Com. v. Short, T. ( 2016 )

J-S25019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TODD EDWARD SHORT
Appellant No. 985 WDA 2015
Appeal from the Judgment of Sentence June 11, 2015
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000162-2013
CP-56-CR-0000210-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 06, 2016
Appellant, Todd Edward Short, appeals from the June 11, 2015
aggregate judgment of sentence of 9 to 23 months’ incarceration, followed
by 2 years of probation, imposed after a jury convicted him of two counts of
receiving stolen property.1 After careful review, we affirm.
The trial court detailed the facts presented at trial as follows.
The evidence heard by the Jury clearly established
that [Appellant] was in possession of two shot guns
which had been stolen from one residence and one
hand gun which had been stolen from a different
residence on December 20, 2012. In addition, the
evidence clearly established that all three of these
weapons were sold by [Appellant] at Gander
____________________________________________
1
18 Pa.C.S.A. § 3925(a).
J-S25019-16
Mountain, a sporting goods store, on January 1,
2013.
The crux of the Commonwealth’s evidence on
the issue of [Appellant’s] knowledge that these
weapons were stolen is the testimony of Joshwa
[Slope,] who testified that he was charged as a Co-
Defendant with [Appellant] in both cases, pled guilty
to one count of Receiving Stolen Property in each
case, and was sentenced to an aggregate of one to
three years in prison. He stated that he met
[Appellant] upon awakening after spending the night
at the home of Christine Cox where his friend Doug
Everhart was also staying and that both he and
[Appellant] were going through withdrawal from
heroin. He also related that “… it didn’t take us long
to start talkin’ about – you know, getting well, which
is using heroin.” When asked what they planned to
do, Slope stated
We were trying to figure out how to get some
money together. And I told him I had some
guns at another friend’s house. He didn’t ask
me where they came from; he told me he
didn’t want to know where they came from;
and he said he could cover his ass if anything
ever came back on him because he’s – done it
before.
***
[Appellant] called around to a few local – I
guess – I guess they’d be guns dealers, like
sport shops, local sports shops. Everybody
was closed because it was New Year’s Day, the
holiday. So we’re callin’ everywhere. Gander
Mountain picked up. They said they were
open. So we went to pick them up and we
drove down there.
***
He agreed to sell them for me and I agreed to
give him about $250 for doin’ it.
-2-
J-S25019-16
Slope testified that they left in [Appellant’s] car,
drove to the home of Lindsay Straka, he entered
without [Appellant], [and] returned to the car
carrying three cases which he placed in the rear seat
after showing [Appellant] at least one of the
weapons. According to Slope, when they arrived at
Gander Mountain, he stayed in the car and
[Appellant] took the guns into the store. After about
45 minutes, Slope entered the store because he
wondered what was taking so long, [Appellant] gave
him a sign with his fingers which Slope interpreted
as indicating it would take another 5 minutes, and
Slope then returned to the car and waited. When
[Appellant] returned to the car he handed Slope
$1,000, Slope returned $250 to [Appellant] and they
returned to another home in Somerset where
[Appellant] purchased two bundles of heroin with
funds each man provided and proceeded to the
Straka house and used the drugs together. Slope
admitted that when he was first questioned by police
regarding this incident, he claimed that the guns
belonged to [Appellant] and that they used the
money to buy heroin in the Johnstown area.
In response, the following exchange occurred.
Q. So, Josh, tell the jury why they should
believe you now?
A. Well, I’m not going to say that nobody
should believe me, but I’m a State prisoner.
I’m a convicted felon. I guess you’d say that
I’m probably not that easy to trust, but – but I
have – nothing to gain from this. I’m already
serving my sentence that I got for this crime.
I’m just trying to make amends where possible
and tryin’ to do the right thing.
On cross-examination, Slope admitted that he
didn’t have a photo identification because he never
bothered to get one after he lost his driver’s license
in 2010 following his conviction on other charges.
Slope testified that he bought the weapons “off of
somebody else. I don’t know where he got them
from. I knew they were stolen.” When asked how
-3-
J-S25019-16
he knew they were stolen, he testified “the kid I
bought them off of told me they were hot, which
means they’re – it’s not legal to have them. They’re
stolen.” He also stated “I was going to sell that
pistol, but I – I couldn’t sell those shotguns to a drug
dealer. They don’t want it. They can’t use it.” In
addition, when asked if he had ever involved another
person in selling firearms, he admitted that he had
and that, even if he had a driver’s license, he
probably would have involved [Appellant] in the
transaction because “it’s kind of like a proxy.
There’s no – it’s harder to trace it back to me. I was
tryin’ to stay out of jail.” On that same issue, in
response to a question regarding using another as a
“proxy” in such a transaction as a means of
protecting himself, Slope stated
not so much as it was in this case because this
was selling to a retailer. Whenever I sell to
another criminal, like a drug dealer, the only
time I would use a proxy in that case would be
if I didn’t know the guy that he’s selling to.
On direct, [Appellant] testified that Slope
asked me to drive him to Gander Mountain to
sell these guns; and he offered me $200 to do
it, which I said, all right, I would do it if the
guns were legitimately his. I asked him
several times. I asked him before I even left
his – the trailer to go get the guns: Are these
your guns? Yeah, they’re my guns. My –
grandparents gave them to me. They’re
Christmas gifts. The last couple of years, I’ve
never used them.
He also stated
I took him to Johnstown Gander Mountain; and
at that time when we got down there, he had
asked me to take them in and sell them
because he didn’t have an ID; and right there
and then, I asked him again: Are these your
guns? I told him flat out I’m not getting
involved in any bullshit with stolen weapons.
They’re my guns. I wouldn’t have come down
-4-
J-S25019-16
here if they weren’t, and – you know, I trusted
what he had to say.
On cross, when [Appellant] was asked to review the
statement he had given to the police which was
admitted as Commonwealth’s Exhibit “A,” the
following exchange occurred between [Appellant]
and the Assistant District Attorney
Q. Show me in that statement where it says
you asked Joshwa Slope on repeated occasions
who these guns belonged to?
A. Right here. (WITNESS INDICATING)
First paragraph, third page.
Q. You – you read the section that you say it
says what I just asked you in that question.
A. … “Approximately 9:00 A.M., Josh had told
me that he had a few guns that he wanted to
sell because he had had them for some time
and never used them, probably would never
ever have any use for them…I had asked him if
the guns were in fact his. He took offense to
the question and he said that they were.”
Q. Okay. Where does it say in there, sir, that
you asked on several occasions?
A. It doesn’t say in this thing that I asked on
several occasions but I did ask him several
times about the guns.
***
Q. Did you question the ownership of the
guns?
A. Yes, at that time.
Q. You had doubts?
A. (NO AUDIBLE RESPONSE)
Q. Answer please?
-5-
J-S25019-16
A. I had a question about the ownership to
know – that I wanted to know that they were
his guns, yes.
Q. You had doubts?
A. No. I was reassured by him three different
times that they were his guns.
Q. You didn’t have doubts, but you asked him
on repeated occasions?
A. Yes, same as you’re asking me on repeated
occasions right now.
Trial Court Opinion, 7/28/15, at 2-6 (internal citations omitted).
At the conclusion of the two-day trial, on March 27, 2015, the jury
rendered its guilty verdicts. On June 11, 2015, the trial court sentenced
Appellant to 9 to 23 months’ incarceration, followed by 2 years of reporting
probation at each count, to run concurrently. Appellant did not file a post-
sentence motion. Appellant filed a timely notice of appeal on June 19,
2015.2
On appeal, Appellant presents a single issue for our review.
Whether or not the [trial c]ourt erred as a matter of
law or abused its discretion by not granting
[Appellant’s] Motion for Acquittal when the
Commonwealth presented no evidence to prove that
[Appellant] knew the guns were stolen or knew the
guns were probably stolen[?]
Appellant’s Brief at 2.
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-6-
J-S25019-16
We begin our analysis by noting that “[a] motion for judgment of
acquittal challenges the sufficiency of the evidence to sustain a conviction on
a particular charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.” Commonwealth v.
Hutchinson, 947 A.2d 800, 805 (Pa. Super. 2008) (citation omitted),
appeal denied¸980 A.2d 606 (Pa. 2009).
When considering a challenge to the sufficiency of
the evidence, we must view the evidence, and all
reasonable inferences drawn therefrom, in the light
most favorable to the Commonwealth as verdict
winner and determine whether the jury could find
every element of the crime beyond a reasonable
doubt. Any question of doubt is for the factfinder,
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.
Additionally, this Court has observed that:
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 trial record must be
evaluated and all evidence actually received
must be considered. Finally, the trier 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. Foreman, 797 A.2d 1005, 1011 (Pa. Super. 2002)
(internal citations and quotation marks omitted).
The receiving stolen property statute provides as follows.
§ 3925. Receiving stolen property
-7-
J-S25019-16
(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.
(b) Definition.--As used in this section the word
“receiving” means acquiring possession, control or
title, or lending on the security of the property.
18 Pa.C.S.A. § 3925.
To obtain a conviction for receiving stolen property, “the
Commonwealth must establish the following elements beyond a reasonable
doubt: (1) the property was stolen; (2) the defendant was in possession of
the property; and (3) the defendant knew or had reason to believe the
property was stolen.” Foreman, supra.
Instantly, Appellant concedes that the firearms were stolen and that
he possessed them. The essence of Appellant’s sufficiency argument is that
the Commonwealth failed to establish that he knew the firearms were stolen
because the “only witness to testify about the Appellant’s knowledge with
respect to the stolen guns was Slope.” Appellant’s Brief at 10. Appellant
maintains that “Slope did not testify that Appellant knew the guns were
stolen” and otherwise impugns Slope’s credibility and testimony to support
the jury’s finding that Appellant was guilty beyond a reasonable doubt. Id.
at 9-20. Upon review, we find Appellant’s claim to be without merit.
With regard to the knowledge element necessary for a receiving stolen
property conviction, we have explained as follows.
-8-
J-S25019-16
[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 know that the property was stolen. This
additional evidence can include the nature of the
goods, the quantity of the goods involved, the lapse
of time between possession of and theft, and the
ease with which the goods can be assimilated into
trade channels. … [E]ven if the accused offers an
explanation for his possession of stolen property, the
trier of fact may consider the possession as
unexplained if it deems the explanation
unsatisfactory.
Foreman, supra at 1012.
Upon review of the record, we agree with the trial court that the
Commonwealth presented sufficient evidence to refute Appellant’s claim that
“the Commonwealth presented no evidence to prove that [Appellant] knew
the guns were probably stolen.” Appellant’s Brief at 2. Our review confirms
Mr. Slope’s testimony that Appellant “didn’t ask where [the guns] came
from; he told [Mr. Slope] he didn’t want to know where they came from; and
he said that he could cover his ass if anything ever came back on him
because he’s – he’s done it before.” N.T., 3/26/15, at 104. Mr. Slope
testified that he did not tell Appellant the firearms were stolen, but stated,
“[Appellant] didn’t ask me. He told me that he didn’t want to know where
they came from.” Id. at 130-131. From these statements alone, the jury
could reasonably infer that Appellant had reason to believe that the firearms
had “probably been stolen.” 18 Pa.C.S.A. § 3925(a). Although Mr. Slope
-9-
J-S25019-16
testified that he “was a heroin addict and would say and do anything to stay
out of trouble,” the jury as fact-finder was free to credit Mr. Slope’s
testimony and make inferences regarding Appellant’s knowledge that the
firearms were stolen. N.T., 3/16/15, at 127.
Notably, after Mr. Slope’s testimony, Appellant’s counsel verbally
moved for judgment of acquittal, stating that Mr. Slope was “the only
witness that was offered … that could testify as to whether [Appellant] knew
or should have known” that the firearms were stolen. Id. at 139.
Appellant’s counsel assailed Mr. Slope’s testimony, saying “[h]e never once
told [Appellant] that the guns were stolen. With his memory, Your Honor,
and, quite frankly, with his credibility, it just – it’s hard to imag[ine] if he
even remembers the transaction at all.” Id. at 140. In denying the motion,
the trial court explained as follows.
I’m looking at the standard [jury] instruction
on the third element [of receiving stolen property]
and let me read this to you, it says: “Third, that the
defendant received, retained or disposed of the
property either knowing that it had been stolen or
believing it had probably been stolen.”
And there is a – a separate phrase in brackets
that reads this way: “As I already indicated, a
defendant can be guilty of theft by receiving if” – in
quotes – “he believes that the property had
probably” – and that’s in italics – “had been stolen.”
Close quote. “It is not necessary that the defendant
know the details of the theft nor that he be certain
that a theft in fact occurred.”
And I think that – that kind of harks back to
my concept about – and I think I posited it as
reckless disregard for the truth. If the – if the
- 10 -
J-S25019-16
statute read that: He believes the property had
been stolen, I might be on [Appellant’s] side on this
argument, [Counsel]. But we’re talking about two
qualifications here: That he believes that it’s
probably stolen is a lot less certain; and it seems
that it’s probably stolen is a lot less certain; and it
seems to me that the details of this transaction,
certainly looking in the light most favorable to the
Commonwealth, would be sufficient to allow the Jury
to make that conclusion that [Appellant] should have
believed that the property had probably been stolen.
Those things considered, having looked –
looked at this again, I think I’m satisfied to deal with
the Motion for Judgment of Acquittal on that basis
and deny it.
Id. at 143-144.
The trial court’s rationale is applicable to Appellant’s sufficiency claim
on appeal. Having reviewed the record, particularly the notes of testimony
from the trial, mindful that we may not re-weigh the evidence and substitute
our judgment for the jury as fact-finder, and viewing the evidence in the
light most favorable to the Commonwealth as verdict-winner, we agree with
the trial court that the Commonwealth presented sufficient evidence to
support the jury’s conclusion that Appellant knew, or had reason to believe,
that the firearms probably were stolen.
Based on the foregoing, we conclude that Appellant’s challenge to the
sufficiency of the evidence underlying his convictions is without merit. We
therefore affirm the trial court’s June 11, 2015 judgment of sentence.
Judgment of sentence affirmed.
- 11 -
J-S25019-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2016
- 12 -