J-A14012-22
2022 PA Super 162
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC WARREN BIEBER :
:
Appellant : No. 1630 MDA 2021
Appeal from the Judgment of Sentence Entered August 27, 2021
In the Court of Common Pleas of Tioga County Criminal Division at
No(s): CP-59-CR-0000331-2017
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
OPINION BY BENDER, P.J.E.: FILED: SEPTEMBER 22, 2022
Appellant, Eric Warren Bieber, appeals from the judgment of sentence
of time-served1 to 23 months’ incarceration, imposed after a jury convicted
him of carrying a firearm without a license, 18 Pa.C.S. § 6106(a). After careful
review, we vacate Appellant’s judgment of sentence and remand for a new
trial.
Appellant was initially “charged in a 21-count information with four
counts of aggravated assault, four counts of terroristic threats, four counts of
simple assault, four counts of reckless endangerment, four counts of
harassment[,] and one count of carrying firearms without a license.”
Commonwealth v. Bieber, No. 904 MDA 2019, unpublished memorandum
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* Former Justice specially assigned to the Superior Court.
1 Appellant was credited with 176 days that he served in pre-trial detention.
Sentencing Order, 8/27/21, at 1.
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at 1-2 (Pa. Super. filed July 23, 2020). At his first trial in 2019, Appellant
acted pro se. Id. at 5. “The jury found Appellant not guilty of all felony and
misdemeanor charges except the firearms charge. The judge found Appellant
guilty of the four summary offense charges of harassment.” Id. On appeal,
Appellant successfully argued that he was entitled to a new trial due to a
defective waiver-of-counsel colloquy. Id. at 12.
At his second trial held on June 2, 2021,2 the subject of the instant
appeal, Appellant was represented by counsel, Peter T. Campana, Esq. The
sole charge before the jury was Appellant’s Section 6106 offense. The primary
issue at trial was the applicability of the exception to Section 6106 violations
set forth in Section 6106(b)(9) (hereinafter, the “Sportsman’s Permit
Exception”). At trial, the Commonwealth’s evidence established that, on
August 2, 2017, Appellant was driving with his then-girlfriend, Billie Jo Caffo
(“Caffo”), as a passenger when police effectuated a vehicle stop.3 N.T. Trial,
6/2/21, at 69, 76. Police removed Appellant and Caffo from the vehicle, at
which time they observed a handgun in plain view on the floor on the driver’s
side of the car. Id. at 76-77. Police also discovered in plain view a holster, a
magazine containing eight rounds of ammunition (not inside the handgun),
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2 We note that parts of the transcript mistakenly report the trial as having
occurred on April 12, 2021.
3 The basis for the stop was related to the offenses for which Appellant was
acquitted at his first trial.
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and one loose round. Id. at 78, 83. The handgun did not have any rounds in
the chamber. Id. at 93.
Caffo initially told police that the gun was not loaded, a statement she
later claimed was a lie when she testified at trial. Id. at 72. At trial, however,
she indicated that when the police stopped Appellant’s vehicle, she heard
several clicks and the sound of something hitting the floor. Id. at 70. Caffo
also stated that Appellant then instructed her not to tell police that the gun
had been loaded. Id.
Sergeant Craig Wharton of the Pennsylvania State Police testified that
Appellant once possessed a license to carry a concealed firearm (hereinafter
“carry-concealed permit”), but that it had been revoked in 2014. Id. at 99.
Nevertheless, Sergeant Wharton also indicated that, at the time of the stop,
Appellant possessed a Pennsylvania Sportsman’s Firearm Permit.4 Id. Over
Appellant’s objection, Sergeant Wharton testified that he did not believe the
Sportsman’s Permit Exception applied because he surmised no evidence that
Appellant “was doing any of the activities” that “a Sportsman’s Permit allows
him to do.” Id. at 102. Sergeant Andrew Adams of the Westfield Borough
Police Department, and Trooper Justin Millard of the Pennsylvania State Police,
also provided testimony for the Commonwealth regarding the stop. Id. at 74-
93.
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4 See 18 Pa.C.S. § 6106(c).
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Finally, Frank Levindoski, Sheriff of Tioga County, took the stand for the
Commonwealth. Sheriff Levindoski administered carry-concealed permits for
Tioga County. Id. at 108. He testified that citizens who possess carry-
concealed permits are allowed to carry firearms concealed on their person,
and/or loaded in their vehicle. Id. He further stated that, absent a carry-
concealed permit, persons are not permitted by law to transport a loaded
firearm in their vehicle. Id. at 109-10. The bulk of Sheriff Levindoski’s
remaining testimony, on both direct- and cross-examination, consisted of him
reading statutory definitions into the record, and opining as to their meaning
in the context of this case, and in particular with respect to his understanding
of the ‘proper’ manner of transporting a firearm in a vehicle under
Pennsylvania law. Id. at 110-30. Over Appellant’s objection, Sheriff
Levindoski testified regarding his interpretation of 18 Pa.C.S. § 6106.1,
despite the fact that the Commonwealth did not charge Appellant with that
offense.
Appellant then testified in his own defense, indicating that on the date
of the vehicle stop, he possessed a fishing license, a hunting license, and a
sportsman’s firearm license, which were collectively admitted into evidence
without objection. Id. at 131-32. He admitted ownership and possession of
the firearm discovered by police. Id. at 133. He indicated that, at the time
of the stop, he intended to go fishing after he dropped Caffo off at home. Id.
at 133-34. He further stated that there were fishing poles and a tackle box in
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the vehicle, but that police did not search the areas of the car where they
were located. Id. at 134.
In their closing arguments to the jury, the parties essentially agreed
that the Commonwealth had proven the basic elements of a Section 6106
violation, and that the only issue for the jury to decide was whether the
Sportsman’s Permit Exception applied. Appellant’s defense counsel argued
that the Sportsman’s Permit Exception applied based on Appellant’s testimony
that he was on his way to fish when his plans were interrupted by the domestic
dispute with Caffo that led to the vehicle stop. Id. at 147. The
Commonwealth argued that the Sportsman’s Permit Exception did not apply,
inviting the jury to find Appellant’s testimony regarding his intent to go fishing
as not credible, and further asking them to rely on Sherriff Levindoski’s
testimony that Appellant was not permitted to have a loaded firearm in his
vehicle without a concealed carry license unless he was an officer of the law.
Id. at 150.
The jury found Appellant guilty of violating Section 6106. On August
20, 2021, the trial court sentenced Appellant as stated above. Appellant filed
a timely post-sentence motion on August 30, 2021, seeking, inter alia, unitary
review of ineffective assistance of counsel (“IAC”) claims on direct appeal.
The trial court held a hearing on October 29, 2021, to address the post-
sentence motion, but it did not conduct fact-finding with respect to Appellant’s
IAC claims, nor did the court entertain argument on the merits of those claims.
By order dated November 19, 2021, the trial court denied the post-sentence
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motion, which included the court’s reasoning for denying unitary review, and
did not address the merit of the IAC claims. See Order, 11/19/21, at 1-5.
Appellant filed a timely notice of appeal, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion
on February 17, 2022. Appellant now presents the following questions for our
review:
[1.] Did the trial court err in denying [Appellant]’s request to
waive PCRA[5] review?
[2.] Whether trial counsel was ineffective in failing to object to
improper legal opinion testimony by Sheriff Levindoski
concerning his belief regarding the definition of a weapon
being loaded even if not physically loaded?
[3.] Whether trial counsel was ineffective in failing to object to
improper legal opinion testimony by Sheriff Frank
Levindoski regarding the proper way to transport a firearm
in a vehicle?
[4.] Did the trial court err in declining to grant a new trial where
the Commonwealth elicited legal opinion testimony from a
Pennsylvania State Police Sergeant concerning his
interpretation and the applicability of the Sportsman’s
Permit?
[5.] Did the trial court err in declining to grant a new trial where
the Commonwealth offered testimony from Sheriff
Levindoski concerning his legal interpretation of 18 Pa.C.S.
§ 6106.1 and the prohibitions regarding the carrying of a
loaded pistol?
Appellant’s Brief at 10.
Appellant’s claims are somewhat interrelated. He argues that the
Commonwealth elicited inadmissible legal opinion testimony from Sergeant
____________________________________________
5 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46.
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Wharton and Sheriff Levindoski. In his fourth and fifth issues, Appellant raises
claims based upon objections made by defense counsel at trial. Appellant
argues in his second and third claims that his trial counsel was ineffective for
failing to raise appropriate objections to ostensibly inadmissible, legal-opinion
testimony beyond the objections addressed in his fourth and fifth claims.
Finally, in his first claim, Appellant asserts that the trial court erred by refusing
to permit Appellant to raise these IAC claims for direct appellate review in
accordance with Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).
Section 6106 and the Sportsman’s Permit Exception
Initially, we begin our analysis by addressing the Sportsman’s Permit
Exception to Section 6106 violations, as it is undisputed that the applicability
of that exception was effectively the sole issue for the jury to decide in this
case in determining Appellant’s guilt. Section 6106 is defined, in pertinent
part, as follows:
(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.
(2) A person who is otherwise eligible to possess a valid
license under this chapter but 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 and
has not committed any other criminal violation commits a
misdemeanor of the first degree.
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(b) Exceptions.--The provisions of subsection (a) shall not apply
to:
…
(9) Persons licensed to hunt, take furbearers or fish in this
Commonwealth, if such persons are actually hunting, taking
furbearers or fishing as permitted by such license, or are
going to the places where they desire to hunt, take
furbearers or fish or returning from such places.
18 Pa.C.S. § 6106.
Thus, as is relevant in this case, Section 6106 generally prohibits, inter
alia, the carrying of a firearm in a vehicle without a carry-concealed permit.
18 Pa.C.S. § 6106(a)(1). A violation of Section 6106 is graded as a third-
degree felony, unless the defendant is “otherwise eligible to possess a valid”
carry-concealed permit, in which case the offense is graded as a first-degree
misdemeanor. 18 Pa.C.S. § 6106(a)(2).6 Numerous exceptions to the
prohibition defined in Section 6106(a) are set forth in Section (b) of the
statute. See 18 Pa.C.S. § 6106(b). The Sportsman’s Permit Exception
provides that persons licensed to “hunt, take furbearers[,] or fish” in
Pennsylvania are not subject to the prohibition set forth in Section 6106(a),
provided that the licensed individuals are “actually” engaged in, or in transit
to or from, the activities for which they are licensed. 18 Pa.C.S. § 6106(b)(9).
Some of the exceptions set forth in Section 6106(b) apply only to unloaded
____________________________________________
6 Appellant’s sentencing order indicates that he was convicted of the
misdemeanor grading of Section 6106. Sentencing Order, 8/20/21, at 1 (filed
on 8/27/21).
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firearms.7 The Sportsman’s Permit Exception is not one of those
exceptions. Nevertheless, an entirely separate statute, Section 6106.1,
prohibits carrying a loaded firearm in vehicle. 18 Pa.C.S. § 6106.1.8
Unitary Review under Holmes
In Appellant’s first claim, he contends that the trial court erred in
denying his request to litigate his IAC claims on direct appeal. Appellant’s
Brief at 22-23. Since our Supreme Court’s decision in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), abrogated on other grounds,
Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021), it has been the
general rule that IAC claims may only be raised in PCRA proceedings, subject
to a few limited exceptions. Holmes,
79 A.3d at 563. In Holmes, our
Supreme Court limited these exceptions to two categories of cases
(hereinafter “Holmes exceptions”): First, the Holmes Court recognized an
exception “where a discrete claim (or claims) of trial counsel ineffectiveness
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7 For example, Section 6106(b)(4) provides an exception for any “persons
engaged in target shooting with a firearm, if such persons are at or are going
to or from their places of assembly or target practice and if, while going to or
from their places of assembly or target practice, the firearm is not loaded.”
18 Pa.C.S. § 6106(b)(4) (emphasis added). Likewise, the exception set forth
in Section 6106(b)(8), pertaining to transportation of a firearm related to its
purchase, sale, or repair, only applies if the firearm “is not loaded[.]” 18
Pa.C.S. § 6106(b)(8) (emphasis added).
8 Section 6106.1 is also subject to several of the same exceptions that apply
to Section 6106. See 18 Pa.C.S. § 6106.1(a) (“The provisions of this section
shall not apply to persons excepted from the requirement of a license to carry
firearms under section 6106(b)(1), (2), (5) or (6)….”). However, there is no
Sportsman’s Permit Exception to Section 6106.1 offenses. Id.
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is apparent from the record and meritorious to the extent that immediate
consideration best serves the interests of justice[.]” Id.
Second, with respect to other cases and claims, … where the
defendant seeks to litigate multiple or prolix claims of counsel
ineffectiveness, including non-record-based claims, on postverdict motions and direct appeal, we repose discretion in the trial
courts to entertain such claims, but only if (1) there is good cause
shown,1 and (2) the unitary review so indulged is preceded by the
defendant’s knowing and express waiver of his entitlement to seek
PCRA review from his conviction and sentence, including an
express recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the PCRA.
1 … [I]n short sentence cases[,] the trial court’s assessment
of good cause should pay particular attention to the length
of the sentence imposed and the effect the length of the
sentence will have on the defendant’s realistic prospect to
be able to avail himself of collateral review under the PCRA.
Id. at 563–64.
Seeking relief under the second Holmes exception, Appellant argued in
his timely-filed post-sentence motion that the short duration of his remaining
sentence provided ‘good cause’ to litigate his IAC claims on direct appeal.
Post-Sentence Motion, 8/27/21, at 2 ¶ 13 (unnumbered pages). Appellant
also sought to expressly waive his future PCRA rights in accordance with the
requirements outlined in Holmes. Id. at 2-3 ¶¶ 13-20. Appellant then
provide a brief description of the IAC claims he intended to pursue if his
request for unitary review was granted. Id. at 3 ¶¶ 21-23.
Notably, in order to be eligible for relief under the PCRA, a petitioner
must plead and prove, inter alia, that he is “currently serving a sentence of
imprisonment, probation or parole” for the conviction from which he seeks
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relief. 42 Pa.C.S. § 9543(a)(1)(i). The “requirements set forth in [S]ection
9543 establish only a petitioner’s eligibility for post-conviction relief, and do
not implicate the PCRA court’s jurisdiction to act on a petition.”
Commonwealth v. Fields, 197 A.3d 1217, 1223 (Pa. Super. 2018) (en
banc). Nevertheless, “our Supreme Court has held that even if a petitioner is
serving a sentence when a PCRA petition is filed, the petitioner cannot obtain
relief under the PCRA once the sentence has expired.” Commonwealth v.
Auchmuty,
799 A.2d 823, 825 (Pa. Super. 2002) (citing Commonwealth v.
Ahlborn,
699 A.2d 718 (Pa. 1997)).
In the order denying Appellant’s post-sentence motion, the trial court
denied Appellant’s attempt to invoke the second Holmes exception under the
rationale that the time for Appellant to file a direct appeal had already
expired.9 See Order, 11/19/21, at 3. In its Rule 1925(a) opinion, however,
the trial court acknowledged its reasoning for denying Appellant’s post-
sentence motion was erroneous. See Trial Court Opinion (“TCO”), 2/17/22,
at 4. Contrary to its analysis in the order denying Appellant’s post-sentence
motion, the period for Appellant to file a timely notice of appeal did not end
until 30 days after the court issued its order denying Appellant’s post-sentence
motion. See Pa.R.Crim.P. 720(A)(2).
____________________________________________
9 Thus, the court rejected Appellant’s argument that his short sentence was
an impediment to obtaining review of his IAC claims under the theory that,
because Appellant ostensibly could no longer file a direct appeal, his only
option at that point was to immediately proceed to collateral review by filing
a PCRA petition, wherein he could raise his IAC claims.
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Nevertheless, in its Rule 1925(a) opinion, the trial court offered
alternative analyses in support of its decision to deny Appellant the
opportunity to litigate his IAC claims on direct appeal. Initially, the court found
that Appellant “executed a knowing and express waiver of entitlement to seek
PCRA review,” and, accordingly, that “the second prong of the second Holmes
exception” is not at issue in this case. TCO at 10 n.20.
As to the first prong—whether there was good cause shown to conduct
unitary review—the trial court conceded that “Appellant’s appeal pertaining to
issues four and five may not be decided until approximately December 2022.”
Id. at 10. The trial court nevertheless “believes there would still be sufficient
time to review and dispose of Appellant’s PCRA [petition], if any, but
acknowledges that it would be a closer call than previously analyzed given
proper consideration of the pending appeal.” Id. The court made that
determination under the understanding that Appellant’s term of parole is set
to expire “on January 26, 2023[.]” Id. at 10 n.21.
We are compelled to reject the trial court’s ambitious yet ultimately
unrealistic timeline because, as the Holmes Court advised, when a defendant
seeks to show “good cause” for unitary review based on the short length of
his sentence, the trial court is obligated to “pay particular attention to the
length of the sentence imposed and the effect the length of the sentence will
have on the defendant’s realistic prospect to be able to avail himself of
collateral review….” Holmes, 79 A.3d at 564 n.1 (emphasis added). The
likelihood that Appellant’s direct appeal would be fully resolved before
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December of 2022 is by itself an ambitious guess. Given that date is less than
four months away from the date of this decision, it is not a realistic timetable
should this Court be required to reach a decision following a filing for
reconsideration of our decision by a party, nor does it afford much time to
review this matter should either party file a petition before the Pennsylvania
Supreme Court.
In any event, even assuming Appellant’s direct appeal were to conclude
by December of 2022, and assuming he immediately filed a PCRA petition
thereafter, it is even more unrealistic to believe that PCRA review could be
meaningfully obtained before Appellant’s parole expires on January 26, 2023.
The lower court perhaps mistakes meaningful collateral review of Appellant’s
IAC claims with its willingness and ability to act swiftly in holding an IAC
hearing and then reaching a fair conclusion in this case before January 26,
2023. Indeed, we do not doubt that the lower court could, in fact, move with
the utmost haste. However, that belief neglects to consider Appellant’s
realistic ability to obtain relief following an adverse decision in the PCRA
court. Even assuming the PCRA court could reach a decision before
Appellant’s term of parole expires, his eligibility for relief would expire soon
thereafter, ultimately depriving Appellant of any opportunity to obtain review
in the appellate courts should the PCRA court deny relief.
In Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), our Supreme
Court indicated that the Holmes decision “directed trial courts to ‘err on the
side of favoring the vindication of constitutional rights otherwise susceptible
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to forfeiture,’ and conveyed confidence that trial courts in short sentence cases
will recognize these concerns and liberally permit unitary review.” Id. at 361
(quoting Holmes,
79 A.3d at 578.) It is apparent from the record that, rather
than erring on the side of the vindication of Appellant’s constitutional right to
receive meaningful review of claims regarding his Sixth Amendment rights,
and his right to appellate review of such claims, the trial court did not liberally
permit unitary review, and instead strained to find reasons not to permit it.
Consequently, we conclude that the trial court abused its discretion in
denying unitary review in the circumstances of this case by erroneously
concluding that Appellant failed to show good cause under the second Holmes
exception. The trial court should have permitted Appellant to raise his IAC
claims on direct appeal, where the record demonstrates that the remaining
length of his sentence is too short to afford him a realistic ability to obtain
meaningful consideration of his IAC claims during collateral review under the
PCRA.
However, because the trial court also provides some alternative reasons
for us to affirm its decision, despite its error in the application of Holmes, we
feel compelled to briefly address those matters. In its Rule 1925(a) opinion,
the trial court indicates that we should affirm based on several other theories
that it never offered below in denying unitary review of Appellant’s IAC claims.
First, the trial court finds that,
[a]s to those ineffective assistance of counsel claims, this [c]ourt
would have denied relief had it reached the merits. First,
Appellant neither pled that the allegations of ineffective assistance
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of counsel were not previously litigated[, n]or waived pursuant to
42 Pa.C.S.[] § 9543(a)(3). More importantly, however, Appellant
failed to plead any prong related to the ineffective assistance of
counsel. Commonwealth v. Keaton, 45 A.3d 1050, 1060-61
(Pa. 2012). Furthermore, Appellant never discussed any prong at
the hearing. As pled in paragraphs 21 and 22 of Appellant’s
Motion filed August 30, 2021, the claims are simply undeveloped.
TCO at 10-11.
However, Appellant argues that,
in its Rule 1925(a) [opinion], the trial court … conflat[es] the
requirements of a PCRA petition and PCRA appellate brief with the
requirements needed to waive PCRA review. See … [TCO] at 11.
The trial court ignored that [Appellant]’s post-sentence motion
was not a PCRA petition and was seeking to waive his PCRA rights
— not present argument on the underlying issues in question at
that time. See … Delgros, 183 A.3d [at] 362 … (“Appellant’s
challenges to trial counsel’s stewardship set forth in post-sentence
motions are not ‘collateral claims’ subject to the requirements of
the PCRA.”). Had the trial court granted the PCRA waiver, it could
have scheduled an evidentiary hearing on the ineffectiveness
issues and/or requested that [Appellant] submit a brief or
memorandum of law.
Here, the court did not request, pursuant to Pa.R.Crim.P.
720(B)(2)(a), that [Appellant] present a brief arguing the
underlying merits of his [IAC] issues before the scheduled
argument on the PCRA waiver issue. Pointedly, because the trial
court incorrectly denied [Appellant]’s PCRA[-]waiver request, he
never was afforded the opportunity to develop arguments on
those issues. Simply put, the trial court did not schedule a hearing
on the ineffectiveness issues and the hearing that was scheduled
was not for the purposes of developing and arguing the merits of
the claims; rather, it was for the purpose of deciding if [Appellant]
could validly waive PCRA review and to conduct a colloquy.
A trial court cannot erroneously deny PCRA waiver, as it did here,
and then fault counsel for not arguing the merits of the underlying
[IAC] claims where the [c]ourt said [Appellant] had to wait until
PCRA review. The trial court’s belated reasons for denying PCRA
waiver are no more sound than its original ruling.
…
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The trial court also erroneously insinuated in its Rule 1925(a)
opinion that [Appellant] did not adequately plead his
ineffectiveness claims. [TCO] at 11. But this ignores that
[Appellant]’s post-sentence motion was asking for permission to
litigate and develop those arguments by waiving PCRA review —
and the [c]ourt erroneously denied that request.
Appellant’s Brief at 33-36.
We agree with Appellant. His post-sentence motion seeking unitary
review was not subject to the requirements of the PCRA and, unlike the first
Holmes exception, the second Holmes exception does not require any inquiry
into the underlying merit of the IAC claims sought to be raised. Under the
second Holmes exception, a litigant need only establish good cause shown
and expressly waive his PCRA rights to obtain unitary review. As discussed
above, both those prongs were established in this case. Only after Appellant
demonstrated those two prongs was he then entitled to raise his IAC claims
on the merits and test those claims at an evidentiary hearing in order to
resolve factual issues. Neither the trial court nor the Commonwealth cite to
any case law suggesting that IAC claims must be fully developed for review in
a post-sentence motion when initially seeking unitary review under the second
Holmes exception, nor has this Court found any pertinent cases setting forth
such a requirement. Because the trial court denied Appellant the opportunity
to have unitary review of his IAC claim on direct appeal, we cannot accept the
court’s post hoc rationale that the claims were insufficiently developed for
review when the court’s actions themselves deprived Appellant of the
opportunity to meaningfully develop those claims with further argument
and/or a hearing.
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Second, the trial court further found that, had it reached the merits of
Appellant’s IAC claims, it would have denied them for the same rationale it
used to reject Appellant’s non-IAC claim related to the testimony of Sergeant
Wharton and Sheriff Levindoski.10 The court states:
[N]either ineffectiveness allegation would have prejudiced
Appellant. But for counsel’s error, the outcome of the proceeding
would have been the same based upon … harmless error and the
fact this [c]ourt properly instructed the jury on the law, and the
jury is presumed to have followed this [c]ourt’s instructions….
Thus, because the outcome would not have been different,
Appellant would necessarily fail to meet the prejudice prong of the
IAC [test].
Accordingly, this [c]ourt respectfully requests the [Superior] Court
deny relief regarding alleged errors two and three and sustain the
verdict. Even if the [c]ourt abused its discretion in denying to
exercise its discretion to permit unitary review, it would have
denied relief on the merits.
TCO at 11-12.
It is odd that the trial court first asserts that Appellant’s IAC claims were
insufficiently developed for its review, yet also finds the claims sufficiently
developed to dismiss them on the merits. Furthermore, the purpose of unitary
review is to allow an Appellant to raise all his claims, including those typically
reserved for collateral review, in a single direct appeal. However, because
Appellant’s non-IAC claims are interrelated and ultimately would entitle him
____________________________________________
10 We note that, to prevail on an IAC claim, the defendant must plead and
prove by a preponderance of the evidence that: “(1) the underlying legal claim
has arguable merit; (2) counsel had no reasonable basis for acting or failing
to act; and (3) the [defendant] suffered resulting prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super.
2015). A failure to prove any prong of the IAC test will defeat an IAC claim.
Id.
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to a new trial—the same relief that would be afforded to Appellant should he
ultimately prevail on those claims on remand—we address those non-IAC
claims now as a matter of judicial economy.
Appellant’s Non-IAC Claims
In his fourth issue, Appellant claims that the trial court erred in failing
to grant a new trial based on Sergeant Wharton’s ostensibly inadmissible
testimony regarding the applicability of the Sportsman’s Permit Exception to
Section 6106. In his fifth issue, Appellant asserts that the trial court erred in
failing to grant a new trial based on Sheriff Levindoski’s testimony regarding
Section 6106.1. In both cases, Appellant maintains that the court erroneously
permitted these two law enforcement officers to testify to their legal
interpretations of Pennsylvania’s firearm laws. According to the trial court,
both claims were “properly before the [c]ourt for review[,]” indicating that
Appellant’s contemporaneous objections were timely and sufficiently raised
the issues presented in Appellant’s Rule 1925(b) statement. TCO at 5. The
Commonwealth also takes no issue with Appellant’s preservation of these
claims.
Our standard of review regarding the admissibility of evidence is well
settled:
With regard to the admission of evidence, we give the trial court
broad discretion, and we will only reverse a trial court’s decision
to admit or deny evidence on a showing that the trial court clearly
abused its discretion. An abuse of discretion is not merely an error
in judgment, but an overriding misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result
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of bias, prejudice, ill-will or partiality, as shown by the evidence
of the record.
Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (cleaned
up). Even when evidence is wrongfully admitted, however, such error is
subject to harmless error analysis. See Commonwealth v. Hardy,
918 A.2d
766, 777 (Pa. Super. 2007).
Furthermore, the Pennsylvania Rules of Evidence provide as follows:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701.
Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702.
With respect to his fourth issue, Appellant’s trial counsel objected to the
prosecutor’s asking Sergeant Wharton what, “the Sportsman’s Permit
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entails?” N.T. Trial at 101. Defense counsel argued that it “was a matter of
law for the [c]ourt to decide.” Id. The prosecutor responded that he was
merely attempting to elicit why Sergeant Wharton filed charges when “he
knew there was a Sportsman’s permit in play[.]”
Id. The trial court appears
to have denied the objection, stating: “Well, the [c]ourt is certainly[] going to
instruct on it. However, I’ll give the Commonwealth a little latitude here.”
Id.
Sergeant Wharton then testified: “[L]ooking at the definition of the
crimes code … it meant [Appellant] had to be in the act of hunting, fishing,
whatever, or coming there, back, or going to.” Id. at 102. The prosecutor
then asked Sergeant Wharton if he was “able to determine if [Appellant] was
doing any of those activities,” to which the officer responded that “[t]here was
no indication by the incident we were called to, that [Appellant] was doing any
of the activities [that] a Sportsman’s Permit allows him to do.” Id.
Appellant asserts this is “nothing short of testimony that [Appellant] was
guilty of the offense charged.” Appellant’s Brief at 54. He argues that it
constituted “improper legal opinion testimony … proving a legal conclusion as
to the result that the prosecution wanted the jury to reach.” Id. at 57. In its
Rule 1925(a) opinion, the trial court did not address whether this testimony
was admissible but, instead, determined that it was harmless error. TCO at
5. The Commonwealth argues, however, that Sergeant Wharton did not
provide improper legal opinion testimony. Commonwealth’s Brief at 11. The
Commonwealth instead contends that:
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Sergeant Wharton was the arresting officer in this case. His
testimony was an effort to explain what he charged and why. He
explained that [A]ppellant would need to be actually hunting,
fishing, trapping, etc.[,] to fall under the exception of carrying a
loaded firearm in his vehicle. The testimony that there was no
indication [A]ppellant was doing any of the things a Sportsman’s
Permit allows him to do was the officer’s observation of the crime
scene. This was not a legal opinion. This was the arresting
officer’s testimony based on his investigation.
Id. at 11-12.
We agree with the Commonwealth. Sergeant Wharton’s testimony
regarding the Sportsman’s Permit Exception to Section 6106 contained no
interpretive elements of the law at all. To the extent that he spoke to the
legal elements of the exception, he merely stated what they are, and did so
accurately. See 18 Pa.C.S. § 6106(b)(9) (stating that the exception applies
only if those persons holding a Sportsman’s Permit are “actually hunting,
taking furbearers or fishing as permitted by such license, or are going to the
places where they desire to hunt, take furbearers or fish or returning from
such places”). Recitation of the pertinent text of the statute does not
constitute “specialized knowledge” within the meaning of Rule 701(c), as
nothing in that part of his statement could accurately be construed as an
opinion, even though Sergeant Wharton did not quote the statute word-for-
word. He then testified, based on his direct observations at the scene,
regarding the factual question of whether he had seen any evidence that
corroborated Appellant’s claim that he was going fishing when the vehicle stop
occurred. That was factual testimony that was “rationally based on the
witness’s perception[,]” not legal opinion testimony and, therefore, it was
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permissible under Rule 701(a). Thus, we conclude that Appellant’s fourth
claim is meritless.
In his fifth claim, Appellant contends that the trial court erred in
permitting Sheriff Levindoski to “testify to his legal interpretation of [Section]
6106.1, which was not charged and not at issue.” Appellant’s Brief at 57.
Again, the trial court failed to address the admissibility of Sheriff Levindoski’s
at-issue testimony, and instead concluded that any error was harmless. See
TCO at 5-6. In its brief, the Commonwealth does not present any argument
that the Sheriff’s at-issue testimony was permissible under the rules of
evidence, and instead argues in support of the trial court’s harmless-error
analysis. However, the Commonwealth also does not expressly concede that
Sheriff Levindoski’s testimony regarding Section 6106.1 was inadmissible.
Despite an utter lack of justification by the trial court or the Commonwealth
regarding the admission of the Sherriff’s testimony regarding Section 6106.1
over Appellant’s objection, we will first address its admissibility.
Sheriff Levindoski was Commonwealth’s final witness at trial. See N.T.
Trial, 6/2/21, at 107-29. He indicated that he was Sheriff of Tioga County,
id. at 107, and in that capacity, he administered license-to-carry permits for
that county, id. at 108. He also asserted that he had specialized training as
a certified firearms instructor for handguns. Id. Without objection, he
testified regarding the general rules governing carry-concealed permits in
Pennsylvania. Id. at 108-12. At one point, he indicated that citizens are not
allowed to carry a loaded firearm in a vehicle without a carry-concealed
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permit.11 Id. at 109-10. The prosecutor then asked Sheriff Levindoski to read
Section 6106.1 into the record. Id. at 112-13. The prosecutor then asked
the Sheriff: “I guess, in common terms[,] what is that statute telling us?” Id.
at 113. Appellant’s trial counsel objected to the testimony being elicited by
the prosecutor. Id. The trial court then stated: “Well, this gentleman cannot
instruct the jury on matters of law because that is the function of the [c]ourt.
As a certified firearms instructor, I think he can indicate what his practice is.”
Id. The prosecutor then asked: “[T]hat statute is specifically saying that you
can’t have a loaded fire[]arm, and a gun unless. [sic] Okay, what are – as
you understand as a firearms instructor, what are those exceptions?” Id. at
113-15. Sheriff Levindoski responded: “I’ll be honest, that – that piece
[doesn’t] necessarily … have much to do with being a firearms instructor[,] it
is completely separate just so we’re clear … but my interpretation is, unless
there’s something different in the game law under Title 34 that would make
you exempt …[,] this is basically saying, you cannot [carry a loaded firearm
in a car,] unless you have a Concealed[-]Carry Permit[.]” Id. at 114
(emphasis added).12
____________________________________________
11 Sherriff Levindoski did not indicate which law rendered this conduct illegal.
That is, he did not distinguish between Section 6106’s prohibition against
carrying any firearm in a vehicle without a carry-concealed permit—the sole
criminal charge at-issue in this case—and Section 6106.1’s more specific
prohibition of carrying a loaded firearm in a vehicle, for which Appellant was
not charged.
12 After this exchange, Sheriff Levindoski also testified to his personal
knowledge (as the administrator of carry-concealed permits in Tioga County)
(Footnote Continued Next Page)
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Appellant argues that Sheriff Levindoski “should not have been
permitted to give his legal interpretation of the law. Pointedly, the testimony
is even more prejudicial where the statute[] in question w[as] not relevant to
the charge at issue.” Appellant’s Brief at 59. We agree with Appellant. There
was no legitimate purpose for Sheriff Levindoski to testify to the contents,
much less his interpretation, of the prohibition against carrying a loaded
firearm in a vehicle set forth in Section 6106.1. Viewed as a lay witness, his
opinion testimony regarding the statute was not relevant to his perception of
events or any facts at issue in the prosecution of a Section 6106 violation
(unlike Sergeant Wharton’s testimony regarding the Sportsman’s Permit
Exception). See Pa.R.E. 701(a) and (b). Nor could Sheriff Levindoski be said
to have been testifying as an expert with respect to the meaning or application
of Section 6106.1. To the extent that the record might be read to show that
Sheriff Levindoski was admitted as an expert, it was only due to his specialized
training as a certified firearm instructor. However, in response to the
Commonwealth’s question about his interpretation of Section 6106.1, Sheriff
Levindoski specifically disavowed that his expertise in that area was relevant
to his answers regarding Section 6106.1. Thus, his opinion testimony was
also inadmissible under Rule 702.
____________________________________________
that Appellant did not possess a carry-concealed permit at the time of the
vehicle stop. Id. at 115. This appears to be the only testimony provided by
Sheriff Levindoski that was based on his personal knowledge of factual matters
that were relevant to Appellant’s charge under Section 6106.
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Nevertheless, the trial court maintains that the erroneous admission of
this testimony constituted harmless error:
Here, any error in including the testimony of … Sheriff …
Levindoski[ ]regarding his interpretation of [Section] 6106.1 and
the prohibitions regarding the carrying of a loaded pistol … w[as]
insignificant compared to the properly admitted evidence that
established the inapplicability of the affirmative defense of the
Sportsman’s Permit Exception….
As articulated by Appellant’s counsel in opening argument:
The question before you is going to be, is the exception
applicable to [Appellant]? The exception allowing him to
have the pistol if he has the Sportsman’s Firearm Permit, is
that exception applicable in this case, and if you find that it
is then you must find [Appellant] not guilty of the charge.
Specifically, the issue of … whether the affirmative defense of the
Sportsman’s Permit [Exception] was applicable in this case[,] the
only exception relied upon by Appellant at trial[,] was a question
of fact for the jury to decide. Moreover, because the issue of
whether the exception is applicable is an affirmative defense, it
was Appellant[‘]s burden to prove [it] by a fair preponderance of
the evidence.
Therefore, because of the shifting burden and lower standard of
proof, this [c]ourt does not believe that the properly admitted and
uncontradicted evidence of guilt need be “so overwhelming and
the prejudicial effect of the error so insignificant by comparison
that the error could not have contributed to the verdict.” Instead,
this [c]ourt’s position is that a lower standard of harmless error
for affirmative defenses should apply, such as: the uncontradicted
evidence of guilt need only be overwhelming and the prejudicial
effect of the error need only be insignificant.
Notwithstanding, this [c]ourt believes there is sufficient evidence
that the higher standard of harmless error has been met, which is
sufficient to prove that the error was harmless beyond a
reasonable doubt. Additionally, this [c]ourt believes that the
alleged errors did not prejudice Appellant.
Specifically, … Caffo[] testified that prior to leaving Wellsboro to
head to her home in Osceola, she and … Appellant were not in the
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vehicle at any other point earlier that day. She also testified that
[she] and … Appellant were not hunting, fishing, or trapping, nor
was there any intent of going hunting or fishing when she left
Wellsboro and got into the vehicle; rather, the intent was to go
home and there was no mention of going hunting or fishing. [N.T.
Trial at 5-16.]
Additionally, Sergeant Wharton testified, “There was no indication
by the incident we were called to, that [Appellant] was doing any
of the activities in which a Sportsman’s Permit allows him to do.”
[Id. at 102.]
Lastly, Appellant himself testified that he arrived at [Caffo’s]
around 7:30 [or] 8:00 p.m. with the intent to drop her off and
then go fishing, but the jury is permitted to reasonably infer
otherwise given the time that evening and his bias.
Therefore, the inapplicability of [the Sportsman’s Permit
Exception] was never really in doubt. Frankly, it was not a close
case.
Moreover, this [c]ourt properly instructed the jury regarding the
law applicable to this case, and the jury is presumed to have
followed the court’s instructions. Commonwealth v. Williams,
245 A.3d 710, 723 (Pa. Super. [] 2021).
Accordingly, this [c]ourt respectfully requests the [Superior] Court
[d]eny relief … since any error was harmless.
TCO at 5-8 (some citations, footnotes, and quotation marks omitted).
Initially, we reject the trial court’s notion that some alternative,
harmless error standard applies to our review of its error in admitting Sheriff
Levindoski’s at-issue testimony. The trial court cites no authorities suggesting
that alternative harmless error standards exist under Pennsylvania
jurisprudence, much less that such a standard would apply in the
circumstances of this case due to Appellant’s burden to prove the applicability
of the Sportsman’s Permit Exception by a preponderance of the evidence
below. Our Supreme Court
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has held that an error may be considered harmless “only if the
appellate court is convinced beyond a reasonable doubt that
the error is harmless.” Commonwealth v. Story, … 383 A.2d
155, 162 ([Pa.] 1978) [(emphasis added)]. “[A]n error cannot be
held harmless unless the appellate court determined that the error
could not have contributed to the verdict. Whenever there is
a reasonable probability that an error might have contributed to
the conviction, the error is not harmless.” Id. at 164 [(emphasis
added)]. In Story, th[e] Supreme Court outlined three scenarios
under which an error may be deemed harmless, which have been
summarized in subsequent cases as follows:
Harmless error exists if the state proves either: (1) the error
did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence;
or (3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the
error was so insignificant by comparison that the error could
not have contributed to the verdict.
Commonwealth v. Fulton, … 179 A.3d 475, 493 ([Pa.] 2018)
(additional citations omitted).
Commonwealth v. Jones, 240 A.3d 881, 891–92 (Pa. 2020).
With this well-established standard as our guide, we address the trial
court’s holding that its error was harmless because it was insignificant in
comparison to the evidence of guilt, and because it properly instructed the
jury as to the applicable law. For the following reasons, we disagree.
First, we repeat that there is no dispute that the essential issue at trial
was the applicability of the Sportsman’s Permit Exception. Absent Sheriff
Levindoski’s inadmissible testimony (and the Commonwealth’s reliance
thereon), that issue should have turned solely on the factual question of
whether Appellant was going fishing at the time his vehicle was stopped by
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police. The trial court construes this matter as “not a close case[,]” TCO at 8,
but the record does not support a determination that the evidence was
overwhelming. The issue was, fundamentally, a battle of credibility between
Appellant and a few of the Commonwealth’s witnesses. The jury, and not the
trial court, had the sole province to resolve this credibility dispute.13
Appellant testified that he is an avid outdoorsman, that he intended on
going fishing on the day of the stop, but that his “day didn’t go as was
planned.” N.T. Trial at 131-32. He stated that although he was involved in a
dispute with Caffo, he “was going fishing to unwind afterwards[,]” and that he
was trying to “get her out of … [his] vehicle and leave … to do other things.”
Id. at 133. He said he intended to take her home before he went fishing. Id.
at 134. He further testified that he had multiple fishing rods in the trunk of
the vehicle, as well as a tackle box and other items that he would have used
for that purpose. Id. He stated that the police did not search his trunk. Id.
He indicated that the police only “checked the driver’s area of the car.” Id.
Finally, he told the court that he believed he had a right to have the gun in
the car because he possessed a Sportsman’s Permit. Id.
On cross-examination, Appellant further explained that he intended to
go fishing that day after dropping off Caffo, but after their dispute began,
____________________________________________
13 The “fact-finder is free to believe all, part, or none of the evidence, and
credibility determinations rest solely within the purview of the fact-finder.”
Commonwealth v. Flor, 998 A.2d 606, 626 (Pa. 2010). Here, the jury, and
not the trial court, acted as the fact-finder. Thus, we need not afford any
deference to the trial court’s assessment of the witnesses’ credibility.
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Caffo refused to leave the vehicle. Id. at 136-37. When asked why he did
not inform the police of his intent to go fishing at the time of his arrest, he
stated that he was not “given an opportunity to explain” himself, and that “no
questions were asked of [him] during the stop.” Id. at 137.
Caffo testified that she and Appellant had not been fishing that day
before the vehicle stop, that her intent in getting in the vehicle with Appellant
was to go home, and that he had not mentioned going fishing. Id. at 71.
Sergeant Andrew Adams of the Westfield Borough Police Department made
the traffic stop of Appellant’s vehicle. Id. at 76. He testified regarding his
discovery of the firearm on the floor on the driver’s side of the vehicle. Id. at
77. The firearm was in plain view from the outside of the vehicle. Id. at 80.
He did not take possession of any evidence, but he did take photos of “a black
handgun, a holster, a bullet, and a magazine.” Id. at 78; see also
Commonwealth’s Exhibit 1. Sergeant Adams’ testimony did not include any
discussion of his interaction with Appellant beyond removing him from the
vehicle, cuffing him, and placing Appellant in the rear of a police vehicle. See
id. at 76. He did not indicate that he had spoken with Appellant or asked him
any questions. He also did not indicate that he searched any other part of the
vehicle beyond discovering the firearm on the floor in front of the driver’s seat.
The prosecutor did not ask Sergeant Adams if he saw any evidence consistent
with Appellant’s claim that he was going fishing.
Trooper Justin Millard of the Pennsylvania State Police also testified. Id.
at 81-93. He arrived at the scene after Sergeant Adams had already placed
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Appellant in custody. Id. at 82. He also observed the firearm, “a holster, a
magazine with live rounds, and then one loose round in the foot area.” Id. at
83. He took photos of these items as they were found in the vehicle. Id. at
84-86; Commonwealth’s Exhibit 2. Trooper Millard did not testify as to any
communications he had with Appellant. He specifically testified that he did
not see anything else “of significance” in the vehicle, with the caveat that he
did not “search the vehicle in any other way” beyond his involvement in
photographing and then securing the firearm. Id. at 92. He was not asked
any specific questions about whether he observed anything in the vehicle that
was consistent or inconsistent with Appellant’s claim that he had intended to
go fishing that evening before he was stopped by police.
Finally, Officer Wharton testified.14 He arrived at the scene with Trooper
Millard. Id. at 96. He testified consistently with the other officers regarding
the location and condition of the firearm found in Appellant’s vehicle, and to
the fact that Appellant did not possess a carry-concealed permit, because it
had been previously revoked. Id. at 97-99. He further testified to the fact
that Appellant possessed a Sportsman’s Permit. Id. at 101. As discussed
above, he also stated that “there was no indication by the incident” that
Appellant “was doing any of the activities in which a Sportsman’s Permit allows
him to do.” Id. at 102. He was not asked about the scope of his search of
____________________________________________
14 As noted above, Sheriff Levindoski also testified for the Commonwealth, but
he was not present for the vehicle stop and, therefore, could not speak to any
facts in this case relevant to the credibility of Appellant’s claim that he was
going fishing.
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the vehicle that led him to this conclusion. He also testified that Appellant
was required to have a carry-concealed permit “to have [the firearm] loaded
in the vehicle[.]” Id. at 103. He also stated that Appellant would not need a
carry-concealed permit to transport the firearm in the vehicle “if [the firearm]
wasn’t loaded.” Id. at 104.
Given this record, it is certainly the case that the jury was free to
disbelieve Appellant’s claim that, at the time of the stop, he intended to go
fishing after dropping off Caffo. We also agree with the trial court and the
Commonwealth that Caffo’s testimony, coupled with Sergeant Wharton’s
testimony, if believed by the jury, tended to weigh against Appellant’s
credibility on that issue. However, the evidence contradicting Appellant’s
account was not overwhelming. First, Appellant did not testify that he
intended to take Caffo fishing with him, nor could she fully speak to his intent
in that regard. Second, none of the officers testified to having searched
anywhere in the vehicle other than in the location where the firearm was
found. Thus, Appellant’s claims that he had a tackle box and fishing rods in
his trunk, and that none of the officers had searched that location, were both
left uncontradicted by the Commonwealth’s evidence. Third, Appellant’s
testimony that none of the officers asked him questions about his intent to go
fishing was also left uncontradicted. Such questions might have led the
officers to conduct a more thorough search of the vehicle to confirm or refute
Appellant’s fishing claim. Thus, contrary to the trial court’s characterization—
that the factual question of whether Appellant was in transit to go fishing was
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not a close case—the record indicates that it was merely a credibility issue for
the jury to resolve, even if the greater weight of the established facts
suggested that Appellant’s story was not credible. It certainly was not
impossible to believe that Appellant intended to go fishing until his plans were
interrupted by his domestic dispute with Caffo, even if it appeared unlikely to
the trial court.15 If the jury believed Appellant’s story, we see no reason why
the Sportsman’s Permit Exception would not apply. Moreover, the jury could
have believed Appellant and concluded that the officers had simply failed to
confirm or refute his claim because they had not thoroughly searched the
vehicle or asked Appellant questions relevant to the applicability of the
Sportsman’s Permit Exception, rather than simply disbelieving their
testimony. Simply put, the evidence against the applicability of the
Sportsman’s Permit Exception was not overwhelming in relation to the
evidence for its applicability.
Most critically, however, the Commonwealth’s explicit reliance on
Sherriff Levindoski’s inadmissible and irrelevant testimony regarding Section
6106.1 demonstrates that the error was not harmless. In its closing argument
to the jury, the prosecutor invoked the Sheriff’s testimony, stating: “[A]nd
you heard Sheriff Levindoski testify that there is no way[,] unless you are a
police office[r], have a badge of some sort, or have a [carry-concealed]
____________________________________________
15 If the jury were to believe that Appellant’s plan to go fishing was interrupted
by that domestic dispute, that would also tend to undermine or deflate the
strength of the inference that he was lying based on the time of the stop.
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permit, that you can have a loaded gun in your car.” Id. at 150-51. While
that statement of the law is technically true (because such conduct is
prohibited under Section 6106.1), Appellant was not on trial for a violation of
Section 6106.1, and the Sportsman’s Permit Exception to Section 6106
contains no caveat for loaded firearms.
The prosecutor next suggested that Appellant displayed consciousness
of guilt when he told Caffo to tell the police that the gun was not loaded. Id.
at 151. If the jury had believed Caffo’s testimony that Appellant instructed
her to lie, it was at least somewhat suggestive of Appellant’s consciousness of
guilt, which the jury was free to use in questioning Appellant’s credibility.
However, the prosecutor then put the focus on the factual question of
whether the firearm was loaded as being dispositive of whether Appellant was
guilty of a violation Section 6106, regardless of whether the jury believed
Appellant’s fishing claim. See id. at 152 (“Again, we know now that
[Appellant] was arguing that he was [going] fishing, but it – regardless[,]
it doesn’t matter because the gun is loaded, and even his Sportsman’s
Permit does not allow him to carry the gun loaded in the vehicle.”)
(emphasis added). Indeed, even on appeal, the Commonwealth continues to
conflate the prohibition against carrying a loaded firearm in a vehicle under
Section 6106.1, a matter improperly introduced at trial through Sherriff
Levindoski’s testimony, with the applicability of the Sportsman’s Permit
Exception to Section 6106. See Commonwealth’s Brief at 10 (“This case
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rested on the fact of whether … the firearm was loaded in the vehicle. The
Commonwealth provided sufficient evidence to support that element.”).
As noted above, whether the firearm was loaded or unloaded was not a
relevant fact for purposes of whether Appellant could avail himself of the
Sportsman’s Permit Exception to Section 6106. Although carrying a loaded
firearm in a vehicle is prohibited by Section 6106.1, Appellant was never
charged and was not on trial for that wholly-distinct offense. We acknowledge
that the trial court’s instructions to the jury did not misstate the law with
regard to Section 6106 or the Sportsman’s Permit Exception, but nor did those
instructions correct the conflation of Section 6106 and Section 6106.1 that
pervaded Appellant’s trial. See N.T. Trial at 159-60. Under these
circumstances, we cannot conclude that the admission of Sherriff Levindoski’s
inadmissible and irrelevant legal opinion testimony regarding Section 6106.1
“could not have contributed to the verdict.” Story, supra. The prosecutor
invited the jury to decide this case based on that testimony, irrespective of
Appellant’s claim that he was going fishing. Thus, we are not convinced
beyond a reasonable doubt that the admission of that testimony was harmless
error. Appellant is entitled to a new trial.16
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
____________________________________________
16 Consequently, it is unnecessary to remand for further IAC proceedings for
purposes of unitary review under Holmes, as Appellant cannot obtain greater
relief in such proceedings beyond a new trial.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/22/2022
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