.] 

On December 6, 2016, [Appellant] filed a timely post-sentence 

motion for reconsideration of his sentence. On April 6, 2017, 

[Appellant’s] motion for reconsideration of his sentence was 

denied by operation of law. On April 26, 2017, [Appellant] filed a 

notice of appeal [to this Court]. On May 2, 2017, the trial court 

issued an order pursuant to Pa.R.A.P. 1925(b) to [Appellant] 

requiring a concise statement of errors complained of on appeal 

within 21 days. [After receiving an extension, Appellant complied 

timely. The trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a) on January 26, 2018.]

Id. at 3.

On appeal, Appellant presents the following issues for our review:

1. Did not the lower court err and abuse its discretion in finding 

[A]ppellant guilty of 18 Pa.C.S.A. § 6105 where there was 

insufficient evidence that he possessed, used, controlled, 

sold, transferred, or manufactured or obtained a license to 

possess, use, control, sell, transfer, or manufacture a 

firearm in Pennsylvania?

2. Did not the lower court err and abuse its discretion by 

finding guilt where there was insufficient evidence that 

Appellant recklessly engaged in conduct which placed or 

may have placed another person in danger of death or 

serious bodily injury?

3. Did not the lower court err and abuse its discretion by 

imposing a sentence that is manifestly excessive and 

unreasonable by failing to consider Appellant’s rehabilitative 

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“jawn” had been removed from the residence. Appellant testified at trial that 

he was referring to marijuana. Id. at 63. However, the Commonwealth 

argued that Appellant’s use of the word “jawn” referred to a firearm, because 

Appellant stated that the “jawn” was “hot,” meaning recently used during the 

commission of a crime. Id. at 71. 
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needs or otherwise follow 42 Pa.C.S.A. § 9721(b), [] by 

imposing a sentence based entirely on the severity of the 

offense?

Appellant’s Brief at 4. 

In his first issue presented, Appellant claims that there was insufficient 

evidence to support his firearm conviction. Id. at 15-19. More specifically, 

Appellant claims that there was no eyewitness testimony that he “possessed 

a gun or had fired a gun[.]” Id. at 16. Because the police did not recover a

firearm, Appellant argues the trial court erred by relying on ballistic evidence 

that showed that firearms of different calibers were discharged from the street 

and the porch during exchange of gunfire in this case. Id. at 17. Appellant 

claims that the trial court further erred by relying upon three, recorded 

conversations that Appellant had from prison, because such evidence 

constituted hearsay.3 Id. at 18.

Our standard of review is as follows:

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3

 Defense counsel objected to the introduction of the prison recordings, 

arguing that statements made by unidentified third persons speaking to 

Appellant constituted hearsay. See N.T., 5/26/2016, at 44-46. However, 

because Appellant failed to raise the trial court’s admissibility ruling in his 

concise statement pursuant to Pa.R.A.P. 1925(b), he has waived this aspect 

of his claim. See Commonwealth v. Scott, 952 A.2d 1190, 1191 (Pa. Super. 

2008) (issues not raised in a Rule 1925(b) statement are waived). Insofar as 

the trial court’s evidentiary ruling relates to Appellant’s sufficiency challenge, 

our Supreme Court has determined that “it is improper for a court, when 

reviewing a sufficiency challenge, to eliminate from its consideration any 

evidence which it deems to be inadmissible.” Commonwealth v. Sanford, 

863 A.2d 428, 431 (Pa. 2004). As such, we are to consider “all of the 

testimony” presented to the factfinder at trial, “without consideration as to 

the admissibility of that evidence.” Id. (citation and original emphasis 

omitted). 
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The standard we apply in reviewing the sufficiency of the evidence 

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 

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.

Commonwealth v. Hewlett, 189 A.3d 1004, 1008 (Pa. Super. 2018) 

(citations omitted).

Appellant was convicted of persons not to possess a firearm, which is 

defined as follows:

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

in subsection (b),[4] 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.

18 Pa.C.S.A. § 6105(a)(1).

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4

 At trial, Appellant stipulated that he had a prior conviction for an enumerated 

offense under subsection (b) of the statute. See N.T., 5/26/2016, at 43. He 

does not challenge this element of the crime on appeal. 
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Here, the trial court determined that there was circumstantial evidence 

that Appellant exchanged gunfire with two assailants on the street in front of 

his house. The trial court first noted that although Ms. Freeman did not see 

Appellant physically wielding a firearm, she witnessed Appellant flee into the 

home, go into another room inside the house, and rush back on to the porch 

from where he originally fled. Trial Court Opinion, 1/26/2018, at 6. Appellant 

was the only person who exited the home and ran towards the gunfire. Id.

Ms. Freeman heard two or three gunshots soon thereafter. Id. The trial court 

found sufficient circumstantial evidence that Appellant retrieved a firearm and 

returned fire on the day in question. Id. Police found a group of 9mm 

cartridges on the sidewalk in front of the residence at issue and two spent .40 

caliber cartridges on the porch. Id. at 7. The trial court determined that the 

ballistics evidence was consistent with Ms. Freeman’s testimony. Id. Finally, 

the trial court determined that, in reviewing three recorded prison 

conversations and interpreting the slang code words used, Appellant inquired 

on several occasions about what happened to the weapon used in the 

shooting. Id. at 8.

Upon review of the record, we conclude that there was sufficient 

evidence to support Appellant’s firearm conviction. Here, the Commonwealth 

presented circumstantial evidence that Appellant used a firearm on the day in 

question. Appellant initially retreated into his home when gunshots erupted. 

He went into a room and quickly rushed back outside, by himself, toward the 
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gunfire. An eyewitness heard two or three additional gunshots while Appellant 

was on the porch. Ballistic evidence confirmed that shots were fired from the 

front porch toward the street. Taking all the evidence together, we conclude 

it was proper for the trial court to infer circumstantially that Appellant 

possessed and used a firearm despite the prohibition against him doing so. 

Moreover, Appellant’s conversations from prison showed his concern with 

police recovering somewhere inside his house the firearm used during the 

commission of the crimes. Based upon our standard of review, we conclude 

that sufficient evidence supported Appellant’s conviction for persons not to 

possess a firearm. 

Next, Appellant contends that the Commonwealth did not present 

sufficient evidence to support his conviction for REAP. Appellant’s Brief at 

20-21. More specifically, Appellant claims that because the Commonwealth

failed to present evidence that “Appellant was seen to possess or fire a gun[,]” 

it did not prove his “present ability to cause harm” as statutorily required.5

Id. Having already determined that the Commonwealth presented sufficient 

evidence to establish that Appellant used a firearm to support his conviction 

for persons not to possess a firearm conviction, Appellant’s second issue 

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5 “A person commits a misdemeanor of the second degree if he recklessly 

engages in conduct which places or may place another person in danger of 

death or serious bodily injury.” 18 Pa.C.S.A. § 2705. We have previously held 

that “discharging [] a weapon numerous times in the vicinity of others 

constitutes a sufficient danger to satisfy the REAP statute.” Commonwealth 

v. Hartzell, 988 A.2d 141, 144 (Pa. Super. 2009).
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necessarily fails. Based upon all of the foregoing, we affirm Appellant’s 

convictions. 

In his final claim presented, Appellant claims that the trial court erred 

by sentencing him to an excessive sentence without stating its reasons for the 

sentence on record. Appellant’s Brief at 21-23. More specifically, he argues 

that the trial court failed to consider his rehabilitative needs and based his 

sentence entirely on the severity of the offense, without adequately stating its 

reasons on the record for the imposition of the sentence. This claim implicates 

the discretionary aspects of sentencing, which is not appealable as of right. 

Rather, an appellant challenging the sentencing court’s discretion must invoke 

this Court’s jurisdiction by satisfying a four-part test. See Commonwealth 

v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).

We 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).

An appellate court will find a “substantial question” and review the 

decision of the trial court only where an aggrieved party can 

articulate clear reasons why the sentence imposed by the trial 

court compromises the sentencing scheme as a whole.

Id. (internal case citations omitted).

Here, Appellant preserved his claim by filing a post-sentence motion, 

filing a timely notice of appeal, and raising the issue in his concise statement 
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pursuant to Pa.R.A.P. 1925(b). Moreover, an allegation that the trial court 

failed to offer specific reasons for a sentence raises a substantial question. 

See Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011); 

see also 42 Pa.C.S.A. § 9721(b) (“In every case in which the court imposes 

a sentence for a felony or misdemeanor [] the court shall make as a part of 

the record, and disclose in open court at the time of sentencing, a statement 

of the reason or reasons for the sentence imposed.”) (emphasis added). 

Our standard of review in sentencing matters is well settled:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009) 

(citation omitted).

This Court has previously determined:

[T]he court must state its reasons on the record at the time the 

sentence is imposed. Requiring the sentencing court to state its 

reasons at that time provides a procedural mechanism for the 

aggrieved party both to attempt to rebut the court's explanation 

and inclination before the sentencing proceeding ends, and to 

identify and frame substantive claims for post-sentence motions 

or appeal. Therefore, [] it is not sufficient for the trial court to 

state its reasons in a post-sentence Rule 1925(a) opinion. The 

reasons must be given “in open court at the time of sentencing.” 

42 Pa. C.S. § 9721(b).

[...A]lthough a sentencing court need not undertake a lengthy 

discourse for its reasons for imposing a sentence, ... the record as 
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a whole must reflect the sentencing court's consideration of the 

facts of the crime and character of the offender. A discourse on 

the court's sentencing philosophy, as it applies to the defendant 

before it, is not required. [...T]he reasons must reflect the judge's 

consideration of the sentencing code, the circumstances of the 

offense and the character of the offender. 

Commonwealth v. Flowers, 149 A.3d 867, 875–876 (Pa. Super. 2016) 

(case citations, original brackets, and most quotations omitted).

Moreover, we have stated: 

When imposing sentence, a court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. In considering these factors, the court should refer to 

the defendant's prior criminal record, age, personal characteristics 

and potential for rehabilitation. Where pre-sentence reports exist, 

we shall ... presume that the sentencing judge was aware of 

relevant information regarding the defendant's character and 

weighed those considerations along with mitigating statutory 

factors. A pre-sentence report constitutes the record and speaks 

for itself.

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).

Here, upon review of the certified record, the trial court did not place its 

reasons for the imposition of Appellant’s sentence on the record. Instead, 

when Appellant attempted to reargue the merits of his case during allocution, 

the trial court cut him off and imposed sentence without any elaboration. See

N.T., 12/1/2016, at 14-15. Thereafter, while the trial court states in its Rule 

1925(a) opinion that it considered the need to protect the public, the gravity 

of the offense and the rehabilitative needs of Appellant, as well as Appellant’s 

“numerous arrests as both an adult and juvenile, his numerous convictions, 

his previous violations while under court supervision, [and] defense counsel’s 
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mitigation arguments” in fashioning Appellant’s sentence, it is not sufficient 

for the trial court to state its reasons in a subsequent Rule 1925(a) opinion. 

See Trial Court Opinion, 1/26/2018, at 13-14. Moreover, while the docket 

indicates that a presentence investigation report was requested in this matter, 

it is not contained in the certified record and the trial court did not 

acknowledge that it had the benefit of such a report in rendering its decision 

at the time of sentencing. As such, there is no indication of record that the 

trial court received, reviewed, or was aware of a presentence investigation 

report and, thus, we cannot presume that the trial court was aware of all of 

the relevant information when sentencing Appellant. Hence, the trial court 

abused its discretion by failing to state the reasons on the record for the 

imposition of Appellant’s sentence. Accordingly, we affirm Appellant’s 

convictions, but are constrained to vacate Appellant’s judgment of sentence 

and remand for resentencing.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/18