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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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