Com. v. Rubinosky, C. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CODY RUBINOSKY
Appellant No. 274 WDA 2016
Appeal from the Judgment of Sentence January 26, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002253-2015
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED FEBRUARY 14, 2017
Cody Rubinosky appeals from the judgment of sentence entered
January 26, 2016, in the Erie County Court of Common Pleas. On November
20, 2015, a jury convicted Rubinosky of one count of persons not to
possess, use, manufacture, control, sell or transfer firearms, one count of
firearms not to be carried without a license, and one count of false
identification to law enforcement authorities.1 The court imposed an
aggregate sentence of 60 to 120 months’ incarceration. The sole issue on
appeal is a challenge to the sufficiency of the evidence with respect to his
two firearms convictions. After a thorough review of the submissions by the
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 4914(a).
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parties, the certified record, and relevant law, we affirm the judgment of
sentence.
The trial court set forth the factual history as follows:
On July 27th, 2015, Pennsylvania State Troopers Joshua
Zeigler and Jonathan Casey were patrolling around the area of
Peach Street and Downs Drive, in full uniform and in a marked
patrol vehicle, when they initiated a traffic stop on a dark-
colored 2003 Cadillac sedan with an expired registration. The
traffic stop was initiated in the northeast corner of the Walmart
parking lot. Upon initiating the traffic stop, the driver, later
identified as James Bigley, and the front seat passenger, later
identified as Christine Kennell[e]y, stayed with the vehicle, but
the backseat passenger, later identified as Appellant Cody
Rubinosky, quickly exited the vehicle and “made a beeline,” i.e.
walked briskly, towards Walmart. Trooper Casey went after
[Rubinosky], while Trooper Zeigler remained with Mr. Bigley and
Ms. Kennell[e]y. Trooper Casey shouted “State Police!” multiple
times to [Rubinosky], who did not stop, and upon reaching
[Rubinosky] informed him “he [Rubinosky] was involved in the
traffic stop” and had to return to the vehicle. Initially,
[Rubinosky] did not comply and related to Trooper Casey “the
only things that belong to him [Rubinosky] were on his person
and nothing in that vehicle belonged to him [Rubinosky].”
While Trooper Casey was speaking with [Rubinosky],
Trooper Zeigler spoke with Mr. Bigley and Ms. Kennell[e]y.
Trooper Zeigler noticed “track marks” on Mr. Bigley’s and Ms.
Kennell[e]y’s arms and asked if there was anything illegal in the
vehicle, to which they responded there was drug paraphernalia
in the vehicle. This gave Trooper Zeigler probable cause to
initiate a search. When Trooper Casey brought [Rubinosky] back
to the vehicle, [Rubinosky] was “extremely irate an acting kind
of indignant.” While Mr. Bigley and Ms. Kennell[e]y had a “calm
demeanor,” [Rubinosky] was “real upset, trying to distance
himself from the vehicle and obviously indicating ‘nothing in the
vehicle belonged to him.’” Both troopers noticed a dark-colored
or black backpack located in the back seat of the vehicle where
[Rubinosky] had been seated. Based upon the information
Trooper Zeigler received from Mr. Bigley and Ms. Kennell[e]y
regarding drug paraphernalia in the vehicle, Trooper Zeigler
“obtained probable cause to search the vehicle, which was
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related to Trooper Casey,” but did not conduct the probable
cause search of the vehicle himself. Along with various forms of
drug paraphernalia, a Stallard Arms JS-9 9mm firearm was
found in the backpack that was positioned in the middle rear of
the vehicle. [Rubinosky] was “doing a lot of pacing,” and when
the firearm was located, his pacing “began to intensify,” his
“demeanor changed drastically,” and he was “acting really
nervous.” Upon discovering the firearm, Trooper Casey notified
Trooper Zeigler that he found the firearm and had removed the
magazine from the firearm. During the traffic stop, Ms.
Kennell[e]y indicated to both Pennsylvania State troopers
several times that the firearm belonged to [Rubinosky] and
further indicated [Rubinosky] does carry around a black
backpack.
When asked to provide identification, [Rubinosky] failed to
produce any identification and stated his name was “Corey
Francis Gulnac” and his birth date was 11/26/1989; however,
upon investigation, Trooper Casey determined this information
was false. When Trooper Casey confronted [Rubinosky] and
asked whether he provided false information, [Rubinosky]
continued to state “No, my name is Corey Francis Gulnac and
that’s my name;” however, in a side conversation, Ms.
Kennell[e]y identified [Rubinosky] as “Cody Rubinosky.”
[Rubinosky] later admitted to providing false identification to
Trooper Casey, but maintained “nothing in the vehicle belonged
to him, including the drug paraphernalia and the firearm.
Trial Court Opinion, 4/14/2016, at 1-3 (record citations omitted).
Rubinosky was charged with one count of persons not to possess
firearms, one count of firearms not to be carried without a license, and one
count of false identification to law enforcement authorities. A one-day jury
trial took place on November 20, 2015. At the conclusion of the trial, the
jury convicted Rubinosky of all three counts. Subsequently, on January 26,
2016, the court imposed the following sentence: (1) a term of 60 to 120
months’ imprisonment for the persons not to possess a firearm conviction;
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(2) a concurrent term of 42 to 84 months’ incarceration for the firearms not
to be carried without a license conviction; and (3) a concurrent term of six
to 12 months’ incarceration for the false identification offense. Rubinosky
did not file post-sentence motions but did file this timely direct appeal.2
In his sole issue on appeal, Rubinosky challenges the sufficiency of the
evidence with respect to his two firearms convictions. Specifically, he
states, “[T]he Commonwealth failed to present any evidence at trial that he
actually possessed the firearm in question.” Rubinosky’s Brief at 7. In
support of his argument, Rubinosky points to the following: (1) the firearm
was found in the backseat of a vehicle belonging to Kennelley and Bigley;
(2) Kennelley and Bigley were under the influence of heroin at the time of
the incident; (3) contrary to statements Kennelley gave to police, she
testified at trial that she did not remember who the gun belonged to and
that she and Bigley had been living out of the car for a month and had given
several individuals rides in that car, all of whom had ridden in the backseat;
(4) Kennelley alleged that some of those passengers were drug dealers who
were known to possess firearms; and (5) Kennelley stated she never
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2
On March 4, 2016, the trial court ordered Rubinosky to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
We note neither the certified record nor the docket reveals that Rubinosky
filed a concise statement. Nevertheless, in its opinion, the trial court
indicated Rubinosky filed a concise statement on March 22, 2016. Neither
party takes issue with this; therefore, we will infer that a concise statement
was filed. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 14, 2016.
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checked the back seat so she was unsure who owned the gun. Id.
Additionally, Rubinosky states the Commonwealth failed to present any
evidence in form of fingerprints or deoxyribonucleic acid (“DNA”) to connect
him with the gun. Id. Lastly, Rubinosky argues the Commonwealth did not
present sufficient evidence to demonstrate constructive possession of the
firearm because it only established he was sitting in the backseat of the
same car where a backpack was found in the center of that backseat. Id. at
8. He notes the vehicle was unkempt and there were only two ammunition
clips recovered from the vehicle – one in the gun and one in the glove
compartment. Rubinosky states the only person who connected him to the
firearm was Kennelley and she was high on heroin at the time of the stop.
Id.
We begin with our well-settled standard of review:
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
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the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
The crime of persons not to possess firearms is defined as follows:
A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, 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. § 6105(a)(1).
The crime of firearms not to be carried without a license is defined as
follows:
Except as provided in paragraph (2), any 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. § 6106(a)(1).
Because the firearm was not found on Rubinosky’s person, we also
note the Commonwealth may satisfy its burden by establishing constructive
possession:
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as conscious dominion.
We subsequently defined conscious dominion as the power to
control the contraband and the intent to exercise that control.
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To aid application, we have held that constructive possession
may be established by the totality of the circumstances.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation
omitted), appeal denied, 78 A.3d 1090 (Pa. 2013).
Here, the record reveals the following: Trooper Zeigler testified that
on July 27, 2015, he and Trooper Casey conducted a traffic stop of a dark-
colored Cadillac with an expired registration. N.T., 11/20/2015, at 18. The
officers observed Rubinosky sitting in the backseat on the driver’s side of the
vehicle. Id. While the other passengers exited the car, Rubinosky “made
his way around the vehicle and made a direct beeline towards the entrance
of Wal-mart.” Id. Trooper Casey followed after Rubinosky. Id. at 19.
When Trooper Casey returned to the car with Rubinosky, Trooper Zeigler
testified Rubinosky was acting “irate” and “indignant.” Id. at 20. Trooper
Zeigler also indicated he saw a dark-colored backpack “right in the middle of
the backseat.” Id. at 30. Inside the backpack, Trooper Casey discovered a
Stallard Arms JS-9, 9 mm firearm. Id. at 62.
While Trooper Casey was searching the car, Rubinosky told the
troopers that nothing in the vehicle belong to him. Id. at 21, 24-25.
Trooper Zeigler indicated Rubinosky was very upset and “doing a lot of
pacing.” Id. at 21.3 Rubinosky also provided the troopers with false
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3
During a search of the vehicle, Trooper Zeigler stated Rubinosky’s
nervousness and pacing “began to intensify.” Id. at 21.
(Footnote Continued Next Page)
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identification information. Id. at 22. Trooper Zeigler testified that the front
seat passenger, Kennelley, eventually told him that the subject he was
talking to was, indeed, Rubinosky. Id. at 23.4 Kennelley also told the
trooper that the firearm was Rubinosky’s and he “needed [their] assistance
in taking that firearm to Gander Mountain to trade it in for funds to get more
funds to obtain heroin.” Id. at 41. Lastly, Kennelley informed the trooper
the backpack belonged to Rubinosky. Id.
Kennelley also testified at trial. On direct examination, she stated
Rubinosky had been a family friend for a very long time. Id. at 48. She
also indicated she could not recall telling the troopers Rubinosky was the
backseat passenger, and that he had a gun and had asked Kennelley and
her husband to drive him to Gander Mountain to sell that firearm. Id. at 49.
On cross-examination, Kennelley stated she and her husband had been
living out of the car for a month. Id. at 50-51. She indicated she had given
rides to a handful of individuals during that period. Id. at 52-53. Kennelley
testified a lot of the passengers were drug dealers who had guns, but she
could not remember if any of them left their guns in her car, and she did not
always check to make sure they did not leave their firearms. Id. at 53-55.
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(Footnote Continued)
4
Kennelly also indicated there was drug paraphernalia in the car. Id. at
31.
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Lastly, Kennelley admitted she and her husband had used heroin on the day
in question. Id. at 52.
The trial court analyzed the claim as follows:
After a thorough review of the facts and circumstances of
the instant criminal action, together with a thorough review of
relevant case law, this Trial Court concludes the Commonwealth
presented sufficient evidence to establish beyond a reasonable
doubt that [Rubinosky] “possessed” a firearm, and the jury
properly found [Rubinosky] “Guilty” as to Counts 1 and 2 based
upon the evidence presented. The facts and circumstances,
considered in their totality, clearly establish [Rubinosky] had
both the ability to exercise consciously his control over the
firearm as well as his intent to exercise this control. First, the
location of the firearm indicates [Rubinosky]’s constructive
possession of said firearm. The firearm was located inside a
black backpack, and said backpack was located “in the center of
the back seat directly adjacent to where the defendant
[Rubinosky] was seated,” according to Troopers Zeigler and
Casey. No other individuals were seated in the rear of the
vehicle besides [Rubinosky] at the time of the traffic stop.
Furthermore, during the traffic stop, the front seat passenger,
Christine Kennell[e]y, indicated to both Pennsylvania State
troopers that both the firearm and the black backpack belonged
to [Rubinosky], and there was no evidence or statements from
the other occupants in the vehicle that led the troopers to
believe the firearm might have belonged or been in the
possession of the other occupants. Finally, according to Trooper
Jonathan Casey, the firearm was found with a magazine inside,
which was eventually removed by Trooper Casey. A firearm
functionality test, admitted at trial as Commonwealth’s Exhibit 2,
indicated the firearm was functional and capable of discharging
the types of ammunition for which it was designed and
manufactured.
[Rubinosky]’s actions before and during the traffic stop
also demonstrated his constructive possession of the firearm.
The conduct of an accused following a crime, including
“manifestations of mental distress,” is admissible as tending to
show guilt. Commonwealth v. Hughes, 865 A.2d 761, 792
(Pa. 2004). When the traffic stop was initiated by Troopers
Zeigler and Casey, [Rubinosky] quickly exited the vehicle and
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briskly walked towards Walmart. Trooper Casey stated “State
Police” several times to [Rubinosky], who would not stop. When
Trooper Casey made contact with [Rubinosky, he] became irate,
uncooperative and continuously stated “nothing in the vehicle
belonged to him.” Upon being brought back to the vehicle,
[Rubinosky] became extremely irate, acted indignant and
continued to state “nothing in the vehicle belonged to him.”
[Rubinosky] began pacing during Trooper Casey’s search of the
vehicle, and when the firearm was discovered, [Rubinosky]’s
pacing intensified, his demeanor changed drastically and he
began acting very nervous. When asked for identification,
[Rubinosky] gave the name “Corey Francis Gulnac” and the
birthdate 11/26/89 and repeatedly gave this information;
however, through an investigation, Trooper Casey determined
this information was false. Christine Kennell[e]y identified
[Rubinosky] as “Cody Rubinosky” in a side conversation with the
troopers. [Rubinosky] ultimately admitted to Trooper Casey the
information he gave was false. These facts and circumstances,
considered in their totality, evidence [Rubinosky]’s
“consciousness of guilt” regarding his possession of the firearm.
See [Commonwealth v.] Cruz, 21 A.3d [1247,] 1253 (Pa.
Super. 2011) (“consciousness of guilt” regarding firearms
offenses was shown by Defendant giving police officer five or six
different names and multiple birthdates); see also
Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super.
2011) (Appellant’s behavior of extreme nervousness, shaking
and trembling exhibited a “consciousness of guilt” regarding
firearms offenses).
Therefore, in consideration of the totality of the facts and
circumstances, together with a thorough review of relevant case
law, this Trial Court concludes the Commonwealth produced
sufficient evidence for the jury to find beyond a reasonable
doubt that [Rubinosky] constructively possessed the firearm
found inside the vehicle, as [Rubinosky] had both the ability to
exercise consciously his control over the firearm as well as the
intent to exercise this control. This Trial Court concludes
[Rubinosky]’s issue is without merit.
Trial Court Opinion, 4/16/2016, at 6-8.
We agree with the court’s well-reasoned analysis. Viewed in the light
most favorable to the Commonwealth, the evidence was sufficient to sustain
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the trial court’s finding that Rubinosky constructively possessed the weapon.
Rubinosky was the only passenger in the backseat of the car adjacent to
where the backpack, which contained the gun, was located in plain view. As
such, one can reasonably infer the contraband was well within Rubinosky’s
reach.5 Furthermore, at the time of the car stop, Kennelley told the police
the gun and the backpack belonged to Rubinosky. Moreover, Rubinosky’s
flight towards the Walmart store after the stop and nervous behavior were
both indicative signs of his guilt. See Commonwealth v. Dent, 837 A.2d
571, 576 (Pa. Super. 2003) (flight indicates consciousness of guilt, and “a
trial court may consider this as evidence, along with other proof, from which
guilt may be inferred.”), appeal denied, 863 A.2d 1143 (Pa. 2004);
Commonwealth v. Micking, 17 A.3d 924, 926 (Pa. Super. 2011) (“The
conduct of an accused following a crime, including ‘manifestations of mental
distress,’ is admissible as tending to show guilt.”) (citation omitted), appeal
denied, 31 A.3d 291 (Pa. 2011).
Additionally, with respect to Rubinosky’s argument regarding the
counter-evidence of Kennelley’s testimony that she did not remember who
the gun belonged to, we note this argument goes to the weight rather than
the sufficiency of the evidence. The jury, sitting as the factfinder, “is free to
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5
See Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa. Super. 1979) (“It
strains the imagination to believe that defendant innocently entered this
vehicle having no knowledge of the items found therein when, the pistol at
least, was within a few inches of him and a portion of it was in plain view.”).
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believe all, part, or none of the evidence and to determine the credibility of
the witnesses.” Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa.
2011) (citation omitted). Here, the jury chose to believe Kennelley’s prior
statements made to the troopers on the night of the incident, rather than
her trial testimony.
Lastly, to the extent Rubinosky argues there was no DNA evidence
connecting him to the gun, we find this of no consequence based on the
remaining circumstantial evidence. See Commonwealth v. Lopez, 57
A.3d 74, 80 (Pa. Super. 2012) (holding that the lack of forensic evidence
was not fatal to the prosecution’s case based on wholly circumstantial
evidence), appeal denied, 62 A.3d 379 (Pa. 2013). Accordingly, we conclude
there was sufficient evidence to enable the jury to find Rubinosky
constructively possessed a firearm. Therefore, Rubinosky is not entitled to
relief with respect to his sufficiency challenge regarding the firearms
convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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