J-S73026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES JUMAH ROBINSON

                            Appellant               No. 912 MDA 2014


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


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 23, 2014

       James Robinson appeals his May 23, 2014 judgment of sentence.

Herein, Robinson challenges the sufficiency of the evidence offered by the

Commonwealth in support of his conviction of receiving stolen property.1

We reverse Robinson’s receiving stolen property conviction, vacate the

judgment of sentence, and remand for resentencing.

       In its Pa.R.A.P. 1925(a) opinion, the trial court has summarized the

factual history of this case as follows:

       On May 19, 2013, while on patrol in the 200 block of Penn
       Street, Officer Christopher Dinger observed a domestic dispute
____________________________________________


1
      18 Pa.C.S. § 3925. As noted infra, Robinson also was convicted of
carrying a concealed weapon without a license, 18 Pa.C.S. § 6106(a)(1). In
this appeal, Robinson does not challenge the sufficiency of the evidence with
regard to this conviction. Rather, he focuses his attention upon his receiving
stolen property conviction.
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     between [Robinson] and Ms. Adrianne Myers. Ms. Mercedes
     Hodge was also present during the dispute and attempted to get
     Ms. Myers to calm down and stop arguing with [Robinson].
     Officer [Brett] Sneeringer was on location in his vehicle and
     helped assist Officer Dinger in separating the parties. Officer
     Dinger questioned Ms. Myers and Ms. Hodge to see what was
     going on. Officer Sneerigner stayed with [Robinson].

     During Officer Dinger’s discussion with Ms. Myers, Ms. Hodge
     approached Officer Dinger and stated that [Robinson] was
     currently carrying a firearm in his pocket. Officer Dinger then
     approached [Robinson] and asked him if he was carrying any
     weapons. During this line of questioning[, Robinson] refused to
     answer Officer Dinger’s questions and “just stared at [Officer
     Dinger] stone-faced.” For officer safety reasons, due to the lack
     of response by [Robinson] and the notification that [Robinson]
     may be armed, Officer Dinger patted [Robinson’s] exterior for
     weapons. Officer Dinger . . . immediately felt a revolver in
     [Robinson’s] left front coat pocket. Officer Dinger held the
     revolver tightly through the jacket and asked [Robinson] if he
     had a permit to carry the weapon. [Robinson] did not answer
     Officer Dinger. While Officer Dinger held the weapon through
     [Robinson’s] jacket, Officer Sneeringer handcuffed [Robinson].

     [After Robinson was] handcuffed Officer Dinger safely removed a
     loaded 357 Magnum revolver, serial number 140594, from
     [Robinson’s] left front coat pocket. Officer Dinger then notified
     TAC 1 to check [Robinson] for outstanding warrants and whether
     or not [Robinson] had a right to carry permit. TAC 1 (Reading
     City Police Communications) was unable to find a carry permit
     on record for [Robinson] and [Robinson] had a scofflaw warrant
     for an unpaid harassment ticket.          [Robinson] was then
     transported to central processing to await charges.

     [T]he weapon found on [Robinson] was registered to Mr. Jeffery
     Schoenberger of Lebanon, Pennsylvania. Mr. Schoenberger . . .
     purchased the weapon from a friend. After purchasing the
     weapon from his friend, Mr. Schoenberger [then] went to the
     courthouse and transferred the registration in his name. While
     transferring the registration, Mr. Schoenberger left the weapon
     at Glenn’s Gun Shop in Ephrata, Pennsylvania.          When the
     registration was complete, Mr. Schoenberger . . . went back to
     the gun shop and retrieved the gun. On May 19, 2013, Officer
     Dinger contacted Mr. Schoenbeger to inform him that his gun
     had been recovered. Mr. Schoenberger stated the gun was

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      supposed to be put away, but it was missing the day Officer
      Dinger called. Mr. Schoenberger was not aware that the gun
      was missing until the police contacted him on May 19, 2013. Mr.
      Schoenberger . . . believed his stepson took the gun out of his
      house and sold it for money due to his stepson’s ongoing drug
      addiction. Mr. Schoenberger reported the gun stolen to the
      North Lebanon Township Police Department on May 19, 2013.

Trial Court Opinion (“T.C.O.”), 7/16/2014, at 2-3 (citations to notes of

testimony omitted).

      Having been presented with these facts, a jury found Robinson guilty

of the aforementioned crimes. On May 23, 2014, the trial court sentenced

Robinson to forty-two months to seven years’ incarceration on the concealed

weapon conviction, and a consecutive two to ten year prison term on the

receiving stolen property conviction.

      On May 29, 2014, Robinson filed a notice of appeal. In response, the

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

of on appeal pursuant to Pa.R.A.P. 1925(b).       On July 1, 2014, Robinson

timely filed a concise statement. On July 16, 2014, the trial court issued an

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

      Robinson raises the following issue for our consideration:     “Whether

the evidence admitted at trial was insufficient to support a conviction for the

charge of receiving stolen property?” Brief for Robinson at 6. Specifically,

Robinson maintains that the evidentiary record was devoid of any evidence

that would prove, directly or circumstantially, that Robinson knew that the

firearm that he possessed on May 19, 2013 was stolen.        Robinson further




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contends that mere possession of a weapon is not, ipso facto, evidence that

he knew the precise origin of that weapon. Brief for Robinson at 10.

      When reviewing challenges to the sufficiency of the evidence, our

standard of review is as follows:

      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.    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



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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;

(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).

       Robinson does not challenge the first two elements. Rather, Robinson

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)). That being said, Robinson is

correct in asserting that the “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




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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.

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

     Robinson   makes    a   colorable   argument   that   the   evidence   was

insufficient to prove that he knew that the firearm was stolen. Indeed, the

evidentiary record demonstrates, at best, only that Robinson was in

possession of the weapon. The Commonwealth presented no direct evidence

that Robinson knew that it was stolen.      Additional factors that we must

consider support Robinson’s argument.      The timeframe during which the

weapon was stolen was lengthy, approximately three years.         Thus, this is

not a case where it can clearly be proven that a defendant was in possession

of an item that was stolen during a very brief preceding period. The weapon

did not bear marks that would demonstrate to a reasonable observer that

the weapon was stolen. The weapon did not have obliterated serial numbers

or other indicia to indicate that it was stolen, nor did he possess multiple

unregistered weapons that also might signify guilty knowledge. Finally, we

discern nothing from Robinson’s actions at the scene of the crime that would


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prove that he knew that the firearm was stolen.           In fact, Officer Dinger

testified   that   Robinson   was    “stone   faced”   during   the    crime   scene

questioning. Notes of Testimony (“N.T.”), 2/11/2014, at 18.

      Even reviewing the evidence in the light most favorable to the

Commonwealth as verdict winner, the Commonwealth did not prove that

Robinson actually knew that the firearm was stolen, or even that he had

reason to believe that it was “probably” stolen. 18 Pa.C.S. § 3925(a).

      We acknowledge that we must draw all reasonable inferences in the

Commonwealth’s favor. One such inference that we may draw is that the

unexplained possession of stolen goods is indicative of guilty knowledge for

receiving stolen property purposes.       Foreman, supra.        However, as the

above-referenced      quote   from    Foreman     indicates,    this   inference    is

permissible only when a person cannot explain the possession of “recently

stolen goods.”      Foreman, 797 A.2d at 1012 (emphasis added).                    The

inclusion of the condition that the goods be recently stolen undoubtedly is

based upon the axiomatic principle that a person is more likely to know that

an item is stolen, or have reason to believe as much, the closer in time the

possession is to the actual theft.      The further removed the possession is

from the theft, the less likely it is that the possessor knows the true origin of

the item.

      Although Mr. Schoenberger testified that he believed that the firearm

may have been stolen at some point between July 2011 and October 2011,

he testified that the last time that he actually saw the weapon was in July

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2010. N.T. at 39-40. Thus, there was approximately three years between

the last time that Mr. Schoenberger saw his firearm and when he was

informed that it was stolen shortly after Robinson was arrested. With this

sizeable window during which the weapon could have been stolen, the record

does not support an inference that Robinson was in possession of a recently

stolen item. The weapon could have been stolen the night before Robinson

was arrested with it, or it could have been stolen almost three years before

his arrest. Consequently, the Commonwealth is not entitled to the inference

that, because Robinson could not explain the origin of the firearm, he had

reason to believe that it was probably stolen.        Certainly, without the

Commonwealth introducing evidence regarding the proximity of the theft to

the possession of the stolen item, any additional inferences that we could

draw would not amount to proof beyond a reasonable doubt.

     Finally, we note that the trial court and the Commonwealth place

significant evidence on the registration process that a person must complete

in order to lawfully own a firearm.        See T.C.O. at 5; Brief for the

Commonwealth at 9 (citing 18 Pa.C.S. § 6111; Commonwealth v. Parker,

847 A.2d 745, 751 (Pa. Super. 2004) (“the sale of handguns are highly

regulated and they cannot be easily obtained from legitimate dealers.”)).

Relying upon the Robinson’s failure to obtain lawful ownership or registration

of the weapon, the trial court surmised that Robinson “likely received the

firearm through improper means,” and that he knew or had reason to know

that the “firearm he possessed was likely taken from another individual who

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had rightful ownership to the firearm.”   T.C.O. at 5.   The Commonwealth

makes a similar argument. See Brief for Commonwealth at 9. The problem

is that neither the trial court nor the Commonwealth cites any record

evidence in support of what amounts to speculation. As noted, none of the

commonly-cited factors to prove that a person knew or should have known

that a particular item was stolen was present in this case, and the

Commonwealth’s evidence does not warrant any inferences to demonstrate

proof beyond a reasonable doubt.    The fact that Robinson did not lawfully

own the weapon, or that he did not comply with the statutory requirements

for owning a weapon, does not, ipso facto, mean that he knew that the

weapon was stolen at some unknown point during the prior three years.

That evidence proves only that he did not purchase the firearm legally; it

says nothing about the means by which the previous owner acquired that

weapon.   The fact that Robinson did not obtain the firearm through legal

channels does not necessarily impart to him knowledge that the person or

source from whom he obtained it acquired it by theft.         To make that

assumption without being able to point to a single piece of corroborating

evidence amounts to speculation and guess-work, but not to proof beyond a

reasonable doubt.    The task of viewing the evidence in the light most

favorable to the Commonwealth does not permit this Court to fill in gaps left

by the Commonwealth’s presentation of its evidence.

     We have reviewed the record thoroughly, and for the reasons set forth

above, find a dearth of evidence that we may draw upon to conclude that

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the Commonwealth proved that Robinson knew that the weapon was stolen

or that he had reason to believe that the firearm probably was stolen. For

this reason, we reverse Robinson’s receiving stolen property conviction,

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

carrying a concealed weapon conviction.

     Judgment of sentence vacated. Case remanded for resentencing.

     Judge Musmanno joins the memorandum.

     Judge Bowes files a dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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