Com. v. Craig, R.

J-S43009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

RUBEN RICHARD CRAIG

Appellant No. 1546 WDA 2017

Appeal from the Judgment of Sentence imposed April 28, 2017
In the Court of Common Pleas of Venango County
Criminal Division at No: CP-61-CR-0000480-2016

BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2018

Appellant, Ruben Richard Craig, appeals pro se from the April 28, 2017

judgment of sentence imposing concurrent terms of 54 to 120 months of

incarceration for two charges of persons not to possess a firearm.1 We affirm.

The record reveals that Appellant was forbidden to possess a firearm

because of a 2004 conviction for aggravated assault. After receiving an

eyewitness report and video surveillance of Appellant purchasing a shotgun,

police executed a warrant on Appellant’s home on June 8, 2016. Police

recovered a fully loaded Mossberg twelve-gauge shotgun and a fully loaded

Hi-Point .380 pistol registered to Appellant’s then-girlfriend (and current wife)

____________________________________________

1 18 Pa.C.S.A. § 6105(a)(1).
J-S43009-18

and purchased in January of 2016. Police arrested Appellant and charged him

with the aforementioned offenses.

The record also reflects that Appellant, while the instant prosecution was

pending, faced charges of attempted homicide and aggravated assault in

connection with a May 30, 2016 incident. Appellant claims that, on May 30,

2016, he was attacked near his home by his sister-in-law’s boyfriend and five

others. N.T. Hearing, 2/16/17, at 12-13. One of the assailants allegedly

threatened to shoot up Appellant’s house. Id. at 13. Appellant claims his

actions on May 30, 2016 were in self-defense and that he obtained the

shotgun at issue in this case because he believed he would need to defend

himself. In the instant matter, Appellant attempted, unsuccessfully, to use

the May 30, 2016 incident to support a defense of duress (18 Pa.C.S.A. § 309)

or justification (18 Pa.C.S.A. § 501, et seq.).

The day before trial, Appellant presented a letter to the court stating

that he and his attorneys had reached a point of irreconcilable differences

concerning trial strategy, and Appellant asked to represent himself. The trial

court conducted a colloquy determined that Appellant made a knowing,

intelligent, and voluntary waiver of his right to counsel, and entered an order

permitting him to represent himself with his attorneys remaining as standby

counsel. See N.T. Hearing, 2/16/17 at 18-27, 32; Trial Court Opinion,

2/16/17, at 1. Perhaps owing to his self-representation, Appellant failed to

preserve many of the issues he now seeks to raise on appeal, and his trial

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J-S43009-18

strategy was somewhat incoherent. For example, he introduced evidence that

he was not in constructive possession of either firearm and that they belonged

to his wife, but he also introduced evidence that he obtained a shotgun for

self-defense after the May 30, 2016 incident. Over the trial court’s warning

that Appellant was opening the door to prior bad acts evidence, he examined

one of the participants in the May 30, 2016 incident in detail.

In any event, trial took place on February 17 and 21 of 2017, and the

jury found Appellant guilty on both counts of unlawful firearms possession.

This timely pro se appeal followed. Appellant raises four assertions of error,

which we quote verbatim:

I. Can the Commonwealth establish constructive possession
absent any evidence of intent to possess? Does the intent
to possess, necessary to establish constructive possession,
have to be an intent to personally possess the item? Does
the Commonwealth still establish constructive possession if
the defendant has access to a firearm, but only intends for
the firearm to be used by a third party (legally able to
possess said firearm)?

II. Can a claim of self-defense be established absent evidence
of fear of death or serious bodily injury, freedom from fault
in continuing the situation, or inability to retreat? Does
testimony of alleged prior bad act [sic]—in which the
defendant critically stabbed another person—prove to be too
prejudicial to the defendant?

III. Did the court properly limit the defendant’s introduction of
evidence for a defense of justification to evidence of only
threats made to the defendant, or was defendant entitled to
also present evidence of threats to others (namely, his
wife)? Did the court properly limit the defendant’s
introduction of evidence for a defense of justification to
evidence of only those threatening parties involved in a
Memorial Day 2016 attack on the defendant, or was

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J-S43009-18

defendant entitled to also present evidence of other
threatening figures for whom these parties acted as proxies
for?

IV. Does the Person Prohibited to Possess statute (18 Pa.C.S.A.
§ 6105) unconstitutionally deny defendant right [sic] to self-
defense?

Appellant’s Brief at 2 (pagination ours; emphasis in original).

The trial court issued two opinions in which it addressed all of Appellant’s

issues in detail. In its August 29, 2017 opinion addressing Appellant’s post-

sentence motion, the trial court thoroughly addresses Appellant’s argument

that he was not in constructive possession of either firearm. In its January

24, 2018 Pa.R.A.P. 1925(a) opinion, the trial court addressed Appellant’s

remaining arguments. We observe that Appellant raised thirteen issues in his

Pa.R.A.P. 1925(b) statement, and the trial court’s Pa.R.A.P. 1925(a) opinion

addressed them in turn. Argument on most of those thirteen issues is

interspersed throughout the four argument sections of Appellant’s pro se brief.

We have reviewed the parties’ briefs, the applicable law, the record, and the

trial court’s opinions. We affirm the judgment of sentence based on the trial

court’s well-reasoned opinions of August 29, 2017 and January 24, 2018. The

trial court’s opinions explain that Appellant failed to preserve several of his

arguments, and it addresses the lack of merit had Appellant preserved his

issues. We direct that those opinions be filed along with this memorandum.

Judgment of sentence affirmed.

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J-S43009-18

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2018

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 Circulated 10/31/2018 10:17 AM
) )

IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
r.
r-:
v. CR No. 480-2106
(

RUBEN RICHARD CRAIG,
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OPINION OF COURT r
NOW¥---� J;:Deft?�ant
AND 2017, the Court has for consideration

Ruben R. Craig's Motion for Post-Sentencing Relief. Craig requests relief from this Court's

Order of Sentence rendered on April 28, 2017 pursuant to Pa. R.Crim.P. 720. For the reasons

articulated below, said Motion is denied.

The Criminal Information prepared in this matter alleges Craig of committing two counts

of Persons Not to Possess Firearms, 18 Pa. C.S.A. § 6105(a)(l), a Felony in the second degree.

Specifically, with regard to Count 1, Craig was charged with having previously been convicted

of Aggravated Assault and thereafter possessing a 12-guage Mossberg New Haven Shotgun.

With regard to Count 2, Craig was charged with having previously been convicted of Aggravated

Assault and thereafter possessing a .380 pistol. Following a jury trial at which he represented

himself, Craig was found guilty of both charges on February 21, 2017. On April 28, 2017, the

Court imposed identical and concurrent sentences on both Counts of fifty-four (54) to one

hundred twenty (120) months' incarceration. The instant Post-Sentence Motion was filed on May

8, 2017. An interim request by Craig for post-sentencing discovery was filed on June 9, 2017,

and denied by the Court on June 22, 2017.

The instant Motion asserts two distinct claims for relief: First, Craig requests that the

Court vacate judgment for the reason that the Commonwealth failed to prove all elements of the
 alleged offenses. Second, Craig requests a new trial on the basis of various alleged prejudicial

trial errors. We address these claims in turn.

Sufficiency

With respect to the request to vacate judgment, Craig asserts that the "Commonwealth

advanced an argument of constructive possession[,]" and that the "Commonwealth presented no

evidence of intent to possess either [weapon]." Mot. �� 3-4 ( emphasis original). Craig cites to

Commonwealth v. Florida, 272 A.2d 4 76 (Pa. 1971) and Commonwealth v. Schuloff, 275 A.2d

835 (Pa. Super. 1971 ), arguing that "mere proximity is not enough to establish constructive

possession, absent evidence of intent to possess." Mot. � 5. Craig argues that his convictions are

therefore "against the weight of the law[.]" Id. 1

In Florida, several codefendants were arrested following a police raid of a "pot party,"

and were subsequently convicted of violating then-effective provisions of the criminal code

which prohibited the "possession control, dealing in, dispensing, selling, delivery, distribution,

prescription, trafficking in or giving of any dangerous narcotic drug." 272 A.2d at 4 77-4 78. In

reversing each defendant's conviction, the Supreme Court reasoned as follows:

The Commonwealth admitted at the trial that no marijuana was found on the
person of any of the appellants, and that none of the appellants was observed
smoking marijuana cigarettes. Under these circumstances, the basis of the
Commonwealth's case was the legal theory of constructive or joint possession.
The Commonwealth attempts to prove this by proof of the appellants at the scene,
opportunity to commit or join in the possession or control of the marijuana, guilt
by association, and suspicion or conjecture. Under the particular facts and
circumstances of this case, this is not sufficient to prove beyond a reasonable
doubt that these four defendants were guilty of the crimes for which they were
indicted and convicted, namely, the possession or control of dope.

I We understand Craig's "weight of the law" claim to be, in essence, an argument that the Commonwealth failed to
produce evidence legally sufficient to sustain his convictions. We do so both because a sufficiency claim comports
with his requested relief(i.e., vacatingjudgment) and because his relied-upon authorities analyze sufficiency (rather
than weight) arguments.

2
Id at 478. Similarly, in Schuloff, the defendant was tried and convicted of "the crime of

possession of marijuana and hashish[.]" 275 A.2d at 836. In finding the evidence insufficient to

sustain the conviction, the Superior Court founds as follows:

The evidence presented by the Commonwealth was entirely circumstantial. The
drugs were found on the early morning of January 18, 1969, by the Pennsylvania
State Police in a couch situated in the living room of a second floor apartment in
Lancaster. The apartment was rented by appellant and Bernard G. Beck, Jr., who
was also indicated for possession of narcotics. Entry by the police was obtained as
a result of a search warrant. .. At the time of execution of the search warrant, the
police found four persons, including appellant and Beck, asleep in the apartment,
but none of them were found in the Ii ving room where the narcotics were
discovered in the search ... It is our conclusion that the Commonwealth has
presented insufficient evidence to sustain appellant's conviction.

Id.

Whether a jury determination is supported by sufficient evidence is a question a trial

court answers by reference to the same standard of review as would be exercised by an appellate

court deciding the same question. Higgenbotham v. Keene Corp., 23 Phila. Co. Rptr 589, 591

(Phila. Cty Ct. Com. Pl. 1991) (citing Rocker v. Harvey Co., 535 A.2d 1136 (Pa. Super. 1988)).

The appellate standard of review for sufficiency of the evidence, in turn, is well settled:

The standard we apply when reviewing the sufficiency of the evidence is whether
viewing all the evidence admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and the weight of the evidence
produced is free to believe all, part or none of the evidence. Furthermore, when reviewing
a sufficiency claim, our Court is required to give the prosecution the benefit of all
reasonable inferences to be drawn from the evidence ... However, the inferences must
flow from facts and circumstances proven in the record, and must be of such volume and

3
 quality as to overcome the presumption of innocence and satisfy the jury of an accused's
guilt beyond a reasonable doubt. The trier of fact cannot base a conviction on conjecture
and speculation and a verdict which is premised on suspicion will fail even under the
limited scrutiny of appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 280-81 (Pa. Super. 2009) (citations omitted). This

standard "is equally applicable where the evidence is circumstantial rather than direct so long as

the combination of the evidence links the accused to the crime beyond a reasonable doubt."

Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (citing Commonwealth v. Sanders,

627 A.2d 183, 185 (Pa. Super. 1993)). It is well-settled that "[p ]ossession may be proven by

circumstantial evidence." In re R.N., 951 A.2d 363, 370 (Pa. Super. 2008).

Specifically with regard to illegal possession of firearms, "the Commonwealth must

establish that an individual either had actual physical possession of the weapon or had the power

of control over the weapon with the intent to exercise that control." Id. at 369-370. 18 Pa. C.S.A.

§ 6105(a)(l) provides that a person convicted of an enumerated offense "shall not possess, use,

control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or

manufacture a firearm in this Commonwealth."

Here, as in Florida and Schulojf, the Commonwealth did not directly adduce evidence

that Craig physically held contraband in his hands. Nevertheless, we find Craig's relied-upon

authorities to be readily distinguishable. In both Florida and Schulojf, the Commonwealth

attempted to sustain its burden by merely demonstrating a nexus of a particular place, illicit

drugs, and the defendants' presence. See 275 A.2d at 836; 272 A.2d at 477-478. Here, however,

the Commonwealth produced significantly greater evidence of Craig's possession or control of

the firearms, and his intent to either possess or control those firearms. For instance, the

Commonwealth entered into evidence video footage of Craig's ushering another person into his

driveway, and thereafter directing this person inside of his home while this other person carried

4
the shotgun in question. The individual thereafter is seen leaving Craig's residence without the

shotgun. Evidence was also entered tending to establish that the only other occupant of Craig's

residence - his wife - was largely unfamiliar with the operation of firearms. Additionally, while

executing the search warrant on Craig's residence which resulted in the discovery of the

firearms, the Oil City Police discovered the text of the Uniform Firearms Act's prohibition

displayed on Craig's computer monitor. During summation, the Attorney for the Commonwealth

argued that Craig's apparent legal research served as evidence of consciousness of guilt, and

therefore intent. The inference the Commonwealth suggested that the jury should draw in this

regard is, considering all of the evidence entered at trial, a reasonable one. Given the verdict, it is

clear that the jury accepted this theory of the case, and accordingly we may not reverse their

factual determinations. Gibbs, 981 A.2d at 280-81.

We note that Craig's attempt at trial to argue that he did not possess the firearms in

question was belied by his simultaneous assertion of a duress defense. Affirmative defenses

(including duress) involve the defendant admitting to the commission of the crime, but arguing

for the existence of circumstances which justify or excuse its commission. Commonwealth v.

Winebrenner, 265 A.2d I 08, 114 (Pa. 1970). While there is no per se rule that a defendant's

assertion of an affirmative defense waives any sufficiency argument, we note Pennsylvania

Courts have long recognized counsel's effectiveness for not presenting inconsistent arguments to

a jury. See, e.g., Commonwealth v. Smith, 17 A.3d 873, 901 (Pa. 2011) (counsel cannot be held

ineffective for failing to present an inconsistent defense). The Court is ill-equipped to hold that

the Commonwealth failed to adduce sufficient evidence of Craig's possession of a firearm, in no

small part because Craig's affirmative defense hinged (at least partially) on conceding that very

5
 argument.2 Accordingly, Craig's arguments as they relate to the sufficiency of the evidence are

without merit, and Craig's Motion in this respect is denied.

Prejudicial Trial Errors

Craig next asserts that several instances of alleged prejudice entitle him to a new trial.

Specifically, Craig objects to the District Attorney's eliciting testimony from Robert Neubauer

relating to an altercation that occurred on May 30, 2016, between Craig and a group of persons

which included Neubaur as well as Sean Schillinger. Mot. ,i,i 6-12. As a result of this altercation,

the exact circumstances of which are disputed, Craig stabbed Schillinger. Craig asserts that the

discussion of the incident was "irrelevant to the charges of person prohibited to possess a firearm

and were clearly intended to incite fear and prejudice in the jury." Mot. ,i7. Additionally, Craig

takes exception to remarks made by the District Attorney during closing argument, and asserts

that the "prosecutor intentionally injected prejudicial remarks into the case, comments that the

courts have decided were barred to prosecutors." Mot. ,i,i 13-16.

With respect to the evidence surrounding the May 30, 2016 incident, we note that

evidence relating to the altercation initially came into evidence during Craig's presentation of his

own defense, and not during the Commonwealth's case in chief. A "litigant opens the door to

inadmissible evidence by presenting proof that creates a false impression refuted by the

otherwise prohibited evidence." Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013).

Here, Craig initially sought to introduce evidence of the May 30, 2016 incident in order to

demonstrate that he obtained one of the weapons while under duress, i.e., that person of

reasonable firmness in Craig's position would not have been able to resist the pressure of

2 We would note that Craig abandoned his duress defense somewhat at the close of trial, in that he declined to
specifically invoke the concept during summation.

6
 obtaining a firearm.3 Craig having entered evidence as to the circumstances of the altercation, he

opened the door to the Commonwealth's entering evidence which tended to rebut Craig's version

of events. There was clear evidentiary support for the version of events as argued by the

Commonwealth (i.e., that Schillinger was unarmed and was not the aggressor), even if Craig

disagrees with the particular factual circumstances testified to by Neubauer. Even were we to

construe the District Attorney's characterization of the incident as Craig having "stabbed an

unarmed man" as improper, his remarks were not so clearly prejudicial as to warrant a new trial

under the framework outlined by the Superior Court in Commonwealth v. Frazier:

Not every improper or intemperate remark by the prosecutor mandates a new trial;
rather, a new trial is necessary only if the unavoidable effect of the comments
would be to prejudice the jury, forming in their minds fixed bias and hostility
towards the defendant, so that they could not weigh the evidence and render a true
verdict.

480 A.2d 276, 280 (Pa. Super. 1984) (internal citations and quotations omitted). Prosecutors are

afforded "a degree oflatitude in the exercise of advocacy in [their] position." Id. at 279. A

prosecutor does not exceed the range of permissible remarks where his arguments and remarks

fairly respond to those made by defense counsel. Id. Here, the District Attorney's statement that

Craig "stabbed an unarmed man" was an accurate reflection of Robert Nuebauer's testimony.

This is perfectly permissible. See id. (a prosecutor's accurately recalling witness testimony and

inviting jurors to draw reasonable inferences therefrom does not constitute prosecutorial

misconduct).

3
Pursuant to 18 Pa. C.S.A. § 309(a), a defendant may assert the defense of duress where "the actor engaged in the
conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful
force against his person or the person of another, which a person of reasonable firmness in his situation would have
been unable to resist." The Court previously discussed Craig's entitlement to a duress instruction in our pre-trial
Opinion of February 16, 2017.

7
 ) )

To the extent that Craig takes issue with Robert Neubauer's answers to questions (and not

the District Attorney's elicitation of answers or other remarks), we simply note that many of the

complained-of answers ( e.g., the fact that Schillinger later died, see Mot. 111) were elicited by

Craig's own questioning. All contemporaneous objections made by Craig to the District

Attorney's questioning ofNuebauer were limited to taking issue with the form of the questions,

rather than the supposed prejudicial value of the evidence solicited by those questions.

Accordingly, Craig has failed to preserve these evidentiary objections and no relief is merited.

Finally, Craig asserts that remarks by the District Attorney during closing argument

"served to prejudice the defendant." Mot. 113. Craig indicates that the complained-of remarks

are "similar to the statement made by the prosecutor in [Commonwealth v. Bolden, 323 A.2d 797

(Pa. Super. 1974)]," wherein the prosecutor stated during summation that "there are certain

things that I cannot tell you referring to this case." Mot. 114; Bolden, 323 A.2d at 798. Craig

accurately cites Bolden for the proposition that such remarks are improper and, if made, warrant

a new trial. Id. at 798-799. Having reviewed the Commonwealth's closing argument, however,

we can discern nothing in the District Attorney's remarks that was improper in this regard.4

For the foregoing reasons, Craig is entitled neither to a new trial nor to the Court vacating

his convictions. An appropriate Order shall follow.

cc: DA (D.S. White, Esq.)
Ruben Craig

4 We note that Craig himself noted "constraints" as to what he was allowed to say during his summation.

8
 Circulated 10/31/2018 10:17 AM
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Defendant/Appellant R