Commonwealth v. Gomez

224 A.3d 1095

COMMONWEALTH of Pennsylvania

v.Javier GOMEZ, Appellant

No. 1983 MDA 2018

Superior Court of Pennsylvania.

Submitted August 5, 2019

Filed December 19, 2019

Reargument Denied February 18, 2020

MaryJean Glick, Public Defender, Lancaster, for appellant.

James M. Reeder, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS^* , P.J.E.

OPINION BY DUBOW, J.:

Appellant, Javier Gomez, appeals from the Judgment of Sentence, entered on October 25, 2018, of twelve and one-half to twenty-five years of incarceration, imposed following his conviction for numerous narcotics-related offenses, weapons-related offenses, theft charges, and motor vehicle violations.¹ We affirm.

Following a traffic stop, Appellant repeatedly refused to provide his license, registration, and insurance information. N.T. Jury Trial, 8/6/18, at 132-37. Officers at the scene observed Appellant and the two other occupants of the vehicle make furtive movements and otherwise act strangely. See , e.g. , id. 133-34 (describing how Appellant repeatedly reached to his left and right in the vehicle, used his cell phone to call an attorney, and, via social media, invited people to the scene), 135 (describing a male passenger's scratching his arms, kicking a bag inside the vehicle, and reaching around), 165 (describing male passenger's scratching), 203 (describing female passenger as "very animated in her voice and her hand expressions ... flailing her hands ... moving her hands toward[ ] her breast area ... and even inside of her bra").

The strange and obstinate behavior of Appellant and his passengers led police to perceive them as a threat. Id. at 134. After repeated warnings, officers broke a window to gain entry into the vehicle and extracted Appellant and his passengers. Id. at 157, 175-76.

Upon searching the vehicle, police seized two firearms, a Charter Arms .38 caliber revolver and a Ruger 9mm pistol. Id. at 176-77. The revolver was located in the vehicle's front enter console. Id. at 176. Police discovered the pistol in a locked safe located in a storage compartment behind the driver's seat. Id. at 156-60. The key to the safe was on the same key ring as Appellant's vehicle key. Id. Both firearms were loaded, operable, and reported stolen. Id. at 189-93; N.T. Non-Jury Trial, 10/15/18, at 38, 80. Police also retrieved DNA evidence from the firearms that matched a sample provided by Appellant. N.T. Jury Trial, 8/7/18, at 291-94.

In addition, police seized substantial amounts of narcotics, including heroin, fentanyl, cocaine, methamphetamine, suboxone, and marijuana, as well as drug paraphernalia. N.T. Non-Jury Trial, 10/15/18, at 56-69.

Following his arrest, the Commonwealth charged Appellant as noted. The Commonwealth proceeded with a bifurcated trial process.

In August 2018, a jury trial commenced to adjudicate the two counts of Persons Not to Possess Firearms. In addition to the evidence set forth above, the Commonwealth established that Appellant had multiple felony drug convictions from 2003 and 2013. N.T. Jury Trial, 8/6/18, at 209-11, 232-33. Following the presentation of evidence and argument, the trial court instructed the jury on the relevant law. Appellant offered no objections to the court's instructions. N.T. Jury Trial, 8/7/18, at 257, 371-89, 390-94. Following its deliberations, the jury convicted Appellant of both counts. Id. at 395.

In October 2018, a bench trial commenced to adjudicate the remaining charges. Appellant stipulated to all evidence introduced during the jury trial. N.T. Non-Jury Trial, 10/15/18, at 36-38. At the conclusion of the bench trial, the court found Appellant guilty of all charges. N.T. Non-Jury Trial, 10/15/18, at 313-14.

Thereafter, the trial court sentenced Appellant. See N.T. Sentencing, 10/25/2018. Appellant timely filed a Post-Sentence Motion. Appellant sought a Judgment of Acquittal on the Receiving Stolen Property convictions, challenging the sufficiency of the Commonwealth's evidence. See Post-Sentence Motion, 11/2/18, at 1-3 (unpaginated). Appellant also sought a Judgment of Acquittal on one of the firearms offenses, asserting that the Commonwealth had failed to establish that the Ruger 9mm pistol was "within his reach." Id. at 3 (unpaginated) (emphasis omitted).

The trial court denied Appellant's Post-Sentence Motion. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement, later amended upon receipt of the non-jury trial transcripts. The court issued a responsive Opinion.

Appellant raises the following issues, restated for clarity:

1. Whether the evidence was insufficient to establish that Appellant knew or believed that firearms seized from his automobile were stolen or probably had been stolen;

2. Regarding the crime of Persons Not to Possess Firearms, whether the evidence was insufficient to establish that Appellant possessed the Ruger 9mm pistol, where police seized this firearm from a locked safe located in a storage compartment behind the front seat of Appellant's vehicle and beyond his reach; and

3. Regarding the crime of Persons Not to Possess Firearms, whether the court erred in failing to properly instruct the jury that it must find that Appellant "was in physical possession or control of a firearm, whether visible, concealed about the person[,] or within the person's reach." 18 Pa.C.S. § 6105(a.1)(1.1)(i)(B).

See Appellant's Br. at 8-9.

In his first two issues, Appellant challenges the sufficiency of the Commonwealth's evidence. "A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 751 (2000). We review a sufficiency challenge de novo , but our scope of review is limited to the evidence of record. Commonwealth v. Robinson , 128 A.3d 261, 264 (Pa. Super. 2015) (en banc ).

The Commonwealth must establish each element of the crimes charged beyond a reasonable doubt, but in so doing, it may rely on wholly circumstantial evidence. Commonwealth v. Galvin , 603 Pa. 625, 985 A.2d 783, 789 (Pa. 2009). The fact-finder, "while passing on the credibility of the witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence." Id. "[A] reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth." Id.

In his first issue, Appellant contends that the Commonwealth's evidence was insufficient to establish the crime of Receiving Stolen Property. Appellant's Br. at 19, 22. Appellant concedes that the firearms seized from his automobile were reported stolen. Id. at 22, 29; N.T. Non-Jury Trial, 10/15/18, at 38. However, noting that mere possession of stolen property is insufficient to enable a fact-finder to infer the requisite mens rea , Appellant suggests that the Commonwealth failed to introduce evidence that he knew the firearms were stolen or believed that they were probably stolen. Appellant's Br. at 27-36.²

In order to convict a defendant of Receiving Stolen Property, the Commonwealth must establish three elements: "(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." Robinson , 128 A.3d at 265 ; 18 Pa.C.S. § 3925(a).

Appellant challenges the second element, which is sometimes referred to as "guilty knowledge" of the crime. Id. (citing Commonwealth v. Matthews , 429 Pa.Super. 291, 632 A.2d 570, 572 (1993) ). To establish a defendant had guilty knowledge, i.e. , that he knew property in his possession was stolen or believed that it was probably stolen, the Commonwealth may introduce evidence that the underlying theft occurred recently. Commonwealth v. Williams , 468 Pa. 357, 362 A.2d 244, 248 (1976). Such evidence will permit a fact-finder to infer guilty knowledge, particularly where there is no satisfactory explanation for a defendant's possession of recently stolen goods. Id.

Other circumstantial evidence may provide a basis for an inference of guilty knowledge.

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.

Robinson , 128 A.3d at 268 (citing cases).

In this case, Appellant correctly notes that the Commonwealth failed to establish when the firearms were stolen, where or from whom they were stolen, or for how long they were in Appellant's possession. See Appellant's Br. at 29. Nevertheless, other circumstantial evidence introduced by the Commonwealth provided an adequate basis for the fact-finder to infer that Appellant believed that the firearms were probably stolen.

For example, during a routine traffic stop, Appellant refused to comply with officers' repeated requests for cooperation, ultimately requiring their forced entry into Appellant's vehicle and their forced extraction of Appellant and his passengers. See, e.g. , N.T. Jury Trial, 8/6/18, at 136 (indicating that Appellant refused to comply with "[m]ore than 50" police commands). Challenging the import of this evidence, Appellant suggests that his behavior during the traffic stop can be explained by the other crimes he had committed. See Appellant's Br. at 29-30. However, in our view, Appellant's conduct is indicative of guilty knowledge concerning his several crimes. The fact-finder need not choose between Appellant's several crimes to determine whether one or more would cause Appellant's obstinate behavior. Rather, based on his conduct, the fact-finder was free to infer that Appellant knew or believed that the firearms were probably...