J-A15020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM GARY

Appellant No. 1576 EDA 2014

Appeal from the Judgment of Sentence April 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005530-2013

BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JUNE 29, 2015

Appellant, William Gary, appeals from the April 15, 2014 aggregate 

judgment of sentence of six-and-one-half to 13 years imprisonment, plus 

five years’ probation, imposed after he was found guilty of one count each of 

robbery, possession of firearms prohibited, firearms not to be carried 

without a license, theft by unlawful taking, receiving stolen property, 

carrying firearms in public in Philadelphia, possession of an instrument of a 

crime (PIC), terroristic threats, and simple assault.1 After careful review, we 

vacate and remand for resentencing.

The trial court summarized the relevant facts of this case as follows.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6105(a)(1), 6106(a)(1), 3921(a), 3925(a), 

6108, 907(a), 2706(a)(1), and 2701(a), respectively.
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The complaining witness, Steven Parker, 

testified that on October 31, 2012, he was robbed at 

gunpoint by [Appellant]. Mr. Parker stated that on 

that day, at about nine o’clock in the morning, he 

was at E&H Pawn Shop “to pay for his old lady’s 

ring.” Before going to the pawn shop, he stopped by 

the cash-checking [sic] place on Broad and Girard

and got his check cashed. When he got to the pawn 

shop, he had over [$600.00] from the cashed check 

in his pocket.

Mr. Parker testified that altogether, he spent 

about two hours at the pawn shop where he “paid 

down” on the ring. He stated that he gave

[$100.00] to “J,” the owner of the shop. He 

indicated that [Appellant], too, was at the pawn 

shop, and that [Appellant] observed Mr. Parker pay 

on the ring. Mr. Parker positively identified 

[Appellant] in the courtroom as the person he had 

seen in the pawn shop.

Mr. Parker stated that at the time he left the 

pawn shop, [Appellant] was already gone. When Mr. 

Parker left the shop and started walking up 27th

Street, [Appellant] walked right behind him, put a 

gun to his head, and demanded his money. Mr. 

Parker testified that [Appellant] threatened to “blow 

[Mr. Parker’s] head off” if he did not give him the 

money. Mr. Parker said that he cried for help but 

that there was no one around to help him. 

[Appellant] grabbed all of Mr. Parker’s money and his 

ID out of his pocket.

Mr. Parker gave a description of [Appellant]’s 

gun. He stated that it was black in color and looked 

like an “average police gun.”

Mr. Parker said that [Appellant] then fled on 

foot. He followed [Appellant]. [Appellant], 

meanwhile, ran down the block and then ran inside 

someone’s house.

Mr. Parker was at the corner of 27th and 

Cambria when he called [the] police. He stated that 
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it took the police just a minute to arrive. Mr. Parker 

said that the police officer suggested that he go to 

the corner, sit right there, and wait. The police then 

proceeded to the house which Mr. Parker had pointed

out. Shortly thereafter, they brought [Appellant] out 

of the house. Mr. Parker saw that the police 

recovered his ID from [Appellant]’s pants pocket. 

Also in the [Appellant]’s pocket was a paper showing 

how much money [Mr. Parker] paid every month for 

his wife’s ring.

Trial Court Opinion, 9/11/14 at 3-4 (internal citations omitted).

On May 8, 2013, the Commonwealth filed an information, charging 

Appellant with the above-mentioned offenses, as well as one count of 

aggravated assault and recklessly endangering another person (REAP).2 

Appellant proceeded to a bench trial, at the conclusion of which on 

December 30, 2013, the trial court found Appellant guilty of one count each 

of robbery, possession of firearms prohibited, firearms not to be carried 

without a license, theft by unlawful taking, receiving stolen property, 

carrying firearms in public in Philadelphia, PIC, terroristic threats, and simple 

assault. The aggravated assault and REAP charges were nolle prossed. On 

April 15, 2014, the trial court imposed an aggregate sentence of six-andone-half to 13 years imprisonment, plus five years’ probation.3

 On April 23, 

____________________________________________

2 18 Pa.C.S.A. §§ 2702(a) and 2705, respectively.

3 Specifically, the trial court sentenced Appellant to six-and-one-half to 13 

years’ imprisonment for robbery, along with a concurrent five to ten year 

prison sentence for possession of a firearm prohibited, and a consecutive 

five-year probationary term for PIC. The trial court imposed no further 

(Footnote Continued Next Page)
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2014, Appellant filed a timely post-sentence motion, which the trial court 

denied on April 28, 2014. On May 27, 2014, Appellant filed a timely notice 

of appeal.4 

On appeal, Appellant raises two issues for our review.

1. Was not the evidence insufficient to convict 

[A]ppellant under sections 6106 and 6108 of 

the Uniform Firearms Act where the 

Commonwealth failed to prove an essential 

element of both offenses, namely, the required 

barrel length or overall length of the alleged 

firearm?

2. Must not [A]ppellant’s sentence be vacated 

where it was imposed pursuant to a mandatory 

minimum sentencing statute, 42 Pa.C.S. 

§ 9712 [Sentences for offenses committed with 

firearms], that has been held unconstitutional, 

non-severable, and therefore entirely 

unenforceable by this Court in 

Commonwealth v. Newman, 99 A.3d 86 

(Pa. Super. 2014) (en banc)?

Appellant’s Brief at 3.

Appellant’s first issue challenges the sufficiency of the 

Commonwealth’s evidence for two of his firearms convictions. We begin by 

(Footnote Continued) _______________________

penalty on the remaining charges. In addition, as we discuss infra, the trial 

court relied in part on the mandatory minimum sentence provision at Section 

9712 of the Sentencing Code, even though the parties agree the standard 

range of the guidelines was higher than the mandatory minimum provision. 

See generally Trial Court Opinion, 9/11/14 at 3-4 (internal citations 

omitted).

4 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925(b).
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noting our well-settled standard of review. “In reviewing the sufficiency of 

the evidence, we consider whether the evidence presented at trial, and all 

reasonable inferences drawn therefrom, viewed in a light most favorable to 

the Commonwealth as the verdict winner, support the jury’s verdict beyond 

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 

2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S. 

Ct. 1400 (2015). “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.

(internal quotation marks and citation omitted). “[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.” Id. (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), cert. denied, 

Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
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Instantly, Appellant challenges the sufficiency of the evidence for his 

convictions for firearms not to be carried without a license, and carrying 

firearms in public in Philadelphia. Appellant’s Brief at 8. The governing 

statutes for these offenses provide, in relevant part, as follows.

§ 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. 

...

§ 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).

18 Pa.C.S.A. §§ 6106(a)(1), 6108. Furthermore, the Crimes Code defines 

“firearm” in the following manner.

§ 6102. Definitions

Subject to additional definitions contained in 

subsequent provisions of this subchapter which are 
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applicable to specific provisions of this subchapter, 

the following words and phrases, when used in this 

subchapter shall have, unless the context clearly 

indicates otherwise, the meanings given to them in 

this section:

...

“Firearm.” Any pistol or revolver with a barrel 

length less than 15 inches, any shotgun with a barrel 

length less than 18 inches or any rifle with a barrel 

length less than 16 inches, or any pistol, revolver, 

rifle or shotgun with an overall length of less than 26 

inches. The barrel length of a firearm shall be 

determined by measuring from the muzzle of the 

barrel to the face of the closed action, bolt or 

cylinder, whichever is applicable.

...

Id. § 6102.

The parties agree, and our review of the record confirms, that the only 

evidence admitted to show the barrel length of the weapon used in this case, 

was from the Parker’s testimony, as no actual weapon was ever recovered 

by the police. On direct examination, Parker testified as follows.

Q: Why did you say help?

A: I was robbed.

Q: Who was robbing you?

A: [Appellant] robbed me. He had a gun to my 

head, if you don’t give me the money, I’ll blow your 

head off.

Q: Did you give him money?

A: No. He went into my pocket. I saw the gun. 

What would you do? When I --
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Q: What did it look like?

A: An average police gun.

Q: What color was it?

A: It was black.

Q: Do you know whether it was a revolver, a 

semiautomatic?

A: Miss, I don’t know what kind of gun it was. It 

looked like a police gun.

Q: The kind the police carry on their hip?

A: Yes.

N.T., 12/30/13, at 25-26.

The Commonwealth relies on our decision in Commonwealth v. 

Rozplochi, 561 A.2d 25 (Pa. Super. 1989), appeal denied, 571 A.2d 381 

(Pa. 1989). In Rozplochi, we discussed Section 6102’s definition of a 

firearm and the proof of barrel length as follows.

Appellant next argues that counsel was 

ineffective for failing to contest the sufficiency of the 

evidence of the crime of former convict not to own 

firearm. Section 6105 of the Crimes Code provides, 

“No person who has been convicted in this 

Commonwealth or elsewhere of a crime of violence 

shall own a firearm, or have one in his possession or 

under his control.” Section 6102 of the Crimes Code 

defines “firearm” as “[a]ny pistol or revolver with a 

barrel less than 12 inches, any shotgun with a barrel 

less than 24 inches, or any rifle with a barrel less 

than 15 inches.” The barrel length specified by 

section 6102 is an essential element of the offense 

proscribed by section 6105. Commonwealth v. 

Todd, 384 A.2d 1215 (Pa. 1978). Appellant 
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contends that the judge that convicted him could not 

have found that this element had been established 

beyond a reasonable doubt. We do not agree.

...

At the robbery trial, Ms. Cavaliere 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 Ms. Cavaliere’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 Ms. DeJesse testify at the robbery 

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

(emphasis added).

In Commonwealth v. Jennings, 427 A.2d 

231 (Pa. Super. 1981), we found that counsel was 

not ineffective for failing to seek an arrest of 

judgment following a conviction under section 6105 

where the jury observed the gun in question and was 

properly instructed as to the statutory gun barrel 

length requirement. Under such circumstances, we 

presumed that the defendant’s weapon had a barrel 

length of under 12 inches in the absence of any 

evidence to the contrary. Therefore, we reasoned 

that a challenge by counsel based upon barrel length 

would not have had arguable merit. This reasoning 

applies with equal force to the case sub judice. 

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 
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that the gun was not a firearm. We find that this 

sufficiency claim is without arguable merit and that 

the trial counsel was not ineffective for failing to 

argue this issue.

Id. at 31-32.5

As noted above, in Rozplochi, the evidence was sufficient because the 

witness was able to use an envelope for the specific purpose of explaining 

the dimensions of the gun, which the factfinder was able to see, perhaps 

even measure. Although Parker did not use an envelope or other object to 

explain the approximate dimensions, in our view, his elaboration that it was 

similar to guns that police officers typically carry on their hip was sufficient 

for the trial court, as the factfinder to make a reasonable inference regarding 

its barrel length. Based on these considerations, we conclude the 

Commonwealth provided sufficient evidence to prove beyond a reasonable 

doubt that the barrel length of the gun was less than 15 inches.

In Appellant’s second issue, he avers that that trial court erred in 

applying the mandatory minimum provision at Section 9712 of the 

Sentencing Code. Appellant’s Brief at 11-12. Section 9712 reads as follows.

§ 9712. Sentences for offenses committed with 

firearms

(a) Mandatory sentence.--Except as provided 

under section 9716 (relating to two or more 

____________________________________________

5 We note that Section 6105 has since been amended to include its own 

special definition of “firearm.” We only discuss Rozplochi for the purposes 

of the definition of “firearm” in the context of Section 6102.
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mandatory minimum sentences applicable), any 

person who is convicted in any court of this 

Commonwealth of a crime of violence as defined in 

section 9714(g) (relating to sentences for second 

and subsequent offenses), shall, if the person visibly 

possessed a firearm or a replica of a firearm, 

whether or not the firearm or replica was loaded or 

functional, that placed the victim in reasonable fear 

of death or serious bodily injury, during the 

commission of the offense, be sentenced to a 

minimum sentence of at least five years of total 

confinement notwithstanding any other provision of 

this title or other statute to the contrary. Such 

persons shall not be eligible for parole, probation, 

work release or furlough.

(b) Proof at sentencing.--Provisions of this section 

shall not be an element of the crime and notice 

thereof to the defendant shall not be required prior 

to conviction, but reasonable notice of the 

Commonwealth’s intention to proceed under this 

section shall be provided after conviction and before 

sentencing. The applicability of this section shall be 

determined at sentencing. The court shall consider 

any evidence presented at trial and shall afford the 

Commonwealth and the defendant an opportunity to 

present any necessary additional evidence and shall 

determine, by a preponderance of the evidence, if 

this section is applicable.

...

42 Pa.C.S.A. § 9712. Appellant relies heavily on this Court’s decision in 

Newman. A previous panel of this Court summarized Newman’s analysis 

and conclusion as follows.

The Newman Court first concluded that the 

defendant’s sentence was illegal in light of Alleyne 

[v. United States, 133 S. Ct. 2151 (2013)] and 

required this Court to vacate and remand for 

resentencing. Id. at 98. However, this Court noted 

that Alleyne issues are subject to harmless error 
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analysis, but nevertheless concluded that the 

Alleyne issue in Newman was not harmless. Id. at 

98-100. ... Finally, this Court rejected the 

Commonwealth’s argument that, if the error was not 

harmless, the appropriate remedy would be to 

remand to the trial court to empanel a second 

sentencing jury. Specifically, in rejecting this 

argument, the Newman Court concluded that 

Section 9712.1 in its entirety must be struck down 

as unconstitutional in light of Alleyne, concluding 

that its subsections were not severable. ... Id. at 

102.

Commonwealth v. Cardwell, 105 A.3d 748, 752-753 (Pa. Super. 2014) 

(footnotes omitted). Subsequent to Newman, the statute at issue here, 

Section 9712, was also declared unconstitutional on its face by this Court. 

Commonwealth v. Valentine, 101 A.3d 801, 811 (Pa. Super. 2014). 

Recently, our Supreme Court agreed with Newman and Valentine’s 

conclusions. See Commonwealth v. Hopkins, --- A.3d ---, 2015 WL ------

- (Pa. 2015) (slip op. at 2, 19, 22, 23) (concluding that 18 Pa.C.S.A. § 6317 

is facially unconstitutional because its various subsections could not be 

severed from each other under 1 Pa.C.S.A. § 1925). As a result, there is no 

set of circumstances in which the statute can be constitutionally applied.6 

See generally United States v. Salerno, 481 U.S. 739, 745 (1987); 

____________________________________________

6 Although Appellant was convicted at a bench trial, this Court has recently 

pointed out that “under the Due Process Clause, [a defendant is] still entitled 

to have the extra element of the aggravated offense found by the factfinder 

beyond a reasonable doubt pursuant to Alleyne and In re Winship, 397 

U.S. 358 (1970).” Commonwealth v. Fennell, 105 A.3d 13, 17 (Pa. 

Super. 2014), citing Alleyne, supra at 2156.
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accord Commonwealth v. McKown, 79 A.3d 678, 687 (Pa. Super. 2013), 

appeal denied, 91 A.3d 162 (Pa. 2014).

The trial court acknowledges that Section 9712 was applied to 

Appellant. Trial Court Opinion, 9/11/14, at 17-22. However, the 

Commonwealth argues that the statute was not applied to Appellant. 

Commonwealth’s Brief at 7. This assertion is belied by the record. At 

sentencing, the Commonwealth told the trial court that a mandatory 

minimum sentence was before it for its consideration, specifically a 

mandatory minimum of five to ten years’ imprisonment. N.T., 4/15/14, at 8. 

The trial court even asked defense counsel if the mandatory minimum 

applied in this case. Id. at 6. 

We acknowledge that the standard range of the sentencing guidelines 

was higher than the five-year mandatory minimum. Id. at 3. Although 

Newman correctly stated that Alleyne errors are subject to harmless error 

analysis, this Court has not opined as to whether Newman errors can be 

harmless as well. 

Even if we were to hold that a Newman error is subject to harmless 

error analysis, we would conclude that it was not harmless in this case. 

Here, the trial court repeatedly acknowledges that the mandatory minimum 

played some role in its sentencing determination. Trial Court Opinion, 

9/11/14, at 17-22. The Commonwealth recommended seven to 14 years’ 

imprisonment to cover all charges. N.T., 4/15/14, at 8. However, the trial 
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court noted that it was generally inclined to sentence Appellant lower than 

that, because Appellant had waived his right to a jury trial. Id. at 11. 

Nevertheless, the trial court imposed a sentence of six and one-half years’ 

imprisonment. Further, the trial court has not clearly stated what weight 

was given to the Section 9712 fact, or what sentence it would have imposed 

in the absence of the mandatory minimum. For these reasons, we cannot 

conclude that the Newman error in this case was harmless beyond a 

reasonable doubt. See generally Commonwealth v. Green, 76 A.3d 575, 

582 (Pa. Super. 2013) (stating, “an error is harmless only if we are 

convinced beyond a reasonable doubt that there is no reasonable possibility 

that the error could have contributed to the verdict ... [and t]he 

Commonwealth bears the burden of establishing the harmlessness of the 

error[]”), appeal denied, 87 A.3d 318 (Pa. 2014).

Based on the foregoing, we conclude the Commonwealth presented 

sufficient evidence for firearms not to be carried without a license and 

carrying firearms in public in Philadelphia. However, we further conclude the 

trial court imposed an illegal sentence when it applied Section 9712 to 

Appellant. Accordingly, the trial court’s April 15, 2014 judgment of sentence 

is vacated, and the case is remanded for resentencing, without consideration 

of the mandatory minimum provision, consistent with this memorandum.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2015