J-S25019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TODD EDWARD SHORT

                            Appellant                    No. 985 WDA 2015


             Appeal from the Judgment of Sentence June 11, 2015
               In the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000162-2013
                                          CP-56-CR-0000210-2013


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                 FILED APRIL 06, 2016

        Appellant, Todd Edward Short, appeals from the June 11, 2015

aggregate judgment of sentence of 9 to 23 months’ incarceration, followed

by 2 years of probation, imposed after a jury convicted him of two counts of

receiving stolen property.1 After careful review, we affirm.

        The trial court detailed the facts presented at trial as follows.

              The evidence heard by the Jury clearly established
              that [Appellant] was in possession of two shot guns
              which had been stolen from one residence and one
              hand gun which had been stolen from a different
              residence on December 20, 2012. In addition, the
              evidence clearly established that all three of these
              weapons were sold by [Appellant] at Gander

____________________________________________


1
    18 Pa.C.S.A. § 3925(a).
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          Mountain, a sporting goods store, on January 1,
          2013.

                 The crux of the Commonwealth’s evidence on
          the issue of [Appellant’s] knowledge that these
          weapons were stolen is the testimony of Joshwa
          [Slope,] who testified that he was charged as a Co-
          Defendant with [Appellant] in both cases, pled guilty
          to one count of Receiving Stolen Property in each
          case, and was sentenced to an aggregate of one to
          three years in prison.       He stated that he met
          [Appellant] upon awakening after spending the night
          at the home of Christine Cox where his friend Doug
          Everhart was also staying and that both he and
          [Appellant] were going through withdrawal from
          heroin. He also related that “… it didn’t take us long
          to start talkin’ about – you know, getting well, which
          is using heroin.” When asked what they planned to
          do, Slope stated

               We were trying to figure out how to get some
               money together. And I told him I had some
               guns at another friend’s house. He didn’t ask
               me where they came from; he told me he
               didn’t want to know where they came from;
               and he said he could cover his ass if anything
               ever came back on him because he’s – done it
               before.

                                      ***

               [Appellant] called around to a few local – I
               guess – I guess they’d be guns dealers, like
               sport shops, local sports shops. Everybody
               was closed because it was New Year’s Day, the
               holiday. So we’re callin’ everywhere. Gander
               Mountain picked up.      They said they were
               open. So we went to pick them up and we
               drove down there.

                                      ***

               He agreed to sell them for me and I agreed to
               give him about $250 for doin’ it.



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          Slope testified that they left in [Appellant’s] car,
          drove to the home of Lindsay Straka, he entered
          without [Appellant], [and] returned to the car
          carrying three cases which he placed in the rear seat
          after showing [Appellant] at least one of the
          weapons. According to Slope, when they arrived at
          Gander Mountain, he stayed in the car and
          [Appellant] took the guns into the store. After about
          45 minutes, Slope entered the store because he
          wondered what was taking so long, [Appellant] gave
          him a sign with his fingers which Slope interpreted
          as indicating it would take another 5 minutes, and
          Slope then returned to the car and waited. When
          [Appellant] returned to the car he handed Slope
          $1,000, Slope returned $250 to [Appellant] and they
          returned to another home in Somerset where
          [Appellant] purchased two bundles of heroin with
          funds each man provided and proceeded to the
          Straka house and used the drugs together. Slope
          admitted that when he was first questioned by police
          regarding this incident, he claimed that the guns
          belonged to [Appellant] and that they used the
          money to buy heroin in the Johnstown area.

                In response, the following exchange occurred.

                Q. So, Josh, tell the jury why they should
                believe you now?

                A. Well, I’m not going to say that nobody
                should believe me, but I’m a State prisoner.
                I’m a convicted felon. I guess you’d say that
                I’m probably not that easy to trust, but – but I
                have – nothing to gain from this. I’m already
                serving my sentence that I got for this crime.
                I’m just trying to make amends where possible
                and tryin’ to do the right thing.

                On cross-examination, Slope admitted that he
          didn’t have a photo identification because he never
          bothered to get one after he lost his driver’s license
          in 2010 following his conviction on other charges.
          Slope testified that he bought the weapons “off of
          somebody else. I don’t know where he got them
          from. I knew they were stolen.” When asked how


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          he knew they were stolen, he testified “the kid I
          bought them off of told me they were hot, which
          means they’re – it’s not legal to have them. They’re
          stolen.” He also stated “I was going to sell that
          pistol, but I – I couldn’t sell those shotguns to a drug
          dealer. They don’t want it. They can’t use it.” In
          addition, when asked if he had ever involved another
          person in selling firearms, he admitted that he had
          and that, even if he had a driver’s license, he
          probably would have involved [Appellant] in the
          transaction because “it’s kind of like a proxy.
          There’s no – it’s harder to trace it back to me. I was
          tryin’ to stay out of jail.” On that same issue, in
          response to a question regarding using another as a
          “proxy” in such a transaction as a means of
          protecting himself, Slope stated

                not so much as it was in this case because this
                was selling to a retailer. Whenever I sell to
                another criminal, like a drug dealer, the only
                time I would use a proxy in that case would be
                if I didn’t know the guy that he’s selling to.

       On direct, [Appellant] testified that Slope

                asked me to drive him to Gander Mountain to
                sell these guns; and he offered me $200 to do
                it, which I said, all right, I would do it if the
                guns were legitimately his.        I asked him
                several times. I asked him before I even left
                his – the trailer to go get the guns: Are these
                your guns? Yeah, they’re my guns. My –
                grandparents gave them to me.            They’re
                Christmas gifts. The last couple of years, I’ve
                never used them.

       He also stated

                I took him to Johnstown Gander Mountain; and
                at that time when we got down there, he had
                asked me to take them in and sell them
                because he didn’t have an ID; and right there
                and then, I asked him again: Are these your
                guns?    I told him flat out I’m not getting
                involved in any bullshit with stolen weapons.
                They’re my guns. I wouldn’t have come down

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               here if they weren’t, and – you know, I trusted
               what he had to say.

          On cross, when [Appellant] was asked to review the
          statement he had given to the police which was
          admitted as Commonwealth’s Exhibit “A,” the
          following exchange occurred between [Appellant]
          and the Assistant District Attorney

               Q. Show me in that statement where it says
               you asked Joshwa Slope on repeated occasions
               who these guns belonged to?

               A.     Right here.     (WITNESS INDICATING)
               First paragraph, third page.

               Q. You – you read the section that you say it
               says what I just asked you in that question.

               A. … “Approximately 9:00 A.M., Josh had told
               me that he had a few guns that he wanted to
               sell because he had had them for some time
               and never used them, probably would never
               ever have any use for them…I had asked him if
               the guns were in fact his. He took offense to
               the question and he said that they were.”

               Q. Okay. Where does it say in there, sir, that
               you asked on several occasions?

               A. It doesn’t say in this thing that I asked on
               several occasions but I did ask him several
               times about the guns.

                                       ***

               Q. Did you question the ownership of the
               guns?

               A. Yes, at that time.

               Q. You had doubts?

               A. (NO AUDIBLE RESPONSE)

               Q. Answer please?




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                     A. I had a question about the ownership to
                     know – that I wanted to know that they were
                     his guns, yes.

                     Q. You had doubts?

                     A. No. I was reassured by him three different
                     times that they were his guns.

                     Q. You didn’t have doubts, but you asked him
                     on repeated occasions?

                     A. Yes, same as you’re asking me on repeated
                     occasions right now.

Trial Court Opinion, 7/28/15, at 2-6 (internal citations omitted).

       At the conclusion of the two-day trial, on March 27, 2015, the jury

rendered its guilty verdicts.       On June 11, 2015, the trial court sentenced

Appellant to 9 to 23 months’ incarceration, followed by 2 years of reporting

probation at each count, to run concurrently. Appellant did not file a post-

sentence motion.        Appellant filed a timely notice of appeal on June 19,

2015.2

       On appeal, Appellant presents a single issue for our review.

              Whether or not the [trial c]ourt erred as a matter of
              law or abused its discretion by not granting
              [Appellant’s] Motion for Acquittal when the
              Commonwealth presented no evidence to prove that
              [Appellant] knew the guns were stolen or knew the
              guns were probably stolen[?]

Appellant’s Brief at 2.

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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      We begin our analysis by noting that “[a] motion for judgment of

acquittal challenges the sufficiency of the evidence to sustain a conviction on

a particular charge, and is granted only in cases in which the Commonwealth

has failed to carry its burden regarding that charge.”    Commonwealth v.

Hutchinson, 947 A.2d 800, 805 (Pa. Super. 2008) (citation omitted),

appeal denied¸980 A.2d 606 (Pa. 2009).

            When considering a challenge to the sufficiency of
            the evidence, we must view the evidence, and all
            reasonable inferences drawn therefrom, in the light
            most favorable to the Commonwealth as verdict
            winner and determine whether the jury could find
            every element of the crime beyond a reasonable
            doubt. Any question of doubt is for the factfinder,
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact can be
            drawn     from      the   combined     circumstances.
            Additionally, this Court has observed that:

                  The Commonwealth may sustain its burden of
                  proving every element of the crime beyond a
                  reasonable doubt by means of wholly
                  circumstantial evidence. Moreover, in applying
                  the above test, the entire trial record must be
                  evaluated and all evidence actually received
                  must be considered. Finally, the trier of fact
                  while passing upon the credibility of witnesses
                  and the weight of the evidence produced, is
                  free to believe all, part, or none of the
                  evidence.

Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa. Super. 2002)

(internal citations and quotation marks omitted).

      The receiving stolen property statute provides as follows.

            § 3925. Receiving stolen property



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           (a) Offense defined.--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.

           (b) Definition.--As used in this section the word
           “receiving” means acquiring possession, control or
           title, or lending on the security of the property.

18 Pa.C.S.A. § 3925.

     To   obtain   a   conviction   for   receiving   stolen   property,   “the

Commonwealth must establish the following elements beyond a reasonable

doubt: (1) the property was stolen; (2) the defendant was in possession of

the property; and (3) the defendant knew or had reason to believe the

property was stolen.” Foreman, supra.

     Instantly, Appellant concedes that the firearms were stolen and that

he possessed them. The essence of Appellant’s sufficiency argument is that

the Commonwealth failed to establish that he knew the firearms were stolen

because the “only witness to testify about the Appellant’s knowledge with

respect to the stolen guns was Slope.” Appellant’s Brief at 10.      Appellant

maintains that “Slope did not testify that Appellant knew the guns were

stolen” and otherwise impugns Slope’s credibility and testimony to support

the jury’s finding that Appellant was guilty beyond a reasonable doubt. Id.

at 9-20. Upon review, we find Appellant’s claim to be without merit.

     With regard to the knowledge element necessary for a receiving stolen

property conviction, we have explained as follows.


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            [T]he mere possession of stolen property is
            insufficient to prove guilty knowledge, and the
            Commonwealth must introduce other evidence,
            which can be either circumstantial or direct, that
            demonstrates that the defendant knew or had reason
            to know that the property was stolen.             This
            additional evidence can include the nature of the
            goods, the quantity of the goods involved, the lapse
            of time between possession of and theft, and the
            ease with which the goods can be assimilated into
            trade channels. … [E]ven if the accused offers an
            explanation for his possession of stolen property, the
            trier of fact may consider the possession as
            unexplained     if   it  deems      the   explanation
            unsatisfactory.

Foreman, supra at 1012.

      Upon review of the record, we agree with the trial court that the

Commonwealth presented sufficient evidence to refute Appellant’s claim that

“the Commonwealth presented no evidence to prove that [Appellant] knew

the guns were probably stolen.” Appellant’s Brief at 2. Our review confirms

Mr. Slope’s testimony that Appellant “didn’t ask where [the guns] came

from; he told [Mr. Slope] he didn’t want to know where they came from; and

he said that he could cover his ass if anything ever came back on him

because he’s – he’s done it before.”      N.T., 3/26/15, at 104.     Mr. Slope

testified that he did not tell Appellant the firearms were stolen, but stated,

“[Appellant] didn’t ask me. He told me that he didn’t want to know where

they came from.” Id. at 130-131. From these statements alone, the jury

could reasonably infer that Appellant had reason to believe that the firearms

had “probably been stolen.” 18 Pa.C.S.A. § 3925(a).      Although Mr. Slope



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testified that he “was a heroin addict and would say and do anything to stay

out of trouble,” the jury as fact-finder was free to credit Mr. Slope’s

testimony and make inferences regarding Appellant’s knowledge that the

firearms were stolen. N.T., 3/16/15, at 127.

      Notably, after Mr. Slope’s testimony, Appellant’s counsel verbally

moved for judgment of acquittal, stating that Mr. Slope was “the only

witness that was offered … that could testify as to whether [Appellant] knew

or should have known” that the firearms were stolen.              Id. at 139.

Appellant’s counsel assailed Mr. Slope’s testimony, saying “[h]e never once

told [Appellant] that the guns were stolen. With his memory, Your Honor,

and, quite frankly, with his credibility, it just – it’s hard to imag[ine] if he

even remembers the transaction at all.” Id. at 140. In denying the motion,

the trial court explained as follows.

                  I’m looking at the standard [jury] instruction
            on the third element [of receiving stolen property]
            and let me read this to you, it says: “Third, that the
            defendant received, retained or disposed of the
            property either knowing that it had been stolen or
            believing it had probably been stolen.”

                  And there is a – a separate phrase in brackets
            that reads this way: “As I already indicated, a
            defendant can be guilty of theft by receiving if” – in
            quotes – “he believes that the property had
            probably” – and that’s in italics – “had been stolen.”
            Close quote. “It is not necessary that the defendant
            know the details of the theft nor that he be certain
            that a theft in fact occurred.”

                  And I think that – that kind of harks back to
            my concept about – and I think I posited it as
            reckless disregard for the truth. If the – if the

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           statute read that: He believes the property had
           been stolen, I might be on [Appellant’s] side on this
           argument, [Counsel]. But we’re talking about two
           qualifications here:     That he believes that it’s
           probably stolen is a lot less certain; and it seems
           that it’s probably stolen is a lot less certain; and it
           seems to me that the details of this transaction,
           certainly looking in the light most favorable to the
           Commonwealth, would be sufficient to allow the Jury
           to make that conclusion that [Appellant] should have
           believed that the property had probably been stolen.

                 Those things considered, having looked –
           looked at this again, I think I’m satisfied to deal with
           the Motion for Judgment of Acquittal on that basis
           and deny it.

Id. at 143-144.

     The trial court’s rationale is applicable to Appellant’s sufficiency claim

on appeal. Having reviewed the record, particularly the notes of testimony

from the trial, mindful that we may not re-weigh the evidence and substitute

our judgment for the jury as fact-finder, and viewing the evidence in the

light most favorable to the Commonwealth as verdict-winner, we agree with

the trial court that the Commonwealth presented sufficient evidence to

support the jury’s conclusion that Appellant knew, or had reason to believe,

that the firearms probably were stolen.

     Based on the foregoing, we conclude that Appellant’s challenge to the

sufficiency of the evidence underlying his convictions is without merit. We

therefore affirm the trial court’s June 11, 2015 judgment of sentence.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2016




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