J-S64023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

NATHAN ALEXANDER LEWIS

                            Appellant                         No. 344 MDA 2015


         Appeal from the Judgment of Sentence of December 30, 2014
              In the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0005077-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                                  FILED DECEMBER 18, 2015

        Nathan Lewis appeals his December 30, 2014 judgment of sentence.

Lewis    challenges     the    sufficiency     of   the    evidence   offered   by   the

Commonwealth in support of his conviction of receiving stolen property, 18

Pa.C.S. § 3925.        We reverse Lewis’ receiving stolen property conviction,

vacate the judgment of sentence, and remand for resentencing on his

remaining conviction for carrying a concealed firearm without a license, 18

Pa.C.S. § 6106.

        On November 4, 2014, following a jury trial, Lewis was convicted of

the above-enumerated offenses.           The trial court summarized the evidence

presented at Lewis’ trial as follows:

____________________________________________


*
        Former Justice specially assigned to the Superior Court.
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     On September 8, 2013, at approximately 2:38 a.m., Officer
     Matthew Caple observed two males fighting outside a pizza shop,
     with a taller male (later identified as Gabriel Solomon)
     restraining [Lewis] in a bear hug. Officer Caple instructed both
     men to get on the ground, but neither complied. Mr. Solomon
     told Officer Caple that he could not let go of [Lewis] because
     [Lewis] had a gun. After Mr. Solomon’s statement about a gun,
     people across the street began shouting that someone had a
     gun. Officer Caple ordered Mr. Solomon to run and leave the
     immediate area. Mr. Solomon hesitated, and “looked like he was
     scared.” When other officers arrived and gave commands, Mr.
     Solomon released [Lewis] and backed away. Officer Caple then
     tackled [Lewis] and took him into custody with the help of
     others.

     After Officer Caple had restrained [Lewis], he noticed that one of
     the other police officers assisting him had recovered a gun.
     Officer Caple never saw a firearm in [Lewis’] hands or on
     [Lewis’] person while the scuffle with Mr. Solomon was taking
     place. Officer Caple overheard Mr. Solomon giving an account to
     another police officer about what had transpired. Officer Caple
     then briefly left the scene to review videotape of the fight and
     discovered that a person appearing to be Mr. Solomon and at
     least one other individual had been “beating” and kicking
     [Lewis].

     Officers [Mark] Gehron and [Thomas] Cole also responded to the
     scene of the fight after receiving a dispatch that several subjects
     were holding a male on the ground and assaulting him. Officer
     Gehron approached the scene from a different direction then
     Officer Caple. Officer Gehron observed four men involved in an
     altercation, two of whom backed off immediately when the police
     arrived. Officer Gehron identified [Lewis] as the person who was
     being forcibly held by Mr. Solomon.

     [Lewis] was wearing a hooded sweatshirt with a large pocket on
     the front. Officer Gehron saw that Mr. Solomon placed one of
     his hands on the outside of [Lewis’] sweatshirt pocket, holding
     what appeared to be a pistol inside [Lewis’] sweatshirt pocket.
     Officer Cole, who was located near Officer Gehron, saw a gun in
     [Lewis’] sweatshirt front pocket.      Officer Cole observed Mr.
     Solomon’s left hand near the trigger of the gun and [Lewis’]
     right hand gripping the rear of the gun; both men were
     struggling for control of the firearm.


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       Officer Cole ordered [Lewis] and Mr. Solomon to the ground
       three times. Mr. Solomon made eye contact with Officer Cole
       and displayed a look of “terror or fear,” and shortly thereafter
       Mr. Solomon finally retreated and stepped aside. [Lewis] still
       struggled to remove the revolver from his sweatshirt pocket,
       despite Officer Cole’s commands to “get on the ground.” Once
       [Lewis] had been taken into custody by Officer Caple, Officer
       Gehron removed the gun from [Lewis’] sweatshirt and contacted
       radio dispatch to determine, based on the gun’s serial number, if
       the weapon was stolen.

       Officer Gehron was informed that the firearm was reported
       stolen to the East Earl Township Police Department in Lancaster
       County. Officer Cole contacted Officer Knepper[1] from East Earl
       Township and confirmed that the gun was stolen. Officer Gehron
       submitted an inquiry to the Pennsylvania State Police to
       determine whether [Lewis] had a valid license to carry a firearm
       on the date of [Lewis’] arrest. The Pennsylvania State Police
       confirmed that [Lewis] was not licensed to carry a firearm on the
       date of his arrest.

       The Charter Arms revolver seized from [Lewis] had been stolen
       in November, 2012, in East Earl Township from a vehicle owned
       by Chad Smith. Mr. Smith identified his revolver based on the
       serial number of the weapon matching the serial number on the
       purchase paperwork which Mr. Smith had retained. Mr. Smith
       had never seen [Lewis] before trial and did not sell, loan, or
       authorize anyone, including [Lewis], to use or take his revolver.

       The Commonwealth and [Lewis] stipulated that [Lewis] was
       unable to pass a background check and was unable to legally
       purchase a handgun prior to the date on which he was arrested.

       Detective Dean Miller of the Lancaster County District Attorney’s
       Office provided the jury information regarding his experience in
       law enforcement, including the investigation of cases involving
       stolen firearms. He testified that a person who is unable to pass
       a background check to purchase a firearm would be unable to
       obtain a license to carry firearms in Pennsylvania. Detective
       Miller explained that persons unable to legally purchase a
____________________________________________


1
      Officer Knepper’s first name does not appear in the            certified
transcripts.



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      handgun may still obtain one illegally. His experience has shown
      that more often than not, firearms which are purchased on the
      street are stolen, and that stolen firearms often make their way
      to Lancaster County.

Trial Court Opinion (“T.C.O”), 4/17/2015, at 2-5 (references to the notes of

testimony omitted).

      On December 30, 2014, the trial court sentenced Lewis consecutively

to two to ten years’ incarceration on the receiving stolen property conviction,

and to three and one half to seven years’ incarceration on the firearm

conviction. In the aggregate, Lewis received a sentence of five and one half

to seventeen years in prison.       On January 7, 2014, Lewis filed a post-

sentence motion, which the trial court denied on January 21, 2015.

      On February 20, 2015, Lewis filed a notice of appeal. In response, the

trial court directed Lewis to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). On March 16, 2015, Lewis timely

filed a concise statement.    On April 20, 2015, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).

      Lewis raises the following issue for our review:     “Was the evidence

presented by the Commonwealth insufficient to prove beyond a reasonable

doubt that [] Lewis was guilty of receiving stolen property, where the

evidence did not establish that he knew the gun in his possession was

stolen, or believed that it probably had been stolen?” Brief for Lewis at 6.

      When reviewing challenges to the sufficiency of the evidence, our

standard of review is as follows:



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     The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to the verdict[-]winner, there is
     sufficient evidence to enable the fact-finder to find every
     element of the crime beyond a reasonable doubt. In applying
     [the above] test, we may not weigh the evidence and substitute
     our judgment for the fact-finder[’s]. In addition, we note that
     the facts and circumstances established by the Commonwealth
     need not preclude every possibility of innocence. Any doubts
     regarding a defendant’s guilt may be resolved by the fact-finder
     unless the evidence is so weak and inconclusive that as a matter
     of law no probability of fact may be drawn from the combined
     circumstances. 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 record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] 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. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations

omitted). Further, in viewing the evidence in the light most favorable to the

Commonwealth as the verdict-winner, we must give the prosecution the

benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

     A person is guilty of receiving stolen property "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. § 3925(a).       Stated otherwise, in order for the

Commonwealth to prove receiving stolen property beyond a reasonable

doubt, the Commonwealth must establish that: (1) the property was stolen;


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(2) the defendant was in possession of the property; and (3) the defendant

knew    or   had   reason    to   believe   that   the   property   was   stolen.

Commonwealth v. Matthews, 632 A.2d 570, 571 (Pa. Super. 1993).

       Lewis does not challenge the first two elements. Rather, Lewis focuses

his argument upon whether the Commonwealth produced sufficient evidence

to prove beyond a reasonable doubt that he knew, or had reason to believe,

that the firearm was stolen. “[A] permissible inference of guilty knowledge

may be drawn from the unexplained possession of recently stolen goods

without infringing upon the accused’s right of due process or his right

against self-incrimination, as well as other circumstances, such as the

accused’s conduct at the time of arrest.”      Commonwealth v. Foreman,

797 A.2d 1005, 1012 (Pa. Super. 2002) (quoting Commonwealth v.

Williams, 362 A.2d 244, 248-49 (Pa. 1976)).                  Conversely, “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 believe that the property was stolen.”         Foreman, 797 A.2d at

1012 (citing Matthews, 632 A.2d at 571).

       This additional evidence can include the nature of the goods, the
       quantity of the goods involved, the lapse of time between
       possession and theft, and the ease with which the goods can be
       assimilated into trade channels. Further, whether the property
       has alterations indicative of being stolen can be used to establish
       guilty knowledge.      Finally, even if the accused offers an
       explanation for his possession of stolen property, the trier of fact
       may consider possession as unexplained if it deems the
       explanation unsatisfactory.

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Foreman, 797 A.2d at 1012-13.

     Recently, in Commonwealth v. Robinson, ___ A.3d ___, 2015 WL

7294584 (Pa. Super. Nov. 19, 2015) (en banc), an en banc panel of this

Court addressed a case with analogous factual and legal circumstances to

the case sub judice. In Robinson, police responded to a domestic dispute

involving the appellant and two women.       One of the women informed the

police upon their arrival that the appellant was carrying a firearm.      The

police patted the appellant down and located a revolver, which turned out to

be stolen.   The appellant was not licensed to conceal the weapon on his

person. Id. at *1.

     The owner of the weapon had purchased it years before, and kept it in

a safe in his basement. However, the last time that he had seen the weapon

was in 2010.    He did not know that it had been stolen until the police

informed him that it was found on the appellant in 2013. The owner did not

know the appellant and had not given the weapon to him. Id.

     After a jury trial, the appellant was convicted, inter alia, of receiving

stolen property.     Like Lewis in the instant case, the appellant contended

that, aside from possession of the revolver, no evidence existed to prove

that he knew, or should have known, that the gun was stolen. The en banc

panel unanimously agreed with the appellant and vacated his receiving

stolen property conviction. Id. at *2, *9.

     The panel first explained that direct proof of knowledge that a

particular item is stolen is rare, at best. Id. at *3. Thus, to prove someone

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guilty of receiving property, the Commonwealth must procure and prove

circumstantial evidence to support an inference of “guilty knowledge.” Id.

The panel then traced the somewhat tortured case history regarding

inferences of guilty knowledge their emergence to the contemporary

analyses, focusing primarily upon the time period separating the theft of the

item and the person’s possession of that item.        Originally, juries were

permitted to presume that a person knew that an item was stolen when the

defendant possessed that item near in time to when it was stolen, and the

person could not explain how he came to possess the item.          Id. at *4.

However, such presumptions later were found to be constitutionally

insufficient.   Id. (citing Commonwealth v. Owens, 271 A.2d 230 (Pa.

1970)).

      Shortly after its decision in Owens, our Supreme Court reaffirmed the

principle that a jury could not presume a guilty knowledge based upon

“recency plus lack of explanation,” but held that a jury could infer guilt

under such circumstances. Commonwealth v. Shaffer, 288 A.2d 727, 736

(Pa. 1972). The Court reaffirmed Shaffer in Commonwealth v. Williams,

362 A.2d 244 (Pa. 1976).       The Robinson panel explained the Court’s

rationale in Williams, as follows:

      [In Williams,], our Supreme Court again affirmed the “recency
      plus lack of explanation” inference for receiving stolen property,
      holding that “a permissible inference of guilty knowledge may be
      drawn from the unexplained possession of recently stolen good
      without infringing on an accused’s right of due process or his
      right against self-incrimination.” Williams, 362 A.2d at 248-49.
      Williams involved an appellant’s unexplained possession of a

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     stolen car just twelve days after its theft. Id. at 250. In
     reversing the decision of this Court and reinstating the judgment
     of the trial court on the conviction of receiving stolen property,
     the Supreme Court in Williams indicated that “[c]ircumstantial
     evidence from which guilty knowledge can be inferred in
     sufficient to sustain a conviction if the underlying circumstantial
     evidence is sufficiently strong to support the inference beyond a
     reasonable doubt.” Id. at 248.

     In assessing the strength of the inference, the Supreme Court
     indicated that mere possession of stolen property, without more,
     is not sufficient circumstantial evidence to support an inference
     of guilty knowledge. Id. at 248 n.7 (“[M]ere possession is
     insufficient to establish or permit an inference of guilty
     knowledge . . .”). Proof that the goods were recently stolen,
     however, may provide the jury with sufficient circumstantial
     evidence to support an inference of guilty knowledge, since the
     “circumstances      of  possession     as   presented    by   the
     Commonwealth” (the recency of the theft) suggest “an
     explanation for the possession” (that the accused was the thief
     []). Id. at 248. In other words, a jury may infer guilty
     knowledge from evidence of recency, which in turn may require
     the appellant to offer an alternative explanation for his
     possession of the stolen item.        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.
     Even if the accused offers an explanation, the jury may
     nevertheless find it unsatisfactory and reach a finding of guilty
     knowledge based upon the recency of the theft. Id.

Robinson, 2015 WL 7294584, at *5 (citations modified; footnote omitted).

     With this backdrop in place, the panel in Robinson listed various

cases from this Court in which we considered receiving stolen property cases

after Williams.   The panel divided the cases into three broad categories:

(1) cases in which we held that mere possession of a stolen item, without

more, was insufficient to prove guilty knowledge; (2) cases in which the



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brevity of the duration between the theft of the item and the person being

found in possession of that item was deemed sufficient to infer a guilty

knowledge, and (3) cases in which circumstances other than recency was

the predominant factor in proving a guilty knowledge, such as where serial

numbers on items were altered, where the person attempted to sell the

stolen item, where VIN numbers on vehicles were obliterated, and where the

person attempted to flee from the police with the stolen item. Id. at *5-6

(listing cases).

      The panel then turned to the facts at hand and held that “the

Commonwealth presented no evidence that would support an inference of

guilty knowledge.”    Id. at *6.   The panel noted that the Commonwealth

could not satisfy the recency inquiry, because the theft occurred three years

before the appellant was found in possession of the gun.       The panel also

pointed out the fact that the serial numbers on the gun had not been altered

or obliterated, and that the appellant did not attempt to flee or display any

other indicia of a guilty demeanor when arrested.          The Commonwealth

offered no evidence “regarding how, when, or where [the appellant]

acquired the handgun, or from whom. Instead, the Commonwealth proved

only that [the appellant] possessed stolen property, which, as indicated, by

itself is not sufficient to prove guilty knowledge.” Id.

      The panel next addressed the trial court’s finding that the appellant’s

failure to register, or otherwise obtain lawful ownership of, the weapon

constituted evidence of guilty knowledge. The panel decisively rejected that

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premise, stating that “it reflects a basic misunderstanding of Pennsylvania

law with respect to the sale of firearms and that absence of paperwork to

demonstrate firearm ownership.”      Id. at *7.    The panel further explained

that, “no requirement exists under Pennsylvania law to obtain a license,

permit, or other permission to own a firearm, and the Commonwealth does

not maintain a registry of ownership of firearms. Likewise, no state agency

issues any documentation evidencing the ownership of a firearm.” Id.

      Finally, the panel rejected the Commonwealth’s argument that,

because the appellant did not have a license to carry the weapon, the jury

could have inferred that the appellant possessed the requisite guilty

knowledge. “Ownership of a handgun is not a prerequisite to the issuance of

a license to carry, and the license is not issued for a particular handgun.

Conversely, a person may own a handgun without obtaining a license to

carry, as was true of the [victim of the theft] in this case.” Id. at 9.

      Thus, the en banc panel held that the Commonwealth’s proof

established nothing more than the appellant’s possession of a stolen

weapon.    The panel vacated the receiving stolen property conviction and

remanded for resentencing on the appellant’s remaining conviction. Id.

      The circumstances in the case sub judice are strikingly similar to those

in Robinson. Here, like in Robinson, Lewis was found to be in possession

of a stolen firearm.    The theft occurred approximately one year prior to

Lewis’ arrest. The Commonwealth has not proven that the passage of one

year is sufficiently recent to justify an inference that Lewis possessed the

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requisite guilty knowledge, and the cases cited in Robinson do not compel

such a result. See e.g. Commonwealth v. Hogan, 468 A.2d 493, 498 (Pa.

Super. 1983) (en banc) (holding that four weeks between the theft and

possession was sufficiently recent to justify the inference); Commonwealth

v. Waters, 378 A.2d 1232, 1236-37 (Pa. Super. 1977) (holding that six

days was sufficient to justify the inference). In light of Pennsylvania case

law, one year simply is too long after the theft to infer without more that

Lewis knew or should have known that the gun was stolen.

      The Commonwealth also adduced no evidence that the serial number

on the gun was altered or modified in any way, or established any other

physical aspect of the gun that would have identified the gun as stolen to its

possessor. Furthermore, nothing about Lewis’ demeanor or actions upon his

arrest yielded any evidence that suggested guilty knowledge.        Finally, the

Commonwealth, as it did in Robinson, attempted to prove guilty knowledge

by the fact that Lewis did not, and was unable to, obtain a license to carry a

concealed firearm.   However, the Robinson panel rejected this argument,

and we must do so here.

      In short, the facts and circumstances of this case substantially mirror

those in Robinson.      The Commonwealth has presented no evidence to

prove that Lewis knew or should have known that the gun was stolen. At

best, the evidence proved that Lewis merely possessed a stolen gun, which

is insufficient by itself to prove a person guilty of receiving stolen property.

Consequently, we reverse Lewis’ receiving stolen property conviction, and

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we remand for resentencing on his remaining conviction for carrying a

concealed weapon without a license.          Lewis has not challenged that

conviction or the sentence imposed upon that conviction.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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