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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 of 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 NOVEMBER 07, 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 affirm Appellant’s judgment of
sentence for possessing a firearm without a license; we vacate Appellant’s
judgment of sentence for receiving stolen property and remand for retrial on
that charge.
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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 [license] 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 [Appellant] was highly intoxicated [and] seemed shocked
when told there was a gun present.” Id. at 11. Appellant further avers that
_______________________
(Footnote Continued)
The trial court expressly accepted the late filing, but denied relief on the
merits by order entered on June 10, 2015. See Commonwealth v.
Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (If the trial court expressly
grants nunc pro tunc post-sentence relief, the time for filing an appeal is
tolled). 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. On May 27,
2016, this panel filed a memorandum reversing Appellant’s conviction for
receiving stolen property, vacating the judgment of sentence for that
offense, and affirming her remaining convictions and sentence in all other
respects. On July 11, 2016, we granted the Commonwealth’s motion for
reconsideration. Upon reconsideration, we determined that the trial court
conflated Appellant’s weight of the evidence claim with a challenge to the
sufficiency of the evidence. On August 19, 2016, we remanded the case for
the trial court to assess the weight of the evidence as presented at trial in
order to allow this Court to review the trial court’s exercise of discretion. On
October 3, 2016, the trial court issued a supplemental opinion addressing
Appellant’s weight of the evidence claims. Accordingly, we will again review
Appellant’s weight claims.
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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
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 describes the relevant 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 [factfinder’s] verdict is so contrary to the evidence
as to shock one's sense of justice and the award of a new
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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
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.
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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). “Appellate review, therefore, is a review of the
exercise of discretion, not the underlying question whether the verdict is
against the weight of the evidence.” Commonwealth v. Gibson, 720 A.2d
473, 480 (Pa. 1998).
Here, the trial court determined that Appellant’s convictions for
possessing a firearm without a license and receiving stolen property were
not against the weight of the evidence as presented by the Commonwealth.
We will examine those convictions separately.
“[A]ny 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
commits a felony of the third degree.” 18 Pa.C.S.A. § 6106(a). In order to
convict a defendant for carrying a firearm without a license, the
Commonwealth must prove: “(a) that the weapon was a firearm, (b) that
the firearm was unlicensed, and (c) that where the firearm was concealed on
or about the person, it was outside his home or place of business.”
Commonwealth v. Parker, 847 A.2d 745, 750, (Pa. Super. 2004).
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Here, the trial court determined that Appellant’s firearm conviction
under Section 6106(a) was not against the weight of the evidence because
the Commonwealth proved she was in actual possession of the recovered
gun. The trial court reasoned: (1) Appellant owned the vehicle where police
recovered it; (2) the gun was “tucked under [Appellant’s] left leg, the butt of
the gun facing her right hand, the barrel facing the driver[;]” (3) Appellant
“stated to police that the driver had not placed the gun under her leg[;]” (4)
she made furtive movements (even after being instructed by police to stop
moving), indicating Appellant was either “trying to hide the gun under the
seat and failed” or “recovered the gun and placed it under her thigh[; and,]”
(5) the driver did not make any furtive movements and there was no
evidence he ever had the gun. Trial Court Opinion, 10/3/2016, at 6. The
trial court further found that Appellant’s later statement that she did not feel
the gun underneath her, was “simply not credible.” Id.
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
the firearm simply does not shock the conscious of this Court. Moreover,
the trial court, acting as the finder of fact in a bench trial, 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.
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Finally, there is no dispute that Appellant did not have a license to carry a
firearm. Thus, we conclude Appellant’s Section 6106(a) conviction was not
against the weight of the evidence and affirm that conviction.
Turning to Appellant’s conviction for receiving stolen property, we note
that “[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. We have identified the elements of receiving stolen property as
follows: “(1) intentionally acquiring possession of the movable property of
another; (2) with knowledge or belief that it was probably stolen; and (3)
the intent to deprive permanently.” Commonwealth v. Robinson, 128
A.3d 261, 265 (Pa. Super. 2015) (en banc).
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.” Id. at 267, 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 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
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the [factfinder] 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.
In rejecting Appellant’s weight claim, with respect to her receiving
stolen property conviction, the trial court concluded:
Here, the Commonwealth offered evidence that the
handgun, reported stolen three months earlier, had been
recovered under Appellant’s left thigh in the passenger seat
of her car during a traffic stop that took place after 2[:00]
a.m. While recency alone, given the intervening three
months, would not be sufficient circumstantial evidence to
prove Appellant’s guilty knowledge, [the trial court] found
that the totality of the circumstances surrounding this case
established that Appellant knew the gun was probably
stolen. Not only did Appellant fail to offer an explanation
for possessing a stolen gun, she denied being aware the
gun was under her thigh. In fact, she appeared shocked
and surprised when the gun was recovered. [The trial
court] found her expression of shock and surprise not
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credible given the totality of the evidence. She ignored
Corporal Liptak’s commands to her not to touch the gun. In
addition, [the trial court noted] that, unlike a paper towel or
chewing gum wrapper, a handgun is neither soft enough or
small enough to sit upon inadvertently without noticing.
Also, one would not expect an object with the weight and
balance of a handgun to perch unnoticed and immobile on
the top left quadrant of a car seat given both the contours
of the seat and the movements Appellant was observed
making. Her feigned shock is akin to a false explanation of
her possession of a stolen gun.
Furthermore, while Appellant did not attempt to flee from
the vehicle, Officer Wintruba observed her moving around
extensively in the vehicle in a manner which he interpreted
to be an effort to place something on the rear floor behind
the passenger seat. Her furtive movements, along with the
ultimate location (on the passenger seat under her left
thigh) and position of the gun (barrel pointing toward the
driver and grip toward Appellant) are consistent with
Appellant attempting to hide the gun. Particularly given her
extensive movement in the seat, including disappearing
behind the seat as if trying to put something in (or retrieve
something from) the rear floor area behind the passenger
seat, [the trial court] did not find credible that Appellant
unknowingly sat on a gun someone else left behind on the
passenger seat of her car.
Trial Court Opinion, 10/3/2016, at 9.
Upon careful review, we conclude that the trial court abused its
discretion in denying relief on Appellant’s challenge to the weight of the
evidence supporting her receiving stolen property conviction. In this case,
Appellant’s judgment for receiving stolen property is manifestly
unreasonable because the trial court did not apply the law properly. Police
recovered the firearm three months after Schmidt reported it stolen.
Generally, we have determined that three months does not qualify as recent
possession or acquisition under the aforementioned standards. See
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Robinson, 128 A.3d at 268-269 (collective cases discussing recency in
inferring guilty knowledge that property was stolen). 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, and there was no other evidence
connecting Appellant to theft of the firearm. The trial court focused
exclusively on Appellant’s furtive movements, her position on the firearm,
and her renouncement of the weapon to conclude that Appellant had guilty
knowledge that the weapon was “probably stolen.” The trial court ultimately
determined that Appellant “feigned shock,” which was “akin to a false
explanation of her possession of a stolen gun.” Upon review, however,
Appellant did not give a false explanation for how she came to possess the
firearm; she told police “over and over that the gun wasn’t hers.” N.T.,
5/14/2015, at 47. The trial court concentrated entirely on factors related to
Appellant’s possession of the firearm at the time police recovered it, rather
than on factors related to the acquisition or receipt of a stolen item.
Appellant’s mere possession is not enough to infer guilty knowledge that the
gun was stolen. Robinson, 128 A.3d at 268.
We further note Appellant owned the vehicle that was stopped. At
trial, Officer Wintraub testified that Appellant acknowledged that her car
insurance had been cancelled and the car’s registration had been
invalidated. N.T., 5/14/2015, at 21. Appellant “was frantically rifling
through a stack of papers to produce the vehicle’s registration.” Id. at 46.
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As previously noted, Appellant also did not have a license to carry a firearm.
Hence, there were other factors at play to explain Appellant’s nervous
behavior and efforts to distance her from the recovered weapon. Quite
simply, although Appellant’s furtive movements, body position and
repudiation of the firearm demonstrate firearm possession, they do not show
Appellant knew or had reason to know the firearm was stolen. Thus, the
trial court abused its discretion in rejecting Appellant’s challenge to the
weight of the evidence offered in support of her conviction under Section
3925 and we are constrained to vacate the judgment of sentence for that
offense. Upon remand, the Commonwealth is entitled to a new trial on
receiving stolen property.
Judgment of sentence for possessing a firearm without a license
affirmed. Judgment of sentence for receiving stolen property vacated. Case
remanded for a new trial on receiving stolen property. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2016
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