J-S57023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VINCENT FULLER

Appellant No. 62 EDA 2014

Appeal from the Judgment of Sentence December 4, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003251-2013

BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.: FILED OCTOBER 10, 2014

Appellant, Vincent Fuller, appeals from the December 4, 2013 

aggregate judgment of sentence of five to ten years’ imprisonment followed 

by five years’ probation, imposed after the trial court found him guilty of 

possession of firearms prohibited, firearms not to be carried without license, 

and carrying firearms public in Philadelphia.1 After careful review, we 

reverse.2

The trial court has set out the relevant procedural history of this case 

as follows.

____________________________________________

1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.

2 We note the Commonwealth was granted an extension to file its brief by 

July 29, 2014, with no further extensions. Per Curiam Order, 6/2/2014. The 

Commonwealth filed its brief on September 24, 2014 and is thus untimely. 
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On October 19, 2012, [Appellant], ... was 

arrested and was charged with VUFA-former 

conviction, firearms not to be carried without a 

license, and carrying firearms public street/place for 

events that occurred on October 18, 2012, in the 

vicinity of the 5200 Block of N. 15th Street in the 

City and County of Philadelphia. A [bench] trial was 

conducted before [the trial court] on October 7, 

2013. 

At the conclusion of the trial, [Appellant] was 

found guilty of all charges. ... On December 4, 

2013, [the trial court] imposed a sentence of five (5) 

to ten (10) years of incarceration on the conviction 

for VUFA-former conviction, followed by a five (5) 

year period of probation on the conviction for 

carrying firearms without a license. No further 

penalty was imposed on the conviction for firearms 

public street/place.

Trial Court Opinion, 3/18/14, at 1-2 (footnotes omitted). Appellant did not 

file a post-sentence motion. On January 2, 2014, Appellant filed a timely 

notice of appeal.3

On appeal, Appellant raises the following issue for our review.

[1] Was the evidence sufficient to sustain the 

convictions for violation of the uniform firearms act?

Appellant’s Brief at 5.

Our standard of review on a claim challenging the sufficiency of the 

evidence is well settled. 

There is sufficient evidence to sustain a conviction 

when the evidence admitted at trial, and all 

____________________________________________

3 Appellant and the trial court have timely complied with Pa.R.A.P. 1925.
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reasonable inferences drawn therefrom, viewed in 

the light most favorable to the Commonwealth as 

verdict winner, are sufficient to enable the fact-finder 

to conclude the Commonwealth established all of the 

elements of the offense beyond a reasonable doubt.

Commonwealth v. Morales, 91 A.3d 80, 87 (Pa. 2014) (citation omitted). 

“The Commonwealth can meet its burden by wholly circumstantial 

evidence and any doubt about the defendant’s guilt is to be resolved by the 

fact finder unless the evidence is so weak and inconclusive that, as a matter 

of law, no probability of fact can be drawn from the combined 

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 

2013) (en banc) (internal quotation marks and citation omitted), appeal 

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the 

entire record ... and all evidence actually received[.]” Id. “[T]he 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. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation 

omitted). “Because evidentiary sufficiency is a question of law, our standard 

of review is de novo and our scope of review is plenary.” Commonwealth 

v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted). A successful 

sufficiency of the evidence challenge warrants discharge. Commonwealth 

v. Brown, 52 A.3d 320, 323 (Pa. Super. 2012) (citation omitted).

With these principles in mind, we turn to Appellant’s challenge to the 

sufficiency of the evidence supporting his convictions in the instant case. 
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The relevant statutes under which Appellant was convicted provide 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 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. 

...

(i) Firearm.—As used in this section only, the term 

“firearm” shall include any weapons which are 

designed to or may readily be converted to expel any 

projectile by the action of an explosive or the frame 

or receiver of any such weapon.

...

18 Pa.C.S.A. § 6105.

§ 6106. Firearms not to be carried without a 

license

(a) Offense defined--

(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, except in his place of 

abode or fixed place of business, without a 

valid and lawfully issued license under this 

chapter commits a felony of the third degree. 
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...

Id. § 6106(a)(1).

§ 6108. Carrying firearms on public streets or 

public property in Philadelphia

No person shall carry a firearm, rifle or shotgun at 

any time upon the public streets or upon any public 

property in a city of the first class unless:

(1) such person is licensed to carry a firearm; 

or

(2) such person is exempt from licensing under 

section 6106(b) of this title (relating to 

firearms not to be carried without a license). 

Id. § 6108. 

Appellant asserts that “[t]he evidence is insufficient to sustain all three 

convictions for Violation of the Uniform Firearms Act.” Appellant’s Brief at 9. 

Specifically, Appellant contends that the Commonwealth did not prove the 

possession element of the offenses beyond a reasonable doubt “because the 

only evidence against him was the weak, inconclusive, and uncorroborated 

testimony of a witness.” Id. at 11.

4

 

Viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, we conclude there is insufficient evidence 

____________________________________________

4 The trial court found the testimony of the witnesses credible at trial. Trial 

Court Opinion, 3/18/14, at 5. After reviewing the trial transcript, however, 

the trial court now concludes that the evidence presented at trial “is not 

sufficient to sustain the conviction.” Id. The trial court further concludes 

“the guilty verdicts on all charges should be vacated and the case remanded 

for dismissal.” Id. at 6. 
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to support Appellant’s convictions for possession of firearms prohibited, 

firearms not to be carried without license, and carrying firearms public in 

Philadelphia. 

[E]vidence sufficient to implicate an accused in a 

crime must be something more than evidence 

showing remote connection between the accused and 

the crime, or evidence that merely raises a suspicion 

of guilty intention.... An accused is entitled to an 

acquittal if his guilt of the crime charged is not the 

only reasonable interpretation of which the facts 

adduced against him are susceptible. Guilt must be 

proved and not merely conjectured. 

Commonwealth v. Barker, 70 A.3d 849, 854-855 (Pa. Super. 2013) (en 

banc) (citations omitted), appeal denied, 87 A.3d 814 (Pa. 2014). “[A] 

verdict of guilt may not be based upon surmise or conjecture. ... [W]here 

evidence offered to support a verdict of guilt is so unreliable and/or 

contradictory as to make any verdict based thereon pure conjecture, a jury 

may not be permitted to return such a finding.” Commonwealth v. 

Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).

At trial, the Commonwealth presented the testimony of an eyewitness, 

Timothy Bonds, and Philadelphia Police Detective Robert Hassel.5 During his 

direct examination at trial, Bonds testified that, while walking home on the 

5200 block of North 15th Street in Philadelphia, he saw “a couple people 

____________________________________________

5 The only other evidence presented by the Commonwealth was a certificate 

of non-licensure. N.T., 10/7/12, at 49. This element is not contested by 

Appellant.
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arguing.” N.T., 10/7/12, at 17-18. Bonds testified that the argument was 

between a woman and Appellant’s brother, and as Bonds walked by the 

argument, Appellant asked Bonds “...was [Appellant’s] brother up the 

street[?] I answered yeah.” Id. at 18. Bonds continued to walk home 

when he heard “a loud smack.” Id. Bonds testified that when he turned 

around, “... the crowd that was with [Appellant’s] brother ... was dispersing, 

and I saw [a woman] running up the street waiving a gun and shooting.” 

Id. Bonds heard “a couple more shots,” and saw smoke coming from 

Appellant’s hands. Id. 

Bonds testified he did not remember what type of gun he thought 

Appellant possessed, but he heard “altogether maybe nine or ten shots.” 

Id. at 19. The Commonwealth then attempted to refresh his recollection 

with a prior written statement made by Bonds. Id., Commonwealth’s 

Exhibit, C-1, Statement of Timothy Bonds, Jr., 10/18/12; see also Pa.R.E. 

612 (permitting, under certain circumstances, the use of a writing to refresh 

a witness’s memory).

[Commonwealth:]

Q. Sir, if I showed you your statement, would that 

help you refresh your recollection, your memory?

[Bonds:]

A. Maybe, yes, ma’am.

...
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Q. Does that help you remember what type of gun 

it was in his hand?

A. It says here a silver revolver.

Q. ... And how many shots did he fire?

A. At least six.

Q. And where did [Appellant] go after you heard 

the shooting?

A. I don’t know. I don’t know. 

N.T., 10/7/12, at 17-18 (emphasis added). 

On cross-examination, Bonds testified approximately six people were 

in the crowd where the argument between Appellant’s brother and the 

woman was occurring. Id. at 25. He saw the woman chasing people and 

“pull out her gun and start shooting.” Id. at 26-27. Counsel for Appellant 

admitted into evidence the same statement as the Commonwealth’s C-1, to 

impeach Bonds’ testimony. Id. at 30, 53, Defense’s Exhibit, D-2, Statement 

of Timothy Bonds, Jr., 10/18/2012; see also Pa.R.E. 613 (permitting, under 

certain circumstances, the use of a witness’s prior inconsistent statement for 

impeachment). When asked why his prior statement did not indicate the 

woman shot first, Bonds answered, “I must have misunderstood the 

question, but I saw who fired first.” N.T., 10/7/12, at 30. He further 

testified the statement was typed wrong, and that he told detectives he saw 

the woman “pull a gun out and start shooting.” Id. at 32-33. The cross 

examination continued, and Bonds testified he did not remember if he saw a 
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gun. Id. at 36. He then testified, “I heard gunshots and I turned around. I 

didn’t actually see [Appellant] shooting, but I heard gunshots.” Id.

On re-direct examination, the Commonwealth again approached Bonds 

with his prior statement. Id. at 38. Bonds acknowledged the statement 

read, “I actually saw [Appellant] pull his gun out and start shooting[,]” but 

continued “[t]hat’s what it says on there. I never saw him pull a gun.” Id.

at 38-39. The Commonwealth asked him about another portion of his 

statement which read, “I saw [Appellant] pull his gun out and start shooting. 

... I heard the shots, and I saw [Appellant] pull his gun out and start 

shooting.” Id. at 40. Bonds responded that he did not remember saying 

that. Id. We note the Commonwealth never sought admission of this 

statement as substantive evidence. See Pa.R.E. 803.1(1) (permitting, 

under certain circumstances, the admission of a witness’s prior inconsistent 

statement as substantive evidence as an exception to the hearsay rule).

The Commonwealth next called Detective Hassel who testified Bonds 

identified Appellant from a photo array. N.T., 10/7/12, at 46-47. On crossexamination, Detective Hassel testified that the investigation never 

recovered a gun nor was any evidence against Appellant recovered through 

a search of Appellant’s residence. Id. at 47-48. 

After reviewing the entire record, and viewing all evidence actually 

received in the light most favorable to the Commonwealth, we conclude that 

insufficient evidence was produced at trial to find Appellant possessed a 
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firearm beyond a reasonable doubt. During his direct and crossexaminations, Bonds testified that he merely heard shots fired, but he never 

saw Appellant with a gun. We recognize that Bonds provided different and 

more detailed information in his prior written statement. However, Bonds 

did not endorse that version of events when confronted with the statement 

during his trial testimony and, as noted, the Commonwealth never sought 

the admission of the statement as substantive evidence. 

Thus, the trial testimony Bonds provided, establishes there was an 

argument involving Appellant’s brother, a crowd of approximately six people 

were in the immediate area, and a woman began shooting. Bonds identified 

Appellant as arriving at the scene about the same time as himself. Bonds 

related that the woman produced a gun and started shooting. He heard 

other shots and saw smoke but never saw Appellant with a gun. The 

Commonwealth produced no other evidence of Appellant’s alleged 

possession of a firearm. 

Such evidence compels us to conclude that no probability of fact can 

be drawn in favor of meeting the element of possession. See Watley, 

supra at 113. Moreover, to find Appellant possessed a firearm based on the 

testimony of Bonds that he saw smoke coming from Appellant’s hands, but 

never saw Appellant pull or shoot a gun would require the factfinder to 

engage in conjecture and merely surmise possession, which is insufficient to 

support a finding of guilt. See Karkaria, supra at 1170. While 
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circumstantial evidence may be sufficient to prove the element of 

possession, the evidence adduced against Appellant arguably supporting an 

inference of possession of a firearm is not the only reasonable interpretation 

to which the evidence is susceptible. Therefore, guilt has not been proved. 

See Barker, supra at 855. 

Based on the foregoing, we conclude the Commonwealth set forth 

insufficient evidence to prove Appellant guilty of possession of firearms 

prohibited, firearms not to be carried without license, and carrying firearms 

public in Philadelphia beyond a reasonable doubt. See Morales, supra at 

86. Accordingly, the trial court’s December 4, 2013 judgment of sentence is 

reversed and we order Appellant discharged. 

Judgment of sentence reversed. Appellant discharged. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014