J-S31010-24
2024 PA Super 289
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD E. RATLIFF :
:
Appellant : No. 910 EDA 2023
Appeal from the Judgment of Sentence Entered November 14, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004411-2021
BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.
OPINION BY BOWES, J.: FILED DECEMBER 05, 2024
Edward E. Ratliff appeals from the aggregate judgment of sentence of
seventeen and one-half to thirty-five years of imprisonment for multiple
offenses related to a scheme orchestrated by Appellant, wherein Diarmani
Deveaux purchased eight firearms for Appellant. We affirm.
Commonly referred to as a “straw purchase,” Deveaux, who could
legally purchase firearms in Pennsylvania, purchased eight firearms on behalf
of Appellant, an individual prohibited by law from possessing a firearm. The
trial court detailed the operation, as well as the investigation leading to
Appellant’s arrest, as follows:
During the end of December, 2020, or first week of January, 2021,
Appellant returned home from a vacation with his wife to find a
young man, [Deveaux], living with his step daughter in the
basement of Appellant’s home on Hampton Road in New
Brunswick, New Jersey. In January of 2021, Deveaux was
unemployed. Prior to that time, Deveaux had been living out of
his car because he could not afford to pay rent. As Appellant
discussed the matter of paying rent with Deveaux, he noticed that
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Deveaux was wearing a gun holster and, upon questioning,
learned that Deveaux was licensed in Pennsylvania to carry a
firearm. In fact, Deveaux had purchased a 9[-]millimeter Glock
Model 17 handgun in Chadds Ford, Pennsylvania, in July of 2020.
Appellant purportedly instructed Deveaux not to keep the
firearm in the house because Appellant was concerned his
grandchildren might find it. During this conversation concerning
rent, Appellant also told Deveaux that he was interested in
purchasing some firearms to protect his home because someone
was trying to rob him. Deveaux agreed to facilitate Appellant’s
purchase of firearms to protect his home in exchange for paying
rent and a place to live in the middle of the winter. However, a
subsequent download of Deveaux’s cell phone revealed a Google
search on January 20, 2021, suggesting uneasiness by asking “Is
it illegal to buy a gun for someone else?”.
On January 22, 2021, Appellant, along with his wife, drove
Deveaux to Treeline Sports in Norristown, Pennsylvania, in
Appellant’s black GMC Acadia SUV. After parking in the 7-Eleven
parking lot, Appellant walked with Deveaux into Treeline Sports,
with Appellant leading the way, at approximately 2:18 p.m.
After entering the store, Appellant pointed to the four
firearms that he wanted in the display case, gave Deveaux cash,
and Deveaux paid the store clerk for the firearms with the cash
Appellant had given him. Deveaux also filled out paperwork
required to purchase the firearms and indicated that he was the
actual buyer. Specifically, Deveaux purchased the following
handguns: Taurus Model G3, 9[-]millimeter; Glock Model 44,
.22[-]caliber, and two Sarsilmaz CM, 9[-]millimeter, plus
ammunition for $2,449.60 in cash. The store clerk packed up the
handguns in four separate boxes, placed them into multiple bags
and handed the bags to Appellant, who then carried them out of
the store, followed by an empty-handed Deveaux, at
approximately 2:53 p.m. Deveaux returned to the New Brunswick
home with the Ratliffs, where he stored the four handguns in the
basement until sometime in between February 6 and February 14,
2021.
On February 6, 2021, Appellant again drove Deveaux to
Treeline Sports in Norristown from New Brunswick, New Jersey,
arriving at approximately 3:19 p.m. This time they were
accompanied by Appellant’s stepson, Michael Jennings, who
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Deveaux met for the first time that day. The three men entered
the store, wherein Appellant is seen on surveillance video looking
into the handgun display case, tapping the case. The store clerk
handed Appellant a handgun and magazine, which Appellant then
proceeded to hand to Deveaux. Appellant picked out a total of
four handguns, and Deveaux paid the clerk with the cash given to
him by Appellant. Deveaux again filled out the necessary
paperwork indicating that he was the actual buyer. Specifically
on February 6, 2021, Deveaux purchased the following handguns:
Sarsilmaz Model SAR9BL, 9[-]millimeter; two Zigama Tisas Model
PX9, 9[-]millimeter, and SCCY Model CPXl, 9[-]millimeter, plus
ammunition for $2,175.00 in cash. The store clerk packed up the
handguns in four separate boxes, placed them into two separate
bags. Appellant carried out one of the bags, and Deveaux carried
out the other bag.
Deveaux again returned to the New Brunswick home with
Appellant. This time, however, Appellant convinced him that it
would be better to store the eight handguns in the safe located in
Appellant’s bedroom because of the grandchildren living in the
house. Deveaux agreed and helped Appellant transfer the eight
handguns to the safe in Appellant’s bedroom.
Sometime in between February 6 and February 14, 2021,
Appellant proposed a third trip to purchase firearms, but Deveaux
declined. At that point, Deveaux still believed Appellant wanted
the handguns for the protection of his home and in Deveaux’s
mind, eight firearms were enough for that purpose. After
returning to the house from checking on his car at the repair shop
early on February 14, 2021, Deveaux found himself locked out,
and another of Appellant’s stepdaughters told him through a
window that he was not allowed back in Appellant’s home. As a
result of Deveaux’s refusal to purchase additional firearms,
Appellant barred him from returning into the Ratliff home in New
Brunswick, even to pick up his personal belongings. Later in the
afternoon of February 14, 2021, Deveaux called the police to
report that he was not allowed in the New Brunswick house to get
his personal belongings, including the eight firearms, and Officer
Alexander Uzunis was one of the New Brunswick Police
Department officers who responded. When the officers discovered
Deveaux had a handgun on his waist with a license to carry from
Pennsylvania, they arrested him for gun possession without a
license to carry that was valid in New Jersey.
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Because he was refused access to the eight firearms and the
paperwork that he had stored in Appellant’s New Brunswick home,
on or about February 15, 2021, Deveaux returned to Treeline
Sports to get copies of the paperwork in an effort to assist the
police in tracking the firearms. Kicked out of Appellant’s house,
Deveaux was now back to living in his car. In March of 2021, the
Silver Spring Police Department outside of Mechanicsburg,
Pennsylvania, called Deveaux and asked him to come in to discuss
a possible motor vehicle accident. During the interview with Silver
Spring Police . . . , Deveaux told [them] about the Treeline Sports
firearms purchase and that Deveaux believed the eight firearms
were still in Appellant’s house in New Brunswick, New Jersey.
In February of 2021, Detective David Holtzman of the
Montgomery County Detective Bureau Violent Crimes Unit began
his assignment as the lead investigator into a multi-sale of
firearms to Deveaux. [He was able to obtain from Treeline Sports
surveillance] video from outside of the store from January 22,
2021, as well as outside and inside of the store from February 6,
2021.
Once Detective Holtzman viewed the video and identified
Deveaux, he contacted law enforcement at the Collingdale Police
Department in Delaware County in late February or early March
based on the information Deveaux had provided on the paperwork
to try to identify the other people in the video. A couple of days
later, on or about March 5, 2021, Detective Holtzman received a
call from Officer Bailey of the Silver Spring Police Department after
Officer Bailey had contacted the Collingdale Police Department
regarding Deveaux’s possible car accident case near
Mechanicsburg. Officer Bailey provided Appellant’s name to
Detective Holtzman from the statement he had taken from
Deveaux. Detective Holtzman obtained a photograph of Appellant
and confirmed his identity as a suspect in the straw purchase of
eight firearms within [ten] days of one another. Detective
Holtzman also learned that Deveaux had been arrested outside of
the Ratliff home in New Brunswick, New Jersey, and now had an
address and an incident report containing Deveaux’s explanation.
On April 8, 2021, Detective Ryan Gartland of the Swatara
Township Police Department in Harrisburg received a telephone
call from Detective Holtzman asking for assistance with the
execution of an arrest warrant for Deveaux, who they believed to
be in the area. Detective Gartland and approximately six other
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officers went out to the ping location provided by Detective
Holtzman and located Deveaux living out of his car outside of a
Planet Fitness. Deveaux cooperated and gave consent for the
officers to search his vehicle. Detective Gartland recovered
Deveaux’s black iPhone and Deveaux provided him with the
password, which the detective turned over to Detective Holtzman.
The officers also recovered firearms transaction paperwork, the
gun box for Deveaux’s Glock handgun and 9[-]millimeter
ammunition. Detective Holtzman drove to the Swatara Township
Police Department to interview Deveaux on the same day.
Detective Holtzman recovered Deveaux’s cell phone and
received Deveaux’s consent to download its contents. Evidence
obtained from the download included web searches and text
messages between Deveaux and Appellant.
On April 22, 2021, Trenton Police Department officers
arrested Appellant outside of the high-rise apartment building on
Greenwood Avenue in Trenton where Appellant was renting an
apartment, and recovered two cell phones.
On July 1, 2021, Deveaux signed a proffer letter and agreed
to cooperate with law enforcement. Deveaux pled guilty to
numerous firearms offenses on Friday, August 19, 2022.
On August 5, 2021, Appellant signed a proffer letter and
voluntarily gave a statement in the presence of his attorney to
Detective Holtzman and [Assistant District Attorney (“ADA”)
Samantha] Arena that was audio and video recorded. In his
statement, later played for the jury, Appellant admitted that he
had driven Deveaux to the store to purchase firearms in
Appellant’s GMC Acadia, had given Deveaux the cash to purchase
the handguns, and had helped Deveaux pick them out, but stated
that the firearms were purchased for and at the direction of his
stepson, Michael Jennings. Appellant also provided an address on
East State Street in Trenton from which Mr. Jennings may have
sold some of the handguns and where four of them might still be
located. As Appellant gave his statement, Detective Holtzman
showed Appellant various receipts, purchase paperwork, and
photographs that Appellant acknowledged and signed. There was
no other evidence uncovered, however, to substantiate
Appellant’s accusation that [Mr.] Jennings was involved in the
straw purchases. Only one of the eight handguns has been
recovered thus far. Detective Holtzman testified that the Glock
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Model 44 was recovered in Trenton, New Jersey on September 11,
2021.
Trial Court Opinion, 9/28/23, at 3-12 (citations and parenthetical numbers
omitted).
Based on the foregoing investigation, Appellant was charged with
various firearms offenses. The Commonwealth filed notice of its intent to seek
mandatory sentences upon conviction, and Appellant proceeded to a jury trial
on August 25, 2022.1 The Commonwealth presented testimony from Deveaux
and multiple investigating officers from New Jersey and Pennsylvania to
establish the foregoing. It also played the surveillance footage for the jury. 2
Finally, the Commonwealth presented an expert in the illegal transfer of
firearms.
____________________________________________
1 Eight counts of person not to possess a firearm were bifurcated to be judged
by the trial court. The parties stipulated that Appellant was statutorily
prohibited from possessing a firearm.
2 At trial, the Commonwealth moved into evidence the surveillance footage
from January 22 and February 6, 2021, as Exhibits 7 and 8, respectively. See
N.T. Jury Trial Volume 1, 8/25/22, at 67-68. It compiled the relevant portions
from those two days into a single video, Exhibit 9, which was admitted and
published to the jury. Id. at 68-69. Appellant failed to ensure inclusion of
these exhibits in the trial court record transmitted to this Court. Generally,
“it is not incumbent upon this Court to expend time, effort and manpower
scouting around judicial chambers or the various prothonotaries’ offices of the
courts of common pleas for the purpose of unearthing [documents] that never
were formally introduced and made part of the certified record.” Parr v. Ford
Motor Co., 109 A.3d 682, 695 n.10 (Pa.Super. 2014) (en banc) (cleaned up).
Notwithstanding this general rule, we tasked our Prothonotary with seeking
out the exhibits so that we could consider Appellant’s claims within the context
of the entire body of evidence presented to the jury. However, despite the
diligent efforts of our prothonotary’s office, the exhibits could not be located.
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The expert explained several indicators of a straw purchase present in
the instant case, including that two of the first four firearms purchased were
identical, low-quality “street guns,” which is atypical of what a gun collector
would purchase, and he traveled from New Jersey to Pennsylvania to purchase
them. See N.T. Jury Trial Volume 2, 8/26/22, at 254-55, 263. Notably,
Deveaux historically purchased one firearm but then “all of a sudden he is
buying four at one time and paying cash.” Id. at 255. Then, while the
investigation of the first multi-firearm purchase was underway, Deveaux
purchased four more firearms with cash, again with two of those being the
exact same firearm. Id. After watching the surveillance videos, considering
the circumstances of the purchases, and Deveaux’s internet searches, there
was no doubt in the expert’s opinion that the purchases were straw purchases
by Deveaux for Appellant. Id. at 263, 269-70.
Appellant testified in his defense, claiming that Deveaux had paid him
to drive to Treeline Sports for Deveaux to purchase firearms with his own
money, and that Appellant had lied when he spoke to the police on August 5,
2021, because he was upset with his stepson for stealing rare coins from him.
The jury found Appellant guilty of eight counts each of materially false
written statement and selling firearms to ineligible transferee, 3 and two counts
____________________________________________
3 One count from each batch was graded as a felony of the third degree, while
the remaining seven counts from each grouping were graded as felonies of
the second degree.
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each of criminal conspiracy and dealing in proceeds of unlawful activities. The
court convicted him of all eight counts of person not to possess a firearm.
Following the preparation of a pre-sentence investigation (“PSI”) report,
the trial court sentenced Appellant to an aggregate term of incarceration of
seventeen and one-half to thirty-five years. This sentence was broken down
thusly:
The court imposed the mandatory minimum sentence of five to
ten years [of] imprisonment on count [three], makes any
materially false written statement; a consecutive sentence in the
standard range of five to ten years on count [ten], criminal
conspiracy; a consecutive mandatory minimum sentence of five
to ten years on count [thirty-five], firearms: selling to ineligible
transferee/person, and a consecutive sentence of two and one-half to five years on count [fifty-seven], dealing in proceeds of
unlawful activities[.] The court directed a determination of guilt
without further penalty on the remaining twenty-four convictions.
Trial Court Opinion, 9/28/23, at 2 (parenthetical numbers omitted). Appellant
timely filed a post-sentence motion imploring the court to impose concurrent
terms of incarceration.4 After holding a hearing, the court denied the motion.
This timely appeal followed.5 Appellant complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) statement, and the court submitted a Rule
____________________________________________
4 Prior to that, on November 21, 2022, the Commonwealth filed a motion to
correct the sentencing sheet to reflect the structure outlined above and
imposed in open court. Although the court did not rule on the motion, the
docket reveals that a corrected sentencing sheet was filed of record the same
day, rendering the motion moot.
5 The path leading to the present posture of this case was a bit more
complicated than set forth in the body of this opinion. A brief detour will
suffice to give context. First, Appellant retained the services of Jonathan J.
(Footnote Continued Next Page)
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1925(a) opinion in support of affirmance. Appellant has raised six issues for
our consideration:
I. Did the jury err in determining Appellant was guilty of the
crimes for which he was convicted when such verdict was
against the weight of the evidence when no evidence was
produced at trial that Appellant purchased, transferred,
delivered or sold firearms or that Appellant conspired with
Deveaux?
II. Did the trial court err in admitting Exhibit C-27, dated
August 5, 2021, the proffer letter agreement of Appellant
when said exhibit was irrelevant, inadmissible and not
properly authenticated?
III. Did the trial court err in permitting [ADA Arena] to make
statements and proffer evidence to the jury when those
three pieces of evidence were not presented during the trial,
thus prejudicing the jury, with those three pieces including:
evidence on a screen about Appellant signing a receipt at
the gun store that was never introduced at trial; references
to Google searches done by Deveaux when no evidence was
____________________________________________
Sobel, Esquire, for purposes of this appeal. While represented by Attorney
Sobel, Appellant pro se filed a premature Post Conviction Relief Act petition
alleging ineffective assistance of trial counsel. After complying with Pa.R.A.P.
1925(b), Attorney Sobel sought leave to withdraw as counsel in both this
Court and the trial court because Appellant had not met his financial obligation
and “wishe[d] to proceed in a direction that is repugnant to counsel’s
representation by asserting issues which are impractical and lacking merit.”
Application to Withdraw as Counsel, 10/16/23, at ¶¶ 9-10. The request was
denied by both courts. Thereafter, Attorney Sobel filed a renewed application
to withdraw, which we granted. The trial court then appointed instant counsel,
Bonnie-Ann Brill Keagy, Esquire, who filed the brief under consideration and
remains counsel of record. To cap off this foray, we note that Appellant has
sent this Court multiple pro se letters, all of which have been directed to the
attorney then representing him. See Commonwealth v. Jette, 23 A.3d
1032, 1044 (Pa. 2011) (reaffirming that, with exceptions not relevant here,
“the proper response to any pro se pleading is to refer the pleading to counsel,
and to take no further action on the pro se pleading unless counsel forwards
a motion”).
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presented that Deveaux himself did those searches (only
that they occurred on Deveaux’s phone); and evidence of
an unauthenticated text from Deveaux to Appellant that was
referenced by [the Commonwealth] during [its] closing
argument?
IV. Did the jury err in finding Appellant guilty beyond a
reasonable doubt in light of the insufficient evidence
presented that Appellant purchased and/or transferred any
of the eight firearms at issue since there was no evidence
presented that Appellant made any false written statement
on either a federal or state form, that Appellant and . . .
Deveaux agreed to the purchase and/or transfer of said
firearms or that Deveaux sold and/or transferred said
firearms to Appellant, or that Appellant conducted a
financial transaction that was designed to conceal the true
purchaser of the firearms?
V. Did the trial court impose an illegal sentence upon Appellant
by imposing two consecutive sentences [sic] mandatory
minimum sentences on the charges of “materially false
written statement – purchase, transfer, delivery of a
firearm” under 18 Pa.C.S. § 6111(g)(4)(ii) and upon
“Penalties, Sales to Ineligible Transferees” under 18 Pa.C.S.
§ 6111(g)(2)?
VI. Did the trial court err in imposing a sentence that exceeded
the sentencing guidelines when the court sentenced
Appellant to an aggregate term of incarceration of
[seventeen and one-half] to [thirty-five] years without
articulating individualized reasons for imposing such a
lengthy sentence?
Appellant’s brief at 8-9 (capitalization and citations altered, parenthetical
numbers omitted, issues reordered for ease of disposition).
At the outset, we note counsel’s concession that Appellant’s first three
issues are either waived or frivolous. Id. at 32 (conceding that Appellant’s
weight claim is waived because it was not preserved in accordance with
Pa.R.Crim.P. 607(A)); 50-52 (observing that trial counsel failed to preserve
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an objection to the admission of Exhibit C-27 and that, in any event, any
argument that it was irrelevant or inadmissible is frivolous); 6 52 (explaining
that the objected-to statements from the Commonwealth’s closing argument
concerned evidence that had been admitted at trial and that the
Commonwealth properly argued the evidence in response to Appellant’s
closing).
When an attorney believes that a direct appeal lacks merit, they must
submit a brief and request to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago,
978 A.2d 349 (Pa.
2009). Since Attorney Keagy maintains that some of Appellant’s claims have
merit, she was not bound by the usual Anders procedure. See
Commonwealth v. Morrison,
173 A.3d 286, 291 (Pa.Super. 2017) (noting
that “the Anders procedure applies only to appeals that are wholly
frivolous—that is, cases where counsel has determined that there are no
arguments that counsel may advance because all issues lack basis in law
and/or fact” (emphases in original)). However, that did not authorize her to
include claims she deemed unworthy of review in Appellant’s brief. Indeed,
as we have explained, including such claims contravenes an attorney’s ethical
duties:
It is well settled that an indigent defendant does not have a
constitutional right to compel appointed counsel to press
____________________________________________
6 Despite this assertion, we note that trial counsel’s objection to the admission
of Exhibit C-27 was preserved on the record. See N.T. Jury Trial Volume 2,
8/26/22, at 221.
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nonfrivolous points requested by the client, if counsel, as a matter
of professional judgment, decides not to present those points.
The process of winnowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from being evidence
of incompetence, is the hallmark of effective appellate advocacy.
Indeed, an appellate lawyer’s exercise of professional judgment in
omitting weaker claims is obviously of benefit to the client: the
more claims an appellate brief contains, the more difficult for an
appellate judge to avoid suspecting that there is no merit to any
of them. For judges to second-guess reasonable professional
judgments and impose on appointed counsel a duty to raise every
colorable claim suggested by a client would disserve the very goal
of vigorous and effective advocacy that underlies Anders.
Id. at 292 (cleaned up).
We acknowledge the tenuous position in which criminal defense
attorneys may sometimes find themselves when confronted with a vociferous
client who insists on pursuing frivolous claims in addition to potentially
meritorious ones. In recognition thereof, this Court has outlined what should
happen in the precise situation in which Attorney Keagy found herself:
[W]hen counsel and an appellant disagree on which issues should
be raised and/or briefed on appeal, counsel must only raise and/or
brief the issues that counsel believes, consistent with counsel’s
ethical duty, to be nonfrivolous. If the disagreement arises prior
to counsel’s filing of briefs, the appellant is free to petition for the
withdrawal of counsel in order for the appellant to attempt to
proceed pro se or with privately-retained counsel. If the
disagreement arises after briefs have been filed by appointed
counsel, and the appellant remains convinced of the merit of his
or her proposed issues, the appellant may later challenge the
effectiveness of his or her appellate counsel in a timely-filed
collateral attack pursuant to the PCRA.
Id. at 293.
It is unclear when the disagreement between Appellant and Attorney
Keagy arose. Regardless, Attorney Keagy should only have raised Appellant’s
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last three issues in Appellant’s brief to this Court, based upon her own
assertion that the first three issues were either waived or meritless. Since no
advocacy has been put forth as to issues one, two, and three, we shall not
address them.
We now turn to Appellant’s sufficiency challenge, mindful of the
following legal principles:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa.Super. 2016)
(cleaned up). As with all questions of law, our standard of review is de novo
and our scope of review is plenary.
Id.
Appellant challenges his jury convictions for materially false written
statement, selling firearms to ineligible transferee, criminal conspiracy, and
dealing in proceeds of unlawful activities. See Appellant’s brief at 23-24. He
focuses on the lack of evidence that he purchased a firearm, made a false
statement on a firearm form, transferred a firearm, or benefited from the sale
of a firearm. Id. at 23-25.
We begin by setting forth the elements of the challenged crimes. The
pertinent subsection of materially false written statement provides that “[a]ny
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person, purchaser or transferee commits a felony of the third degree if, in
connection with the purchase, delivery or transfer of a firearm under this
chapter, he knowingly and intentionally . . . makes any materially false written
statement, including a statement on any form promulgated by Federal or State
agencies[.]” 18 Pa.C.S. § 6111(g)(4)(ii). The offense of selling firearms to
an ineligible transferee criminalizes the conduct of “[a]ny person . . . who
knowingly or intentionally sells, delivers or transfers a firearm under
circumstances intended to provide a firearm to any person, purchaser or
transferee who is unqualified or ineligible to control, possess or use a firearm
under this chapter[.]” 18 Pa.C.S. § 6111(g)(2). Next:
A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its
commission he . . . agrees with such other person or persons that
they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to commit such
crime[.]
18 Pa.C.S. § 903(a)(1). Finally, as to dealings in proceeds of unlawful
activities, the Crimes Code provides in relevant part:
(a) Offense defined.--A person commits a felony of the first
degree if the person conducts a financial transaction under
any of the following circumstances:
....
(2) With knowledge that the property involved, including
stolen or illegally obtained property, represents the
proceeds of unlawful activity and that the transaction is
designed in whole or in part to conceal or disguise the
nature, location, source, ownership or control of the
proceeds of unlawful activity.
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18 Pa.C.S. § 5111(a)(2).
While most of Appellant’s argument ignores the Commonwealth’s
accomplice liability theory at trial, he acknowledges that in order to be found
guilty of these crimes, the jury had to “believe there was a conspiracy between
Appellant and his co-defendant, Deveaux.” Appellant’s brief at 26. Notably,
he does not explain how the Commonwealth failed to prove Appellant’s
accomplice liability or the conspiracy charges, instead stating baldly that
“mere presence at a crime scene is not sufficient to prove a conspiracy
existed.” Id.
Accomplice liability has been explained as follows:
An actor and his accomplice share equal responsibility for the
criminal act if the accomplice acts with the intent of promoting or
facilitating the commission of an offense and agrees or aids or
attempts to aid such other person in either the planning or the
commission of the offense. There is no minimum amount of
assistance or contribution requirement, for it has long been
established that intent of the parties is a consideration essential
to establishing the crime of aiding and abetting a felony. Thus,
even non-substantial assistance, if rendered with the intent of
promoting or facilitating the crime, is sufficient to establish
complicity. Absence or presence at the scene and the participant’s
role in the complicity are not dispositive of whether accomplice
liability exists. Accomplice liability does not create a new or
separate crime; it merely provides a basis of liability for a crime
committed by another person.
Commonwealth v. Gross, 101 A.3d 28, 35 (Pa. 2014) (cleaned up).
Upon review, we determine that the evidence, when viewed in the light
most favorable to the Commonwealth, clearly established that Appellant
engaged in a conspiracy to conduct straw purchases with Deveaux and was
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guilty of the substantive crimes as an accomplice. He did not need to
personally lie on the form or conduct the hand-to-hand transactions to be
found guilty of those crimes because he aided Deveaux and acted with the
intent of facilitating the commission of those offenses. For example, Deveaux
testified that Appellant concocted the idea to have Deveaux purchase firearms
to protect Appellant’s home in exchange for Deveaux having a place to live.
Appellant twice drove Deveaux to Treeline Sports, selected the firearms to be
purchased, provided Deveaux cash for the transactions, carried most of the
firearms out of the store, and ultimately kept the firearms, as intended.
Further, Appellant himself confirmed much of Deveaux’s account in his
statement to the police, though he contended that the firearms were for his
stepson. Based on the foregoing, we reject Appellant’s sufficiency challenges.
Appellant combines his last two issues into the same argument despite
one assailing the legality of his sentence and the other its discretionary
aspects.7 See Appellant’s brief at 34. We will consider them in turn, beginning
with the illegal sentencing claim, which attacks the imposition of mandatory
minimum sentences. It is well-settled that “a challenge to the application of
a mandatory minimum sentence pertains to the legality of the sentence, which
presents a pure question of law that we review de novo.” Commonwealth
v. Dawson, 132 A.3d 996, 1003 (Pa.Super. 2015) (cleaned up).
____________________________________________
7 We remind counsel that this practice is prohibited.See Pa.R.A.P. 2119(a)
(“The argument shall be divided into as many parts as there are questions to
be argued[.]”).
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Prior to trial, the Commonwealth filed notice of its intent to seek
mandatory sentences for Appellant’s violations of § 6111(g)(2) and (g)(4)(ii).
Specifically, the first count in each batch was graded as a felony of the third
degree, with the subsequent seven graded as felonies of the second degree
with mandatory minimum sentences applying pursuant to § 6111(h)(1) and
(2). The mandatory sentencing provisions provide as follows:
(1) A second or subsequent violation of this section shall be a
felony of the second degree. A person who at the time of
sentencing has been convicted of another offense under this
section shall be sentenced to a mandatory minimum sentence of
imprisonment of five years. A second or subsequent offense shall
also result in permanent revocation of any license to sell, import
or manufacture a firearm.
(2) Notice of the applicability of this subsection to the defendant
and reasonable notice of the Commonwealth’s intention to
proceed under this section shall be provided prior to trial. The
applicability of this section shall be determined at sentencing. The
court shall consider evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to present
necessary additional evidence and shall determine by a
preponderance of the evidence if this section is applicable.
18 Pa.C.S. § 6111.
Appellant argues that the consecutive mandatory sentences involved
crimes that were not truly “second or subsequent” because “Appellant had no
time between his actions to change his behavior.” Appellant’s brief at 41. In
his view, “Appellant’s actions constituted a single criminal episode as the two
incidents were closely related in time.” Id. at 34. Thus, he insists that he
should have been sentenced at all of those counts “as a first-time offender[.]”
Id. at 41.
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Our review of this claim is guided by our decision in Dawson. In that
case, the defendant purchased a firearm on February 13, 2013, and another
on February 27, 2013. Following a trial, she was convicted of two counts of
sale or transfer of firearm for each firearm, pursuant to § 6111(c). The court
imposed a mandatory minimum sentence for a subsequent conviction
pursuant to § 6111(h)(1). Dawson appealed, arguing, inter alia, that the court
erred in imposing a mandatory minimum sentence for a second count of
§ 6111(c) when the purportedly previous conviction resulted from the same
trial. After considering the text of § 6111(h)(1), this Court rejected her
argument, holding as follows:
Section 6111(h) requires that the trial court determine whether a
previous conviction exists at the time of sentencing, without giving
consideration to when the conviction occurred. The statute does
not contain any textual limitations as to when the first and second
convictions arose. Furthermore, [§] 6111(h)(5) states that “a
person shall be deemed to have been convicted of another offense
under this section whether or not judgment of sentence has
been imposed for that violation.” 18 Pa.C.S. § 6111(h)(5)
(emphasis added). In our view, the language of this subsection
provides greater clarity than [§] 9715’s use of the phrase “at any
time.” 42 Pa.C.S. § 9715(a). Instantly, when the trial court
sentenced Appellant on November 12, 2014, Appellant had been
convicted of another [§] 6111(c) offense, but the judgment of
sentence had not been imposed. This situation is contemplated
by [§] 6111(h)(5)’s unambiguous text. Based on these
considerations, we conclude the trial court correctly applied
[§] 6111(h)(1) to Appellant and the resultant sentence was legal.
Dawson, 132 A.3d at 1004–05 (cleaned up).
We recognize that the situation in Dawson is not a perfect fit because
that involved the sale of two firearms on separate days, whereas Appellant
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was charged with firearms offenses for four purchased on one day and four
purchased on another. However, this distinction is immaterial. Clearly, the
existence of a conviction is what matters for purposes of § 6111(h)(1), not
the timing of when the conduct charged occurred.
Insofar as Appellant is arguing that the convictions for the eight separate
firearms should have merged, our jurisprudence dictates otherwise. In
Commonwealth v. Jones, 2 A.3d 650 (Pa.Super. 2010), we considered
whether a defendant could be convicted of a separate violation of § 6105 for
each firearm possessed. Section 6105 makes it a crime for certain individuals
to “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. § 6105(a)(1). In concluding that a defendant
could be sentenced for each firearm possessed, we noted that “[t]he
Legislature’s use of the indefinite article ‘a’ in the definition of the proscribed
conduct makes it clear a person who is prohibited from possessing a firearm
under [§] 6105 violates [§] 6105 for each firearm possessed.” Jones,
2 A.3d
at 654 (citations omitted). The relevant provisions of § 6111 likewise
reference “a firearm.” See 18 Pa.C.S. § 6111(g)(2), (g)(4)(ii). As merger
does not apply and Appellant was properly convicted and sentenced for each
subsequent firearm obtained through a straw purchase, he has not convinced
us that his sentence was illegal.
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Finally, we address Appellant’s discretionary aspects of sentencing
claim. An appellant seeking review of such a claim must invoke our
jurisdiction by:
(1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a post-sentence motion; (3) complying
with Pa.R.A.P. 2119(f), which requires a separate section of the
brief setting forth a concise statement of the reasons relied upon
for allowance of appeal of the discretionary aspects of a sentence;
and (4) presenting a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b), or sentencing norms.
Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa.Super. 2022) (cleaned
up).
Appellant timely filed a notice of appeal and preserved a challenge to
the discretionary aspects of his sentence in a timely post-sentence motion.
Therefore, we must determine whether he raised a substantial question. To
do so, a defendant must present “a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Id. (cleaned up). This Court “cannot look beyond
the statement of questions presented and the prefatory [Rule] 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa.Super. 2012)
(cleaned up).
Through his statement of questions and Rule 2119(f) statement,
Appellant has raised a substantial question by alleging that the court exceeded
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the sentencing guidelines without considering mitigating factors or articulating
its reasoning. See Appellant’s brief at 9, 21; Commonwealth v. Sexton,
222 A.3d 405, 420 (Pa.Super. 2019) (finding defendant raised substantial
question based upon claim that sentence exceeded the guidelines, trial court
did not provide reasoning on the record, and the court failed to consider
mitigating circumstances). Therefore, Appellant has invoked our jurisdiction
to consider this issue.
In considering the merits, we will “not disturb a sentence absent a
manifest abuse of discretion[,]” which will only be found where “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.” Schroat, 272 A.3d at 527-28 (cleaned up). Notably,
when “a sentencing court is informed by a PSI [report], it is presumed that
the court is aware of all appropriate sentencing factors and considerations,
and that where the court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Miller,
275 A.3d 530, 535 (Pa.Super. 2022)
(cleaned up).
Prior to sentencing, the trial court considered Appellant’s allocution,
during which he asserted his innocence, but it deemed this testimony to be
incredible. See N.T. Sentencing, 11/14/22, at 32-37, 47. Counsel advised
the court of the support Appellant had at the hearing from friends and family
and presented testimony regarding his character. Id. at 10-14. Additionally,
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the court had the benefit of the PSI report and noted the corrections made by
counsel. Id. at 4-6. From that report, the court observed that Appellant had
a lengthy prior record. Id. at 44. After reviewing the statutory factors and
sentencing guidelines, the court found that individual and general deterrence
were its paramount concerns given the nature of the crime. Id. at 44-46.
In its Rule 1925(a) opinion, the court maintained that it “placed a good
deal of emphasis on both the individual and general deterrence factors”
because Appellant made two separate trips from New Jersey to Montgomery
County to conduct straw purchases for eight firearms. See Trial Court
Opinion, 9/28/23, at 32. Finally, the court explained that the aggregate
sentence of seventeen and one-half to thirty-five years of incarceration, which
was made up of two mandatory minimum sentences and one standard-range
sentence, was “a small fraction of his exposure and far below the
Commonwealth’s requested sentence” of thirty to sixty years. Id. at 31-32.
Upon review of the certified record, it is apparent that the court placed
ample support on the record for the sentence imposed, which was neither
excessive nor outside the sentencing guidelines. Accordingly, we discern no
abuse of discretion.
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge McLaughlin joins this Opinion.
Judge Beck files a Concurring Opinion.
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Date: 12/5/2024
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