J-S43019-19

                                   2019 PA Super 359

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAVIER GOMEZ                               :
                                               :
                       Appellant               :   No. 1983 MDA 2018

        Appeal from the Judgment of Sentence Entered October 25, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0005496-2017


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.:                               FILED DECEMBER 19, 2019

       Appellant, Javier Gomez, appeals from the Judgment of Sentence,

entered on October 25, 2018, of twelve and one-half to twenty-five years of

incarceration, imposed following his conviction for numerous narcotics-related

offenses, weapons-related offenses, theft charges, and motor vehicle

violations.1 We affirm.

       Following a traffic stop, Appellant repeatedly refused to provide his

license, registration, and insurance information. N.T. Jury Trial, 8/6/18, at

132-37. Officers at the scene observed Appellant and the two other occupants

of the vehicle make furtive movements and otherwise act strangely. See,

____________________________________________


1 Five counts, Possession with Intent to Deliver, 35 P.S. § 780-113(a)(30);
Possession of Drug Paraphernalia, 35 P.S. § 780-113(a)(32); two counts,
Persons Not to Possess Firearms, 18 Pa.C.S. § 6105(a)(1); two counts,
Firearms Not to be Carried without a License, 18 Pa.C.S. § 6106(a)(1); two
counts, Receiving Stolen Property, 18 Pa.C.S. § 3925(a); and 75 Pa.C.S. §§
3309(1) (Driving on Roadways Laned for Traffic), 3334(a) (Turning
Movements and Required Signals), respectively.


*    Former Justice specially assigned to the Superior Court.
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e.g., id. 133-34 (describing how Appellant repeatedly reached to his left and

right in the vehicle, used his cell phone to call an attorney, and, via social

media, invited people to the scene), 135 (describing a male passenger’s

scratching his arms, kicking a bag inside the vehicle, and reaching around),

165 (describing male passenger’s scratching), 203 (describing female

passenger as “very animated in her voice and her hand expressions . . . flailing

her hands . . . moving her hands toward[] her breast area . . . and even inside

of her bra”).

        The strange and obstinate behavior of Appellant and his passengers led

police to perceive them as a threat. Id. at 134. After repeated warnings,

officers broke a window to gain entry into the vehicle and extracted Appellant

and his passengers. Id. at 157, 175-76.

        Upon searching the vehicle, police seized two firearms, a Charter Arms

.38 caliber revolver and a Ruger 9mm pistol. Id. at 176-77. The revolver

was located in the vehicle’s front enter console. Id. at 176. Police discovered

the pistol in a locked safe located in a storage compartment behind the driver’s

seat.    Id. at 156-60.   The key to the safe was on the same key ring as

Appellant’s vehicle key.    Id.   Both firearms were loaded, operable, and

reported stolen.    Id. at 189-93; N.T. Non-Jury Trial, 10/15/18, at 38, 80.

Police also retrieved DNA evidence from the firearms that matched a sample

provided by Appellant. N.T. Jury Trial, 8/7/18, at 291-94.




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      In addition, police seized substantial amounts of narcotics, including

heroin, fentanyl, cocaine, methamphetamine, suboxone, and marijuana, as

well as drug paraphernalia. N.T. Non-Jury Trial, 10/15/18, at 56-69.

      Following his arrest, the Commonwealth charged Appellant as noted.

The Commonwealth proceeded with a bifurcated trial process.

      In August 2018, a jury trial commenced to adjudicate the two counts of

Persons Not to Possess Firearms. In addition to the evidence set forth above,

the Commonwealth established that Appellant had multiple felony drug

convictions from 2003 and 2013. N.T. Jury Trial, 8/6/18, at 209-11, 232-33.

Following the presentation of evidence and argument, the trial court instructed

the jury on the relevant law. Appellant offered no objections to the court’s

instructions. N.T. Jury Trial, 8/7/18, at 257, 371-89, 390-94. Following its

deliberations, the jury convicted Appellant of both counts. Id. at 395.

      In October 2018, a bench trial commenced to adjudicate the remaining

charges. Appellant stipulated to all evidence introduced during the jury trial.

N.T. Non-Jury Trial, 10/15/18, at 36-38. At the conclusion of the bench trial,

the court found Appellant guilty of all charges. N.T. Non-Jury Trial, 10/15/18,

at 313-14.

      Thereafter, the trial court sentenced Appellant. See N.T. Sentencing,

10/25/2018. Appellant timely filed a Post-Sentence Motion. Appellant sought

a Judgment of Acquittal on the Receiving Stolen Property convictions,

challenging the sufficiency of the Commonwealth’s evidence.         See Post-

Sentence Motion, 11/2/18, at 1-3 (unpaginated).       Appellant also sought a

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Judgment of Acquittal on one of the firearms offenses, asserting that the

Commonwealth had failed to establish that the Ruger 9mm pistol was “within

his reach.” Id. at 3 (unpaginated) (emphasis omitted).

      The trial court denied Appellant’s Post-Sentence Motion.       Appellant

timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement, later

amended upon receipt of the non-jury trial transcripts. The court issued a

responsive Opinion.

      Appellant raises the following issues, restated for clarity:

      1. Whether the evidence was insufficient to establish that
         Appellant knew or believed that firearms seized from his
         automobile were stolen or probably had been stolen;

      2. Regarding the crime of Persons Not to Possess Firearms,
         whether the evidence was insufficient to establish that
         Appellant possessed the Ruger 9mm pistol, where police seized
         this firearm from a locked safe located in a storage
         compartment behind the front seat of Appellant’s vehicle and
         beyond his reach; and

      3. Regarding the crime of Persons Not to Possess Firearms,
         whether the court erred in failing to properly instruct the jury
         that it must find that Appellant “was in physical possession or
         control of a firearm, whether visible, concealed about the
         person[,] or within the person’s reach.”         18 Pa.C.S. §
         6105(a.1)(1.1)(i)(B).

See Appellant’s Br. at 8-9.

      In his first two issues, Appellant challenges the sufficiency of the

Commonwealth’s evidence.        “A claim challenging the sufficiency of the

evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000). We review a sufficiency challenge de novo, but our scope of



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review is limited to the evidence of record. Commonwealth v. Robinson,

128 A.3d 261, 264 (Pa. Super. 2015) (en banc).

       The Commonwealth must establish each element of the crimes charged

beyond a reasonable doubt, but in so doing, it may rely on wholly

circumstantial evidence. Commonwealth v. Galvin, 985 A.2d 783, 789 (Pa.

2009). The fact-finder, “while passing on the credibility of the witnesses and

the weight of the evidence, is free to believe all, part, or none of the evidence.”

Id. “[A] reviewing court views all the evidence and reasonable inferences

therefrom in the light most favorable to the Commonwealth.” Id.

       In his first issue, Appellant contends that the Commonwealth’s evidence

was insufficient to establish the crime of Receiving Stolen Property.

Appellant’s Br. at 19, 22. Appellant concedes that the firearms seized from

his automobile were reported stolen.           Id. at 22, 29; N.T. Non-Jury Trial,

10/15/18, at 38. However, noting that mere possession of stolen property is

insufficient to enable a fact-finder to infer the requisite mens rea, Appellant

suggests that the Commonwealth failed to introduce evidence that he knew

the firearms were stolen or believed that they were probably stolen.

Appellant’s Br. at 27-36.2

       In order to convict a defendant of Receiving Stolen Property, the

Commonwealth must establish three elements: “(1) intentionally acquiring

____________________________________________


2  For purposes of this issue, Appellant concedes that he possessed both
firearms. Appellant’s Br. at 31 (“The location of the firearms near controlled
substances is evidence that [Appellant] possessed both[.]”).

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possession of the movable property of another; (2) with knowledge or belief

that it was probably stolen; and (3) the intent to deprive permanently.”

Robinson, 128 A.3d at 265; 18 Pa.C.S. § 3925(a).

      Appellant challenges the second element, which is sometimes referred

to as “guilty knowledge” of the crime.        Id. (citing Commonwealth v.

Matthews, 632 A.2d 570, 572 (Pa. Super. 1993)). To establish a defendant

had guilty knowledge, i.e., that he knew property in his possession was stolen

or believed that it was probably stolen, the Commonwealth may introduce

evidence that the underlying theft occurred recently.      Commonwealth v.

Williams, 362 A.2d 244, 248 (Pa. 1976). Such evidence will permit a fact-

finder to infer guilty knowledge, particularly where there is no satisfactory

explanation for a defendant’s possession of recently stolen goods. Id.

      Other circumstantial evidence may provide a basis for an inference of

guilty knowledge.

      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.

Robinson, 128 A.3d at 268 (citing cases).

      In this case, Appellant correctly notes that the Commonwealth failed to

establish when the firearms were stolen, where or from whom they were

stolen, or for how long they were in Appellant’s possession. See Appellant’s

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Br. at 29.     Nevertheless, other circumstantial evidence introduced by the

Commonwealth provided an adequate basis for the fact-finder to infer that

Appellant believed that the firearms were probably stolen.

        For example, during a routine traffic stop, Appellant refused to comply

with officers’ repeated requests for cooperation, ultimately requiring their

forced entry into Appellant’s vehicle and their forced extraction of Appellant

and his passengers. See, e.g., N.T. Jury Trial, 8/6/18, at 136 (indicating that

Appellant refused to comply with “[m]ore than 50” police commands).

Challenging the import of this evidence, Appellant suggests that his behavior

during the traffic stop can be explained by the other crimes he had committed.

See Appellant’s Br. at 29-30. However, in our view, Appellant’s conduct is

indicative of guilty knowledge concerning his several crimes. The fact-finder

need not choose between Appellant’s several crimes to determine whether

one or more would cause Appellant’s obstinate behavior. Rather, based on

his conduct, the fact-finder was free to infer that Appellant knew or believed

that the firearms were probably stolen.

        The circumstances surrounding Appellant’s possession of the firearms

also support an inference of guilty knowledge. As a previously convicted felon,

Appellant could not lawfully purchase or possess a firearm. Further, expert

testimony established that it is very common for drug dealers, particularly

those with prior drug convictions like Appellant, to obtain stolen firearms

illicitly.   See N.T. Non-Jury Trial, 10/15/18, at 214-16.     We agree with

Appellant that this is not evidence that he knew the firearms in his possession

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J-S43019-19



were stolen. See generally Appellant’s Br. at 35-36. Nevertheless, these

circumstances are sufficient to enable a fact-finder to infer that a defendant

believed that the firearms were probably stolen.

       For these reasons, we conclude that the Commonwealth established that

Appellant had guilty knowledge, believing that the firearms seized from his

automobile were probably stolen.               Robinson, 128 A.3d at 268.       Thus,

Appellant’s claim is without merit.

       In his second issue, Appellant contends that the Commonwealth’s

evidence was insufficient to establish a violation of Persons Not to Possess

Firearms. See Appellant’s Br. at 20, 37.3 We disagree.

       To establish Persons Not to Possess Firearms, the Commonwealth must

prove beyond a reasonable doubt that a defendant (1) has been convicted of

certain enumerated offenses, or otherwise satisfies certain conditions, and (2)

possesses, uses, controls, sells, transfers, or manufactures (or obtains a

license to do so) a firearm. 18 Pa.C.S. § 6105(a).

       In this case, the Commonwealth charged Appellant for violating Section

6105 graded as a first-degree felony. See Amended Information, 1/31/18, at

2. Thus, the Commonwealth was required to establish that Appellant “was in

physical    possession      or    control      of   a   firearm[.]”   18   Pa.C.S.   §

____________________________________________


3 Appellant limits his challenge to the Ruger pistol found in the locked safe
behind the driver’s seat; he does not challenge the evidence supporting his
conviction for possessing the Charter Arms .38 caliber revolver.




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J-S43019-19



6106(a.1)(1.1)(B).4       Our Supreme Court has interpreted this language to

mean “the knowing exercise of power over a weapon, which may be proven

through evidence of a direct, physical association between the defendant and

the weapon or evidence of constructive control.”               Commonwealth v.

Hanson, 82 A.3d 1023, 1036-37 (Pa. 2013).5               The Court determined that

constructive control is analogous to constructive possession, defining it as “the

ability to exercise a conscious dominion and the intent to do so.” Id. at 1037.

       Appellant notes the evidence established that the Ruger 9mm pistol was

stored in a locked safe, which was placed in a storage compartment located

behind the driver’s seat of his vehicle.         Appellant’s Br. at 40. In addition,

Appellant points to his diminutive stature and the fact that he never left the

front seat of his vehicle. Id. at 40 (describing himself as “a dwarf who is only

4’8” tall”). Based on these facts and further suggesting a temporal element

to his crime, Appellant asserts that it was impossible for him “to simply grab

the firearm quickly[.]”          Id. at 41.       Thus, Appellant concludes, the

Commonwealth failed to establish that he had physical possession or control

over the pistol. Id. at 41-42.



____________________________________________


4 Alternatively, a person may be guilty of a first-degree felony if there is
evidence that he was previously convicted of violating subsection (a). 18
Pa.C.S. § 6105(a.1)(1.1)(A). This subsection is not relevant here.

5  In Hanson, our Supreme Court examined this language in the statutory
context of a sentencing enhancement to certain drug offenses committed with
firearms. Id. at 1026.

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      There is no requirement that a defendant has quick or immediate access

to a firearm.   As observed by our Supreme Court, “a defendant can be in

control of a firearm that is not about his person or within his reach, and thus

is not immediately and directly physically accessible to him.” Hanson, 82

A.3d at 1036 (favorably quoting from an appellee’s brief; italics in original).

Rather, the statutory language suggests the proper focus to be on a

defendant’s “actual or constructive exercise of power over a weapon.” Id.

      There is substantial evidence in this case that Appellant exercised both

actual and constructive power over the Ruger pistol. DNA evidence revealed,

for example, that Appellant had physical possession of the pistol at some

point, thus exerting actual control over the weapon.         Further, Appellant

secured the pistol from others, storing it in a safe located in his vehicle.

Appellant kept the key to the safe alongside his automobile key. This evidence

suggests that Appellant “had the ability to exercise a conscious dominion [over

the pistol] and the intent to do so.” Id. at 1037.

      Viewed in the light most favorable to the Commonwealth, Appellant

maintained constructive control over the weapon.          Id.    Therefore, the

Commonwealth presented sufficient evidence that Appellant violated Persons

Not to Possess Firearms, graded as a first-degree felony.

      In his third issue, Appellant contends the trial court erred when it failed

to instruct the jury properly on the elements of Persons Not to Possess




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Firearms graded as a first-degree felony. Appellant’s Br. at 43.6 According to

Appellant, this error constituted a violation of Apprendi v. New Jersey, 530

U.S. 466 (2000). No relief is due.

       The trial court has considerable discretion in fashioning a jury charge.

Commonwealth v. Johnson, 107 A.3d 52, 87-88 (Pa. 2014). The court is

free to use its own expressions, provided it clearly and accurately conveys the

applicable legal concepts at issue. Id. In reviewing instructions to a jury, we

consider the entire charge, “not merely discrete portions thereof.” Id.

       Initially, we observe that Appellant failed to preserve a challenge to the

trial court’s jury instructions. This Court has held that “[a] specific and timely

objection must be made to preserve a challenge to a particular jury

instruction. Failure to do so results in waiver.” Commonwealth v. Proctor,

156 A.3d 261, 270 (Pa. Super. 2017) (quoting Commonwealth v. Moury,

992 A.2d 162, 178 (Pa. Super. 2010)).

       During its charging conference, the trial court reviewed its intended

instructions, which included a standard definition of constructive possession.

N.T. Jury Trial, 8/7/18, at 254-57. The court specifically inquired whether

Appellant had an objection to the instruction; Appellant responded that he did

not. Id. at 257. Thereafter, following the court’s instructions to the jury,

Appellant lodged no objection. Id. at 389. After deliberating for some period,

____________________________________________


6 In this third issue, Appellant challenges both counts of Persons Not to
Possess Firearms, relating to his possession of the Charter Arms .38 caliber
revolver and the Ruger 9mm pistol. Id.

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the jury asked for clarification on the definition of possession; the court

reinstructed the jury; and Appellant failed to object. Id. at 390-94.    Thus,

to the extent Appellant asserts that the court erred in its jury instructions,

such claim is waived. Proctor, 156 A.3d at 270.

      Nevertheless, Appellant also asserts an Apprendi violation. Appellant’s

Br. at 9, 43. Such claims implicate the legality of a defendant’s sentence and

cannot be waived on appeal. Commonwealth v. Roney, 866 A.2d 351, 359

n.32 (Pa. 2005); Commonwealth v. Popow, 844 A.2d 13, 17 (Pa. Super.

2004) (noting that a challenge to the proper grading of an offense implicates

the legality of the sentence and is, therefore, non-waivable).

      In Apprendi, the United States Supreme Court determined that “other

than a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt.” Commonwealth v. Smith, 206 A.3d 551, 564

(Pa. Super. 2019) (quoting Apprendi, 530 U.S. at 490), appeal denied, 219

A.3d 202 (Pa. 2019).

      According to Appellant, the court omitted from its instructions to the

jury the precise statutory language used to define Persons Not to Possess

Firearms graded as a first-degree felony, which includes the additional

requirement that a defendant “was in physical possession or control of a

firearm, whether visible, concealed about the person[,] or within the person’s

reach.” Appellant’s Br. at 46 (quoting 18 Pa.C.S. § 6105(a.1)(1.1)(i)(B)). In




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the absence of a clear finding by the jury, Appellant seeks a correction in the

grading of his offense. Id. at 50.7

       Section 6105 defines Persons Not to Possess Firearms as follows:

       (a) Offense defined.—

          (1) A person who has been convicted of an offense
          enumerated in subsection (b), within or without this
          Commonwealth, regardless of the length of sentence or
          whose conduct meets the criteria in subsection (c) shall not
          possess, use, control, sell, transfer or manufacture or obtain
          a license to possess, use, control, sell, transfer or
          manufacture a firearm in this Commonwealth.

                                           ...

       (a.1) Penalty.—

          (1) Except as provided under paragraph (1.1), a person
          convicted of a felony enumerated under subsection (b) or a
          felony under the act of April 14, 1972 (P.L. 233, No. 64),1
          known as The Controlled Substance, Drug, Device and
          Cosmetic Act, or any equivalent Federal statute or
          equivalent statute of any other state, who violates
          subsection (a) commits a felony of the second degree.

          (1.1) The following shall apply:

                 1. A person convicted of a felony enumerated under
                    subsection (b) or a felony under The Controlled
                    Substance, Drug, Device and Cosmetic Act, or any
                    equivalent Federal statute or equivalent statute of
                    any other state, who violates subsection (a)
                    commits a felony of the first degree if:

                     (A) at the time of the commission of a violation of
                     subsection (a), the person has previously been
                     convicted of an offense under subsection (a); or

____________________________________________


7 Appellant does not seek remand for re-sentencing, as he concedes the
sentence imposed was well within the standard range suggested for a second-
degree felony. Appellant’s Br. at 49-50.

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J-S43019-19


                     (B) at the time of the commission of a violation of
                     subsection (a), the person was in physical
                     possession or control of a firearm, whether
                     visible, concealed about the person or within
                     the person's reach.

                                           ....

18 Pa.C.S. § 6105 (emphasis added).

        Thus, a violation of Section 6105 constitutes a second-degree felony

unless the Commonwealth alleges and proves at trial that a defendant “was

in physical possession or control of a firearm.”8 This additional factor is not

an element of the offense, but it is an additional fact the jury must determine.

Smith, 206 A.3d at 565 (quoting Popow, 844 A.2d at 18).             We may not

presume the jury made this finding “when no evidence of it was presented at

trial and no mention of it was made in the jury’s charge.” Id.

        In this case, the Commonwealth charged Appellant with Persons Not to

Possess Firearms graded as a first-degree felony. See Amended Information

at 2.   At trial, the Commonwealth introduced sufficient evidence to establish

that Appellant exercised constructive control over the Ruger 9mm pistol. See

____________________________________________


8 In our view, the statutory examples that follow this quoted language, i.e.,
“whether visible, concealed about the person or within the person's reach”,
merely “convey the Legislature’s desire to incorporate concepts of exclusive,
joint, and constructive control.” Hanson, 82 A.3d at 1037. Proof that such
circumstances exist in any particular case is not necessarily sufficient to
establish “physical possession or control.” See id. Further, this list of
examples is not exhaustive. Id. Thus, for example, the Commonwealth may
prove constructive control over a firearm where its evidence establishes that
a defendant secures the firearm in a locked safe stored in the defendant’s
automobile and where the defendant retains the key to the locked safe. See
supra.

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supra. The trial court properly instructed the jury that Appellant was charged

with possession or controlling the firearm and proceeded to instruct the jury

on constructive possession. N.T. Jury Trial, 8/7/18, at 381, 384. We discern

no deficiency in its instruction as it tracks closely to our Supreme Court’s

interpretation of the analogous term, constructive control. See Hanson, 82

A.3d at 1036-37.

      The trial court accurately instructed the jury with respect to the charge

of Persons Not to Possess Firearms graded as a first-degree felony. Thus, we

discern no Apprendi violation.

      Accordingly, we affirm Appellant’s Judgment of Sentence.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2019




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