Com. v. Richardson, D. ( 2015 )

J-S45013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEMETRICK LAMONT RICHARDSON,
Appellant No. 2184 MDA 2014
Appeal from the Judgment of Sentence November 14, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001953-2014
BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.
MEMORANDUM BY BOWES, J: FILED SEPTEMBER 11, 2015
Demetrick Lamont Richardson appeals from the judgment of sentence
of two to four years imprisonment followed by twelve months probation,
which was imposed by the court following his conviction at a bench trial of
possession of a firearm, possession of an instrument of crime (“PIC”), and
possession of cocaine. We affirm.
The facts giving rise to Appellant’s conviction are summarized from the
transcript of the October 2, 2014 non-jury trial. Pennsylvania State Police
Trooper William Colvin testified that on January 1, 2014, he was patrolling in
a marked vehicle when he observed a vehicle on Market Street. As he
customarily does, the trooper ran the registration for the vehicle and learned
that the operating license of its registered owner had been suspended. After
*
Former Justice specially assigned to the Superior Court.
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procuring a JNET photograph1 of the owner of the vehicle, he pulled his
cruiser alongside and visually confirmed that the driver of the vehicle was
the registered owner, Appellant. The trooper initiated a traffic stop,
approached the vehicle, identified himself, and advised Appellant of the
reason for the stop. Trooper Colvin subsequently confirmed that Appellant
had two outstanding warrants and no vehicle insurance, and took him into
custody.
When the tow truck arrived, the trooper conducted an inventory
search of the vehicle. He found several small empty baggies in the center
console. On the rear passenger-side floor, he observed a white sheet with a
large solid object beneath it. When he removed the sheet, he found a
sawed-off shotgun. A small baggie of cocaine lay in close proximity to the
gun. The trooper identified the shotgun as the weapon he found in
Appellant’s vehicle. A lab report on the firearm, which did not bear a
registration number, indicated that it had a broken firing pin and was
inoperable.
Appellant testified that he was stopped by police while driving his
vehicle on Market Street on January 1, 2014. He provided his license and
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1
JNET is the Pennsylvania integrated justice portal that provides a common
online environment for authorized users to access public safety and criminal
justice information. It includes access to PennDot’s driver’s license and
photo records.
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registration to the officer upon request and asked why he had been pulled
over. He confirmed that the trooper told him that he was being placed in
custody due to outstanding warrants and a suspended license.
Appellant admitted at trial that the cocaine found in the car could have
been his because he was addicted. He denied that he owned the shotgun
and maintained further that he did not know it was in the vehicle. Appellant
testified that he had loaned out his vehicle that night in exchange for
cocaine.
The Commonwealth withdrew the charge of possession of a firearm
without a license at the commencement of trial, conceding that it could not
establish the elements of that offense due to the inoperability of the firearm.
However, it maintained that the charge of person not to possess was
unaffected because the firearm, although inoperable, was “designed to or
may be readily converted to expel any projectile” for purposes of 18 Pa.C.S.
§ 6105. The trial court agreed. It found Appellant guilty of person not to
possess a firearm, possession of cocaine, PIC, and driving with a suspended
license.
On November 14, 2014, with the benefit of a pre-sentence
investigation report, the court imposed a mitigated range sentence, granted
Appellant credit for time served, and suggested that he enroll in boot camp.
Appellant filed a post-sentence motion seeking judgment of acquittal, or, in
the alternative, a new trial or reconsideration of sentence. The court found
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that there was sufficient evidence to convince the finder of fact as to every
one of the charges, and denied the motion on December 17, 2014.
Appellant timely appealed on December 26, 2014, and complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant raises two issues:
I. The evidence at trial was insufficient as a matter of law to
support the trial court’s verdict that defendant committed
the crimes of person not to possess a firearm and
possession of an instrument of crime.
II. The verdict of guilty for person not to possess a firearm
and possession of an instrument of crime are against the
weight of the evidence.
Appellant’s brief at ii.
In reviewing a challenge to the sufficiency of the evidence, we must
determine
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
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evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Giordano, 2015 Pa. Super. LEXIS 448, *6-7, 2015 PA
Super 167 (quoting Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa.Super.
2014)).
Appellant contends first that the evidence was insufficient to sustain
his conviction for person not to possess. That statute provides in pertinent
part:
§ 6105. Persons not to possess, use, manufacture, control, sell
or transfer firearms.
(a) Offense defined.
(1) 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.
(i) A person who is prohibited from
possessing, using, controlling, selling, transferring or
manufacturing a firearm under paragraph (1) or
subsection (b) or (c) shall have a reasonable period
of time, not to exceed 60 days from the date of the
imposition of the disability under this subsection, in
which to sell or transfer that person’s firearms to
another eligible person who is not a member of the
prohibited person’s household.
18 Pa.C.S. § 6105(a)(1).
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The defense stipulated that Appellant was prohibited from possessing a
firearm and that he had been so prohibited since 2009. However, Appellant
contends that the Commonwealth failed to introduce evidence that he knew
the gun was in the vehicle.
Where the defendant is not found in actual possession of contraband,
the Commonwealth must establish a theory of constructive possession to
support the conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820
(Pa.Super. 2013). As this Court held in Commonwealth v. Brown, 48 A.3d
426, 430 (Pa.Super. 2012) (internal quotation marks and citation omitted),
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. To
aid application, we have held that constructive possession may
be established by the totality of the circumstances.
This Court has found constructive possession where the individual does
not have actual possession over the illegal item but has conscious dominion
over it, i.e., the power to control the item and the intent to exercise it.
Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa.Super. 1999);
Hopkins, supra. When the contraband is located in an area usually only
accessible to the defendant, an inference may be made that the defendant
either knew of its presence or placed it there. Commonwealth v. Haskins,
677 A.2d 328 (Pa.Super. 1996); Commonwealth v. Carter, 450 A.2d 142
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(1982) (appellant had constructive possession of a firearm where the firearm
was found on the floor of a vehicle within his view); Commonwealth v.
Thompson, 428 A.2d 223, 224 (Pa.Super. 1981); Commonwealth v.
Ferguson, 331 A.2d 856, 860 (Pa.Super. 1974).
We find Commonwealth v. Boatright, 453 A.2d 1058 (Pa.Super.
1982), upon which Appellant relies, distinguishable. In that case, the
defendant was not the only individual in the car, as there was also a driver
and a rear seat passenger. Furthermore, the car was registered to the
driver’s girlfriend. Consequently, this Court held that the evidence failed to
establish constructive possession and we reversed the conviction. Herein,
Appellant was the sole occupant of the vehicle, which was registered in his
name. The shotgun was hidden under a sheet in the rear floor of the car in
close proximity to cocaine that Appellant admitted belonged to him. Though
Appellant testified that he had lent his car and was unaware of the shotgun,
the trial court did not credit that testimony. We find no basis to disturb that
credibility determination.
With regard to the PIC charge, Appellant reiterates his claim that there
was insufficient evidence of possession, an argument we have already
rejected. He also claims that the Commonwealth did not introduce any
evidence to show that the shotgun was in fact an instrument of crime or that
he had any intent to employ it criminally. He claims that there are many
lawful uses for a shotgun, and the Commonwealth failed to show that it was
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being used for something unlawful. Additionally, Appellant points out that
the shotgun’s firing pin was broken, rendering it “impossible to fire.”
Appellant’s brief at 14.
Possessing an instrument of crime, 18 Pa.C.S. § 907(a) provides
(a)Criminal instruments generally. --A person commits a
misdemeanor of the first degree if he possesses any instrument
of crime with intent to employ it criminally.
18 Pa.C.S. § 907.
It is the Commonwealth’s burden to prove that the defendant
possessed an object that is an instrument of crime with the intent to use the
object for a criminal purpose. In the Interest of A.C., 763 A.2d 889, 890
(Pa.Super. 2000). An instrument of crime is defined as “[a]nything specially
made or specially adapted for criminal use” or “[a]nything used for criminal
purposes and possessed by the actor under circumstances not manifestly
appropriate for lawful uses it may have.” Commonwealth v. Stokes, 38
A.3d 846, 854 (Pa.Super. 2011). A "weapon" for purposes of the PIC
statute is “[a]nything readily capable of lethal use and possessed under
circumstances not manifestly appropriate for lawful uses which it may have”
and includes “a firearm which is not loaded or lacks a clip or other
component to render it immediately operable, and components which can
readily be assembled into a weapon.” 18 Pa.C.S. § 907.
The instrument of crime herein is a sawed-off shotgun, which is a
prohibited offensive weapon by statute. 18 Pa.C.S. § 908. Although it did
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not have a firing pin, the trial court determined that the missing component
could be readily inserted into the weapon. Both the stock and barrel had
been altered and the serial number had been removed to prevent
identification, making it something specially adapted for criminal use. The
Commonwealth maintains that those modifications to the weapon
demonstrated a criminal objective. Furthermore, the shotgun was found in
close proximity to cocaine possessed by Appellant and within Appellant’s
reach. It argues that one may infer consciousness of guilt from the fact of
its concealment under a sheet. See Commonwealth v. Silo, 502 A.2d 173
(Pa. 1985).
Our Supreme Court has held that an actor's criminal purpose provides
the touchstone of his liability for possessing an instrument of crime and that
such purpose may be inferred from the circumstances surrounding the
possession. Commonwealth v. Hardick, 380 A.2d 1235, 1237 (Pa. 1977).
However, mere possession of an instrument of crime, standing alone, will
not support an inference that the defendant intended to use the instrument
of crime for a criminal purpose. In In the Interest of A.V., 48 A.3d 1251,
1253-1254 (Pa.Super. 2012), we rejected the trial court’s finding that mere
possession of counterfeit money demonstrated intent to use the bills for a
criminal purpose simply because there was "no lawful use" for counterfeit
bills. We reasoned that “[i]f we were to accept this conclusion, any citizen
who possesses counterfeit money after finding or receiving the bills in a
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transaction would be subject to criminal prosecution for possessing an
instrument of crime regardless of whether they intended to employ the bills
criminally or even knew the bills were counterfeit.” Id. at 1253. We
concluded that the fact that counterfeit money has no lawful use supported
its classification as an instrument of crime, but did not “relieve the
Commonwealth of its burden to prove an actor's intent to use the counterfeit
money for a criminal purpose beyond a reasonable doubt.” Id.
Moreover, in Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa.Super.
2012), we held the PIC statute does not require that a crime be completed;
the focus is on whether the defendant possesses the instrument for any
criminal purpose. In that case, the defendant was charged with murder and
PIC. He admitted to stabbing the victim in a fight but claimed that he acted
in self-defense. The jury acquitted the defendant of the homicide charges
but convicted him of PIC. On appeal, we affirmed the PIC conviction based
on the Commonwealth’s evidence that the defendant had prepared for the
confrontation with the victim by concealing weapons on his person and
refusing to retreat.2
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2
This was consistent with the Supreme Court’s subsequent decision in
Commonwealth v. Moore, 103 A.3d 1240, 1248 (Pa. 2014), holding that
juries may issue inconsistent verdicts and that reviewing courts may not
draw factual inferences in relation to the evidence from a jury's decision to
acquit a defendant of a certain offense.
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The sawed-off shotgun was an instrument of crime by virtue of its
special adaptation for criminal use and its status as a prohibited offensive
weapon. 18 Pa.C.S. § 907. However, the Commonwealth must also prove
intent to employ the weapon criminally. Hardick, supra at 1237. That
intent need not be directly proven, and there need not be evidence of intent
to use the instrument of crime in a particular place or for a particular
purpose. Id. The requisite intent may be inferred from the circumstances
surrounding the incident that gives rise to the charges. Id. In Hardick, the
defendant’s possession of burglary tools typically used for safe-cracking in
his motor vehicle in a commercial area at night when such establishments
were not open for business, together with his evasive explanation as to why
he was in possession of such tools, was legally sufficient evidence of intent
to employ them criminally to sustain the PIC conviction.
The instant case lacks the type of direct evidence of criminal intent
that flows from the defendant’s actual use of the instrument of crime, such
as discharging a weapon during an altercation. However, since it was
stipulated that Appellant was a person not to possess a firearm, a fact
known to the trial court, the court could infer the requisite general intent
from Appellant’s unlawful possession of the gun and other circumstantial
evidence. Appellant possessed a sawed-off shotgun, a prohibited weapon by
definition, under circumstances where he could not have possessed it for any
lawful purpose. That, together with the fact that its registration number was
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obliterated, provided powerful evidence of intent to employ the weapon
criminally. The concealment of the weapon in close proximity to cocaine was
further circumstantial evidence of a criminal purpose. Viewing all of the
evidence in the light most favorable to the verdict winner, as we must, we
find the evidence sufficient to sustain the PIC conviction.
Next Appellant challenges the weight of the evidence supporting his
two firearm-related convictions. In support of his claim, he largely reiterates
the same arguments he made in his challenge to the sufficiency of the
evidence. However, he also relies upon his uncontroverted testimony that
he frequently lent his car to his drug supplier in exchange for drugs, and
that he had just done so before Trooper Colvin stopped him. Appellant’s
brief at 17. We find no merit in Appellant’s position.
The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. Commonwealth v. Champney, 832 A.2d 403,
408 (Pa. 2003) (citations omitted). As our Supreme Court explained in
Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our standard of review
when presented with a weight of the evidence claim is distinct from the
standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
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and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Clay, supra at 1055 (citations omitted).
Herein, the trial court, acting as fact-finder, assessed the credibility of
witnesses and the evidence. It found the Commonwealth’s case “convincing
beyond a reasonable doubt” and that the verdict was not against the weight
of the evidence. Trial Court Opinion, 2/27/15, at 3. We find no abuse of
discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2015
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