Com. v. Gaynor, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
COREY GAYNOR, :
:
Appellant : No. 2654 EDA 2016
Appeal from the Judgment of Sentence March 2, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0005932-2014
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017
Corey Gaynor (“Gaynor”) appeals from the judgment of sentence
imposed following his convictions of first-degree murder, firearms not to be
carried without a license, and possession of an instrument of crime.1 We
affirm.
On the night of April 14, 2014, Timothy Cary (“Cary”) and his date
went to the Copabanana, a restaurant and bar located at 40 th and Spruce
Streets in Philadelphia. During the evening, Cary was involved in
altercations with several people, including Gaynor.
At some time before 1:30 a.m., Cary stepped outside and stood on the
sidewalk in front of the bar with his date. Cary and Gaynor began talking
again, and Cary said, “So what you want to do?” Gaynor took a step back,
pulled out a gun, and shot Cary a total of 12 times. Cary was taken to the
1 18 Pa.C.S.A. §§ 2502(a), 6106, 907.
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Hospital of the University of Pennsylvania, where he was pronounced dead at
1:42 a.m.
Following the shooting, Gaynor walked southbound on 40th Street.
Gaynor was ultimately stopped and arrested on the 4000 block of Pine
Street. Police recovered a firearm, a Glock Model 37 semi-automatic
handgun with obliterated serial numbers, from a nearby walkway. Gaynor
did not have a license to carry a firearm.
Following a jury trial, Gaynor was convicted of the above-mentioned
crimes. The trial court sentenced Gaynor to a term of life in prison without
the possibility of parole on the first-degree murder conviction, and imposed
no further penalty on the remaining convictions. Gaynor filed a post-
sentence Motion, which was denied by operation of law on July 13, 2016.
Gaynor subsequently filed a timely Notice of Appeal.2
Gaynor raises the following issue for our review: “Whether the trial
court[’s] jury instruction that [Gaynor’s] carrying an unlicensed firearm may
be used to infer intent for murder [was] highly erroneous[?]” Brief for
Appellant at 2.
Gaynor raises a due process challenge to the trial court’s instruction,
2 The trial court did not order Gaynor to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal, and no trial court opinion
was filed in this matter.
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based on 18 Pa.C.S.A. § 6104,3 that the jury could infer Gaynor’s intent to
commit murder from his use of an unlicensed firearm.4 Brief for Appellant at
7. Gaynor argues that “the instruction created a mandatory presumption
because it undermined the fact finder’s responsibility at trial to determine
whether [Gaynor] was the person who killed [] Cary.” Id. at 8. Gaynor
claims that the instruction lessened the Commonwealth’s burden to prove,
beyond a reasonable doubt, the elements of first-degree murder. Id.
3 Section 6104 provides as follows:
In the trial of a person for committing or attempting to commit a
crime enumerated in section 6105 (relating to persons not to
possess, use, manufacture, control, sell or transfer firearms),
the fact that that person was armed with a firearm, used or
attempted to be used, and had no license to carry the same,
shall be evidence of that person’s intention to commit the
offense.
18 Pa.S.C.A. § 6104.
4 The trial court instructed the jury as follows:
If you find that the defendant used a firearm in committing the
acts that are charged in this case, which is murder, and that the
defendant did not have a license to carry that firearm as
required by law, you may regard that as one of the items of
circumstantial evidence on the issue of whether the defendant
intended to commit the crime of murder as is charged in this
case. It is for you to determine what weight, if any, you
will give to that item of circumstantial evidence. Evidence
of non-licensure alone is not sufficient to [] prove that the
defendant intended to commit the offense of murder.
N.T., 2/26/16, at 87 (emphasis added).
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at 8-9.
When reviewing a challenge to jury instructions, the
reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or
prejudicial. The trial court has broad discretion in phrasing its
instructions, and may choose its own wording so long as the law
is clearly, adequately, and accurately presented to the jury for
its consideration. A new trial is required on account of an
erroneous jury instruction only if the instruction under review
contained fundamental error, misled, or confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (citations
omitted).
In order to preserve a claim that a jury instruction was erroneously
given, a specific objection must be made at trial. See Pa.R.A.P. 302(b)
(providing that “[a] general exception to the charge to the jury will not
preserve an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”); see also Pa.R.Crim.P. 647(C)
(providing that “[n]o portions of the charge nor omissions from the charge
may be assigned as error, unless specific objections are made thereto before
the jury retires to deliberate.”); Commonwealth v. Moury, 992 A.2d 162,
178 (Pa. Super. 2010) (stating that “[a] specific and timely objection must
be made to preserve a challenge to a particular jury instruction. Failure to
do so results in waiver.” (citations omitted)). Additionally, an objection
made during the charging conference is insufficient to preserve a challenge
to a jury instruction, where the appellant does not also object after the
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actual instruction has been given. See Commonwealth v. Parker, 104
A.3d 17, 29 (Pa. Super. 2014).
Here, Gaynor objected to the charge during the charging conference,
on the basis that the charge was unnecessary and “onerous,” and the trial
court overruled the objection. See N.T., 2/26/16, at 63. However, Gaynor
failed to lodge a specific objection to the charge after it was read to the jury.
See id. at 93 (wherein, after reading the charge to the jury, the trial court
asked whether either party needed a sidebar, and Gaynor’s counsel
responded in the negative). Because Gaynor failed to object after the
charge had been given, his sole issue on appeal is waived. See Parker, 104
A.3d at 29.5 Accordingly, we affirm Gaynor’s judgment of sentence.
Judgment of sentence affirmed.
5 Even if Gaynor had preserved his claim for our review, we would conclude
that it is without merit. The Pennsylvania Supreme Court has held that an
instruction based on Section 6104 violates due process “when it form[s], by
itself, the basis of a mandatory presumption of intent[.]” Commonwealth
v. Kelly, 724 A.2d 909, 913 (Pa. 1999) (emphasis in original). However,
instructions that create a permissive inference of intent have been upheld.
See Commonwealth v. Hall, 830 A.2d 537, 549-50 (Pa. 2003). The trial
court’s instruction, see FN 4, supra, created a permissive inference of
intent, and Gaynor failed to establish that the facts of this case did not
support the inference. See Hall, 830 A.2d at 547 (stating that “in the case
of mere permissive inferences, the constitutional challenge cannot be raised
in the abstract; the defendant must demonstrate that the inference as
applied to him violated his rights of due process.” (citation omitted)); see
also id. (noting that due process is implicated “only if, under the facts of the
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2017
case, there is no rational way the trier could make the connection permitted
by the inference.” (citation omitted)).
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