J-S26004-19
2019 PA Super 283
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW LINEMAN :
:
Appellant : No. 1326 EDA 2018
Appeal from the Judgment of Sentence March 28, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004774-2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.
OPINION BY PANELLA, P.J.: FILED SEPTEMBER 16, 2019
Andrew Lineman appeals from the judgment of sentence entered
following his conviction for Violation of the Uniform Firearms Act, 18 Pa.C.S.A.
§ 6105 (“VUFA”). Lineman contends his conviction was against the sufficiency
and weight of the evidence presented at trial. We affirm.
On November 27, 2017, Lineman appeared for a waiver trial on charges
of illegally possessing a firearm. The trial court summarized the facts of this
case as follows.
On May 17, 2017, Philadelphia Police Officer Brian Benz was on
routine patrol when he received a radio call indicating that a male
was screaming for assistance in the area of 6th and Cumberland
Streets in Philadelphia. The officer proceeded to that location and
observed [Lineman] and another male struggling on the ground.
[Lineman] was lying on the ground and the other male was on top
of him. Officer Benz ordered the male to get off of [Lineman]. As
____________________________________________
Retired Senior Judge assigned to the Superior Court.
J-S26004-19
[Lineman] began to stand Officer Benz heard the sound of metal
scraping the ground, drawing the officer’s attention to [Lineman’s]
hand. In his hand, Officer Benz saw an Uzi handgun. The officer
immediately pushed [Lineman] to the ground at which time
another police officer kicked the gun from [Lineman’s] hand.[1]
Officer [Benz] testified that [Lineman] was holding the gun as if
preparing to shoot someone.[2] [Lineman] said nothing, appeared
to be under the influence, and had a strong chemical odor
emanating from him.3 In addition, [Lineman] was bleeding from
his face and was taken for treatment by medical personnel. Calvin
Bonaparte, the other male, did not talk to police and he appeared
uninjured. Bonaparte left after it was determined that there was
no reason to hold him. By way of a stipulation, the parties agreed
that [Lineman] was not eligible to possess a firearm.
[Lineman] testified in his own defense, stating that on the day of
the incident he and Bonaparte, a long-time acquaintance, planned
to share a bottle of liquor when Bonaparte began acting strangely
while driving in [Lineman’s] vehicle. [Lineman] told Bonaparte
that he decided to drive him home.
According to [Lineman], Bonaparte pulled out a gun. [Lineman]
then asked Bonaparte what was up and Bonaparte hit him in the
____________________________________________
1 Officer Benz testified that Lineman did not resist and cooperated with the
officers. See N.T., Waiver Trial, 11/27/15, at 13.
2 THE COURT: How was he holding it?
THE WITNESS: He just had it in his hand like this. (Indicating.)
THE COURT: In other words, his hand was on the grip stock?
THE WITNESS: Yes.
THE COURT: Like you would prepare to shoot somebody?
THE WITNESS: Yes.
N.T., Waiver Trial, 11/27/2017, at 15.
3 Lineman disputed that he was under the influence of any type of substance.
See id., at 32.
-2-
J-S26004-19
face with the gun, breaking his nose and cutting him. After
Bonaparte struck him, [Lineman] attempted to wrestle the gun
away from him. [Lineman] testified that he yelled for help and
managed to get the better of Bonaparte. Once he did so, he
opened the door to the car and both men tumbled out with
Bonaparte landing on top. The police arrived while the two men
were fighting.
Trial Court Opinion, filed 9/27/2018, at 2-3 (internal citations omitted).
At the conclusion of the trial, the parties were permitted to file
memoranda outlining their respective positions concerning the applicability of
the defense of duress to a possessory offense. After receiving memoranda
from both parties, the court noted that it believed the defense of duress was
available to Lineman, but nonetheless found him guilty based on a credibility
determination. Lineman filed a motion for extraordinary relief, which was
denied by the trial court. He was then sentenced to three to seven years’
incarceration. Lineman filed a post-sentence motion challenging the
sufficiency and weight of the evidence, which was denied. This timely appeal
followed.
In his first issue on appeal, Lineman asserts the evidence was
insufficient to convict him of VUFA as he testified to a belief he acted in self-
defense.
The trial court found the issue waived as it concluded Lineman did not
present it at trial. On appeal, the Commonwealth continues to press for
waiver. The Commonwealth asserts that Lineman only presented the defense
of duress at trial and blurs the lines between of self-defense, justification and
-3-
J-S26004-19
duress in his brief. However, Lineman included case law on self-defense and
justification for possessory offenses in his letter brief to the trial court prior to
sentencing, as well as in his motion for extraordinary relief. Thus, we will
address the issue on its merits.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the
Commonwealth as verdict winner, the evidence at trial and all reasonable
inferences therefrom are sufficient for the trier of fact to find that each
element of the crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Bruce,
916 A.2d 657, 661 (Pa. Super. 2007) (citation
omitted).
“The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). “As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record.” Commonwealth v. Kinney,
863 A.2d 581, 584
(Pa. Super. 2004). Therefore, we will not disturb the verdict “unless the
evidence is so weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances.” Bruce,
916 A.2d at
661 (citation omitted). Furthermore, a mere conflict in the testimony of the
-4-
J-S26004-19
witnesses does not render the evidence insufficient because the factfinder is
free to believe all, part, or none of the evidence. Commonwealth v.
Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).
To sustain a conviction under 18 Pa.C.S.A. § 6105, the Commonwealth
must prove that Lineman “possessed a firearm and that he was convicted of
an enumerated offense that prohibits him from possessing, using, controlling,
or transferring a firearm.” Commonwealth v. Thomas, 988 A.2d 669, 670
(Pa. Super. 2009).
Lineman does not dispute that he possessed the firearm or that he is
legally prohibited from possessing a firearm. He claims the evidence was
insufficient to sustain his conviction because his possession of the firearm was
justified, negating the intent requirement necessary to convict him of unlawful
possession of a firearm. Lineman contends his own “uncontroverted testimony
established that he believed it was necessary to wrestle the gun away from
Bonaparte in order to avoid a further harm or evil to himself.” Appellant’s
Brief, at 28-29.
This Court has recently acknowledged the lack of case law on this
particular matter in this Commonwealth. See Commonwealth v. Miklos,
159 A.3d 962, 968 (Pa. Super. 2017), appeal denied,
170 A.3d 1042 (Pa.
2017). As a result, the Miklos panel, guided by decisions from other
jurisdictions, recognized the validity of a justification defense to charges of
unlawfully possessing a firearm. See id. at 968-969. Since a justification
-5-
J-S26004-19
defense challenges whether the defendant acted with intent, the
Commonwealth bears the burden of disproving justification. See id. at 967-
968 (affirming the trial court’s conclusion that the Commonwealth bears the
burden of disproving justification).
Pursuant to Miklos, we hold that a justification defense is available for
a possessory offense where a defendant plausibly argues he did not
intentionally possess the firearm. Nevertheless, we agree with the trial court
that there is sufficient evidence to show Lineman was not justified under the
facts before the trial court.
The trial court responded to the issue of justification during a brief
hearing held after counsel for both parties submitted letter briefs on the
availability of the defense.
This [c]ourt held it under advisement for the [c]ourt to perform
its own research about the availability of this particular defense
on the possession issue.
After doing so, this [c]ourt finds the defendant guilty of these
charges, notwithstanding the fact that I think theoretically that
the defense is available. It was a credibility call. And I find that –
I believe the police officer, so.
N.T., Hearing, 12/21/2017, at 4.
The trial court further addressed the issue, albeit briefly, in its opinion.
The court relied on the officer’s testimony that Lineman was holding the gun
as if he were about to shoot someone, see N.T., Trial, 11/27/2017, at 15, and
found that this evidence “undermines any claim of self-defense or duress …
-6-
J-S26004-19
because it showed that he consciously possessed the weapon and likely would
have used it had police not intervened.” Trial Court Opinion, at 4.
Based on the foregoing, we discern no error in the trial court’s conclusion
that Lineman’s possession of the gun was not justified and that he was guilty
of the offense. It is uncontroverted that Lineman was previously convicted of
an enumerated offense which prevented him from possessing a firearm.
Further, the court credited the testimony of Officer Benz that Lineman
possessed a firearm when the officers broke up the altercation and that he
was holding the gun in a manner in which he could shoot someone, showing
he intentionally possessed the weapon. See Miklos, 159 A.3d at 968
(concluding that trial court was entitled to find that defendant’s possession
was justified for some, but not all, of the time he possessed it). We find the
evidence was sufficient to sustain Lineman’s conviction.
In his second issue on appeal, Lineman asserts the verdict was against
the weight of the evidence. Specifically, he argues the verdict was so contrary
to the evidence that it shocks one’s sense of justice because the evidence
established that his actions were justified and lawfully taken in self-defense.
We do not review challenges to the weight of the evidence de novo on
appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
Rather, we only review the trial court’s exercise of its discretionary judgment
regarding the weight of the evidence presented at trial. See
id.
-7-
J-S26004-19
“[W]e may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice.” Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is
said to be contrary to the evidence such that it shocks one’s sense of justice
when “the figure of Justice totters on her pedestal,” or when “the jury’s
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.” Commonwealth v. Davidson,
860 A.2d
575, 581 (Pa. Super. 2004) (citations omitted).
The trial court addressed this issue when it stated on the record that its
decision was a credibility determination and that it believed the testimony of
the officer over Lineman’s testimony. See N.T., 12/21/2017, at 4. We find this
credibility determination is not shocking and was thoroughly within the court’s
discretion and function as factfinder. Thus, Lineman’s final issue merits no
relief.
As Lineman has not established any right to relief on appeal, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
-8-
J-S26004-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/19
-9-
