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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

DEAN LASEAN BROWN,

                        Appellant                      No. 913 EDA 2015


          Appeal from the Judgment of Sentence March 2, 2015
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0003000-2014

BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 19, 2016

     Appellant, Dean Lasean Brown, appeals from the judgment of sentence

entered on March 2, 2015. We affirm.

     The trial court summarized the facts of the crime as follows:

           Joseph Galiano is the owner of Suburban Armory and has
     been so employed for the past nineteen years. The store sells
     firearms and accessories. Typically, when a person comes in to
     purchase a handgun, the individual will select the gun they wish
     to purchase and then Mr. Galiano has them fill out two forms:
     the Federal ATF 4473 and the Pennsylvania State Police
     Application/Record of Sale. In addition to the forms, Mr. Galiano
     also takes a photo of everyone’s ID.

           On February 4, 2014, at approximately 2:45 p.m.,
     Appellant came in to Suburban Armory with the intention of
     purchasing a Smith and Wesson Sigma Series Pistol. Appellant
     told Mr. Galiano that he wished to purchase the gun and in turn,
     Mr. Galiano handed Appellant the requisite forms and told
     Appellant what he tells all of his customers: “I tell everyone that
     they have to fill it out and then they have to sign it and I tell
     them by signing it they’re taking an oath, they’re telling the
     truth, that it’s a felony to lie on the form.” He also tells people if
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     they have any questions they are free to ask him; however, he
     does not watch the person fill out the form. It would be up to
     the individual to ask for assistance.

           Appellant filled out both forms. On the Federal ATF 4473
     question 11(b) “are you under indictment or information in any
     Court for a felony or any other crime for which the Judge could
     imprison you for more than one year,” Appellant answered “no”.
     On the Pennsylvania State Police Application/Record of Sale,
     question 32 states: “are you now charged with or have you ever
     been convicted of a crime punishable by imprisonment for a
     term exceeding one year? This is the maximum sentence that
     you could have received, not the actual sentence you did
     receive.” Appellant answered “no.” Appellant signed and dated
     the paperwork. Mr. Galiano called the Pennsylvania State [Fire]
     Arm Unit and proceeded to do a background check. As a result
     of the check, Appellant was denied purchase of the gun.
     Appellant left the store that day without incident.

           Trooper Mark Gibble, a criminal investigator employed with
     the Pennsylvania State Police at the Troop K Media Barracks had
     occasion to become involved with Appellant in April of 2014.
     Trooper Gibble was provided with the date of sale, location of
     attempted purchase, Appellant’s name, date of birth and a
     request to start an investigation into the denial of the purchase.
     Trooper Gibble was also aware that the reason Appellant was
     denied purchase was due to an open felony case. With that
     information, Trooper Gibble went to Suburban Armory, spoke
     with Mr. Galiano, and received copies of both the federal form
     and the state form that Appellant filled out. Trooper Gibble
     observed that Appellant answered “no” to 11(b) on the federal
     form and “no” on question 32 of the state form and signed both
     documents. Trooper Gibble also received the copy that Mr.
     Galiano made of Appellant’s driver’s license and confirmed
     Appellant’s identity through JNET. Trooper Gibble attempted to
     contact Appellant but his efforts proved unsuccessful.

Trial Court Opinion, 4/27/15, at 2–4 (internal citations and footnote

omitted).

     On April 29, 2014, police charged Appellant with two counts of

violating the Uniform Firearms Act by making a materially false written

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statement on any form promulgated by federal or state agencies during the

purchase, delivery, or transfer of a firearm, 18 Pa.C.S. § 6111(g)(4)(ii), two

counts of unsworn falsification to authorities (statements “under penalty”),

18 Pa.C.S. § 4904(b), and two counts of tampering with public records or

information, 18 Pa.C.S. § 4911(a)(1). Appellant proceeded to a bench trial

on October 24, 2014; Mr. Galiano, Trooper Gibble, and Delaware County

Detective Matthew Cresta testified on behalf of the Commonwealth, and

Appellant testified on his own behalf.

      At trial, the Commonwealth indicated it was proceeding only on one

count each of materially false written statement and statement under

penalty. N.T., 10/24/14, at 9. The trial court found Appellant guilty of both

charges   and   ordered   a   presentence   investigation    and   psychological

evaluation. Id. at 74.

      On March 2, 2015, the trial court sentenced Appellant to eleven and

one-half to twenty-three months of incarceration for the firearms conviction

and a consecutive term of one year of probation for unsworn falsification.

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following two issues on appeal:

             Whether the Trial Court abused its discretion when it
      precluded J.R. Brockman, caseworker employed by Northwestern
      Human Services, from testifying as to Appellant’s ability to
      comprehend and understand questions posed to him and how
      Appellant’s ability to understand things was affected by his
      intellectual disabilities.

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            Whether the evidence was insufficient to establish beyond
      a reasonable doubt all the elements of Materially False Written
      Statement and Statement Under Penalty where the testimony
      presented at trial failed to support a showing that Appellant
      “knowingly and intentionally” made false statements on the
      Pennsylvania State Police Application/Record of Sale form
      (specifically question #32) and/or made statements Appellant
      did not believe to be true.

Appellant’s Brief at 10.

      The first issue involves the admission of evidence. In particular, when

Appellant attempted to call J.R. Brockman, Appellant’s Northwestern Human

Services caseworker from an unrelated, ongoing case involving Appellant’s

children, the Commonwealth requested an offer of proof.          Based on that

offer, the trial court precluded the witness’s testimony.     N.T., 4/24/15, at

48.

      The admission of evidence is governed by the following standards:

      “The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion.”
      Commonwealth v. Reid, ___ Pa.___, 99 A.3d 470, 493
      (2014). An abuse of discretion will not be found based on a
      mere error of judgment, but rather occurs where the court has
      reached a conclusion that overrides or misapplies the law, or
      where the judgment exercised is manifestly unreasonable, or the
      result of partiality, prejudice, bias or ill-will. Commonwealth v.
      Davido, ___ Pa. ___, 106 A.3d 611, 645 (2014).

Commonwealth v. Woodard, ___ A.3d ___, ___, 2015 WL 7767271 at

*10 (Pa. December 3, 2015). “[A]n erroneous ruling by a trial court on an

evidentiary issue does not necessitate relief where the error was harmless




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beyond a reasonable doubt.” Commonwealth v. Travaglia, 28 A.3d 868,

874 (Pa. 2011).

         Appellant’s remaining challenge is to the sufficiency of the evidence

supporting his convictions. Specifically, Appellant asserts, “even by way of

[his] own testimony,” Appellant’s Brief at 28, his acts were not knowing and

intentional when he denied ever having been charged with a crime

punishable by imprisonment for a term exceeding one year, even though at

the time he attempted to buy the firearm, he was charged with felony

insurance fraud and was awaiting trial. Commonwealth’s Brief at 12; N.T.,

10/24/14, at 33, 39.      Appellant denied understanding Question 32 on the

Pennsylvania State Police Application/Record of Sale form, which stated as

follows:

         Are you now charged with or have you ever been convicted of a
         crime punishable by imprisonment for a term exceeding one
         year? This is the maximum sentence that you could have
         received, not the actual sentence you did receive. . . .

Pennsylvania State Police Application/Record of Sale, Exh C-1; N.T.,

10/24/14, at 15. Thus, he contends the Commonwealth failed to prove that

the false statement was done knowingly and intentionally. Appellant’s Brief

at 23.

         In reviewing a sufficiency challenge, “we must decide whether the

evidence admitted at trial, and all reasonable inferences drawn therefrom in

favor of the Commonwealth, as verdict winner,” are sufficient to support all

elements of the offense.     Commonwealth v. Hitcho, 123 A.3d 731, 746

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(Pa. 2015).   The trial court, sitting as the finder of fact, is free to believe

some, all, or none of the evidence. Commonwealth v. Cousar, 928 A.2d

1025 (Pa. 2007); Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa.

Super. 2015).    Moreover, the Commonwealth may sustain its burden of

proof by wholly circumstantial evidence.     Commonwealth v. Diggs, 949

A.2d 873 (Pa. 2008); Commonwealth v. Vogelsong, 90 A.3d 717 (Pa.

Super. 2014), appeal denied, 102 A.3d 985 (Pa. 2014).          As an appellate

court, we may not re-weigh the evidence and substitute our judgment for

that of the fact-finder.   Commonwealth v. Rogal, 120 A.3d 994 (Pa.

Super. 2015).

      Upon review of the parties’ briefs, the certified record, and our

standard of review, we conclude that the trial court properly disposed of

Appellant’s issues in its Pa.R.A.P. 1925(a) opinion. Therein, the trial court

determined, inter alia, that precluding the testimony of Appellant’s Human

Services caseworker was not an abuse of its discretion and that the evidence

of record was sufficient to sustain Appellant’s convictions.        Trial Court

Opinion, 4/27/15, at 7–10. Moreover, the trial court specifically found that

“Appellant’s self-serving testimony was not credible.” Id. at 9. Therefore,

we affirm the judgment of sentence on the basis of the trial court’s April 27,

2015 Pa.R.A.P. 1925(a) opinion.     In the event of future proceedings, the

parties are directed to attach a copy of the trial court’s opinion to this

memorandum.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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