Com. v. Lewis, N. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NATHAN ALEXANDER LEWIS
Appellant No. 344 MDA 2015
Appeal from the Judgment of Sentence of December 30, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0005077-2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 18, 2015
Nathan Lewis appeals his December 30, 2014 judgment of sentence.
Lewis challenges the sufficiency of the evidence offered by the
Commonwealth in support of his conviction of receiving stolen property, 18
Pa.C.S. § 3925. We reverse Lewis’ receiving stolen property conviction,
vacate the judgment of sentence, and remand for resentencing on his
remaining conviction for carrying a concealed firearm without a license, 18
Pa.C.S. § 6106.
On November 4, 2014, following a jury trial, Lewis was convicted of
the above-enumerated offenses. The trial court summarized the evidence
presented at Lewis’ trial as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On September 8, 2013, at approximately 2:38 a.m., Officer
Matthew Caple observed two males fighting outside a pizza shop,
with a taller male (later identified as Gabriel Solomon)
restraining [Lewis] in a bear hug. Officer Caple instructed both
men to get on the ground, but neither complied. Mr. Solomon
told Officer Caple that he could not let go of [Lewis] because
[Lewis] had a gun. After Mr. Solomon’s statement about a gun,
people across the street began shouting that someone had a
gun. Officer Caple ordered Mr. Solomon to run and leave the
immediate area. Mr. Solomon hesitated, and “looked like he was
scared.” When other officers arrived and gave commands, Mr.
Solomon released [Lewis] and backed away. Officer Caple then
tackled [Lewis] and took him into custody with the help of
others.
After Officer Caple had restrained [Lewis], he noticed that one of
the other police officers assisting him had recovered a gun.
Officer Caple never saw a firearm in [Lewis’] hands or on
[Lewis’] person while the scuffle with Mr. Solomon was taking
place. Officer Caple overheard Mr. Solomon giving an account to
another police officer about what had transpired. Officer Caple
then briefly left the scene to review videotape of the fight and
discovered that a person appearing to be Mr. Solomon and at
least one other individual had been “beating” and kicking
[Lewis].
Officers [Mark] Gehron and [Thomas] Cole also responded to the
scene of the fight after receiving a dispatch that several subjects
were holding a male on the ground and assaulting him. Officer
Gehron approached the scene from a different direction then
Officer Caple. Officer Gehron observed four men involved in an
altercation, two of whom backed off immediately when the police
arrived. Officer Gehron identified [Lewis] as the person who was
being forcibly held by Mr. Solomon.
[Lewis] was wearing a hooded sweatshirt with a large pocket on
the front. Officer Gehron saw that Mr. Solomon placed one of
his hands on the outside of [Lewis’] sweatshirt pocket, holding
what appeared to be a pistol inside [Lewis’] sweatshirt pocket.
Officer Cole, who was located near Officer Gehron, saw a gun in
[Lewis’] sweatshirt front pocket. Officer Cole observed Mr.
Solomon’s left hand near the trigger of the gun and [Lewis’]
right hand gripping the rear of the gun; both men were
struggling for control of the firearm.
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Officer Cole ordered [Lewis] and Mr. Solomon to the ground
three times. Mr. Solomon made eye contact with Officer Cole
and displayed a look of “terror or fear,” and shortly thereafter
Mr. Solomon finally retreated and stepped aside. [Lewis] still
struggled to remove the revolver from his sweatshirt pocket,
despite Officer Cole’s commands to “get on the ground.” Once
[Lewis] had been taken into custody by Officer Caple, Officer
Gehron removed the gun from [Lewis’] sweatshirt and contacted
radio dispatch to determine, based on the gun’s serial number, if
the weapon was stolen.
Officer Gehron was informed that the firearm was reported
stolen to the East Earl Township Police Department in Lancaster
County. Officer Cole contacted Officer Knepper[1] from East Earl
Township and confirmed that the gun was stolen. Officer Gehron
submitted an inquiry to the Pennsylvania State Police to
determine whether [Lewis] had a valid license to carry a firearm
on the date of [Lewis’] arrest. The Pennsylvania State Police
confirmed that [Lewis] was not licensed to carry a firearm on the
date of his arrest.
The Charter Arms revolver seized from [Lewis] had been stolen
in November, 2012, in East Earl Township from a vehicle owned
by Chad Smith. Mr. Smith identified his revolver based on the
serial number of the weapon matching the serial number on the
purchase paperwork which Mr. Smith had retained. Mr. Smith
had never seen [Lewis] before trial and did not sell, loan, or
authorize anyone, including [Lewis], to use or take his revolver.
The Commonwealth and [Lewis] stipulated that [Lewis] was
unable to pass a background check and was unable to legally
purchase a handgun prior to the date on which he was arrested.
Detective Dean Miller of the Lancaster County District Attorney’s
Office provided the jury information regarding his experience in
law enforcement, including the investigation of cases involving
stolen firearms. He testified that a person who is unable to pass
a background check to purchase a firearm would be unable to
obtain a license to carry firearms in Pennsylvania. Detective
Miller explained that persons unable to legally purchase a
____________________________________________
1
Officer Knepper’s first name does not appear in the certified
transcripts.
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handgun may still obtain one illegally. His experience has shown
that more often than not, firearms which are purchased on the
street are stolen, and that stolen firearms often make their way
to Lancaster County.
Trial Court Opinion (“T.C.O”), 4/17/2015, at 2-5 (references to the notes of
testimony omitted).
On December 30, 2014, the trial court sentenced Lewis consecutively
to two to ten years’ incarceration on the receiving stolen property conviction,
and to three and one half to seven years’ incarceration on the firearm
conviction. In the aggregate, Lewis received a sentence of five and one half
to seventeen years in prison. On January 7, 2014, Lewis filed a post-
sentence motion, which the trial court denied on January 21, 2015.
On February 20, 2015, Lewis filed a notice of appeal. In response, the
trial court directed Lewis to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). On March 16, 2015, Lewis timely
filed a concise statement. On April 20, 2015, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a).
Lewis raises the following issue for our review: “Was the evidence
presented by the Commonwealth insufficient to prove beyond a reasonable
doubt that [] Lewis was guilty of receiving stolen property, where the
evidence did not establish that he knew the gun in his possession was
stolen, or believed that it probably had been stolen?” Brief for Lewis at 6.
When reviewing challenges to the sufficiency of the evidence, our
standard of review is as follows:
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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[’s]. 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
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;
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(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).
Lewis does not challenge the first two elements. Rather, Lewis 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)). Conversely, “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 property was stolen.” Foreman, 797 A.2d at1012 (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.
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Foreman, 797 A.2d at 1012-13.
Recently, in Commonwealth v. Robinson, ___ A.3d ___, 2015 WL
7294584 (Pa. Super. Nov. 19, 2015) (en banc), an en banc panel of this
Court addressed a case with analogous factual and legal circumstances to
the case sub judice. In Robinson, police responded to a domestic dispute
involving the appellant and two women. One of the women informed the
police upon their arrival that the appellant was carrying a firearm. The
police patted the appellant down and located a revolver, which turned out to
be stolen. The appellant was not licensed to conceal the weapon on his
person. Id. at *1.
The owner of the weapon had purchased it years before, and kept it in
a safe in his basement. However, the last time that he had seen the weapon
was in 2010. He did not know that it had been stolen until the police
informed him that it was found on the appellant in 2013. The owner did not
know the appellant and had not given the weapon to him. Id.
After a jury trial, the appellant was convicted, inter alia, of receiving
stolen property. Like Lewis in the instant case, the appellant contended
that, aside from possession of the revolver, no evidence existed to prove
that he knew, or should have known, that the gun was stolen. The en banc
panel unanimously agreed with the appellant and vacated his receiving
stolen property conviction. Id. at *2, *9.
The panel first explained that direct proof of knowledge that a
particular item is stolen is rare, at best. Id. at *3. Thus, to prove someone
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guilty of receiving property, the Commonwealth must procure and prove
circumstantial evidence to support an inference of “guilty knowledge.” Id.
The panel then traced the somewhat tortured case history regarding
inferences of guilty knowledge their emergence to the contemporary
analyses, focusing primarily upon the time period separating the theft of the
item and the person’s possession of that item. Originally, juries were
permitted to presume that a person knew that an item was stolen when the
defendant possessed that item near in time to when it was stolen, and the
person could not explain how he came to possess the item. Id. at *4.
However, such presumptions later were found to be constitutionally
insufficient. Id. (citing Commonwealth v. Owens, 271 A.2d 230 (Pa.
1970)).
Shortly after its decision in Owens, our Supreme Court reaffirmed the
principle that a jury could not presume a guilty knowledge based upon
“recency plus lack of explanation,” but held that a jury could infer guilt
under such circumstances. Commonwealth v. Shaffer, 288 A.2d 727, 736
(Pa. 1972). The Court reaffirmed Shaffer in Commonwealth v. Williams,
362 A.2d 244 (Pa. 1976). The Robinson panel explained the Court’s
rationale in Williams, as follows:
[In Williams,], our Supreme Court again affirmed the “recency
plus lack of explanation” inference for receiving stolen property,
holding that “a permissible inference of guilty knowledge may be
drawn from the unexplained possession of recently stolen good
without infringing on an accused’s right of due process or his
right against self-incrimination.” Williams, 362 A.2d at 248-49.
Williams involved an appellant’s unexplained possession of a
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stolen car just twelve days after its theft. Id. at 250. In
reversing the decision of this Court and reinstating the judgment
of the trial court on the conviction of receiving stolen property,
the Supreme Court in Williams indicated that “[c]ircumstantial
evidence from which guilty knowledge can be inferred in
sufficient to sustain a conviction if the underlying circumstantial
evidence is sufficiently strong to support the inference beyond a
reasonable doubt.” Id. at 248.
In assessing the strength of the inference, the Supreme Court
indicated that mere possession of stolen property, without more,
is not sufficient circumstantial evidence to support an inference
of guilty knowledge. Id. at 248 n.7 (“[M]ere possession is
insufficient to establish or permit an inference of guilty
knowledge . . .”). Proof that the goods were recently stolen,
however, may provide the jury with sufficient circumstantial
evidence to support an inference of guilty knowledge, since the
“circumstances of possession as presented by the
Commonwealth” (the recency of the theft) suggest “an
explanation for the possession” (that the accused was the thief
[]). Id. at 248. In other words, a jury may infer guilty
knowledge from evidence of recency, which in turn may require
the appellant to offer an alternative explanation for his
possession of the stolen item. It is the Commonwealth’s
circumstantial evidence of guilty knowledge (recency) that
compels the need for an explanation, since in the absence of an
explanation the jury may infer guilty knowledge beyond a
reasonable doubt based upon the Commonwealth’s evidence.
Even if the accused offers an explanation, the jury may
nevertheless find it unsatisfactory and reach a finding of guilty
knowledge based upon the recency of the theft. Id.
Robinson, 2015 WL 7294584, at *5 (citations modified; footnote omitted).
With this backdrop in place, the panel in Robinson listed various
cases from this Court in which we considered receiving stolen property cases
after Williams. The panel divided the cases into three broad categories:
(1) cases in which we held that mere possession of a stolen item, without
more, was insufficient to prove guilty knowledge; (2) cases in which the
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brevity of the duration between the theft of the item and the person being
found in possession of that item was deemed sufficient to infer a guilty
knowledge, and (3) cases in which circumstances other than recency was
the predominant factor in proving a guilty knowledge, such as where serial
numbers on items were altered, where the person attempted to sell the
stolen item, where VIN numbers on vehicles were obliterated, and where the
person attempted to flee from the police with the stolen item. Id. at *5-6
(listing cases).
The panel then turned to the facts at hand and held that “the
Commonwealth presented no evidence that would support an inference of
guilty knowledge.” Id. at *6. The panel noted that the Commonwealth
could not satisfy the recency inquiry, because the theft occurred three years
before the appellant was found in possession of the gun. The panel also
pointed out the fact that the serial numbers on the gun had not been altered
or obliterated, and that the appellant did not attempt to flee or display any
other indicia of a guilty demeanor when arrested. The Commonwealth
offered no evidence “regarding how, when, or where [the appellant]
acquired the handgun, or from whom. Instead, the Commonwealth proved
only that [the appellant] possessed stolen property, which, as indicated, by
itself is not sufficient to prove guilty knowledge.” Id.
The panel next addressed the trial court’s finding that the appellant’s
failure to register, or otherwise obtain lawful ownership of, the weapon
constituted evidence of guilty knowledge. The panel decisively rejected that
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premise, stating that “it reflects a basic misunderstanding of Pennsylvania
law with respect to the sale of firearms and that absence of paperwork to
demonstrate firearm ownership.” Id. at *7. The panel further explained
that, “no requirement exists under Pennsylvania law to obtain a license,
permit, or other permission to own a firearm, and the Commonwealth does
not maintain a registry of ownership of firearms. Likewise, no state agency
issues any documentation evidencing the ownership of a firearm.” Id.
Finally, the panel rejected the Commonwealth’s argument that,
because the appellant did not have a license to carry the weapon, the jury
could have inferred that the appellant possessed the requisite guilty
knowledge. “Ownership of a handgun is not a prerequisite to the issuance of
a license to carry, and the license is not issued for a particular handgun.
Conversely, a person may own a handgun without obtaining a license to
carry, as was true of the [victim of the theft] in this case.” Id. at 9.
Thus, the en banc panel held that the Commonwealth’s proof
established nothing more than the appellant’s possession of a stolen
weapon. The panel vacated the receiving stolen property conviction and
remanded for resentencing on the appellant’s remaining conviction. Id.
The circumstances in the case sub judice are strikingly similar to those
in Robinson. Here, like in Robinson, Lewis was found to be in possession
of a stolen firearm. The theft occurred approximately one year prior to
Lewis’ arrest. The Commonwealth has not proven that the passage of one
year is sufficiently recent to justify an inference that Lewis possessed the
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requisite guilty knowledge, and the cases cited in Robinson do not compel
such a result. See e.g. Commonwealth v. Hogan, 468 A.2d 493, 498 (Pa.
Super. 1983) (en banc) (holding that four weeks between the theft and
possession was sufficiently recent to justify the inference); Commonwealth
v. Waters, 378 A.2d 1232, 1236-37 (Pa. Super. 1977) (holding that six
days was sufficient to justify the inference). In light of Pennsylvania case
law, one year simply is too long after the theft to infer without more that
Lewis knew or should have known that the gun was stolen.
The Commonwealth also adduced no evidence that the serial number
on the gun was altered or modified in any way, or established any other
physical aspect of the gun that would have identified the gun as stolen to its
possessor. Furthermore, nothing about Lewis’ demeanor or actions upon his
arrest yielded any evidence that suggested guilty knowledge. Finally, the
Commonwealth, as it did in Robinson, attempted to prove guilty knowledge
by the fact that Lewis did not, and was unable to, obtain a license to carry a
concealed firearm. However, the Robinson panel rejected this argument,
and we must do so here.
In short, the facts and circumstances of this case substantially mirror
those in Robinson. The Commonwealth has presented no evidence to
prove that Lewis knew or should have known that the gun was stolen. At
best, the evidence proved that Lewis merely possessed a stolen gun, which
is insufficient by itself to prove a person guilty of receiving stolen property.
Consequently, we reverse Lewis’ receiving stolen property conviction, and
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we remand for resentencing on his remaining conviction for carrying a
concealed weapon without a license. Lewis has not challenged that
conviction or the sentence imposed upon that conviction.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2015
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