Com. v. Hixon, E.
306 MDA 2016
| Pa. Super. Ct. | Jan 31, 2017Background
- On October 28, 2014, witnesses (Fisher, Lynch, Cifollili) testified Hixon argued with Fisher, went into his house, came out holding and firing a shotgun. Three eyewitnesses placed a gun in Hixon’s hands and stated he fired it.
- Police obtained a warrant and on October 30, 2014, Trooper Falkosky entered Hixon’s residence and observed green shotgun shells; a shotgun was recovered from under a couch in the home.
- The parties stipulated the shotgun was functional and could fire; the Commonwealth presented the recovered shotgun as circumstantial evidence linking Hixon to the October 28 incident.
- Hixon was charged with, inter alia, possession of a firearm by a person previously convicted of certain offenses (18 Pa.C.S. § 6105(a)(1)); he was acquitted of related charges (terroristic threats, simple assault, REAP) but convicted under § 6105(a)(1).
- Sentenced to 5–10 years’ imprisonment, Hixon filed post-sentence motions and appealed, raising sufficiency and weight of the evidence, due process/variance between charged date and recovery date, and sentencing errors (offense gravity score and mitigation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove knowing possession on Oct. 28, 2014 | Commonwealth: eyewitness testimony and circumstantial link to recovered shotgun support conviction | Hixon: gun belonged to his mother; he only admitted knowledge of gun under couch; recovered gun not identified as the gun fired on Oct. 28 | Affirmed—viewing evidence in Commonwealth’s favor, eyewitnesses plus recovered shotgun provide sufficient direct and circumstantial evidence to prove knowing possession |
| Weight of the evidence / inconsistent verdicts | Commonwealth: jury credited eyewitnesses; inconsistencies are not reversible if sufficient evidence exists | Hixon: acquittals on related counts show disbelief of prosecution’s version, so possession verdict shocks conscience | Affirmed—trial court did not abuse discretion; inconsistent verdicts allowed and sufficient evidence supports conviction |
| Due process / variance between charged date and recovery date | Commonwealth: recovery on Oct. 30 is circumstantial corroboration of Oct. 28 conduct proved by eyewitnesses | Hixon: he was effectively convicted for possession at arrest (Oct. 30), not the charged date (Oct. 28), violating notice/due process | Rejected—recovery on Oct. 30 provided circumstantial evidence corroborating eyewitness testimony about Oct. 28; no due process violation |
| Sentencing: offense gravity score and mitigation | Commonwealth/trial court: gun was fired, so loaded/ammunition available—OGS 10 appropriate; no legal basis for mistake-of-law mitigation | Hixon: OGS should be 9 (unloaded/no ammo); probation officer told him he could possess shotgun—mitigating | Affirmed—OGS 10 proper because gun was fired; claim of mistake of law insufficient to require mitigated sentence |
Key Cases Cited
- Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (sufficiency may rest on circumstantial evidence)
- Commonwealth v. Serrano, 61 A.3d 279 (Pa. Super. 2013) (appellate review of weight claims limited to palpable abuse of discretion)
- Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015) (inconsistent jury verdicts do not require reversal when sufficient evidence supports conviction)
- Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012) (challenge to offense gravity score raises a substantial question for discretionary sentencing review)
- Commonwealth v. Swope, 123 A.3d 333 (Pa. Super. 2015) (procedural requirements for appellate review of discretionary aspects of sentencing)