J-S33016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TEQUILA HELEN JONES
Appellant No. 1054 WDA 2015
Appeal from the Judgment of Sentence May 14, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013357-2014
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 27, 2016
Appellant, Tequila Helen Jones, appeals from the judgment of sentence
entered on May 14, 2015, as made final by the denial of a post-sentence
motion on June 10, 2015, following her bench trial conviction for receiving
stolen property,1 possessing a firearm without a license,2 and three motor
vehicle summary offenses.3 Upon review, we reverse Appellant’s conviction
for receiving stolen property, vacate the judgment of sentence for that
offense, and affirm her remaining convictions and sentence in all other
respects.
____________________________________________
1
18 Pa.C.S.A. § 3925.
2
18 Pa.C.S.A. § 6106(a).
3
Appellant does not challenge her summary offense convictions on appeal.
*Former Justice specially assigned to the Superior Court.
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The trial court summarized the facts of this case as follows:
At trial, Homestead Police Officer James Wintruba testified
that on September 20, 2014, at approximately 2:00 a.m.,
he observed a vehicle traveling which he described as
suspicious in nature. Officer Wintruba recognized the car as
belonging to Appellant, and believed that Appellant did not
possess a valid license and that the vehicle she drove was
not registered or insured. He passed the vehicle and
observed the driver, Appellant, whom he recognized as the
owner of the vehicle. The [o]fficer ran the registration plate
as he passed the vehicle and it came back cancelled for
insurance reasons. Before he was able to initiate a traffic
stop, he was called away to another matter. Officer
Wintruba testified that he observed the same vehicle later
that evening, and attempted to initiate a traffic stop.
Appellant’s vehicle continued for three blocks before
stopping. The [o]fficer observed Appellant, now in the
passenger seat, and an unknown male in the driver’s seat
(later identified as Frank Key[e]s). The [o]fficer observed
Appellant turning left and right, disappearing behind the
seat and then reappearing. Officer Wintruba suspected
Appellant had placed something on the rear floor.
Upon the [o]fficer’s approach to the vehicle, Appellant
continued to move frantically. The driver, Keyes, appeared
to be intoxicated. Keyes’ eyes were squinted, his
movements were lethargic and he reeked of alcohol.
Corporal Jeff Luptak arrived as backup shortly after the
traffic stop and took an observation point while Appellant
searched her glove box for the registration. While Officer
Wintruba was speaking with Keyes, Corporal Luptak
shouted, “Gun, gun. There is a gun in the car.” Appellant
and Keyes were quickly removed from the vehicle. Officer
Wintruba observed a small black semiautomatic weapon on
the passenger seat toward the center of the vehicle, the
area from which Appellant was removed. Officer Wintruba
later clarified that the gun was recovered from the area
under Appellant’s left thigh. Neither Appellant nor Keyes
had a valid license to carry a firearm. Officer Wintruba
testified that the gun was owned by Patrick Schmidt who
had reported it as stolen. One fingerprint was recovered on
the gun but it did not match Appellant or Keyes. Appellant
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made several statements at the scene that she was
unaware of and quite surprised by the presence of a gun in
the car. Keyes stated he switched places with Appellant
because he felt she was too drunk to drive him home.
Corporal Luptak testified that when he arrived at the scene,
he did not initially observe the firearm. He testified that he
was at the passenger side window when he saw the
handgun under Appellant’s leg as Appellant moved around
inside the vehicle. Corporal Luptak testified that he saw the
gun on the passenger seat with the barrel facing the driver’s
side. He alerted the other [o]fficer and removed Appellant
from the vehicle.
Schmidt testified that he bought a 9mm caliber Kel-Tee
pistol with a serial number S2526 at a gun show in January
2014. Schmidt identified the gun that was recovered from
Appellant’s car as the same weapon he purchased at the
gun show. He testified that the gun had been stolen from
him and that he had not given Appellant or Keyes
permission to possess the firearm.
Trial Court Opinion, 1/15/2016, at 3-4 (record citations omitted).
The trial court held a bench trial on May 14, 2015. At its conclusion,
the trial court convicted Appellant of the aforementioned crimes. Appellant
waived her right to the preparation of a pre-sentence investigation report
and proceeded directly to sentencing. The trial court sentenced Appellant to
three years of probation for possession of a firearm (with the first year
electronically monitored) and a concurrent term of three years’ probation for
receiving stolen property. The summary offenses resulted in a fine, but no
further penalties. This timely appeal resulted.4
____________________________________________
4
Appellant filed a post-sentence motion nunc pro tunc on June 3, 2015,
arguing the convictions were against the weight of the evidence presented.
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issue for our review:
I. Were the verdicts of guilty for receiving stolen
property and possession of a firearm without a license
[] rendered against the weight of the evidence
presented?
Appellant’s Brief at 4.
Appellant claims that her convictions for receiving stolen property and
possessing a firearm without a license were against the weight of the
evidence presented by the Commonwealth. Appellant claims, “the testifying
officers stated [she] was highly intoxicated [and] seemed shocked when told
there was a gun present.” Id. at 11. Appellant further avers that the
fingerprint found on the firearm excluded her and that Mr. Keyes “admitted
that he sat in the passenger’s seat where the gun was found just prior to the
traffic stop.” Id. Appellant claims that the Commonwealth did not prove
she exercised conscious dominion over the firearm because “Officer
Wintruba specifically testified that the gun was not where he saw
[Appellant] leaning forward, and was within Mr. Keyes’ arm-length.” Id. at
14 (emphasis in original). Thus, based upon the totality of circumstances,
Appellant suggests, “Mr. Keyes placed the gun under her leg immediately
_______________________
(Footnote Continued)
The trial court accepted the late filing, but denied relief on the merits by
order entered on June 10, 2015. On July 10, 2015, Appellant filed a notice
of appeal. By order filed on July 16, 2015, the trial court directed Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). After the grant of an extension to obtain the necessary
trial transcripts, Appellant complied timely on September 22, 2015. The trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 15, 2016.
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following the stop.” Id. at 18. Although Appellant concedes she had the
power to control the firearm, she maintains, under the circumstances
established at trial, the determination that she had the intent to exercise
control over the weapon was against the weight of the evidence. Id. at 16.
Finally, Appellant claims that because she did not know the firearm was
under her leg, she could not have known it was stolen. Id. at 18-19.
Our Supreme Court has set forth our standard of review as follows:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at
a different conclusion. Rather, the role of the trial judge is
to determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded
when the jury's verdict is so contrary to the evidence as to
shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity
to prevail.
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
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granting or denying a new trial is the lower court's
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial
based on a challenge to the weight of the evidence is
unfettered. In describing the limits of a trial court's
discretion, [the Pennsylvania Supreme Court has]
explained:
The term discretion imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations,
quotations, and emphasis omitted). “The weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none or some of
the evidence and to determine the credibility of the witnesses.”
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015).
Possessing a firearm without a license, a third-degree felony, is
statutorily defined as “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[.]” 18 Pa.C.S.A. § 6106(a).
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Here, in rendering its decision, the trial court noted:
[Appellant] was in actual possession of the gun. It was her
car. Even by her own statement she claims that she was
too drunk to drive and scooted over to the passenger side.
One would have to believe that the gun when she scooted
over did not move but remained under her left leg. And the
testimony of the officer was that he put his light on
immediately, did not see much motion on the part of the
driver[,] but somehow a lot of motion on the part of the
passenger.
Whether [Appellant] was trying to hide it under the seat and
failed or whatever she was moving around trying to do, it’s
inconceivable she could not feel a gun under her thigh in
the car seat or see it and her statements to the contrary are
just not credible. For [Keyes] to have reached over and
wedged it there after pulling the car over is not impossible,
but does seem highly unlikely that he would be able to lift
her leg and stick a gun under it.
N.T., 5/14/2015, at 81-82. Because Appellant was in physical contact with
the firearm as she sat on it, the trial court determined that “Appellant was in
actual possession of the gun.” Trial Court Opinion, 1/15/2016, at 6.
Moreover, the trial court stated that the location of the gun “positioned with
the grip facing [Appellant]” and the barrel facing the driver’s side, supported
the inference that she, not Keyes, “was actively trying to hide the gun from
police.” Id. at 6-7; see also N.T., 5/14/2015, at 52-53.
We discern the trial court did not abuse its discretion in ruling on
Appellant’s weight claim with regard to possessing a firearm without a
license. The Commonwealth presented evidence that Appellant was sitting
directly on the firearm when police directed her out of the vehicle. To find
under the circumstances that Appellant exercised dominion and control over
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the firearm simply does not shock the conscious of this Court. Moreover,
the trial court was free to reject Appellant’s statements to police, wherein
she claimed she was unaware of the presence of the gun. We will not
disturb that credibility determination. Finally, there is no dispute that
Appellant did not have a license to carry a firearm. Thus, we conclude
Appellant’s firearm conviction was not against the weight of the evidence
and affirm that conviction.
Thereafter, based upon all of the evidence presented, the trial court
circumstantially “inferred that [Appellant] knew or had reason to believe the
gun was not legally possessed” to support Appellant’s conviction for
receiving stolen property. Trial Court Opinion, 1/15/2016, at 7.
“A person is guilty of theft if he intentionally receives, retains, or
disposes of movable property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless the property is received,
retained, or disposed with intent to restore it to the owner.” 18 Pa.C.S.A.
§ 3925.
Our “Supreme Court [has] indicated that mere possession of stolen
property, without more, is not sufficient circumstantial evidence to support
an inference of guilty knowledge.” Commonwealth v. Robinson, 128 A.3d
261, 267 (Pa. Super. 2015) (en banc), citing Commonwealth v. Williams,
362 A.2d 244, 248 n.7 (Pa. 1976). In Robinson, this Court determined that
a factfinder “may infer guilty knowledge from evidence of recency, [in other
words, that the goods were recently stolen,] which in turn may require the
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appellant to offer an alternative explanation for [her] possession of the
stolen item.” Robinson, 128 A.3d at 267. “It is the Commonwealth's
circumstantial evidence of guilty knowledge (recency) that compels the need
for an explanation, since in the absence of an explanation the jury may infer
guilty knowledge beyond a reasonable doubt based upon the
Commonwealth's evidence.” Id. at 267-268. “Even if the accused offers an
explanation, the [factfinder] may nevertheless find it unsatisfactory and
reach a finding of guilty knowledge based upon the recency of the theft.” Id.
at 268. Moreover, “[e]vidence of the recency of the theft is not the only
basis for the inference of guilty knowledge.” Id. “Circumstantial evidence
of guilty knowledge may include, inter alia, the place or manner of
possession, alterations to the property indicative of theft, the defendant's
conduct or statements at the time of arrest (including attempts to flee
apprehension), a false explanation for the possession, the location of the
theft in comparison to where the defendant gained possession, the value of
the property compared to the price paid for it, or any other evidence
connecting the defendant to the crime.” Id.
Here, the Commonwealth presented the testimony of the firearm
owner, Patrick Schmidt. N.T., 5/14/2015, at 64-67. Schmidt purchased the
firearm at a gun show in January 2014. Id. at 64. He reported the firearm
stolen on June 28, 2014. Id. at 66. Police recovered the firearm on
September 20, 2014. Id. at 16. The serial number was intact and traced to
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Schmidt. Id. at 34. Police testified that Appellant “was quite shocked and
surprised” when the firearm was recovered. Id. at 45.
In this case, police recovered the firearm three months after Schmidt
reported it stolen. Generally, we have determined that three months does
not qualify as recent under the aforementioned standards. See Robinson,
128 A.3d at 268-269 (collective cases discussing recency in inferring guilty
knowledge). Additionally, the Commonwealth did not present circumstantial
evidence of Appellant’s guilty knowledge. There were no signs the weapon
had been altered to indicate it had been stolen, Appellant did not flee or
offer a false explanation for the possession, and there was no other evidence
connecting Appellant to theft of the firearm. Hence, we conclude Appellant’s
conviction for receiving stolen property cannot stand and we are constrained
to reverse it and vacate the judgment of sentence for that offense.
An appellate court may affirm, modify, vacate, set aside or reverse
any order brought before it and may remand the matter. 42 Pa.C.S.A. § 706
(emphasis added). “If our disposition upsets the overall sentencing scheme
of the trial court, we must remand so that the court can restructure its
sentence plan.” Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super.
2006) (citation omitted). “By contrast, if our decision does not alter the
overall scheme, there is no need for a remand.” Id. In this case, the trial
court sentenced Appellant to three years of probation for possession of a
firearm, with a concurrent term of three years’ probation for receiving stolen
property. Since Appellant’s sentence remains the same despite vacating the
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receiving stolen property sentence, a remand for resentencing is
unnecessary.
Conviction for receiving stolen property reversed. Judgment of
sentence for receiving stolen property vacated. Remaining convictions and
judgment of sentence affirmed in all other respects.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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