Com. v. Robinson, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES JUMAH ROBINSON
Appellant No. 912 MDA 2014
Appeal from the Judgment of Sentence of May 23, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0002523-2013
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 23, 2014
James Robinson appeals his May 23, 2014 judgment of sentence.
Herein, Robinson challenges the sufficiency of the evidence offered by the
Commonwealth in support of his conviction of receiving stolen property.1
We reverse Robinson’s receiving stolen property conviction, vacate the
judgment of sentence, and remand for resentencing.
In its Pa.R.A.P. 1925(a) opinion, the trial court has summarized the
factual history of this case as follows:
On May 19, 2013, while on patrol in the 200 block of Penn
Street, Officer Christopher Dinger observed a domestic dispute
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1
18 Pa.C.S. § 3925. As noted infra, Robinson also was convicted of
carrying a concealed weapon without a license, 18 Pa.C.S. § 6106(a)(1). In
this appeal, Robinson does not challenge the sufficiency of the evidence with
regard to this conviction. Rather, he focuses his attention upon his receiving
stolen property conviction.
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between [Robinson] and Ms. Adrianne Myers. Ms. Mercedes
Hodge was also present during the dispute and attempted to get
Ms. Myers to calm down and stop arguing with [Robinson].
Officer [Brett] Sneeringer was on location in his vehicle and
helped assist Officer Dinger in separating the parties. Officer
Dinger questioned Ms. Myers and Ms. Hodge to see what was
going on. Officer Sneerigner stayed with [Robinson].
During Officer Dinger’s discussion with Ms. Myers, Ms. Hodge
approached Officer Dinger and stated that [Robinson] was
currently carrying a firearm in his pocket. Officer Dinger then
approached [Robinson] and asked him if he was carrying any
weapons. During this line of questioning[, Robinson] refused to
answer Officer Dinger’s questions and “just stared at [Officer
Dinger] stone-faced.” For officer safety reasons, due to the lack
of response by [Robinson] and the notification that [Robinson]
may be armed, Officer Dinger patted [Robinson’s] exterior for
weapons. Officer Dinger . . . immediately felt a revolver in
[Robinson’s] left front coat pocket. Officer Dinger held the
revolver tightly through the jacket and asked [Robinson] if he
had a permit to carry the weapon. [Robinson] did not answer
Officer Dinger. While Officer Dinger held the weapon through
[Robinson’s] jacket, Officer Sneeringer handcuffed [Robinson].
[After Robinson was] handcuffed Officer Dinger safely removed a
loaded 357 Magnum revolver, serial number 140594, from
[Robinson’s] left front coat pocket. Officer Dinger then notified
TAC 1 to check [Robinson] for outstanding warrants and whether
or not [Robinson] had a right to carry permit. TAC 1 (Reading
City Police Communications) was unable to find a carry permit
on record for [Robinson] and [Robinson] had a scofflaw warrant
for an unpaid harassment ticket. [Robinson] was then
transported to central processing to await charges.
[T]he weapon found on [Robinson] was registered to Mr. Jeffery
Schoenberger of Lebanon, Pennsylvania. Mr. Schoenberger . . .
purchased the weapon from a friend. After purchasing the
weapon from his friend, Mr. Schoenberger [then] went to the
courthouse and transferred the registration in his name. While
transferring the registration, Mr. Schoenberger left the weapon
at Glenn’s Gun Shop in Ephrata, Pennsylvania. When the
registration was complete, Mr. Schoenberger . . . went back to
the gun shop and retrieved the gun. On May 19, 2013, Officer
Dinger contacted Mr. Schoenbeger to inform him that his gun
had been recovered. Mr. Schoenberger stated the gun was
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supposed to be put away, but it was missing the day Officer
Dinger called. Mr. Schoenberger was not aware that the gun
was missing until the police contacted him on May 19, 2013. Mr.
Schoenberger . . . believed his stepson took the gun out of his
house and sold it for money due to his stepson’s ongoing drug
addiction. Mr. Schoenberger reported the gun stolen to the
North Lebanon Township Police Department on May 19, 2013.
Trial Court Opinion (“T.C.O.”), 7/16/2014, at 2-3 (citations to notes of
testimony omitted).
Having been presented with these facts, a jury found Robinson guilty
of the aforementioned crimes. On May 23, 2014, the trial court sentenced
Robinson to forty-two months to seven years’ incarceration on the concealed
weapon conviction, and a consecutive two to ten year prison term on the
receiving stolen property conviction.
On May 29, 2014, Robinson filed a notice of appeal. In response, the
trial court directed Robinson to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). On July 1, 2014, Robinson
timely filed a concise statement. On July 16, 2014, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a).
Robinson raises the following issue for our consideration: “Whether
the evidence admitted at trial was insufficient to support a conviction for the
charge of receiving stolen property?” Brief for Robinson at 6. Specifically,
Robinson maintains that the evidentiary record was devoid of any evidence
that would prove, directly or circumstantially, that Robinson knew that the
firearm that he possessed on May 19, 2013 was stolen. Robinson further
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contends that mere possession of a weapon is not, ipso facto, evidence that
he knew the precise origin of that weapon. Brief for Robinson at 10.
When reviewing challenges to the sufficiency of the evidence, our
standard of review is as follows:
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 the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations
omitted). Further, in viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we must give the prosecution the
benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
A person is guilty of receiving stolen property "if he intentionally
receives, retains, or disposes of movable property of another knowing that it
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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.” 18 Pa.C.S. § 3925(a). Stated otherwise, in order for the
Commonwealth to prove receiving stolen property beyond a reasonable
doubt, the Commonwealth must establish that: (1) the property was stolen;
(2) the defendant was in possession of the property; and (3) the defendant
knew or had reason to believe that the property was stolen.
Commonwealth v. Matthews, 632 A.2d 570, 571 (Pa. Super. 1993).
Robinson does not challenge the first two elements. Rather, Robinson
focuses his argument upon whether the Commonwealth produced sufficient
evidence to prove beyond a reasonable doubt that he knew, or had reason
to believe, that the firearm was stolen. “[A] permissible inference of guilty
knowledge may be drawn from the unexplained possession of recently stolen
goods without infringing upon the accused’s right of due process or his right
against self-incrimination, as well as other circumstances, such as the
accused’s conduct at the time of arrest.” Commonwealth v. Foreman,
797 A.2d 1005, 1012 (Pa. Super. 2002) (quoting Commonwealth v.
Williams, 362 A.2d 244, 248-49 (Pa. 1976)). That being said, Robinson is
correct in asserting that the “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 believe that the
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property was stolen.” Foreman, 797 A.2d at 1012 (citing Matthews, 632
A.2d at 571).
This additional evidence can include the nature of the goods, the
quantity of the goods involved, the lapse of time between
possession and theft, and the ease with which the goods can be
assimilated into trade channels. Further, whether the property
has alterations indicative of being stolen can be used to establish
guilty knowledge. Finally, even if the accused offers an
explanation for his possession of stolen property, the trier of fact
may consider possession as unexplained if it deems the
explanation unsatisfactory.
Foreman, 797 A.2d at 1012-13.
Robinson makes a colorable argument that the evidence was
insufficient to prove that he knew that the firearm was stolen. Indeed, the
evidentiary record demonstrates, at best, only that Robinson was in
possession of the weapon. The Commonwealth presented no direct evidence
that Robinson knew that it was stolen. Additional factors that we must
consider support Robinson’s argument. The timeframe during which the
weapon was stolen was lengthy, approximately three years. Thus, this is
not a case where it can clearly be proven that a defendant was in possession
of an item that was stolen during a very brief preceding period. The weapon
did not bear marks that would demonstrate to a reasonable observer that
the weapon was stolen. The weapon did not have obliterated serial numbers
or other indicia to indicate that it was stolen, nor did he possess multiple
unregistered weapons that also might signify guilty knowledge. Finally, we
discern nothing from Robinson’s actions at the scene of the crime that would
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prove that he knew that the firearm was stolen. In fact, Officer Dinger
testified that Robinson was “stone faced” during the crime scene
questioning. Notes of Testimony (“N.T.”), 2/11/2014, at 18.
Even reviewing the evidence in the light most favorable to the
Commonwealth as verdict winner, the Commonwealth did not prove that
Robinson actually knew that the firearm was stolen, or even that he had
reason to believe that it was “probably” stolen. 18 Pa.C.S. § 3925(a).
We acknowledge that we must draw all reasonable inferences in the
Commonwealth’s favor. One such inference that we may draw is that the
unexplained possession of stolen goods is indicative of guilty knowledge for
receiving stolen property purposes. Foreman, supra. However, as the
above-referenced quote from Foreman indicates, this inference is
permissible only when a person cannot explain the possession of “recently
stolen goods.” Foreman, 797 A.2d at 1012 (emphasis added). The
inclusion of the condition that the goods be recently stolen undoubtedly is
based upon the axiomatic principle that a person is more likely to know that
an item is stolen, or have reason to believe as much, the closer in time the
possession is to the actual theft. The further removed the possession is
from the theft, the less likely it is that the possessor knows the true origin of
the item.
Although Mr. Schoenberger testified that he believed that the firearm
may have been stolen at some point between July 2011 and October 2011,
he testified that the last time that he actually saw the weapon was in July
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2010. N.T. at 39-40. Thus, there was approximately three years between
the last time that Mr. Schoenberger saw his firearm and when he was
informed that it was stolen shortly after Robinson was arrested. With this
sizeable window during which the weapon could have been stolen, the record
does not support an inference that Robinson was in possession of a recently
stolen item. The weapon could have been stolen the night before Robinson
was arrested with it, or it could have been stolen almost three years before
his arrest. Consequently, the Commonwealth is not entitled to the inference
that, because Robinson could not explain the origin of the firearm, he had
reason to believe that it was probably stolen. Certainly, without the
Commonwealth introducing evidence regarding the proximity of the theft to
the possession of the stolen item, any additional inferences that we could
draw would not amount to proof beyond a reasonable doubt.
Finally, we note that the trial court and the Commonwealth place
significant evidence on the registration process that a person must complete
in order to lawfully own a firearm. See T.C.O. at 5; Brief for the
Commonwealth at 9 (citing 18 Pa.C.S. § 6111; Commonwealth v. Parker,
847 A.2d 745, 751 (Pa. Super. 2004) (“the sale of handguns are highly
regulated and they cannot be easily obtained from legitimate dealers.”)).
Relying upon the Robinson’s failure to obtain lawful ownership or registration
of the weapon, the trial court surmised that Robinson “likely received the
firearm through improper means,” and that he knew or had reason to know
that the “firearm he possessed was likely taken from another individual who
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had rightful ownership to the firearm.” T.C.O. at 5. The Commonwealth
makes a similar argument. See Brief for Commonwealth at 9. The problem
is that neither the trial court nor the Commonwealth cites any record
evidence in support of what amounts to speculation. As noted, none of the
commonly-cited factors to prove that a person knew or should have known
that a particular item was stolen was present in this case, and the
Commonwealth’s evidence does not warrant any inferences to demonstrate
proof beyond a reasonable doubt. The fact that Robinson did not lawfully
own the weapon, or that he did not comply with the statutory requirements
for owning a weapon, does not, ipso facto, mean that he knew that the
weapon was stolen at some unknown point during the prior three years.
That evidence proves only that he did not purchase the firearm legally; it
says nothing about the means by which the previous owner acquired that
weapon. The fact that Robinson did not obtain the firearm through legal
channels does not necessarily impart to him knowledge that the person or
source from whom he obtained it acquired it by theft. To make that
assumption without being able to point to a single piece of corroborating
evidence amounts to speculation and guess-work, but not to proof beyond a
reasonable doubt. The task of viewing the evidence in the light most
favorable to the Commonwealth does not permit this Court to fill in gaps left
by the Commonwealth’s presentation of its evidence.
We have reviewed the record thoroughly, and for the reasons set forth
above, find a dearth of evidence that we may draw upon to conclude that
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the Commonwealth proved that Robinson knew that the weapon was stolen
or that he had reason to believe that the firearm probably was stolen. For
this reason, we reverse Robinson’s receiving stolen property conviction,
vacate his judgment of sentence, and remand for resentencing on the
carrying a concealed weapon conviction.
Judgment of sentence vacated. Case remanded for resentencing.
Judge Musmanno joins the memorandum.
Judge Bowes files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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