J. S35004/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                     v.                  :
                                         :
MARCUS HIRSCHFELD,                       :         No. 721 EDA 2015
                                         :
                          Appellant      :


            Appeal from the Judgment of Sentence, February 20, 2015,
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. CP-51-CR-0004670-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 08, 2016

      Marcus Hirschfeld appeals the judgment of sentence in which the Court

of Common Pleas of Philadelphia County sentenced him to serve a term of

42 to 84 months’1 imprisonment for conspiracy to carry a firearm without a

license.2




1
  On January 30, 2015, the trial court originally sentenced appellant to a
term of imprisonment of 27 to 78 months with a surrender date of
February 20, 2015. The trial court allowed him to be with his ailing father
until February 20, 2015. Appellant absconded from supervision by cutting
his ankle bracelet on January 30, 2015.         He was apprehended on
February 4, 2015.     The trial court imposed the new sentence on
February 20, 2015.
2
 18 Pa.C.S.A. § 903 (conspiracy). The object crime of carrying a firearm
without a license is set forth in the Crimes Code at 18 Pa.C.S.A. § 6106.
J. S35004/16


        On April 3, 2014, at approximately 9:00 p.m., Officer Sean Devlin

(“Officer Devlin”) and Officer Mischel Matos (“Officer Matos”) of the City of

Philadelphia Police Department were in a marked police vehicle when they

observed     a   gray   Nissan   Altima   (“Vehicle”)   traveling   southbound   on

55th Street without its headlights or taillights on.           Officer Evans and

Officer Matos pulled the Vehicle over. Officer Evans approached the Vehicle

on the passenger side.       He noticed a male passenger in the front seat.

(Notes of testimony, 11/24/14 at 12-14.)         According to Officer Evans, the

passenger made “a motion like . . . a lean left to right while he moved from

left to right while leaning forward.” (Id. at 14.) Officer Evans observed that

the passenger was very nervous when he asked him to exit the vehicle so

Officer Evans could conduct a pat down. Officer Evans saw a very large gun

underneath the front passenger’s seat and next to the center console.            At

that point, Officer Evans handcuffed the passenger and directed his partner

to detain and handcuff appellant. (Id. at 14-15.) Officer Evans explained

that appellant could have easily grabbed the weapon while he sat in the

driver’s seat. (Id. at 18.) The passenger told Officer Evans that appellant

was a “hack”3 and that he was going to a friend’s house. (Id. at 23.)

        Officer Matos explained that appellant did not have a driver’s license

and that both appellant and the passenger were very nervous. According to

Officer Matos, appellant was “breathing heavy [sic], and you could see a


3
    The passenger meant that appellant operated an unlicensed taxi service.


                                          -2-
J. S35004/16


little shaking as well.” (Id. at 29.) Appellant told Officer Matos that he did

not know how the gun got in the car and did not know the passenger. (Id.

at 30.)

      Following a non-jury trial, the trial court convicted appellant of the

conspiracy charge, acquitted him of three other firearms charges,4. The trial

court reasoned:

            Here, there was circumstantial evidence presented
            that [appellant] did have knowledge and control over
            the handgun. The twenty four year-old [appellant’s]
            mother owned the vehicle, and he was nervous,
            breathing heavy [sic], and shaking a little at the time
            of the car stop. The recovered gun was huge, easily
            accessible to [appellant], and easily visible to the
            officer after he extracted the passenger from the
            vehicle.    The passenger separated himself from
            ownership of the gun by claiming that [appellant]
            was a “hack” taxi, declaring that he was just getting
            a ride to a friend’s house, and seeking to leave the
            scene. After the gun was recovered, [appellant] told
            the officers “he didn’t know how the gun got in the
            car, and he didn’t know the passenger” (N.T.
            11/24/14, p. 30).      Based on the totality of the
            circumstances, this court believed that [appellant]
            did know that the gun was in the car, had the power
            to control the gun, and attempted to exculpate either
            himself, [the other] defendant, or both. The overt
            cover-up and the totality of the surrounding
            circumstances of the car stop were sufficient to
            convict [appellant] of conspiracy to possess a firearm
            without a license.        See Commonwealth v.
            Weimer, 602 Pa. 33, 39, 977 A.2d 1103, 1106
            (2009)(“To sustain a criminal conspiracy conviction,
            the Commonwealth must establish a defendant

4
 Appellant was also charged with carrying a firearm on the public streets of
Philadelphia, 18 Pa.C.S.A. § 6108, carrying a firearm without a license,
18 Pa.C.S.A. § 6106, and persons not to possess firearms, 18 Pa.C.S.A.
§ 6105.


                                     -3-
J. S35004/16


            entered into an agreement to commit or aid in an
            unlawful act with another person or persons, with a
            shared criminal intent, and an overt act was done in
            the conspiracy’s furtherance. The overt act need not
            accomplish the crime-it need only be in furtherance
            thereof”).

Trial court opinion, 6/22/15 at 6-7.

      Appellant raises the following issue for this court’s review:

            Was not the evidence insufficient to prove the
            [appellant] guilty beyond a reasonable doubt of the
            crime of conspiracy in that the evidence was
            insufficient to prove that the [appellant] engaged in
            a conspiratorial agreement to commit the crime of
            possession of a firearm without a license in violation
            of 18 Pa.C.S. § 6106?

Appellant’s brief at 3.

      Appellant first claims that the evidence of criminal conspiracy was

insufficient. We observe:

            In reviewing the sufficiency of the evidence, we view
            all the evidence admitted at trial in the light most
            favorable to the Commonwealth, as verdict winner,
            to determine whether there is sufficient evidence to
            enable the factfinder to find every element of the
            crime established beyond a reasonable doubt.
            Commonwealth v. Thomas, 867 A.2d 594
            (Pa.Super. 2005).        “This standard is equally
            applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to the
            crime beyond a reasonable doubt.” Id. at 597. And
            while a conviction must be based on more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.       Id.
            quoting Commonwealth v. Coon, 695 A.2d 794,
            797 (Pa.Super. 1997). This Court is not free to
            substitute its judgment for that of the fact-finder; if
            the record contains support for the convictions they


                                       -4-
J. S35004/16


            may not be disturbed. Id. citing Commonwealth v.
            Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) and
            Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
            A.2d 1212, 1213 (1986). Lastly, the factfinder is
            free to believe some, all, or none of the evidence.
            Id.

Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).

      Section 903(a) of the Crimes Code defines 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; or

            (2)   agrees to aid such other person or
                  persons in the planning or commission of
                  such crime or of an attempt or
                  solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

      The offense of firearms not to be carried without a license, the

underlying offense to the conspiracy here, is defined:

            [A]ny person who carries a firearm in any vehicle or
            any person who carries a firearm concealed on or
            about his person, except in his place of abode or
            fixed place of business, without a valid and lawfully
            issued license under this chapter, commits a felony
            of the third degree.

18 Pa.C.S.A. § 6106(a).

            To sustain a conviction for Criminal Conspiracy, the
            Commonwealth must prove beyond a reasonable
            doubt that the defendant (1) entered into an


                                    -5-
J. S35004/16


          agreement to commit or aid in a criminal act with
          another person or persons (2) with a shared criminal
          intent and that (3) an overt act was done in
          furtherance of the conspiracy. 18 Pa.C.S.A. § 903.
          See Commonwealth v. McCall, 911 A.2d 992, 996
          (Pa.Super. 2006) (citation omitted). The overt act
          necessary to establish criminal conspiracy need not
          be committed by the defendant; it need only be
          committed by a co-conspirator. Id. In addition, our
          Court has further explained the agreement element
          of conspiracy as follows:

               The essence of a criminal conspiracy is a
               common understanding, no matter how it
               came into being, that a particular
               criminal objective be accomplished.
               Therefore, a conviction for conspiracy
               requires proof of the existence of a
               shared criminal intent. An explicit or
               formal agreement to commit crimes can
               seldom, if ever, be proved and it need
               not be, for proof of a criminal partnership
               is almost invariably extracted from the
               circumstances that attend its activities.
               Thus, a conspiracy may be inferred
               where it is demonstrated that the
               relation, conduct, or circumstance of the
               parties, and the overt acts of the
               co-conspirators[,] sufficiently prove the
               formation of a criminal confederation.
               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.            Even if the
               conspirator did not act as a principal in
               committing the underlying crime, he is
               still criminally liable for the actions of his
               co-conspirators in furtherance of the
               conspiracy.

          McCall, 911 A.2d at 996 (citation omitted).

Commonwealth v. Johnson, 920 A.2d 873, 878-879 (Pa.Super. 2007).


                                   -6-
J. S35004/16


     Appellant argues that the evidence was insufficient to prove him guilty

beyond a reasonable doubt of the crime of conspiracy in that the evidence

was insufficient to prove that he engaged in a conspiratorial agreement to

commit the crime of possession of a firearm without a license.

     According to the trial court, the evidence that supported the conviction

for conspiracy was 1) the Vehicle where the gun was found was driven by

appellant and owned by appellant’s mother; 2) appellant was nervous when

the police stopped him; 3) the gun was in plain view, accessible to

appellant; and 4) both appellant and the passenger told police that appellant

was a “hack” taxi driver and had just picked up the passenger.

     With respect to appellant driving the Vehicle which was owned by his

mother, appellant argues that this fact does not prove that appellant and the

passenger agreed for appellant to have constructive possession of the gun.

For support, appellant points to Commonwealth v. Wisor, 353 A.2d 817

(Pa. 1976), where a defendant’s ownership of a car in which a marijuana

pipe was found did not prove the defendant’s constructive ownership of the

pipe where others in the car had equal access to the area where the pipe

was found.     Even taking the evidence in the light most favorable to the

Commonwealth, as the prevailing party, the fact that the gun was found in

the Vehicle does not by itself indicate that appellant conspired to obtain

possession of the gun.




                                    -7-
J. S35004/16


      With respect to the fact that the police officers found appellant to be

nervous, testimony credited by the trial court as fact-finder, appellant

argues that his nervousness does not equate to proof of the elements of a

conspiracy.    In Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657

(Pa.Super. 2015), this court explained that, after a traffic stop, a driver’s

nervousness is insufficient, standing alone, to establish reasonable suspicion

of criminal activity.   Appellant points out that he had other reasons for

exhibiting nervousness:    he was driving without a license, he was, by his

own admission and that of the passenger, operating an unlicensed taxi

service, and possibly only became aware of the presence of the gun in the

vehicle when the stop was made.

      Appellant also takes issue with the trial court’s determination that the

gun was accessible to him.     The only facts surrounding the gun are that

Officer Devlin saw the passenger reach down and make a movement from

left to right while leaning forward after the Vehicle was stopped.      When

Officer Devlin asked the passenger to exit the vehicle so that he could

conduct a pat down, he noticed the gun underneath the passenger’s seat

next to the center console.       Appellant argues that the fact that the

passenger placed his gun under the seat in a place where appellant could

reach it does not indicate that appellant intended to exercise control over

the gun and jointly possess it with the passenger or constructively possess

it. Appellant again asserts that his presence in the vehicle where the gun



                                    -8-
J. S35004/16


was found does not establish that he engaged in a conspiracy to gain

possession of a weapon when he did not have a license to carry a firearm.

This court agrees.

      In Commonwealth v. Townsend, 237 A.2d 192 (Pa. 1968), the

Pennsylvania Supreme Court held that the mere presence of an individual in

a vehicle containing two weapons was insufficient to convict that individual

of possession of a firearm without a license.

      While Townsend addressed a conviction for possession of a firearm

without a license and not conspiracy for possession of a firearm without a

license, it stands to reason that without more evidence of an agreement to

commit an illegal act and with a shared criminal intent the fact that the gun

was found in appellant’s car and may have been accessible to him fails to

establish a criminal conspiracy.

      Next, appellant challenges the fact that the trial court based its

decision in part on the officers’ testimony that appellant and the passenger

both stated that appellant was a “hack” taxi driver and had just picked up

the passenger.    Appellant characterizes the trial court’s finding that these

statements helped to prove that appellant and the passenger were in

collusion was “not just illogical, it is almost absurd.”   (Appellant’s brief at

18.) This court agrees that this statement does not support a conspiracy or

the fact that the two said essentially the same thing does not support a

conspiracy by itself.



                                     -9-
J. S35004/16


     Of course, even if each of these facts upon which the trial court relied

to find that appellant was guilty of conspiracy did not support the verdict,

the combination of the evidence could link the appellant to the crime beyond

a reasonable doubt, through the totality of the circumstances as the

Commonwealth argues.       However, the conclusions drawn from those facts

are very speculative and insufficient to support the verdict. “Conviction may

not be based upon suspicion or conjecture, but rather the evidence must be

such ‘as reasonably and naturally to justify an inference of guilt of the

accused . . . and of such volume and quality as to overcome the

presumption    of   innocence.”   Townsend,     237   A.2d   at   195,   citing,

Commonwealth v. Clinton, 137 A.2d 463, 466 (Pa. 1958).

     Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




                                   - 10 -
