Commonwealth v. Dawson ( 2015 )

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2015 PA Super 256COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STACI DAWSON
Appellant No. 3498 EDA 2014
Appeal from the Judgment of Sentence November 12, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000257-2014
BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*
OPINION BY MUNDY, J.: FILED DECEMBER 08, 2015
Appellant, Staci Dawson, appeals from the November 12, 2014
aggregate judgment of sentence of 71½ to 143 months’ imprisonment,
followed by 84 months’ probation, imposed after she was found guilty of two
counts each of sale or transfer of firearms and criminal conspiracy, and one
count of filing a false report.1 After careful review, we affirm.
The trial court summarized the relevant factual history of this case as
follows.
On February 13, 2013, [Appellant] completed a
Firearms Transaction Record Form and purchased a
.40 Caliber Smith & Wesson pistol at Miller’s Sporting
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6111(c), 903(c), and 4906(b)(1), respectively.
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Goods in Linwood, Pennsylvania. She returned to
Miller’s Sporting Goods and purchased a second
firearm, a Kel-Tec 9 mm. pistol, on February 27,
2013.
On March 5, 2013[,] Patrol Corporal William
Carey executed a traffic stop in the City of Chester.
The vehicle was stopped after a brief chase that
ended when the fleeing vehicle crashed into a van.
The vehicle that was the subject of that traffic stop
was driven by [Appellant]’s boyfriend, David Colon.
Shamar Atkinson was a passenger in the vehicle.
Both of these men were known felons. Colon was
found in possession of suspected cocaine and
Atkinson had the fully loaded Kel-Tec 9 mm. pistol,
serial number R7921 that [Appellant] purchased on
February 27, 2013 tucked in his waistband. Both
men were arrested.
In the course of an unrelated criminal
investigation[,] Detective Robert Lythgoe of the
Delaware County Criminal Investigation Division
went to Miller’s Sporting Goods looking for the
names of recent purchasers of 9 mm. handguns. He
learned there that [Appellant] purchased a 9 mm.
handgun on February 27, 2013. On March 7,
[2013,] he went to her reported address, 2018 West
Fourth Street in Chester, Pennsylvania to see
whether [Appellant]’s 9 mm. gun was the gun
involved in the unrelated incident. [Appellant] was
not at the residence. Her mother told the detective
that [Appellant] no longer lived at that address and
that she lived with her father. At about 4:00 p.m.[,]
Detective Lythgoe went to the father’s address and
inquired into the whereabouts of the pistol that she
purchased on February 27th. [Appellant] stated that
the pistol was at her mother’s home and that she
was unable to retrieve it at that time. Later that
evening, at about 7:00 p.m.[, Appellant] called
Detective Lythgoe and reported that the gun was
missing from her mother’s house and, “[t]he only
thing she could think of was that her boyfriend
(David Colon) may have stolen the firearm.”
[Appellant] did not mention the second gun, the
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Smith & Wesson that she purchased on February
13th. At this point[,] Detective Lythgoe did not know
that [Appellant] owned two guns.
On March 8 & 9, 2013[,] David Colon called
[Appellant] several times from the George Hill
Correctional Facility (GHCF). Detective David Tyler
of the Delaware County Criminal Investigation
Division secured these tapes after he learned that
David Colon was in GHCF and that Shamar Atkinson
was arrested while in possession of [Appellant]’s Kel-
Tec 9 mm. handgun. Portions of the recorded
conversations were played for the jury and
associated transcripts were entered into evidence.
In the course of these conversations[, Appellant]
tells Colon about Detective Lythgoe’s March 7th visit
and inquiry, that detectives were looking for a gun
and that she thought “one of them” was probably
used in the commission of a crime. Colon instruct[ed
Appellant] to, “just tell them I don’t know maybe my
boyfriend, maybe one of his friends, maybe
somebody stole it … All you can tell them is … is
somebody took that [jawn]-somebody took them
[jawn].” Colon t[old Appellant], “once they got the
little black – once they type it in, everything going to
pop up you see what I’m saying, what you got in
your name, you see what I’m saying.” Colon t[old
Appellant] not to go to the police until they talk
again. In another call[, Appellant] t[old] Colon that
authorities told her to report the missing firearm:
“Yeah, he said go over there and file a – an incident
report or whatever. But I – I don’t know which one
like …. They didn’t ever say which one. So I just
gotta go over there and file both.” During a third
call[,] Colon ask[ed Appellant] if she [had] gone to
the police station. She replie[d] that she [had not]
gone yet. [Appellant told] Colon that Atkinson’s
girlfriend asked her to come to the preliminary
hearing to help “Shamar” and that she is going to
say that she forgot the gun and left it in the car.
Colon respond[ed]: “NO- be no, no, no, no, no, no,
no, no, no, no man. But you don’t- you- no baby –
no, no, no, [], no, no, no, no, no, no, no, no, no. …
No they can’t go around like that because you don’t
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got no license – you don’t got no license to drive or
to carry like so it –you was- nah babe no, no. That’s
going.” [Appellant told] Colon that she doesn’t know
what to do when she goes to “the station” and Colon
[said], repeatedly “I mean you got tell’em you ain’t-
if you can’t find ‘em you can’t find’em,” and
instruct[ed] her to filed a report “for both” because
her name will be in the system, suggesting that the
existence of a second gun will be discovered.
On March 12, 2013[, Appellant] reported two
firearms missing from her mother’s residence, 2018
West Fourth Street, Chester. Officer Doug
Staffelbach took the report. [Appellant] reported
that she discovered that both of the guns were
missing on March 7, 2013. She described the
missing firearms as a “little 9” and a “Glock.” The
transaction record she offered however indicated
that she had purchased a Smith & Wesson.
[Appellant] said that her mother’s home had been
burglarized and that there were burglaries in the
area so she purchased the guns for her own
protection. After investigating, Officer Staffelbach
found no reported burglaries in the area during the
relevant time period.
Detective Tyler testified that he was initially
assigned to this investigation after Detective Lythgoe
reported that a [9 mm.] handgun that was used in
the unrelated investigation was connected to
[Appellant] and that she suggested that David Colon
may have stolen it. Detective Tyler went to Miller’s
Sporting Goods and got a copy of the Firearms
Transaction form for the February 27th purchase. On
March 13, 2013[,] he contacted [Appellant] at her
father’s house and asked if she would speak with him
about the gun that was found in Atkinson’s
possession. She agreed and followed Detective Tyler
to the Chester Police Department where she gave a
statement in which she discussed her purchase of
the 9 mm. handgun and stated that she last saw it in
the basement of her mother’s house on March 3rd.
She knew it was “PF 9” but did not know the caliber
or make or model of this firearm and did not know
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what type of bullets it took. At no time during the
interview did [Appellant] tell Detective Tyler that not
one, but two firearms, had gone missing from her
mother’s basement and that she reported both
missing the previous day. Detective Tyler learned
that [Appellant] reported a second gun missing and
after listening to the prison tape recordings he
returned to Miller’s in May and obtained the
Transaction Form for the February 13th purchase.
Trial Court Opinion, 2/5/15, at 7-11 (internal citations omitted; some
brackets in original).
On August 27, 2014, at the conclusion of a jury trial, the jury found
Appellant guilty of two counts each of sale or transfer of firearms and
criminal conspiracy, and one count of filing a false report.2 On November
12, 2014, the trial court imposed an aggregate sentence of 71½ to 143
months’ imprisonment, followed by 84 months’ probation. Specifically, on
the first Section 6111(c) count, the trial court sentenced Appellant to 11½ to
23 months’ imprisonment, plus 24 months’ probation. On the second
Section 6111(c) charge, the trial court sentenced Appellant to 60 to 120
months’ imprisonment, consistent with the mandatory minimum sentence
provision at Section 6111(h)(1), plus 60 months’ probation. The trial court
also imposed a sentence of 3 to 6 months’ imprisonment for filing a false
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2
This was Appellant’s second trial. Appellant’s first trial ended on May 14,
2014 with the jury unable to reach a verdict on the above-mentioned
offenses, and finding her not guilty of several other offenses that are not
relevant to this appeal.
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report. The trial court did not impose any further penalty on the criminal
conspiracy charges. The filing a false report sentence was to run
concurrently to all other sentences; however, the two sentences for sale or
transfer of firearms were to run consecutively to each other. Appellant filed
a timely motion for reconsideration of sentence on November 20, 2014,
which the trial court denied on December 2, 2014. On December 8, 2014,
Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following three issues for our review.
[1.] Whether the trial court erred in imposing the
mandatory minimum sentence of 5 to 10 years
on the second count of unlawful sale or
transfer of firearms when [Appellant] was not
previously convicted of this offense but was
found guilty at the same trial for both counts?
[2.] Did the [t]rial [c]ourt abuse its discretion in
sentencing [Appellant] on Count 6, Firearms –
Duty to Other Persons, to 5 to 10 years to be
followed by 5 years of probation to run
consecutive to her sentence on Count 5 of 11½
to 23 months to be followed by 2 years of
probation, by failing to properly consider the
Sentencing Code and Sentencing Guidelines 42
Pa.C.S.A. § 9701, et. [s]eq. in imposing this
sentence?
[3.] Did [t]he [t]rial [c]ourt err in denying
[Appellant]’s [m]otion on Count 6, Firearms –
Duty to Other Persons, as against the weight of
the evidence where there was insufficient
evidence regarding any change of ownership of
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3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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a second firearm by [Appellant] to any
individual, lawful or otherwise?
Appellant’s Brief at 4.
We address Appellant’s third issue first, as the remedy for lack of
sufficient evidence is a discharge order, rather than a new trial, and would
render Appellant’s remaining issues moot. Commonwealth v. Stokes, 38
A.3d 846, 853 (Pa. Super. 2011). We begin by noting our well-settled
standard of review. “In reviewing the sufficiency of the evidence, we
consider whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to the
Commonwealth as the verdict winner, support the jury’s verdict beyond a
reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.
Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any 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.” Commonwealth v. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.(internal quotation marks and citation omitted). “[T]he trier of fact while
passing upon the credibility of witnesses and the weight of the evidence
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produced is free to believe all, part or none of the evidence.” Id. (citation
omitted). “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth
v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,
Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
In this case, Appellant avers that the evidence was insufficient to
sustain her conviction under Section 6111(c), which provides in relevant
part, as follows.
§ 6111. Sale or transfer of firearms
(a) Time and manner of delivery.--
(1) Except as provided in paragraph (2), no
seller shall deliver a firearm to the purchaser
or transferee thereof until 48 hours shall have
elapsed from the time of the application for the
purchase thereof, and, when delivered, the
firearm shall be securely wrapped and shall be
unloaded.
(2) Thirty days after publication in the
Pennsylvania Bulletin that the Instantaneous
Criminal History Records Check System has
been established in accordance with the Brady
Handgun Violence Prevention Act (Public Law
103-159, 18 U.S.C. § 921 et seq.), no seller
shall deliver a firearm to the purchaser thereof
until the provisions of this section have been
satisfied, and, when delivered, the firearm
shall be securely wrapped and shall be
unloaded.
…
(c) Duty of other persons.--Any person who is not
a licensed importer, manufacturer or dealer and who
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desires to sell or transfer a firearm to another
unlicensed person shall do so only upon the place of
business of a licensed importer, manufacturer, dealer
or county sheriff’s office, the latter of whom shall
follow the procedure set forth in this section as if he
were the seller of the firearm. The provisions of this
section shall not apply to transfers between spouses
or to transfers between a parent and child or to
transfers between grandparent and grandchild.
…
18 Pa.C.S.A. § 6111. Appellant avers that there is insufficient evidence that
she transferred the Smith & Wesson firearm to anyone through any means.4
Appellant’s Brief at 11. The Commonwealth counters that the jury was
permitted to infer, primarily from her telephone conversations with Colon,
that she gave the firearm to Colon or Atkinson. Commonwealth’s Brief at
27.
In this case, the evidence at trial established that Appellant purchased
the Smith & Wesson from Miller’s Sporting Goods on February 13, 2013.
After police visited her on March 7, 2013 about the 9 mm. Kel-Tec firearm,
which ended up in Atkinson’s possession, she did not mention the Smith &
Wesson firearm to law enforcement. The next day, she discussed both
firearms with Colon and indicated to him that she did not know whether to
report just one or both stolen, because she did not know which firearm the
police were inquiring about. Commonwealth’s Exhibit C-11, at 8;
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4
Appellant does not challenge the conviction regarding the Kel-Tec firearm.
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Commonwealth’s Exhibit C-12, at 14. Colon instructed her to report both
stolen, in part, because the police would discover the existence of the Smith
& Wesson. Commonwealth’s Exhibit C-11, at 8, 9; Commonwealth’s Exhibit
C-13, at 8, 9. Colon also offered to take the blame for stealing both
firearms. Id. at 8.
In our view, the Commonwealth presented sufficient evidence to
sustain the conviction. The evidence summarized above revealed the
Appellant purchased two firearms, one of which ended up in the possession
of another. The prison tapes reveal that Appellant did not have the Smith &
Wesson in her possession and Colon offered to take responsibility for
stealing them from her, which was not true. Id. at 8, 9; Commonwealth’s
Exhibit C-12, at 14. The jury was permitted to make the reasonable
inference that this was because Appellant had given the Smith & Wesson to
Colon and/or Atkinson and wished to evade responsibility for the same.
Based on these considerations, Appellant’s sufficiency challenge lacks merit.
We next consider Appellant’s first issue, in which she avers that the
trial court erred in imposing the mandatory minimum at Section 6111(h),
because the second Section 6111(c) was not “previous” but rather a second
conviction from this very case. Appellant’s Brief at 11. The Commonwealth
counters that Section 6111(h) has no such requirement, and the trial court
properly applied the mandatory minimum sentence. Commonwealth’s Brief
at 18.
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At the outset, we note that a challenge to the application of a
mandatory minimum sentence pertains to the legality of the sentence, which
presents a pure question of law that we review de novo. Commonwealth
v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (citation omitted), appeal
denied, 121 A.3d 494 (Pa. 2015). It is also well established that “[i]f no
statutory authorization exists for a particular sentence, that sentence is
illegal and subject to correction.” Id. “An illegal sentence must be
vacated.” Id.The instant dispute pertains to Section 6111(h)(1), which provides as
follows.
§ 6111. Sale or transfer of firearms
…
(h) Subsequent violation penalty.—
(1) A second or subsequent violation of this
section shall be a felony of the second degree.
A person who at the time of sentencing has
been convicted of another offense under this
section shall be sentenced to a mandatory
minimum sentence of imprisonment of five
years. A second or subsequent offense shall
also result in permanent revocation of any
license to sell, import or manufacture a
firearm.
…
(5) For the purposes of this subsection, a
person shall be deemed to have been
convicted of another offense under this section
whether or not judgment of sentence has been
imposed for that violation.
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18 Pa.C.S.A. § 6111(h)(1), (5) (emphasis added). The dispute in this case
is whether a previous conviction may include a separate charge in the same
case for the purposes of Section 6111(h)(1).
When analyzing statutory text, we note the following.
“Under the Statutory Construction Act of 1972, … our
paramount interpretative task is to give effect to the
intent of our General Assembly in enacting the
particular legislation under review.”
Commonwealth v. Spence, 91 A.3d 44, 46 (Pa.
2014) (citation omitted). “We are mindful that the
object of all statutory interpretation is to ascertain
and effectuate the intention of the General Assembly
… and the best indication of the legislature’s intent is
the plain language of the statute.” Commonwealth
v. Walter, 93 A.3d 442, 450 (Pa. 2014) (citation
omitted). “When the words of a statute are clear
and unambiguous, we may not go beyond the plain
meaning of the language of the statute under the
pretext of pursuing its spirit.” Id., citing 1 Pa.C.S.A.
§ 1921(b). However, only “when the words of the
statute are ambiguous should a reviewing court seek
to ascertain the intent of the General Assembly
through considerations of the various factors found
in Section 1921(c) of the [Statutory Construction
Act].” Id. at 450–451, citing 1 Pa.C.S.A. § 1921(c).
In re D.M.W., 102 A.3d 492, 494 (Pa. Super. 2014).
In Commonwealth v. Thompson, 106 A.3d 742 (Pa. Super. 2014),
this Court was confronted with a similar question as to whether a mandatory
life sentence for two counts of third-degree murder under Section 9715 of
the Sentencing Code, includes a situation when the first and second
convictions are from the same case. Section 9715, provides in relevant part
as follows.
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§ 9715. Life imprisonment for homicide
(a) Mandatory life imprisonment.--
Notwithstanding the provisions of section 9712
(relating to sentences for offenses committed with
firearms), 9713 (relating to sentences for offenses
committed on public transportation) or 9714
(relating to sentences for second and subsequent
offenses), any person convicted of murder of the
third degree in this Commonwealth who has
previously been convicted at any time of murder or
voluntary manslaughter in this Commonwealth or of
the same or substantially equivalent crime in any
other jurisdiction shall be sentenced to life
imprisonment, notwithstanding any other provision
of this title or other statute to the contrary.
…
42 Pa.C.S.A. § 9715(a). Following our decision in Commonwealth v.
Morris, 958 A.2d 569 (Pa. Super. 2008) (en banc), appeal denied, 991 A.2d
311 (Pa. 2010), we held in Thompson that the phrase “at any time” was
unambiguous and concluded the statute required a life sentence for
Thompson, even though his second conviction for third-degree murder arose
from the same trial and information as the first conviction.
Section 9715 specifically focuses upon whether, at
the time of sentencing, a defendant has been
previously convicted “at any time.” The statute does
not state that the two murders must be tried and
sentenced separately. Indeed, the plain language of
the statute requires that the trial court determine
whether a previous conviction exists at the time of
sentencing, without giving consideration to when the
conviction occurred. Further, the statute does not
make any distinction between convictions that arise
from a single criminal episode and multiple criminal
episodes. We are bound by the unambiguous
language of this statute and we cannot insert
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additional requirements that the legislature has not
included.
Thompson, supra at 761, quoting Morris, supra at 581.
Turning back to Section 6111(h), we find Thompson instructive in
resolving the issue presented in this case. Like Section 9715, Section
6111(h) “requires that the trial court determine whether a previous
conviction exists at the time of sentencing, without giving consideration to
when the conviction occurred.” Id. The statute does not contain any
textual limitations as to when the first and second convictions arose.
Furthermore, Section 6111(h)(5) states that “a person shall be deemed to
have been convicted of another offense under this section whether or not
judgment of sentence has been imposed for that violation.” 18
Pa.C.S.A. § 6111(h)(5) (emphasis added). In our view, the language of this
subsection provides greater clarity than Section 9715’s use of the phrase “at
any time.” 42 Pa.C.S.A. § 9715(a). Instantly, when the trial court
sentenced Appellant on November 12, 2014, Appellant had been convicted of
another Section 6111(c) offense, but the judgment of sentence had not been
imposed. This situation is contemplated by Section 6111(h)(5)’s
unambiguous text. Based on these considerations, we conclude the trial
court correctly applied Section 6111(h)(1) to Appellant and the resultant
sentence was legal. See Fennell, supra; D.M.W., supra.
Finally, in her second issue, Appellant avers the trial court abused its
discretion in imposing consecutive sentences for her two Section 6111(c)
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convictions. Appellant’s Brief at 13. At the outset, we note that this issue
pertains to the discretionary aspects of her sentence. It is axiomatic that in
this Commonwealth, “[t]here is no absolute right to appeal when challenging
the discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards
an argument pertaining to the discretionary aspects of the sentence, this
Court considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n
[a]ppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
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substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Id.
In the case sub judice, we note that Appellant has failed to include a
Rule 2119(f) statement in her brief, and the Commonwealth has noted its
objection. Commonwealth’s Brief at 31. “If a defendant fails to include an
issue in his Rule 2119(f) statement, and the Commonwealth objects, then …
this Court may not review the claim.” Commonwealth v. Karns, 50 A.3d
158, 166 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). As the
Commonwealth has lodged its objection, we deny Appellant’s petition for
permission to appeal the discretionary aspects of her sentence. See
Trinidad, supra.Based on the foregoing, we conclude all of Appellant’s issues on appeal
are waived or devoid of merit. Accordingly, the trial court’s November 12,
2014 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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