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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


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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