J-S30013-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JOSEPH SIMMONS

Appellant No. 2132 EDA 2021

Appeal from the Judgment of Sentence Entered June 21, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0001195-2019

BEFORE: STABILE, J., MCCAFFERY, J. and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED OCTOBER 12, 2022

Appellant, Joseph Simmons, appeals from his aggregate judgment of 

sentence of six to twelve years’ imprisonment for aggravated assault, firearms 

not to be carried without a license, carrying firearms on public streets or public 

property in Philadelphia, possessing instruments of crime, simple assault, 

recklessly endangering another person, and persons not to possess, use, 

manufacture, control, sell or transfer firearms.1 Appellant contends that the 

evidence was insufficient to sustain his convictions for carrying firearms 

without a license and carrying firearms on public streets in Philadelphia. He 

also claims the trial court abused its discretion by denying his claim that the 

verdict was against the weight of the evidence. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702, 6106, 6108, and 907, 2701, 2705, and 6105, 

respectively.
J-S30013-22

- 2 -

The evidence adduced during Appellant’s non-jury trial demonstrates 

that on July 16, 2018, the victim, Ronald McCutchen, spent his evening on the 

porch of 1857 East Tioga Street in Philadelphia, Pennsylvania. McCutchen was 

accompanied by several adults and children, including his friend Charlmane 

Tripline, Tripline’s juvenile daughter, N.T., and Appellant, who had been dating 

McCutchen’s sister, Christina Willis. 

Appellant and Willis were not on good terms because Appellant had 

recently cheated on her. Willis responded by taking Appellant’s car keys. On 

July 16, 2018, Willis was supposed to meet Appellant at 1857 East Tioga Street 

to return the keys. McCutchen sold marijuana from the porch while Appellant

waited for Willis to arrive. 

At approximately 8:15 p.m., with multiple witnesses including Tripline 

and N.T. present on the porch, Appellant and McCutchen argued about money. 

Appellant shot McCutchen twice in the abdomen and left.

Later that evening, Tripline gave a police statement implicating 

Appellant in the shooting. The statement was admitted as evidence, and the 

Commonwealth read it into the record. At the end of the interview, she signed 

a photograph positively identifying Appellant. She averred in her statement 

that she knew Appellant because he was Willis’ ex-boyfriend. She saw 

Appellant at three or four parties and cookouts prior to the shooting, and he 

was with Willis at each event. She stated that Appellant went into the house 

right before the incident and came back outside with a gun. Appellant told 

the victim not to move, stated he was not playing, and instructed him to tell 
J-S30013-22

- 3 -

his sister to give Appellant his money. The victim asked what he was talking 

about, and Appellant shot him twice. Tripline described the gun as a “black 

nine automatic.” N.T., 3/5/21, at 84. According to her statement, after the 

second shot, Appellant chased the victim down the street and fired two more 

shots. 

Tripline also identified Appellant at trial as the shooter. She was initially 

uncertain because his face at trial was obscured by a Covid face mask. When 

Appellant removed his mask, Tripline identified him by nodding in his direction 

and stating, “He is sitting right there.” Id. at 67–68.

Tripline’s daughter, N.T., testified and gave a consistent version of

events to that of her mother. She was eight years old at the time of the 

incident and eleven at the time of trial. The defense stipulated to her 

competence. While N.T. was unable to identify Appellant in open court, she

remembered a detective showing her a photo array shortly after the shooting.

A detective showed her multiple photographs and she selected the third 

photograph as the shooter. The detective said N.T. appeared very 

understanding about the photo array process. He confirmed that N.T. 

immediately selected and signed the third image. Detective Miles, who 

prepared the photo array, confirmed that the image was Appellant. N.T. did 

not have any conversations with her mother about the incident on the porch 

prior to making the identification. 

When police officers arrived at the shooting scene, the victim 

approached them with two visible gunshot wounds in his stomach. He was 
J-S30013-22

- 4 -

transported to Temple University Hospital and treated. Other officers arrived

and located two 9-millimeter Luger fired cartridge casings on the porch of 

1857 East Tioga Street.

The victim, who had not been cooperative with police in the aftermath 

of the shooting, testified as a defense witness. He claimed he did not know 

who shot him because he could not see his assailant. He confirmed there 

were other people on the porch at the time. He asserted he did not learn 

about Appellant being accused until he received a subpoena one week before 

trial. 

The parties stipulated that Appellant did not have a valid license to carry 

a firearm. There was also a stipulation that Appellant was ineligible to carry 

a firearm under 18 Pa.C.S.A. § 6105 based on a previous conviction in Virginia. 

The parties also stipulated that Appellant’s mother would testify to his 

character for peacefulness and that Tripline had a prior conviction for crimen 

falsi. 

On March 9, 2021, the court found Appellant guilty of all charges other 

than attempted murder and deferred sentencing until June 21, 2021. On June 

15, 2021, Appellant filed a motion challenging the verdicts as being against 

the weight of the evidence. On June 21, 2021, the court denied the motion 

and imposed sentence. 

Appellant filed post-sentence motions challenging the weight of the 

evidence, which the court denied. Appellant filed a timely appeal, and both 

Appellant and the court complied with Pa.R.A.P. 1925. 
J-S30013-22

- 5 -

Appellant raises two issues in this appeal:

Is the evidence sufficient, as a matter of law, to convict 

[Appellant] of the crimes of possessing a firearm without a license 

and carrying a firearm in Philadelphia as set forth in 18 Pa.C.S.A. 

§§ 6106 and 6108 of the Crimes Code where the evidence of 

record does not establish that the item allegedly used by 

[Appellant] had a barrel length or overall length which satisfied 

the definition of firearm as that term is defined in 18 Pa.C.S.A. 

§ 6102?

Is the verdict of guilty against the weight of the evidence and so 

contrary to the evidence that it shocks one’s sense of justice under 

the circumstances of this case?

Appellant’s Brief at 7.

Appellant first challenges the sufficiency of the evidence underlying his 

convictions for weapons charges under Sections 6106 and 6108 of the Crimes 

Code. “Whether sufficient evidence exists to support the verdict is a question 

of law; our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013).

When 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, were sufficient to prove every element of the offense beyond a 

reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 

2013). “[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Commonwealth v. ColonPlaza, 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of 
J-S30013-22

- 6 -

the fact-finder to determine the weight to be accorded to each witness’s 

testimony and to believe all, part, or none of the evidence. Commonwealth 

v. Tejada, 107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth 

may sustain its burden of proving every element of the crime by means of 

wholly circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 

767 (Pa. Super. 2018). As an appellate court, we may not re-weigh the 

evidence and substitute our judgment for that of the fact-finder. 

Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).

Section 6106 and Section 6108 are part of the Pennsylvania Uniform 

Firearms Act, 18 Pa.C.S.A. §§ 6101-6128. Section 6106 makes it a crime for 

“any person” to carry “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 ....” 18 Pa.C.S.A. 

§ 6106(a)(1). 

Section 6108 provides:

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).

18 Pa.C.S.A. § 6108.
J-S30013-22

- 7 -

The Uniform Firearms Act defines “firearm” as “[a]ny pistol or revolver 

with a barrel length less than 15 inches ... or any pistol, revolver, rifle or 

shotgun with an overall length of less than 26 inches.” 18 Pa.C.S.A. § 6102. 

The Commonwealth may prove the length of the barrel with circumstantial 

evidence. Commonwealth v. Jennings, 427 A.2d 231, 235 (Pa. Super. 

1981) (length of weapon can be determined from what an object “looks like, 

feels like, sounds like or is like”). For example, in Commonwealth v. 

Rozplochi, 561 A.2d 25 (Pa. Super. 1989), during a bench trial,

[one eyewitness] testified that appellant initially concealed the 

weapon inside a manila envelope. She described the envelope as 

“about this high” and “not too wide”. Although the record before 

us does not reveal the length of the envelope, the judge would 

have been able to estimate this length by observing [the 

eyewitness’s] hand motions when she described the envelope as 

“about this high”. The judge could then have concluded that the 

length of the gun barrel was less than the length of the envelope. 

In addition, the judge also heard [a second eyewitness] testify at 

the robbery trial that appellant’s weapon was a “small black gun”

...

Id. at 31. We reasoned that the evidence satisfied the Uniform Firearms Act’s 

definition of barrel length:

Although the finder of fact did not observe the gun itself, the finder 

of fact observed a witness who indicated the dimensions of the 

envelope in which the gun was contained. The finder of fact was 

a judge and as such is presumed to know the law. See 

Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa. Super. 

1989). Moreover, none of the evidence of record indicates that 

the gun had an exceptionally long barrel length and appellant has 

never offered to come forward with any evidence which would 

show that the gun was not a firearm.

Id. at 31-32.
J-S30013-22

- 8 -

Here, as in Rozplochi, the Commonwealth introduced sufficient 

circumstantial evidence of barrel length. N.T. testified that she saw the gun 

during the shooting, and she described it as “small and black.” N.T. 3/5/21, 

at 117. She also testified she saw the shooter pull the gun from his waistband 

before shooting the victim. It is a reasonable inference that a weapon that is 

two feet and two inches in length or greater would be extremely unlikely to 

be concealed in the waistband of one’s pants. This, combined with N.T.’s 

testimony that the gun was “small and black,” entitled the court to infer that 

the gun was shorter than two feet and two inches in length. See 

Commonwealth v. Biggs, 248 A.3d 455, 2021 WL 21767, *5 (Pa. Super. 

2021) (memorandum) (evidence that defendant pulled his gun from waist of 

his pants sufficient for jury to infer that gun possessed had barrel length of 

less than 15 inches).2

Tripline’s testimony also corroborated the gun length. While she initially 

testified that she did not see the gun, N.T. 3/5/21, at 68, the Commonwealth 

introduced her prior statement in which she told detectives that she saw it. 

Id. at 80–87. She confirmed that she saw the gun, a “black nine automatic.” 

Id. at 84. She also told detectives that she looked up after Appellant fired 

the first shot, saw him holding the gun in his hand, and saw him fire a second 

shot. Id. at 81. Her description of the gun as a “black nine automatic” that 

____________________________________________

2 See Pa.R.A.P. 126(b) (unpublished non-precedential memorandum decisions 

of Superior Court filed after May 1, 2019 may be cited for their persuasive 

value).
J-S30013-22

- 9 -

permitted the reasonable inference that she was describing a black nine 

millimeter handgun. Her assertion that Appellant was able to hold and fire 

the gun using one hand rather than two supports the same inference. See 

Commonwealth v. King, 251 A.3d 1266, 2021 WL 1157989, *4 (Pa. Super. 

2021) (evidence was sufficient to prove barrel length where an eyewitness 

testified the defendant was holding the firearm with one hand, seemingly 

waving it around, and a trooper characterized the firearm as a “pistol”). 

Further corroborating her testimony was the physical evidence discovered at 

the scene, two 9-millimeter Luger fired cartridge casings on the porch. Id.

By contrast, there was no evidence tending to suggest that the gun was

exceptionally long. Rozplochi, 561 A.2d at 31-32 (noting that there was no 

evidence indicating gun had an exceptionally long barrel length).

Accordingly, Appellant’s challenge to the sufficiency of the evidence 

relating to the barrel length of his firearm fails.

In his second argument, Appellant contends that the trial court abused 

its discretion by find that the weight of the evidence supports his convictions. 

We hold that this ruling was a proper exercise of the court’s discretion.

“To grant a new trial on the basis that the verdict is against the weight 

of the evidence, ... the evidence must be so tenuous, vague and uncertain 

that the verdict shocks the conscience of the court.” Commonwealth v. 

Childs, 63 A.3d 323, 327 (Pa. Super. 2013). “On review, an appellate court 

does not substitute its judgment for the finder of fact and consider the 

underlying question of whether the verdict is against the weight of the 
J-S30013-22

- 10 -

evidence, but, rather, determines only whether the trial court abused its

discretion in making its determination.” Commonwealth v. Lyons, 79 A.3d 

1053, 1067 (Pa. Super. 2013). A new trial should not be granted based on a 

“mere conflict” in the testimony, or because a different judge faced with the 

same facts would have arrived at a different conclusion. Commonwealth v. 

Widmer, 744 A.2d 745, 752 (Pa. 2000). 

Appellant claims that the verdict is shocking because Tripline merely 

“guessed” during trial that he was the shooter. Appellant’s Brief at 35. 

Appellant mischaracterizes Tripline’s testimony. Trial took place during the 

COVID-19 pandemic, and Appellant was wearing a face mask. When Tripline 

was asked whether she saw the shooter in court, she initially said, “I guess 

that is him. I can’t really tell because I can’t see his face.” N.T. 3/5/21, 67. 

The court asked Appellant to lower his mask, at which point Tripline readily 

identified him, “He is sitting right there.” Id. Her in-court identification was 

corroborated by her pre-trial statement in which she identified Appellant as 

the shooter. She stated during the interview that she knew Appellant from 

his relationship with the victim’s sister, Willis. Id. at 83. At the end of her 

interview, she signed a single photo positively identifying Appellant as the 

assailant. Id. at 87. The trial court, as finder of fact, was free to weigh “both 

[her] statement to police as well as [her] testimony at trial . . . and free to 

believe all, part, or none of the evidence presented.” Commonwealth v. 

Hanible, 836 A.2d 36, 39 (Pa. 2003). We cannot second-guess the court’s 

decision to credit this evidence. 
J-S30013-22

- 11 -

Appellant also claims that Tripline’s memory was “fuzzy” because she 

was drinking on the day of the incident. Appellant’s Brief at 37. Once again, 

Appellant misconstrues Tripline’s testimony. Tripline testified that she was 

not drinking enough to blur her memory. N.T. 3/5/21, at 102–03. Detective 

Bender noted that she did not appear to be intoxicated or inebriated at all 

when he interviewed her later that night. Id. at 129–132. Tripline testified 

that the details of the incident were fresher in her mind when it occurred in 

2018 than when she testified in March of 2021. Id. at 103–04. She also 

acknowledged that she did not want to be present in court on March 5, 2021. 

Id. at 64. Indeed, at one point when she claimed an inability to remember, 

defense counsel questioned her competence. Id. at 76–77. The trial court 

responded, “She is competent. You can cross-examine her. Let’s not use 

excuses when people don’t want to testify. She has been very clear about 

what she saw and what she didn’t see so far.” Id. at 77. It was within the 

court’s discretion to balance all of this evidence and credit the evidence 

pointing to Appellant as the shooter.

Appellant’s weight argument also suffers from the fact that Tripline’s 

daughter, N.T., corroborated Tripline’s identification of Appellant as the 

shooter. Prior to trial, N.T., then eight years old, identified Appellant as the 

shooter. N.T. 3/5/21, at 70, 109. Although N.T. was unable to identify 

Appellant at trial, she remembered a detective showing her a photo array on 

the evening of the shooting. Id. at 116, 121–22. She selected the third 

photograph as the shooter. Id. at 121–22. Importantly, N.T. confirmed she 
J-S30013-22

- 12 -

did not discuss the incident with her mother prior to making the identification. 

The detective who sat with N.T. during the array confirmed she selected the 

third photograph and noted she appeared very understanding about the photo 

array process. Id. at 25, 26. The detective who prepared the array confirmed 

the third photograph was Appellant.

3

 Id. at 139. Once again, the court had 

the discretion to accept N.T.’s pretrial identification as evidence of Appellant’s 

guilt.

Appellant refers us to Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 

1954), in which our Supreme Court held that 

where the witness is not in a position to clearly observe the 

assailant, or he is not positive as to identity, or his positive 

statements as to identity are weakened by qualification or by 

failure to identify defendant on one or more prior occasions, the 

accuracy of the identification is so doubtful that the Court should 

warn the jury that the testimony as to identity must be received 

with caution.

Appellant’s Brief at 36-37 (citing Kloiber, 106 A.2d at 826-27). To begin,

Kloiber is not applicable. Kloiber defines the circumstances in which the 

court must instruct the jury to view a witness’s identification with caution. In 

this case, trial was non-jury, so Kloiber is not applicable. Nonetheless, 

Appellant attempts to bolster his reliance on Kloiber by arguing that the 

____________________________________________

3 While Appellant claims in his brief that N.T. was not competent to testify 

during trial, Appellant stipulated to her competency during trial. Id. at 113. 

The only person who objected to N.T.’s competency was her mother, Tripline, 

who strenuously argued that N.T. was incompetent due to her concern of 

retaliation by Appellant. Id. at 111 (Tripline’s statement to court that “you 

don’t know what he[’s] capable of”). 
J-S30013-22

- 13 -

verdict was against the weight of the evidence because the witnesses were 

“not positive as to [Appellant’s] identity.” Id. at 827. As discussed above, 

however, the weight of the evidence demonstrates that (1) Tripline was 

positive about Appellant’s identity, (2) N.T. was positive when police 

detectives interviewed her on the night of the incident, and (3) both Tripline 

and N.T. were in a position to clearly observe Appellant shoot McCutchen. 

Next, Appellant argues that Tripline’s and N.T.’s identifications were 

undermined by the victim, McCutchen, who testified as a defense witness. 

Appellant’s Brief at 39. McCutchen testified that Appellant was not his 

assailant, but he admitted he did not know who shot him. N.T. 3/8/21, at 55. 

The trial court was of course not obligated to credit McCutchen’s version of 

events over other witnesses. At most, this created a “mere conflict” in the 

testimony, Widmer, 744 A.2d at 752, which the court had the authority to 

resolve.

Appellant argues the trial should have ascribed greater weight to both 

Tripline’s crimen falsi convictions and Appellant’s proffered reputation

evidence from his mother. The mere existence of crimen falsi evidence did 

not require the court to acquit Appellant. Commonwealth v. Murphy, 134 

A.3d 1034, 1039–40 (Pa. 2016) (rejecting challenge to weight of the evidence 

where jury was made aware of Commonwealth witness’s contact with criminal

justice system, including crimen falsi convictions); Commonwealth v.

Dunkins, 229 A.3d 622, 634 (Pa. Super. 2020) (weight claim meritless where 
J-S30013-22

- 14 -

prosecution witness had crimen falsi conviction because it was exclusively 

within jury’s province as fact-finder to assess credibility of prosecution 

witnesses and weigh evidence at trial). Similarly, it was within the trial court’s 

province to weigh Appellant’s proffered reputation evidence as it saw fit. 

Commonwealth v. Price, 616 A.2d 681, 685 (Pa. Super. 1992).

Finally, Appellant argues that there was no physical, forensic, or video 

evidence inculpating him. Appellant’s Brief at 40. Such evidence, however, 

is not necessary to convict. The trial court found “enough consistencies within 

the testimonies of both [] Tripline and N.T. to find them credible and conclude 

that even in the absence of physical, forensic, or video evidence inculpating 

Appellant, he was the individual who shot McCutchen.” Trial Court Opinion, 

4/12/22, at 19.

For these reasons, Appellant’s challenge to the weight of the evidence 

does not entitle him to relief. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2022