J-S13003-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                         : IN THE SUPERIOR COURT OF
PENNSYLVANIA,                           : PENNSYLVANIA
                                        :
                 Appellee               :
                                        :
           v.                           :
                                        :
                                        :
STEPHEN BARRY-GIBBONS,                  :
                                        :
                 Appellant              : No. 11 WDA 2017

           Appeal from the Judgment of Sentence October 16, 2017
                 in the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003148-2016

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
                                         FILED JUNE 17, 2019

      I agree with the Majority that Appellant is not entitled to relief on his

second, third and fourth claims.     However, because I find that there is

sufficient evidence to sustain Appellant’s conviction for receiving stolen

property, I would affirm the judgment of sentence. Accordingly, I respectfully

dissent.

      Appellant challenges the sufficiency of the evidence only with respect to

the second element of the crime of receiving stolen property, i.e., guilty

knowledge of the crime. Majority at 16. The Commonwealth had the burden

to establish either that Appellant knew the firearms in question were stolen,

or believed that they had probably been stolen.           Commonwealth v.

Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en banc). Guilty knowledge


* Retired Senior Judge appointed to the Superior Court.
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may be inferred from circumstantial evidence. Id. Circumstantial evidence

of guilty knowledge may include evidence that the property was recently

stolen, as well as

      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. at 268.

      Here, there was sufficient evidence from which the factfinder could infer

that Appellant had guilty knowledge. Significantly, the place and manner of

possession of the guns were indicative of guilty knowledge; Appellant was

clearly trying to avoid their detection by wrapping them in a t-shirt and hiding

them under a piece of trim beneath the bathroom sink, which was only

discovered after police unscrewed and removed the trim piece. See Majority

at 9. Appellant’s proffered explanation for why he possessed the guns, i.e.,

that he was asked to hide them for someone else who had been arrested,

likewise indicated that Appellant probably knew the guns were not possessed

lawfully. See id. at 6. When the woman asked Appellant to hide guns for her

boyfriend upon the boyfriend’s arrest, Appellant could have turned them over

to the police instead of hiding them, but chose to conceal them in the

apartment. Appellant’s statement after he was arrested also pointed to his

guilty knowledge when he provided false information to police about whether


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the firearms found in the apartment were functional. See Majority at 6-7.

The stolen firearms were found in the apartment where Appellant was selling

illegal drugs; the Commonwealth presented evidence that most guns

recovered from drug dealers are stolen and thus, common sense and

experience would tell the factfinder that Appellant was aware the guns were

probably stolen. See Majority at 17; see also Barnes v. United States, 412

U.S. 837, 846 (1973) (finding in a case involving unexplained possession of

recently stolen treasury checks that “common sense and experience tell us

that [Barnes] must have known or been aware of the high probability that the

checks were stolen”). That Appellant was also charged and convicted of the

crime of persons not to possess firearms was another indicator that Appellant

knew he was ineligible to obtain firearms legally and was unable to pass a

background check required by legitimate dealers in legal trade channels. See

Commonwealth v. Parker, 847 A.2d 745, 751 (Pa. Super. 2004).

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, there was sufficient evidence from which the factfinder

could infer Appellant’s knowledge of the stolen nature of the firearms to

sustain Appellant’s conviction for receiving stolen property.

      Accordingly, I would affirm the judgment of sentence.




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