Com. v. McElroy, D.

J-A20001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANNY EDWARD MCELROY :
:
Appellant : No. 9 WDA 2021
Appeal from the Judgment of Sentence Entered December 1, 2020
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000016-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 7, 2022
Danny Edward McElroy presents challenges to the convictions of two
firearm offenses underlying his judgment of sentence. McElroy’s defense to
the crimes is that he did not know that a gun was concealed in the waistband
of his pants because it had been planted there by a friend. We affirm the
judgment of sentence.
At noon on January 2, 2019, Frank Smith was walking to a local store in
Carmichaels, PA when he heard gunshots and noticed two females, one
holding a gun, standing near a white SUV. Smith entered the store and called
911.
Chief Craig Miller of the Carmichaels Police Department was dispatched
to the area. When he arrived at the scene, police from Cumberland Township
were speaking with two residents of an apartment building, and three of the
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four occupants of the white SUV. At the time, McElroy was sleeping in the rear
passenger seat of the SUV. None of the people present mentioned that
gunshots were fired. Police arrested the driver of the SUV on an outstanding
warrant.
That same day at approximately 6:00 p.m., Chief Miller was dispatched
to the same residence, at which point he noticed bullet holes in the door. After
speaking to the two residents of the apartment about the bullet holes and the
earlier incident, the chief placed an alert for the white SUV.
Cumberland Township Police Officer George Devault spotted the SUV
parked in an alley. Jessica Moore Miller, who appeared to be intoxicated, was
outside of the vehicle and got into the driver’s seat and McElroy was in the
front passenger seat. Officer Devault stopped the vehicle when Moore Miller
attempted to drive it, and he placed her under arrest.
When Sergeant Eric Orr of the Cumberland Township Police arrived, he
and Officer Devault approached McElroy and noticed a holster on the floor of
the SUV near his feet. McElroy appear to be lethargic and, as they attempted
to get him out of the vehicle, the police observed McElroy reaching for a bulge
in his waistband three or four times. At each instance, Officer Devault
instructed McElroy to stop and pushed his hand away. When he observed the
bulge was the butt of a firearm, Officer Devault removed the weapon from
McElroy’s waistband.
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The item was a 9-millimeter handgun, with one round of ammunition in
the chamber. McElroy was taken into custody by Chief Miller. When Chief Miller
read McElroy his Miranda rights, McElroy stated that he ”was fucked.” Forensic
analysis did not reveal any of McElroy’s DNA or fingerprints on the weapon.
McElroy was charged with person not to possess a firearm and carrying
a firearm without a license. Prior to trial, the parties stipulated that the firearm
was registered to Moore Miller, neither Moore Miller nor McElroy had a permit
to carry a firearm, and McElroy was prohibited from carrying a firearm due to
a prior conviction. On March 9, 2020, a jury convicted McElroy of both charges.
McElroy was initially sentenced on June 4, 2020. He filed timely post-
sentence motions. On October 5, 2020, the trial court denied McElroy’s
request for a new trial and granted his request for resentencing. On December
1, 2020, the trial court sentenced McElroy to serve terms of incarceration of
four to eight years for the conviction of person not to possess and a concurrent
three to six years for possession without a license. Again, McElroy filed timely
post-sentence motions, which the trial court denied. This appeal followed.
McElroy presents four issues for our consideration. He assails the trial
court’s charge to the jury and the denial of his request to continue the trial.
He also challenges the sufficiency and the weight of the evidence to support
his convictions.
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McElroy first argues that the trial court erred in providing jury
instructions. In essence, he contends the trial judge erred by disjointedly
instructing the jury on the elements of the crimes at the beginning of the trial
and immediately before closing arguments but did not adequately instruct
immediately before the jury retired to deliberation. McElroy further asserts
that the trial court’s instruction improperly indicated that the parties had
stipulated to the element of possession and failed to address the mens rea.
“[W]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated portions, to
determine if the instructions were improper.” Commonwealth v.
Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (citation omitted). “The
trial court is free to use its own expressions as long as the concepts at issue
are clearly and accurately presented to the jury.” Commonwealth v.
Ballard, 80 A.3d 380, 407 (Pa. 2013) (citation omitted). The instructions
must adequately, accurately, and clearly present the law to the jury and must
be sufficient to guide the jury in its deliberations. See Commonwealth v.
Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996).
In addition, before we reach the merits of McElroy’s claim, we must
determine whether the issue has been preserved for appellate review. A
party’s obligations to object to jury instructions are set forth in Pennsylvania
Rule of Criminal Procedure 647, which provides, in relevant part, as follows:
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Rule 647. Request for Instructions, Charge to the Jury, and
Preliminary Instructions
(B) No portions of the charge nor omissions therefrom may be
assigned as error, unless specific objections are made thereto
before the jury retires to deliberate.
Pa.R.Crim.P. 647(B). See also Pa.R.A.P. 302(b) (“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”).
Interpreting this rule, our Supreme Court has held that the plain
language of Rule 647(B) requires a specific objection to assign error to a
controverted aspect of or omission from a jury charge. See Commonwealth
v. Pressley, 887 A.2d 220, 223 (Pa. 2005). The Court has held further that
in the event counsel fails to posit the appropriate objection prior to the jury’s
retirement for deliberation, the underlying point is not preserved for appellate
review and will be deemed waived on appeal. See id. See also
Commonwealth v. Sherwood, 982 A.2d 483, 505 (Pa. 2009) (citing
Pa.R.Crim.P. 647(B)); Commonwealth v. Montalvo, 956 A.2d at 935-936
(Pa. 2008) (holding that the law is clear that in order to preserve a claim
predicated on an allegedly erroneous jury instruction, a litigant must raise an
objection before the jury retires to deliberate).
Our review of the record reflects that the trial court instructed the jury
on the elements of the crimes at the outset of the trial, immediately before
the attorneys presented their opening remarks. See N.T., 3/9/20, at 3-7.
Defense counsel did not offer objections at that time.
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After the defense rested and before the attorneys presented their
closing arguments, the trial court presented jury instructions, which again set
forth the elements of the crimes charged. See id. at 112-118. During these
instructions, defense counsel inquired about the timing of the instructions
coming before closing arguments, and the trial court stated its reasoning for
the order of events. See id. at 114-115. After accepting the trial court’s
explanation, defense counsel noted her objection to the trial judge saying
“that [McElroy] was in possession” and indicated “that’s a finding for the jury
based on mens rea.” Id. at 115. The trial court agreed with defense counsel
and continued with the jury instructions, specifically focusing on the necessary
mens rea. See id. at 115-118. Defense counsel did not object to the language
utilized by the trial court.
After both parties offered closing arguments, the trial court again
instructed the jury, with a focus upon the burden of proof and credibility
determinations. See N.T., 3/9/20, at 123-136. When defense counsel raised
a concern regarding the need to instruct on the elements of the crimes and
mens rea again, the trial court capitulated. See id. at 131-132. However,
when the trial court began to instruct on the elements of the offenses and the
necessary mens rea, defense counsel interrupted with an unrelated requested
clarification pertaining to a stipulation on ammunition. See id. at 134.
Thereafter, the trial court gave the following instruction immediately before
the jury retired to deliberate, “[O]nce again, I read the elements [of the
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crimes] to you two different times, I read the stipulations to you, and again,
the important thing to remember is the law that I had read to you on
culpability, intent, and what we refer to as mens rea.” Id. at 135. Defense
counsel did not make any further objections prior to the jury retiring to
deliberate.
At the conclusion of the instructions to the jury, McElroy had an
opportunity to make a timely objection to the instruction as given and did not
do so. Moreover, the record reflects that McElroy never presented a specific
objection to the language used in the mens rea instructions. Accordingly,
because Appellant failed to object to the trial court’s jury instructions before
the jury retired to deliberate, his claim challenging the instructions pertaining
to the elements and mens rea of the crimes is waived. Regarding McElroy’s
argument that the trial court erred in presenting the instructions in a disjointed
manner, we discern that the instructions were proper and sufficient to guide
the jury in its deliberations. Accordingly, there is no merit to McElroy’s
argument.
Next, McElroy argues that the trial court erred in denying his pretrial
request for a continuance. McElroy claims that he was entitled to a
continuance based on undisclosed evidence of the investigation of the
shooting incident involving the same gun that is the subject of McElroy’s case,
and Moore Miller, who was in the vehicle with McElroy at the time he
encountered the police.
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“The decision of whether to grant or deny a request for a continuance is
within the sound discretion of the trial judge.” Commonwealth v. Pries, 861
A.2d 951, 953 (Pa. Super. 2004) (citation omitted). An abuse of discretion is
“not merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown
by the evidence or the record, discretion is abused.” Id. (citation omitted).
“The refusal to grant a continuance constitutes reversible error only if
‘prejudice or a palpable and manifest abuse of discretion is demonstrated.’”
Id. (quoting Commonwealth v. Griffin, 804 A.2d 1, 12 (Pa. Super. 2002)).
The record indicates that prior to the commencement of trial, defense
counsel requested a continuance. See N.T., 3/9/20, at 7. Specifically, she
noted that there was an ongoing investigation of the shooting incident from
earlier in the day that McElroy was arrested. See id. Counsel indicated that
the information obtained in the investigation would be exculpatory to McElroy
because it would identify Moore Miller as the shooter and offer a motive for
her to plant the gun on McElroy. See id. at 7-8. The Commonwealth agreed
that the investigation was still ongoing but indicated that all evidence received
by the Commonwealth had been provided to McElroy. See id. at 8. The trial
court observed in its opinion that results from the investigation were not
necessary for McElroy to present his theory that the gun had been planted on
his person, which was the defense presented at trial. See Trial Court Opinion,
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10/5/20, at 9-10. As the Commonwealth stated in its appellate brief, Chief
Miller testified that neither McElroy’s DNA nor his fingerprints were found on
the firearm. See Commonwealth’s Brief at 11 (citing N.T., 3/9/20, at 38-40).
Thus, any further test results would not add to the exculpatory evidence
presented by Chief Miller, which supported the defense theory offered at trial.
Accordingly, we are left to conclude that McElroy has failed to establish
an abuse of discretion by the trial court in declining to grant his motion for
continuance. McElroy has failed to demonstrate that, in reaching a conclusion,
the trial court has overridden or misapplied the law. Further, he has not
established that the judgment exercised by the trial court was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will. Therefore,
McElroy has not shown that the trial court’s decision refusing to continue his
trial constituted an abuse of discretion, and this claim lacks merit.
McElroy next argues that the Commonwealth did not present sufficient
evidence to support his firearm violation convictions. Specifically, he claims
that the Commonwealth did not prove the necessary mens rea to support the
convictions.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
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A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,
661 (Pa. Super. 2007) (citation omitted).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). Any doubt
raised as to the accused’s guilt is to be resolved by the fact-finder. See id.“As an appellate court, we do not assess credibility nor do we assign weight
to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d
581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb
the verdict “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.”
Bruce, 916 A.2d at 661 (citation omitted).
To be convicted on a charge of persons not to possess firearms, the
Commonwealth must prove two elements: a previous conviction for an
enumerated offense and possession or use of a firearm. See 18 Pa.C.S.A. §
6501(a)(1). “For a person to “possess” a firearm, he or she must have the
intent to control and the power to control the firearm.” Pa.SSJI (Crim)
15.6105. McElroy is not challenging whether he had a previous conviction
preventing him from possessing a firearm. Rather, he is challenging whether
he had the intent to control and the power to control the firearm.
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The elements of carrying a firearm without a license are met by “any
person who carries a firearm concealed on or about his person ... without a
valid and lawfully issued license under this chapter[.]” 18 Pa.C.S.A §
6106(a)(1). Section 6106 does not contain a specific mens rea requirement.
Further, there is no indication the legislature intended to impose strict liability
for the crime. Therefore, “the Commonwealth must establish that a defendant
acted ‘intentionally, knowingly or recklessly’ with respect to each element” of
Section 6106(a). Commonwealth v. Scott, 176 A.3d 283, 291 (Pa. Super.
2017). McElroy is not challenging whether he had license to carry the firearm,
he is only challenging whether he intentionally, knowingly, or recklessly
carried the firearm in question under the statute.
Our review of the record establishes that Officer Devault, the police
officer who recovered the firearm from the defendant’s person, testified at
McElroy’s trial and explained that when he was assisting in removing McElroy
from the SUV, he observed McElroy reaching for a bulge in his waistband
“many times.” See N.T., 3/9/20, at 56-58. In addition, Officer Orr testified
regarding his presence at the scene. The officer stated that he observed a
conceal carry purse and a holster at McElroy’s feet while he was in the vehicle.
See id. at 73-75. Officer Orr further explained the circumstances surrounding
the removal of McElroy from the vehicle and noted that the defendant had
reached for a bulge in his waistband multiple times and Officer Devault
repeatedly knocked McElroy’s hand away from the waistband. See id. at 75-
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76. Officer Orr further testified that Officer Devault kept yelling at McElroy to
“stop reaching.” See id. at 76. Chief Miller also testified that during the
incident he “heard some yelling from the officers [for McElroy] to stop
reaching.” See id. at 28-29. Further, Chief Miller explained that when McElroy
was read his Miranda warnings, he stated that he “was fucked.” See id. at 30.
The totality of this evidence and all reasonable inferences derived
therefrom, viewed in the light most favorable to the Commonwealth, although
circumstantial, is sufficient to permit the jury to infer that McElroy had the
intent and power to control the firearm. The evidence further is sufficient to
establish McElroy knowingly carried the firearm concealed at his waist when
he was removed from the SUV. Therefore, Appellant’s claim that the
Commonwealth failed to present sufficient evidence to prove the required
mens rea for each of the firearm crimes lacks merit.
McElroy last argues that the verdict was against the weight of the
evidence. He alleges that the evidence presented supports his version of the
events, i.e., that the gun was planted on him while he was unconscious. We
disagree.
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 witnesses. See Commonwealth v. Small, 741 A.2d 666, 672
(Pa. 1999) (citation omitted). When considering a motion that a verdict was
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against the weight of the evidence, a “trial court should award a new trial on
this ground only when the verdict is so contrary to the evidence as to shock
one’s sense of justice.” Commonwealth v. Chamberlain, 30 A.3d 381, 396
(Pa. 2011) (citation omitted).
This Court’s standard of review of a trial court’s decision regarding a
weight of the evidence claim is limited to determining whether the trial court
palpably abused its discretion in concluding that the verdict was or was not
against the weight of the evidence. See Commonwealth v. Champney, 832
A.2d 403, 408 (Pa. 2003). “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 and reasons advanced by the trial judge
when reviewing a trial court’s determination that the verdict is against the
weight of the evidence.” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.
Super. 2015) (citation omitted). “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.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (citations omitted)
The jury, sitting as the finder of fact, chose to believe the evidence
presented by the Commonwealth, as well as the logical inferences derived
therefrom, as was its right. In addressing McElroy’s challenge to the weight of
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the evidence, the trial court made the following observation regarding the
facts established by the evidence:
There was no evidence presented that the Commonwealth's
witnesses lied or otherwise misled the jury. The testimony of the
police officers that [McElroy] repeatedly appeared to reach toward
his waistband where a weapon was found, and [McElroy’s]
statement to Chief Craig Miller after being read his “Miranda
warning” that he "was fucked,” if believed by the jury, would
remove the likelihood that their verdict was “pure conjecture” nor
that the verdict would “shock one’s sense of justice.”
Trial Court Opinion, 8/5/20, at 6-7. We can find no abuse of discretion in this
conclusion.
The jury weighed the evidence and concluded McElroy was the
perpetrator of the firearms crimes in question as he possessed the gun with
the requisite mens rea for each crime. This determination is not so contrary
to the evidence so as to shock one’s sense of justice. We decline McElroy’s
invitation to assume the role of fact finder and to reweigh the evidence.
Accordingly, we conclude that the trial court did not abuse its discretion in
determining McElroy’s weight of the evidence claim lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/07/2022
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