J-E02008-15

                               2015 PA Super 238

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
JAMES JUMAH ROBINSON,                    :
                                         :
                   Appellant             :   No. 912 MDA 2014

                   Appeal from the Sentencing May 23, 2014,
                     Court of Common Pleas, Berks County,
                Criminal Division at No. CP-06-CR-0002523-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN,
        ALLEN, LAZARUS, MUNDY and STABILE, JJ.

OPINION BY DONOHUE, J.:                        FILED NOVEMBER 19, 2015

     Appellant, James Jumah Robinson (“Robinson”), appeals from the

judgment of sentence following his convictions of carrying a firearm without

a license, 18 Pa.C.S.A. § 6106(a)(1), and receiving stolen property, 18

Pa.C.S.A. § 3925(a). On appeal, Robinson challenges the sufficiency of the

evidence supporting the conviction of receiving stolen property, contending

that the Commonwealth did not prove that he possessed the requisite mens

rea for the crime.     For the reasons that follow, we reverse Robinson’s

conviction of receiving stolen property, vacate the judgment of sentence,

and remand for resentencing on the remaining firearms conviction.

     On May 19, 2013, Officers Christopher Dinger and Brett Sneeringer

intervened in a domestic dispute between Robinson and Adrianne Myers

(“Myers”), with another female (Mercedes Hodge (“Hodge”)) also at the
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scene.   N.T., 2/11/2014, at 15.   According to Officer Dinger, Myers was

“screaming very loudly and … seemed to be very angry at [Robinson].” Id.

While Officer Dinger talked with Myers and Hodge, Hodge “quietly informed”

the officer that Robinson was currently carrying a firearm in his pocket. Id.

at 17. Officer Dinger testified that he then approached Robinson and asked

if he had any weapons on his person, to which Robinson “just froze where he

stood” and “stared at [the officer] stone-faced.”        Id.   Officer Dinger

conducted a Terry pat down search of Robinson’s exterior for weapons, at

which time he felt a large revolver in Robinson’s left front coat pocket. Id.

at 17-18.   Officer Dinger held the revolver tightly through the jacket and

asked Robinson if he had a permit to carry the weapon.            Id. at 18.

Robinson again offered no response, remaining “stone-faced” and just stood

“without moving or saying anything”.      Id.   Officer Sneeringer handcuffed

Robinson and Officer Dinger removed a loaded .357 Magnum revolver,

manufacturer’s serial number 140594, from his left front coat pocket. Id. at

18-19. Officer Dinger contacted the county dispatcher, who advised that a

search indicated that Robinson did not possess a permit to carry a firearm

and that he had a scofflaw warrant for an unpaid harassment ticket. Id. at

28.

      Officer Dinger identified Jeffery Schoenberger (“Schoenberger”) of

Lebanon, Pennsylvania, as the probable owner of the handgun. Id. at 24.

Schoenberger testified that he purchased the weapon in a private sale and



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then took it to a local gun shop to complete the transaction. Id. at 38. He

kept the handgun in his basement, and the last time he could remember

seeing it was July 2010.   Id. at 39. He did not know that it was missing

until May 2013 when Officer Dinger contacted him. Id. at 39-40. At that

time, Schoenberger reported the weapon as missing, but subsequently

decided not to pursue charges because he believed that his stepson likely

took it and “sold it for money or traded it for drugs.”           Id. at 42.

Schoenberger indicated that he did not know Robinson and had not given

him the handgun. Id. at 40.

     After a jury trial on February 11, 2014, Robinson was convicted of the

two above-referenced crimes.1     On the conviction of firearms not to be

carried without a license, the trial court sentenced him to a term of

incarceration of not less than forty-two months or more than seven years.

On the conviction of receiving stolen property, the trial court sentenced

Robinson to a consecutive term of incarceration of not less than two years or

more than ten years.




1
   At the time of arrest, the Commonwealth also charged Robinson with a
violation of 18 Pa.C.S.A. § 6105 (persons not to possess, use, manufacture,
control, sell or transfer firearms). At trial, however, the Commonwealth
presented no evidence relating to this charge and the trial court did not
submit it to the jury for consideration. N.T., 2/11/2014, at 66-69. In
connection with its recordation of the jury’s guilty verdicts, the trial court
indicated that it granted a motion for judgment of acquittal for the 6105
charge.


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      On appeal, Robinson challenged only the sufficiency of the evidence

supporting his conviction of receiving stolen property.    In a memorandum

decision issued on December 23, 2014, a panel of this Court reversed the

conviction of receiving stolen property and remanded for resentencing. This

Court subsequently granted en banc review for further consideration of the

sufficiency of the evidence for the disputed conviction. Robinson contends

that the Commonwealth presented no evidence at trial to establish that he

knew, or had reason to know, that the firearm in his possession was stolen.

The Commonwealth disagrees, arguing that it introduced circumstantial

evidence that, when viewed in the light most favorable to the verdict winner,

permitted the jury to infer that Robinson possessed the requisite mens rea

for a conviction of receiving stolen property.

      Our standard of review for a challenge to the sufficiency of the

evidence is de novo, but our scope of review is limited to considering the

evidence of record, and all reasonable inferences arising therefrom, viewed

in the light most favorable to the Commonwealth as the verdict winner.

Commonwealth v. Rushing, 99 A.3d 416, 420–21 (Pa. 2014). Evidence is

sufficient if it can support every element of the crime charged beyond a

reasonable doubt.    Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.

Super. 2015); Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.

Super. 2014).     The trier of fact, while passing upon the credibility of

witnesses and the weight of the proof, is free to believe all, part, or none of



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the evidence.     Commonwealth v. Watkins, 843 A.2d 1203, 1211 (Pa.

2003).

      The crime of receiving stolen property is defined by statute as follows:

            § 3925. Receiving stolen property

            (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.

18 Pa.C.S.A. § 3925(a). Based upon this definition, this Court has identified

the elements of the crime, as relevant here, to be:          (1) intentionally

acquiring possession of the movable property of another; (2) with

knowledge or belief that it was probably stolen; and (3) the intent to deprive

permanently.      Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super.

2012) (quoting Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super.

2011), appeal denied, 48 A.3d 1249 (Pa. 2012)), appeal denied, 72 A.2d

602 (Pa. 2013).

      Robinson contests the sufficiency of the evidence only with respect to

the second element of the crime, sometimes referred to as “guilty

knowledge” of the crime.     See Commonwealth v. Matthews, 632 A.2d

570, 572 (Pa. Super. 1993).       This Court has commented on the basic

requirement for satisfaction of this second element as follows:

                   Importantly, the Legislature expressly defined
            the    required mental state as “knowing” or



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           “believing.”      Because the Legislature excluded
           mental states such as recklessness, negligence, or
           naïveté about the stolen status of the property,
           those       mental      states    are     insufficient.
           Commonwealth v. Dunlap, 505 A.2d 255, 257 (Pa.
           Super. 1985); see also Commonwealth v.
           Ostrosky, 909 A.2d 1224, 1230 n. 7 (Pa. 2006)
           (express inclusion of certain statutory terms implies
           the exclusion of those that are not mentioned);
           compare 18 Pa.C.S.A. § 302(c) (where the
           Legislature does not define the relevant mental
           state, a finding of recklessness is sufficient). This
           reasoning is consistent with the common recognition
           that penal statutes are to be strictly construed.
           Commonwealth v. Jarowecki, 985 A.2d 955, 959
           (Pa. 2009), citing 1 Pa.C.S.A. § 1928(b)(1). Thus,
           courts may not hold that a less culpable mental state
           satisfies a criminal statute where the statute
           demands proof of the more culpable mental state.
           See Dunlap; compare 18 Pa.C.S.A. 302(d)
           (generally, if the Commonwealth proves a more
           culpable mental state, then the less culpable mental
           state is satisfied).

Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa. Super. 2010),

appeal denied, 8 A.3d 898 (Pa. 2010).

     Accordingly, the Commonwealth had the burden to establish either

that Robinson knew the firearm in question was stolen, or believed that it

had probably been stolen. A person “knows” that goods are stolen if he is

“aware” of that fact. Id. (citing 18 Pa.C.S.A. § 302(b)(2)(i)). In this case,

as in most cases, the Commonwealth acknowledges that there is no direct

proof that Robinson knew for a fact that the handgun was stolen.

Commonwealth’s Substituted Brief at 9-10.       Instead, the Commonwealth

contends that it introduced sufficient evidence to prove that Robinson



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believed the firearm was probably stolen.          Id.   In this regard, the

Commonwealth correctly notes that the guilty knowledge required here (like

all culpable mental states) may be inferred from circumstantial evidence.

Id. at 8; Commonwealth v. Pruitt, 951 A.2d 307, 314 (Pa. 2008), cert.

denied, 556 U.S. 1131 (2009).

      The viability of inferences of guilty knowledge in connection with the

crime of receiving stolen property has a long history.    In early cases, this

Court sanctioned an evidentiary presumption that a defendant’s unexplained

possession of recently stolen property was sufficient proof to support a

conviction of receiving stolen property.    See, e.g., Commonwealth v.

Pittman, 118 A.2d 214 (Pa. Super. 1955); Commonwealth v. Kaufman,

116 A.2d 316 (Pa. Super. 1955). In two cases, however, the United States

Supreme Court ruled that a criminal presumption is unconstitutional unless

the fact presumed “more likely than not” flows from the facts proven at trial.

Leary v. United States, 395 U.S. 6, 36 (1969); Turner v. United States,

396 U.S. 398, 405 (1970).

      In   response   to   Leary   and   Turner,   our   Supreme   Court,   in

Commonwealth v. Owens, 271 A.2d 230 (Pa. 1970), ruled that the old

evidentiary presumption for recently stolen property violated due process.

Id. at 233. Moreover, in Owens the Supreme Court emphasized that in the

absence of proof by the Commonwealth that the property had been stolen

recently, no evidentiary basis had been established to support a conviction



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for receiving stolen property, with or without an explanation from the

appellant.   The handgun in Owens had been stolen approximately seven

weeks prior to the appellant’s arrest, and without any other evidence of

guilty knowledge from the Commonwealth, the conviction could not stand:

             We reiterate that there is nothing whatever in the
             record touching upon how appellant originally came
             into possession of the stolen pistol, and the
             possibilities of innocent acquisition seem myriad: a
             gift, payment for services rendered, payment of a
             debt, purchase from a seemingly reputable dealer in
             used guns.

Id.   According to the Supreme Court, the seven week delay between the

theft of the handgun and the arrest provided ample time for any number of

transfers    in   “seemingly   innocent    circumstances,”   and    thus,   the

Commonwealth had not provided the jury with any evidentiary basis to infer

that the appellant knew or had reason to know that the handgun was stolen.

Id.

      Two years later, in Commonwealth v. Shaffer, 288 A.2d 727 (Pa.

1972), our Supreme Court again revisited this issue, ruling that while (per

Owens) a jury may not presume guilty knowledge based upon “recency

plus lack of explanation,” a jury can infer guilty knowledge based upon the

same evidentiary showing.2 Id. at 736. In contrast to Owens, in Shaffer



2
   In Barnes v. United States, 412 U.S. 837 (1973), the United States
Supreme Court agreed, concluding in a case involving the unexplained
possession of recently stolen treasury checks, “common sense and
experience tell us that petitioner must have known or been aware of the


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the Commonwealth’s evidence established the recency of the theft, as the

appellant was found in possession of jewelry stolen just one day before his

arrest.     This evidence of recency permitted the jury to infer that the

appellant    knew    the   jewelry   was   stolen,   as   this   factual   predicate

“competently established that the possessor of the recently stolen property

could be the thief.” Id. (emphasis added). Unlike in Owens, where the

lapse of time precluded any inference of guilty knowledge, the proof of

recency in Shaffer provided the jury with an evidentiary basis to infer guilty

knowledge, with or without any attempt by Shaffer to explain his

possession:

              The inference in the instant case merely accords the
              evidence its natural probative force, the inference of
              guilt is simply a result that the triers of fact are
              permitted to reach based on the evidence.            We
              stress that the triers of fact are permitted to reach
              the inference, but they may also reject it, the result
              is within the jury's discretion, and they are in no way
              compelled to reach any conclusion. In the instant
              case, the trial judge properly stressed the fact
              that the possession must be recent, he pointed
              out that appellant did not have the burden of
              explaining possession, he more than adequately
              charged the jury on the presumption of innocence,
              he informed the jury that the Commonwealth had
              the burden of proving every element of the crime
              beyond a reasonable doubt, he informed the jury of


high probability that the checks were stolen.” Id. at 846. The Supreme
Court rejected petitioner’s contention that allowing the unexplained nature of
the possession to be used against him violated his privilege against self-
incrimination, indicating that while it could increase the pressure on him to
testify, “the mere massing of evidence against a defendant” does not violate
the privilege. Id.


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           the significance of Shaffer's defense and stated that
           the jury could not draw anything from the fact that
           certain defendants did not testify in their own behalf,
           and lastly he stated the jury could infer guilt from
           the possession, thereby making it clear that it was
           within their discretion.

Id. (emphasis added).

     Finally, in Commonwealth v. Williams, 362 A.2d 244 (Pa. 1976),3

our Supreme Court again affirmed the “recency plus lack of explanation”

inference for recently stolen property, holding that “a permissible inference

of guilty knowledge may be drawn from the unexplained possession of

recently stolen goods without infringing on an accused’s right of due process

or his right against self-incrimination.” Id. at 248-49 (footnotes omitted).

Williams involved an appellant’s unexplained possession of a 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 is


3
  In a subsequent case, Commonwealth v. Doman, 416 A.2d 507 (Pa.
1980), the Supreme Court referred to Williams as a plurality decision. Id.
at 509. A review of the Williams opinion, however, suggests that it was in
fact a 6-1 majority decision, with four justices joining in the majority
decision and two concurring in the result. Justice Eagan authored the
majority decision with two justices (Jones, C.J. and O’Brien, J.) joining.
Justice Pomeroy filed a concurring opinion in which he amplified on the
constitutional history of the evidentiary presumption/inference at issue. In
his concurring opinion, Justice Pomeroy agreed with both the majority’s
decision to reinstate the judgment of the trial court and Justice Eagan’s
reasons for doing so.       Williams, 362 A.2d at 250-51 (Pomeroy, J.,
concurring).


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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, per Shaffer).             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.



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      Subsequent to Williams, this Court has had many opportunities to

apply its teachings, including that the mere possession of stolen property is

not sufficient to prove guilty knowledge.     See, e.g., Commonwealth v.

Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002) (“[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 believe that the property was stolen.”); Commonwealth v.

Matthews, 632 A.2d 570, 571 (Pa. Super. 1993) (“[T]here must be

additional evidence [beyond mere possession], circumstantial or direct,

which would indicate that the defendant knew or had reason to know that

the property was stolen.”); Commonwealth v. Mayger, 395 A.2d 933, 935

(Pa. Super. 1978) (“All that was proved was that appellant had in his

possession a set of keys that were part of an ‘extensive list’ of things stolen

from a house in Levittown.”); Commonwealth v. Stover, 436 A.2d 232,

233-34 (Pa. Super. 1981) (possession thirty-seven days after the theft of an

automobile was not recent, and no other evidence linked the defendant to

the theft); Commonwealth v. Caesar, 369 A.2d 341, 344 (Pa. Super.

1976) (guilty knowledge would be “conjectural at best” where the theft of an

automobile was four weeks prior and the defendant was in jail at that time).

      On the    other   hand, when the       Commonwealth (per      Williams)

establishes the recency of the theft, we have upheld convictions for receiving



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stolen property. See, e.g., Commonwealth v. Hogan, 468 A.2d 493, 498

(Pa. Super. 1983) (en banc) (“We cannot say as a matter of law a period of

four weeks was so great as to render impermissible the inference of guilty

knowledge …”); Commonwealth v. Walters, 378 A.2d 1232, 1236-37 (Pa.

Super. 1977) (guilty knowledge properly inferred by unexplained possession

of stolen furniture six days after theft, where the defendant fled to avoid

police); but see Matthews, 632 A.2d at 572 (judgment of sentence

vacated where the defendant, who was in possession of an automobile

stolen three days prior, provided a satisfactory explanation, namely that he

had rented it in exchange for two rocks of crack cocaine).

     Evidence of the recency of the theft is not the only basis for an

inference of guilty knowledge.   See Commonwealth v. Stevenson, 363

A.2d 1144, 1145 (Pa. Super. 1976) (“[C]riminal intent or guilty knowledge

may be inferred where facts and evidence are such as to show that element

of the crime.”).   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. See, e.g.,

Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa. Super. 2006) (listing



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factors); Foreman, 797 A.2d at 1009 (the owner of a motorcycle repair

shop in possession of motorcycles, engines, and other parts, where the

serial numbers on several of the motorcycle engines had been visibly

altered); Commonwealth v. Grabowski, 452 A.2d 827, 830 (Pa. Super.

1982) (attempts to sell a stolen car); Commonwealth v. Worrell, 419

A.2d 1199, 1201-02 (Pa. Super. 1980) (VIN numbers on frame of vehicle

and engine mutilated); Commonwealth v. Brabham, 407 A.2d 424, 426-

27 (Pa. Super. 1979) (flight from law enforcement at the time of arrest);

Commonwealth v. Phillips, 392 A.2d 708, 710 (Pa. Super. 1978)

(appellant in possession of repainted motorcycle in the same city where it

had been stolen, with the serial number marred).

     In this case, the Commonwealth presented no evidence that would

support an inference of guilty knowledge. The Williams “recency plus lack

of explanation” inference does not apply, as the Commonwealth introduced

no evidence to satisfy the recency requirement.4 Schoenberger testified only

that he had last seen the handgun in July 2010, and did not know it was

missing until May 2013 when he was contacted by Officer Dinger after




4
   While the Supreme Court in Williams indicated that issues regarding
recency are “normally questions of fact for the trier of fact,” Williams, 362
A.2d at 249, such is not the case here, as the lack of evidence regarding a
definitive date of the theft provided the jury with no basis on which to make
any findings of fact regarding recency (other than speculation).


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Robinson’s arrest.5 N.T., 2/11/2014, at 39-40. Likewise, none of the other

recognized indicia of knowledge of the stolen nature of the property is

present.   The handgun in Robinson’s possession was located in an

unremarkable location (his coat pocket), and it had not been altered in any

way to conceal its stolen status, as the manufacturer’s serial number

remained plainly visible. Robinson’s conduct at the time of arrest likewise

provided no indicia of guilty knowledge, as he merely stared “stone-faced” in

response to Officer Dinger’s inquiries, and he did not offer any false

explanation for his possession of the handgun or make any effort to flee

apprehension.    In sum, the Commonwealth introduced no evidence

whatsoever at trial regarding how, when, or where Robinson acquired the

handgun, or from whom.      Instead, the Commonwealth proved only that

Robinson possessed stolen property, which, as indicated, by itself is not

sufficient to prove guilty knowledge. See, e.g., Williams, 362 A.2d at 248

n.7; Foreman, 797 A.2d at 1012.




5
   Schoenberger speculated that his stepson may have taken the weapon
between July 2011 and October 2011, when Schoenberger was driving a
truck. N.T., 2/11/2014, at 40. He offered no reasons, however, as to why
he believed the handgun may have been stolen during this period, as
opposed to any other time between July 2010 and May 2013. In any event,
if his stepson did steal the handgun in 2011, this still leaves nearly two
years before it was found in Robinson’s possession, which plainly does not
satisfy the recency requirement for the Williams inference. See, e.g.,
Commonwealth v. McFarland, 308 A.2d 592, 593 n.1 (Pa. 1973) (jury
instruction on “recency plus lack of explanation” was improper where the
arrest occurred eleven months after the theft).


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      Because the Commonwealth did not establish the recency of the theft

and provided no other circumstantial evidence of guilty knowledge, Robinson

had no obligation to offer any explanation for his possession of the handgun.

As our review of Shaffer and Williams makes clear, any necessary

compulsion for a defendant to provide an explanation must be in response to

the Commonwealth’s introduction of sufficient circumstantial evidence of

guilt to provide the jury with an inference beyond a reasonable doubt. In

those cases, once the Commonwealth proved the recency of the thefts, the

jury was free to infer the defendant’s guilt (that he could have been the

thief) unless the defendant could offer a satisfactory alternative explanation

for his possession of the stolen goods. Shaffer, 288 A.2d at 736; Williams,

362 A.2d at 248.        In the present case, in contrast, because the

Commonwealth introduced no circumstantial evidence of guilty knowledge,

nothing compelled Robinson to offer evidence to explain his possession of

the handgun.

      Nevertheless, the trial court ruled that Robinson’s failure to prove that

he had “registered” his ownership of the handgun was evidence that he

knew that it was probably stolen.     Trial Court Opinion, 7/16/2014, at 5.

According to the trial court, Robinson’s “failure to obtain lawful ownership of

a firearm found in his possession indicates that [he] knew or had reason to

know that the firearm he possessed was likely taken from another individual

who had rightful ownership of the firearm.” Id. In particular, the trial court



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found that “[t]o own a firearm in Pennsylvania, an individual must register

ownership with the State,” and that since “no paperwork was provided at

trial to show [Robinson’s] lawful ownership of any firearm, [Robinson] likely

received the firearm through improper means.” Id.

     The trial court’s analysis is in error, in substantial part because it

reflects a basic misunderstanding of Pennsylvania law with respect to the

sale of firearms and the absence of any paperwork to demonstrate firearm

ownership.    Specifically, 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. Ownership of a firearm in Pennsylvania bears little

similarity to ownership of, for example, an automobile.

     The trial court’s confusion may have resulted from Schoenberger’s

mistaken testimony that he was the “registered owner” of the handgun

because he had gone through a “registration process” at the local gun shop

when he purchased it.6 N.T., 2/11/2014, at 43. As indicated, however, no



6
   Evidence of Schoenberger’s compliance with section 6111, without more,
was not evidence of Robinson’s noncompliance. The Commonwealth did not
charge Robinson with a violation of section 6111. At most, Schoenberger’s
testimony regarding his compliance allowed the jury to speculate as to
whether Robinson also complied, and fell far short of the proof necessary for
the Commonwealth to satisfy its evidentiary burden for the guilty knowledge
element of the crime. See, e.g., Barnes, 412 U.S. at 845 n.9 (“But the
burden of proving beyond a reasonable doubt that the defendant did have


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“registration process” exists in Pennsylvania. Instead, the only requirement

in Pennsylvania before purchasing/transferring a firearm is to obtain an

instant background check by the Pennsylvania State Police (“PSP”). 7         18

Pa.C.S.A. § 6111. As with Schoenberger’s purchase, private sales/transfers

must be completed with an instant background check performed at the place

of business of a licensed importer, manufacturer, or dealer, or at a county

sheriff’s office. 18 Pa.C.S.A. § 6111(c). In connection with the background

checks, the PSP maintains a database of transactions.8 The failure to obtain

an instant background check may subject the seller/transferor to criminal

liability. A buyer/transferee may be subject to criminal liability under section




knowledge that the property was stolen, an essential element of the crime,
remains on the Government.”).
7
   Pursuant to subsections 6111(b)(3)-(5), a licensed importer, licensed
manufacturer, or licensed dealer must, prior to selling or transferring a
firearm, contact the PSP for a background check (criminal history, juvenile
delinquency, and mental health records) on the purchaser/transferee, obtain
an approval number from the PSP, and issue a receipt with that approval
number on it to the purchaser/transferee. 18 Pa.C.S.A. § 6111(b)(3)-(5).
8
  Pursuant to subsection 6111(b)(1), sales or transfers of handguns require
the seller/transferor to submit to the PSP a one-page application/record of
sale based upon information obtained from the buyer/transferee.            18
Pa.C.S.A. § 6111(b)(1).         The seller/transferor must provide the
buyer/transferee with a copy of the application/record of sale and maintain a
copy of the same in its records for twenty years. Id. There is no
requirement that the buyer/transferee retain his/her copy of the document.


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6111 only for making false statements or providing false identification to the

seller/transferor.9 18 Pa.C.S.A. § 6111(g).

      Importantly,   an   instant   background   check   does   not   constitute

registration of gun ownership or evidence of gun ownership.             As our

Supreme Court has emphasized, section 6111 does not require background

checks at all for handguns (1) owned in Pennsylvania but obtained while

outside of the state, or (2) procured through transfers between spouses,

parents and children, or grandparents and grandchildren. Allegheny Cnty.

Sportsmen’s League v. Rendell, 860 A.2d 10, 21-22 (Pa. 2004); 18

Pa.C.S.A. § 6111(c). As a result, the PSP’s database (through which Officer

Dinger identified Schoenberger) is not a “registry of ownership” and is not a

“survey of existing [handgun] ownership.”

                   It is undisputed that the database at issue
            is not a registry of ownership, but rather, merely
            reflects the applications/records of sale for handgun
            purchases that occur in Pennsylvania. The database
            does not maintain a record of all firearms owned by
            Pennsylvanians, which would include long guns, or
            firearms that are owned by Pennsylvanians, but not
            purchased in the Commonwealth. Additionally, the
            database of handgun sales does not include
            handguns that are transferred between spouses,
            parents and children, and grandparents and



9
    Subsection 6111(g) sets forth various criminal penalties for a
seller/transferor who fails to comply with these obligations. 18 Pa.C.S.A. §
6111(g)(1)-(3), (5)-(6). A buyer/transferee’s criminal liability under section
6111 is limited to knowingly or intentionally making false statements or
providing false identification in connection with the above-described process.
18 Pa.C.S.A. § 6111(g)(4).


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            grandchildren. See 18 Pa.C.S. § 6111(c). Nor is
            the database a survey of existing ownership.

Id. (emphasis added). Instead, the database “merely contains information

regarding the sales of handguns in the Commonwealth.” Id.

      For these reasons, the trial court’s contention that Robinson failed to

“register his ownership” of the handgun at issue is mistaken, as there is no

process or method in this Commonwealth for registering the ownership

status of a handgun. To the contrary, in this case the most that could be

said is that no instant background check was performed in connection with

Robinson’s acquisition (by sale or transfer) of the weapon.        Even this

conclusion is not supported by the certified record, however, as the

Commonwealth introduced no evidence that an instant background check

was required at the time of Robinson’s acquisition (i.e., that he obtained it

while in Pennsylvania, and not from a spouse, parent, child, grandparent or

grandchild). Even if the evidence of record did demonstrate that an instant

background check should have been performed (which it does not),

compliance would be the responsibility of the individual who sold or

transferred the handgun to Robinson, rather than the responsibility of

Robinson (as the purchaser/transferee). The noncompliant seller/transferor

would face possible criminal penalties, not Robinson. For these reasons, no

evidentiary basis exists on this record to support the trial court’s assertion

that the jury could properly infer, beyond a reasonable doubt, that Robinson




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must have obtained the handgun by “improper means.” Trial Court Opinion,

7/16/2014, at 5.

      The Commonwealth alternatively contends, citing to section 6111, that

“the sale of handguns are highly regulated and they cannot easily be

obtained from legitimate dealers,”10 and “the factfinder was told that the gun

was stolen at some undetermined point [and thus,] it would have been

difficult for the firearm to be assimilated back into legal trade channels.”

Commonwealth’s Substituted Brief at 10.       This argument is misleading at

best, since Schoenberger did not report the handgun as stolen until after

Robinson’s arrest, when he was contacted by Officer Dinger regarding its

whereabouts.    N.T., 2/11/2014, at 39-42.      As such, the Commonwealth

offered no evidence that the handgun at issue could not have been

assimilated back into legal trade channels.

      Finally, the Commonwealth suggests that Robinson’s lack of a license

to carry the weapon was circumstantial evidence of his guilty knowledge.

Commonwealth’s Substituted Brief at 10. The Commonwealth does not offer



10
      On this point, the Commonwealth cites to this Court’s decision in
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004). In significant
contrast to the present case, in Parker the Commonwealth introduced
evidence that the appellant was a convicted felon. Id. at 751. As such, the
appellant knew that it was illegal for him to obtain a handgun and that a
criminal background check thus would have prevented a purchase from a
legitimate dealer in legal trade channels. Id. Also in Parker, unlike in this
case, the handgun had been stolen the previous month near where the
police arrested the appellant, and the appellant made incriminating
statements both to the gun’s owner and to federal agents. Id. at 751-52.


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any supporting argument for this contention, and we fail to grasp the

connection between ownership of a particular handgun and the lack of a

license to carry.     Licenses to carry a handgun are issued to individuals

pursuant to 18 Pa.C.S.A. § 6109 based upon the applicant’s qualifications

(including,   inter   alia,    his/her    character,     criminal   history,    juvenile

delinquency, or prior drug or alcohol abuse).              18 Pa.C.S.A. § 6109(e).

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 Schoenberger in this case.            N.T., 2/11/2014, at 44.       Robinson was

charged, convicted, and sentenced for the crime of carrying a firearm

without a license, 18 Pa.C.S.A. § 6106(a)(1), and he does not contest that

conviction in this appeal. Without more, however, this conviction does not

implicate Robinson for the separate crime of receiving stolen property.

      In   conclusion,   the     Commonwealth          proved   only   that    Robinson

possessed a stolen handgun.         The Commonwealth did not introduce any

evidence that would support a jury inference, beyond a reasonable doubt,

that Robinson knew or had reason to believe that the handgun was stolen.

In the absence of any evidence to support the second element of the crime

of receiving stolen property, the conviction must be reversed.

      Judgment of sentence vacated on the conviction of receiving stolen

property, 18 Pa.C.S.A. § 3925(a). Case remanded for resentencing on the



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conviction of carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1).

Jurisdiction relinquished.

      P.J.E. Bender and Judges Panella, Shogan, Lazarus and Stabile join the

Opinion.

      P.J. Gantman and Judge Mundy concur in the result.

      Judge Allen did not participate.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/19/2015




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