J-S26004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIE ANN TIPTON                           :
                                               :
                       Appellant               :   No. 720 WDA 2019

         Appeal from the Judgment of Sentence Entered March 14, 2019
      In the Court of Common Pleas of McKean County Criminal Division at
                        No(s): CP-42-CR-0000143-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 23, 2020

        Julie Ann Tipton (Appellant) appeals from the judgment of sentence

imposed after a jury convicted her of conspiracy to commit persons not to

possess firearms.1 After careful review, we affirm.

        On February 24, 2017, Appellant was charged with two counts of

intentionally/knowingly returning a firearm to a person with a current

Protection from Abuse (PFA) order, 18 Pa.C.S.A. § 6105(a.1)(5), stemming

from an incident that occurred on September 25, 2016. That day, Sergeant

Benjamin Whitmore, while investigating an unrelated incident, observed

Appellant’s husband, William Tipton (Tipton), retrieve a semi-automatic

firearm from his residence and allow his six-year-old daughter to hold the gun

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 903 and 6105(a)(1).
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and fire a shot into the woods. Affidavit of Probable Cause, 2/24/17. Sergeant

Whitmore approached Tipton, who informed Sergeant Whitmore that he was

not permitted to own a firearm because he is a convicted felon, but that the

firearm belonged to his wife, Appellant.2             Tipton and Appellant informed

Sergeant Whitmore that they had two firearms, a handgun and a shotgun,

which were purchased for protection.

       On February 4, 2019, Appellant filed a motion to dismiss the criminal

information, asserting that the charges should be dismissed because Tipton

was not a defendant in a PFA action. In response, on February 5, 2019, the

Commonwealth filed a motion to amend the criminal information. A hearing

on both motions occurred on February 7, 2019. At its conclusion, the trial

court granted the Commonwealth’s motion to amend the criminal information

and denied Appellant’s motion to dismiss. Accordingly, the Commonwealth

amended      the    criminal    information      to   remove   the   two   counts   of

intentionally/knowingly returning a firearm to a person with a current PFA–

order, and added one count of conspiracy to commit persons not to possess

firearms.

       A one-day jury trial commenced on February 12, 2019, after which the

jury convicted Appellant of the one count of conspiracy in the amended

criminal information. On February 20, 2019, Appellant filed a motion for new

trial, which the trial court denied, and on March 14, 2019, Appellant filed a
____________________________________________


2 It is undisputed that Tipton has a conviction that disqualifies him from
possessing a firearm. See N.T., 2/12/19, at 89.

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motion for extraordinary relief, which the court also denied. The trial court

sentenced Appellant to 22 months to 44 months at a state correctional facility

on March 14, 2019. Appellant filed a timely but unsuccessful post-sentence

motion.   This appeal followed.    Both the trial court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant presents two issues for our review (reordered for ease of

discussion):

      1. Whether the trial court abused its discretion in permitting the
         Commonwealth to amend the [c]riminal [i]nformation 4 days
         before trial finding that (a) the amendment of the substantive
         offense from “Knowing/Intentionally Returning a Firearm to
         Someone with a Protection from Abuse Order” to “Conspiracy
         to Commit Person Not to Possess Firearms” does not charge
         an additional or different offense, and (b) the [Appellant] was
         not prejudiced by the 11th hour amendment?

      2. Whether there was sufficient evidence to find the [Appellant]
         guilty beyond a reasonable doubt of Conspiracy to Commit
         Person Not to Possess Firearms where the evidence presented
         by the Commonwealth clearly failed to demonstrate (a) an
         agreement between the [Appellant] and her co-defendant, (b)
         a share[d] criminal intent to effectuate the object of said
         conspiracy, and (c) an overt act in furtherance of the
         conspiracy?

Appellant’s Brief at 5.

      In her first issue, Appellant contends that the trial court erred by

allowing the Commonwealth to amend the criminal information four days

before trial. Appellant’s Brief at 13-21. Appellant avers:

      The amendment completely changed the elements that the
      Commonwealth must prove i.e. that the [Appellant] knowingly
      allowed someone with a PFA access to firearms that was given to
      [Appellant] for safekeeping to the [Appellant] entered into an

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      agreement with another with the shared criminal intent and
      purpose of committing Person Not to Possess Firearms and
      thereafter taking some overt act in furtherance of the conspiracy.

Id. at 19.

      We have explained:

      [W]hen presented with a question concerning the propriety of an
      amendment, we consider:

             [w]hether the crimes specified in the original
             indictment or information involve the same basic
             elements and evolved out of the same factual
             situation as the crimes specified in the amended
             indictment or information. If so, then the defendant
             is deemed to have been placed on notice regarding his
             alleged criminal conduct. If, however, the amended
             provision alleges a different set of events, or the
             elements or defenses to the amended crime are
             materially different from the elements or defenses to
             the crime originally charged, such that the defendant
             would be prejudiced by the change, then the
             amendment is not permitted.         Additionally, [i]n
             reviewing a grant to amend an information, the Court
             will look to whether the appellant was fully apprised
             of the factual scenario which supports the charges
             against him.     Where the crimes specified in the
             original information involved the same basic elements
             and arose out of the same factual situation as the
             crime added by the amendment, the appellant is
             deemed to have been placed on notice regarding his
             alleged criminal conduct and no prejudice to
             defendant results.

      Further, the factors which the trial court must consider in
      determining whether an amendment is prejudicial are:

             (1) whether the amendment changes the factual
             scenario supporting the charges; (2) whether the
             amendment adds new facts previously unknown to the
             defendant; (3) whether the entire factual scenario
             was developed during a preliminary hearing; (4)
             whether the description of the charges changed with

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           the amendment; (5) whether a change in defense
           strategy was necessitated by the amendment; and (6)
           whether the timing of the Commonwealth’s request
           for amendment allowed for ample notice and
           preparation.

In re D.G., 114 A.3d 1091, 1094–95 (Pa. Super. 2015) (citations omitted).

     Here, the trial court concluded:

     The [Appellant] asserts she was prejudiced because, if the
     Commonwealth would have proceeded on the initial charge, she
     would have been able to demonstrate that there was no active
     PFA order against her husband, William Tipton. Although this may
     be true it ignores the fact that the [Appellant] told Sergeant
     Whitmore that she knew her husband “wasn’t supposed to have a
     gun but that they had it for protection.” She did not mention a
     PFA or that she knew there was a PFA, she only indicated that she
     knew he wasn’t allowed to possess the firearm. Therefore, there
     is no showing that the amendment created last minute surprise.
     Also, the [Appellant] asserted that, had she had more time from
     the amendment to the start of trial she may have been able to
     present a different defense.         However, she has failed to
     demonstrate that this is actually the case. Had the trial been
     continued the Commonwealth would have presented the same
     evidence that William Tipton was convicted of offenses that
     prohibited him from possessing a firearm; and, that the
     [Appellant] knew about this because she told Sergeant Whitmore
     that she knew he wasn’t supposed to have a gun. Mr. Tipton may
     have been called by the defense if the case was continued, but,
     calling Mr. Tipton would likely strengthen the fact that he was
     convicted of prior offenses that prohibited him from possessing a
     firearm; and, the Commonwealth could have questioned him
     regarding his substantial relationship with the [Appellant]. Any
     testimony he would provide about the [Appellant’s] lack of
     knowledge of this prohibition would be in direct contrast to her
     statements to Sergeant Whitmore that she did. Also, the defense
     certainly should have been prepared to call him regardless of
     whether the assertion was that his wife didn’t have knowledge of
     a PFA, or, his prior convictions. Therefore, the court properly
     found that the elements of the initial counts in the information and
     the amended counts involved the same facts and the same basic
     elements; and, the [Appellant] has failed to demonstrate any
     actual prejudice entitling her to relief.

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Trial Court Opinion, 10/10/19, at 9-10.

      The record supports the trial court’s rationale. Appellant was on notice

that the Commonwealth intended to charge her with a crime relating to

Tipton’s unlawful possession of a firearm. Appellant does not articulate any

specific prejudice she suffered by the amendment; rather, she generally

alleges that the amendment “changed the defense to the charges, i.e. that

Mr. Tipton never owned firearms and never had a PFA to there was no

agreement between Appellant and Mr. Tipton, with no shared intent and no

act in furtherance.”   Appellant’s Brief at 19.   While true, we note that the

factual scenario was unchanged, and in defending the conspiracy charge,

there appears to be no prejudice where Appellant was aware of the same facts

and extensively cross-examined Sergeant Whitmore about Appellant’s

knowledge of Tipton’s access to the firearm, and elicited testimony from him

regarding Appellant’s role in Tipton possessing the firearm. N.T., 2/12/19, at

78-80, 90-94.

      Appellant also suggests that she suffered prejudice because, had she

been on notice of the Commonwealth’s intention to amend the information,

she may have called Tipton and Pennsylvania State Trooper Maxim to testify

on her behalf. Appellant’s Brief at 20. However, as stated by the trial court,

Tipton’s testimony would have likely supported the Commonwealth’s assertion

that Tipton was convicted of an offense that prohibited him from possessing a

firearm. Further, although Appellant asserts that she may have called Trooper

Maxim to testify, she fails to explain how his testimony would have helped her

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defense.   We also note that Appellant never requested a postponement to

make arrangements for additional witnesses or otherwise attend to her

defense. Accordingly, Appellant’s first issue lacks merit.

      In her second issue, Appellant argues the evidence was insufficient to

support her conviction for conspiracy to commit persons not to possess

firearms. Our standard of review

      requires that we consider the evidence admitted at trial in a light
      most favorable to the Commonwealth, since it was the verdict
      winner, and grant it all reasonable inferences which can be derived
      therefrom. The evidence, so viewed, will be deemed legally
      sufficient to sustain the jury’s conviction on appeal only if it proves
      each element of the offense charged beyond a reasonable doubt.

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011).

      A jury convicted Appellant pursuant to 18 Pa.C.S.A. §§ 903 and 6105,

which provide:

      § 903. Criminal conspiracy

           (a) Definition of a conspiracy.—A person is guilty of
               conspiracy with another person or persons to commit a
               crime if with the intent of promoting or facilitating its
               commission he:

                 (1) agrees with such other person or persons that they
                     or one or more of them will engage in conduct which
                     constitutes such crime or an attempt or solicitation
                     to commit such crime . . . .

      § 6105. Persons not to possess, use, manufacture, control, sell
      or transfer firearms

           (a) Offense defined.—

                 (1) A person who has been convicted of an offense
                     enumerated in subsection (b) ... shall not possess,

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                        use, control, sell, transfer or manufacture or obtain
                        a license to possess, use, control, sell, transfer or
                        manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. §§ 903(a)(1) and 6105(a)(1).              “[T]o sustain a conviction for

criminal conspiracy, the Commonwealth must establish that the defendant (1)

entered into an agreement to commit or aid in an unlawful act with another

person or persons, (2) with a shared criminal intent and (3) an overt act was

done in furtherance of the conspiracy.” Commonwealth v. Murphy, 795

A.2d 1025, 1037–38 (Pa. Super. 2002) (quotations omitted).

      Appellant contends that “it is abundantly clear” that there was no

agreement between Appellant and her husband for him to possess a firearm.

Appellant’s Brief at 24. Appellant asserts that she informed officers that she

owned the firearm, not Tipton, and that she never agreed to allow him to

possess or have access to the firearm. Id. at 25.

      In considering this issue, “we bear in mind that the Commonwealth may

sustain its burden by means of wholly circumstantial evidence, and the trier

of fact, while passing upon the credibility of witnesses and the weight of the

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

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013).

      [A]ny doubt about the defendant’s guilt is to be resolved by the
      fact finder unless the evidence is so weak and inconclusive that,
      as a matter of law, no probability of fact can be drawn from the
      combined circumstances. It is improper for this Court to re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder. Additionally, the entire record must be evaluated and all
      evidence actually received must be considered.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013).


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      “A conspiracy is almost always proved through circumstantial evidence.

The conduct of the parties and the circumstances surrounding their conduct

may create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.” Commonwealth v. Lambert, 795 A.2d 1010,

1016 (Pa. Super. 2002).

      Among the circumstances which are relevant, but not sufficient by
      themselves, to prove a corrupt confederation are: (1) an
      association between alleged conspirators; (2) knowledge of the
      commission of the crime; (3) presence at the scene of the crime;
      and (4) in some situations, participation in the object of the
      conspiracy. The presence of such circumstances may furnish a
      web of evidence linking an accused to an alleged conspiracy
      beyond a reasonable doubt when viewed in conjunction with each
      other and in the context in which they occurred.

Id.

      Instantly, Sergeant Whitmore testified that “both [Appellant] and

[Tipton] knew [Tipton] wasn’t supposed to have a gun but that they had it for

protection and that it was her firearm not [Tipton’s] and that even though he

wa [sic]– she knew he wasn’t supposed to have it, they had it for protection.”

N.T., 2/12/19, at 84. Sergeant Whitmore recounted his observations:

      [Appellant’s Counsel]: Okay. Now, at some point in time, did Mr.
      Tipton go in the house to retrieve the firearm?

      [Sergeant Whitmore]: Yes.

      [Appellant’s Counsel]: Where was [Appellant] at that point?

      [Sergeant Whitmore]: Standing on the porch.

      [Appellant’s Counsel]: Okay. She was out there the whole time[?]

      [Sergeant Whitmore]: Correct.

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     [Appellant’s Counsel]: She didn’t go in the house[?]

     [Sergeant Whitmore]: Correct.

     [Appellant’s Counsel]: So, Bill Tipton went in there of his own
     accord, retrieved a firearm, came back outside[?]

     [Sergeant Whitmore]: Yes.

                               *   *        *

     [Appellant’s Counsel]: Now, when Bill Tipton came back outside
     with this firearm, he went with this child and shot it, correct?

     [Sergeant Whitmore]: Correct.

     [Appellant’s Counsel]: [Appellant] played no part in that, right?

     [Sergeant Whitmore]: That’s correct.

     [Appellant’s Counsel]: Was she talking to you while all this was
     going on?

     [Sergeant Whitmore]: No.

     [Appellant’s Counsel]: Okay. She was just standing there[?]

     [Sergeant Whitmore]: Correct.

                               *   *        *

     [Appellant’s Counsel]: When Bill Tipton came outside with the
     firearm, did [Appellant] tell him anything to the effect of “Take
     that back inside?”

     [Sergeant Whitmore]: Not that I heard, sir.

N.T., 2/12/19, at 91, 93-94.

     The above excerpt evinces a “web of evidence” from which the jury could

find that Appellant and Tipton entered into an agreement for Appellant to



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purchase a firearm so that Tipton could possess it. Appellant witnessed Tipton

go into their home, retrieve the firearm, and reappear with the firearm — all

without Appellant expressing any objection.       When interviewed by police,

Appellant indicated that “they” – Appellant and Tipton – purchased the firearm

for protection. Id. at 84 (emphasis added). This evidence, viewed in the light

most favorable to the Commonwealth as the prevailing party, is sufficient to

establish an agreement between Appellant and Tipton for Tipton’s possession

of the firearm.

      With regard to the element of shared criminal intent, Appellant claims

“there was not even [a] modicum of evidence presented to suggest a shared

criminal intent, other than the Appellant indicating that ‘they’ needed the

firearm for protection.” Appellant’s Brief at 25. Appellant argues that while

she and her husband needed the firearm for protection, Appellant owned the

firearm without ever agreeing that Tipton could possess or have access to it.

Id.

      The general rule of law pertaining to the culpability of conspirators
      is that each individual member of the conspiracy is criminally
      responsible for the acts of his co-conspirators committed in
      furtherance of the conspiracy. The co-conspirator rule assigns
      legal culpability equally to all members of the conspiracy. All co-
      conspirators are responsible for actions undertaken in furtherance
      of the conspiracy regardless of their individual knowledge of such
      actions and regardless of which member of the conspiracy
      undertook the action. The premise of the rule is that the
      conspirators have formed together for an unlawful purpose, and
      thus, they share the intent to commit any acts undertaken in order
      to achieve that purpose, regardless of whether they actually
      intended any distinct act undertaken in furtherance of the object



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      of the conspiracy. It is the existence of shared criminal intent that
      is the sine qua non of a conspiracy.

Commonwealth v. Wayne, 720 A.2d 456, 463–64 (Pa. 1998) (citations

omitted).

      It is Appellant’s position that “Mr. Tipton’s access or possession of any

firearm was not at the behest of the Appellant, in fact, there was no evidence

presented by the Commonwealth indicating that the Appellant was even aware

that her husband went into the home and retrieved the firearm and/or that

she knew that her husband had access to the firearm . . . .” Appellant’s Brief

at 25-26. The record does not support this claim.

      Through the following testimony, the Commonwealth presented

sufficient evidence to prove otherwise. According to Sergeant Whitmore:

      [Appellant stated] both her and [Tipton] knew he wasn’t supposed
      to have a gun but that they had it for protection and that it was
      her firearm not [Tipton’s] and that even though he wa [sic]– she
      knew he wasn’t supposed to have it, they had it for protection.

                               *     *        *

      they had said they needed a handgun and a shotgun for
      protection.

N.T., 2/12/19, at 84 (emphasis added).

      This testimony was sufficient for the jury to conclude that Appellant

knew Tipton was not permitted to possess a firearm, and despite this

knowledge, purchased the firearm for Appellant to access and possess.

Accordingly, Appellant’s argument as to shared criminal intent is without

merit.



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     For the foregoing reasons, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2020




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