Com. v. Poust, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CRAIG POUST
Appellant No. 2016 MDA 2016
Appeal from the Judgment of Sentence October 13, 2016
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000106-2016
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 21, 2017
Craig Poust appeals from the aggregate judgment of sentence of eight
and one-half to twenty years incarceration imposed following his conviction
at a bench trial for numerous drug and gun crimes. We affirm the
convictions, but vacate judgment of sentence and remand for further
proceedings.
The Commonwealth established the following. On February 29, 2016,
authorities from the Pennsylvania State Police executed a search warrant on
a residence. N.T., 10/11/16, at 30. The property to be searched was
described as a “36 to 38 foot, fifth-wheel camper with a couple slide-outs.”
Appellant and his live-in girlfriend, Chanel Kantz, were present when the
warrant was executed. Id. at 11. Corporal Brent Bobb asked Appellant if
* Former Justice specially assigned to the Superior Court.
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there were any weapons in the residence, and Appellant showed the
authorities a handgun located near the entrance on top of a small wooden
cabinet. Id. at 12, 34.
Located within approximately six inches of the firearm was an oil filter
with a hole at the end, such that a bullet could pass through. Suspecting
that the device was a homemade sound suppressor, Corporal Chad Shultz
placed the oil filter on the firearm’s muzzle and observed that the filter fit on
the threaded portion. He further testified that the oil filter, which would not
otherwise fit the gun’s threading, had a special adapter. Id. at 37-38.
Appellant told Corporal Bobb that the adapter was a solvent catcher, and
claimed that the hole in the oil filter resulted when “[Kantz] was cleaning her
gun and accidentally fired a round through the oil can.” Id. at 39. The
officers then proceeded to search a separate structure immediately next to
the camper, which contained a marijuana growing operation. Id. at 41-42.
Appellant was subsequently charged with four counts pertaining to the
marijuana: possession with intent to deliver, manufacture, conspiracy to
manufacture, and possession of drugs. Respecting the firearm, he was
charged with prohibited possession of a firearm and possession of a
prohibited offensive weapon. Following a bench trial, Appellant was found
guilty of all charges except conspiracy. The court imposed sentence two
days after trial, over Appellant’s objection, and without the benefit of a pre-
sentence investigation report.
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On October 20, 2016, Appellant filed counseled post-sentence
motions. Five days later, Appellant filed a pro se notice of appeal. The trial
court accepted the pro se motion, granted his request for in forma pauperis
status notwithstanding the fact Appellant was already represented, and
denied the post-sentence motion as moot due to the filing of the pro se
notice of appeal. This order also states that the post-sentence “[m]otion
would be denied in any event.” Order, 10/27/16, at 1.
The judge then directed counsel to file a concise statement of matters
complained of on appeal. Appellant’s counsel complied, and filed a
statement raising the same seven issues presented in the October 20, 2016
post-sentence motion. Counsel then mistakenly filed a notice of appeal to
the Commonwealth Court of Pennsylvania, which transferred the appeal to
this Court. Order, 11/28/16, at 1. Thus, counsel apparently treated the
October 25, 2016 order as validly denying the post-sentence motions.
Preliminarily, we note the procedure irregularities that implicate our
jurisdiction. Appellant’s pro se notice of appeal should have been accepted
for filing and forwarded to counsel.1 Counsel had already filed post-sentence
____________________________________________
1
Rule of Criminal Procedure 576(A)(4) states:
In any case in which a defendant is represented by an attorney,
if the defendant submits for filing a written motion, notice, or
(Footnote Continued Next Page)
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motions, and it was improper to deny those motions as moot due to a pro se
notice of appeal. See Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011)
(litigant, unbeknownst to counsel, filed pro se notice of appeal which
proceeded on its course; counsel simultaneously filed post-sentence
motions, resulting in parallel appeals).
The question is what effect those circumstances have on this appeal.
We could quash the appeal and remand for consideration of the timely post-
sentence motions. Commonwealth v. Borrero, 692 A.2d 158 (Pa.Super.
1997) (treating as interlocutory an appeal filed while post-sentence motions
were still pending when appeal was filed, trial court ordered to deem post-
sentence motions filed nunc pro tunc on date the certified record was
remanded). However, we believe that action is unwarranted in light of our
conclusion that Appellant is entitled to a resentencing hearing, and Appellant
is therefore free to file post-sentence motions regarding any issues arising
from that proceeding.
_______________________
(Footnote Continued)
document that has not been signed by the defendant's attorney,
the clerk of courts shall accept it for filing, time stamp it with the
date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy
of the time stamped document shall be forwarded to the
defendant's attorney and the attorney for the Commonwealth
within 10 days of receipt.
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As to the remaining legal claims, we shall address them in the interest
of judicial economy. Quashing this appeal would serve only to delay the
resentencing. Significantly, the remaining legal questions are amenable to
disposition at this time as the record is complete. “The Superior Court had
everything it needed to dispose of the appeal on its merits, and there was no
basis for returning the matter to the trial court.” C.f. Cooper, supra at
1008; Borrero, supra (observing that quashing appeal was necessary due
to fact one of the issues challenged the weight of the evidence, which must
be first addressed by the trial judge); Hence, we decline to quash despite
the improper denial of post-sentence motions, and address the issues
presented by Appellant for our consideration.
I. Whether the Commonwealth proved by sufficient evidence that
the appellant farmed 21 marijuana plants?
II. Whether the guilty verdict on count 5 (felon not to possess
firearm) was supported by sufficient evidence to establish that
the appellant constructively possessed a firearm which was
lawfully owned and possessed by his live-in girlfriend?
III. Whether the guilty verdict on count 6 (prohibited offensive
weapons) was supported by sufficient evidence to establish that
the appellant constructively possessed the oil filter/suppressor
device which was ordered, owned, and possessed by his live-in
girlfriend?
IV. Whether the trial court erred in permitting Ms. Chanel Kantz
to invoke her Fifth Amendment right to remain silence [sic] with
respect to the facts surrounding counts 5 as she did not face
criminal jeopardy on the same?
V. Whether the trial court erred in sentencing Mr. Poust on two
days short notice after verdict without the benefit of a pre -
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sentence investigation report and without time to prepare
evidence in support of leniency?
VI. Whether the trial court erred in imposing consecutive
sentences on the theory that Mr. Poust was a dangerous, armed
drug dealer when that theory was based on pure speculation and
there was no basis for concluding that Mr. Poust used the
handgun or suppressor device in furtherance of illegal acts?
Appellant’s brief at 5-6.
Appellant’s first three claims are presented as challenges to the
sufficiency of the evidence. Whether the evidence was sufficient to support
the conviction presents a matter of law; our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Walls, 144 A.3d
926, 931 (Pa.Super. 2016) (citation omitted). In conducting our inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).
First, Appellant faults the adequacy of the Commonwealth’s evidence
that he grew twenty-one marijuana plants, as opposed to sixteen. Since the
number of plants is not relevant to the sufficiency of the evidence for any of
Appellant’s convictions, but rather the offense gravity score, see 204
Pa.Code. § 303.15 (for manufacture/possession with intent to deliver,
offense gravity score is seven for twenty-one to fifty-one plants, and five for
ten to twenty-one plants), we defer discussion of this issue.
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Appellant’s second and third issues concern the crimes of prohibited
possession of a firearm and prohibited offensive weapon. The former
offense criminalizes the following:
(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.
18 Pa.C.S. § 6105(a)(1). The latter crime reads as follows:
(a) Offense defined.--A person commits a misdemeanor of the
first degree if, except as authorized by law, he makes repairs,
sells, or otherwise deals in, uses, or possesses any offensive
weapon.
18 Pa.C.S. § 908. 2
Appellant’s argument regarding both convictions overlaps and
exclusively challenges the element of possession. Since Appellant was not in
actual possession of the firearm, the Commonwealth’s case rests on
constructive possession, which 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
____________________________________________
2
We note that the definition of offensive weapon includes a “firearm . . .
specially adapted for concealment or silent discharge[.]” 18 Pa.C.S. §
908(c).
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was more likely than not.” Commonwealth v. Mudrick, 507 A.2d 1212,
1213 (Pa. 1986). The Commonwealth must establish “conscious dominion,”
which is defined as “the power to control the contraband and the intent to
exercise that control.” Commonwealth v. Parker, 847 A.2d 745, 750
(Pa.Super. 2004) (citation omitted). In assessing whether the
Commonwealth has established the power and intent to exercise control, we
look to the totality of the circumstances.
Constructive possession may be proven by circumstantial
evidence and the requisite knowledge and intent may be inferred
from examination of the totality of the circumstances. Moreover,
we review circumstantial evidence under the same standard as
direct evidence, i.e., that a decision by the trial court will be
affirmed “so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt.
Commonwealth v. Smith, 146 A.3d 257, 263 (Pa.Super. 2016) (quotation
marks and citations omitted). The Commonwealth cannot satisfy its case
through evidence so patently unreliable that only conjecture will lead to the
necessary factual finding. “It is well settled that facts giving rise to mere
‘association,’ ‘suspicion’ or ‘conjecture,’ will not make out a case of
constructive possession.” Commonwealth v. Valette, 613 A.2d 548, 551
(Pa. 1992). Thus, we have established that a minimum requirement in
constructive possession cases is that the defendant have knowledge of the
item’s existence. Commonwealth v. Hamm, 447 A.2d 960, 962
(Pa.Super. 1982) (“At the least, the evidence must show that the defendant
knew of the existence of the item.”) (citations omitted).
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Appellant argues that the evidence establishing constructive
possession was nothing more than conjecture. He highlights that the gun
was found on a shelf, and, as such, both he and his girlfriend had equal
access to the firearm. Appellant also states that he was well aware of his
inability to lawfully possess firearms and therefore avoided possessing the
firearm.
Appellant is correct that the fact multiple persons have equal access to
the item cannot conclusively establish possession. “[W]here another person
has equal access to the area where illegal contraband or weapon is found,
the defendant cannot be said to have either the power to control or the
intent to control such contraband or a weapon per se.” Commonwealth v.
Heidler, 741 A.2d 213, 216 (Pa.Super. 1999) (en banc).
Nevertheless, equal access is not an affirmative defense, as more than
one person can constructively possess an item. Commonwealth v.
Macolino, 469 A.2d 132, 136 (Pa. 1983) (“It is no defense that the
appellee's wife could also have maintained a conscious dominion over the
cocaine. Possession of an illegal substance need not be exclusive; two or
more can possess the same drug at the same time.”). “[I]t is possible for
two people to have joint constructive possession of an item of contraband.”
Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa.Super. 2014). Therefore,
the fact Appellant’s girlfriend had equal access is simply a relevant
consideration under the totality of the circumstances.
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We are satisfied that the totality of the circumstances warrants
affirmance. The threshold requirement of knowledge of the item’s existence
was clearly met, as the evidence established that Appellant lived at the
residence and directed the officers to the gun and oil filter. Additionally,
Appellant identified the real firearm among a collection of “multiple airsoft
toys in the camper,” which Corporal Bobb testified were “very realistic
looking.” N.T., 10/11/16, at 21. The fact that Appellant knew the location
of the one real firearm among several air guns suggested intimate
knowledge. Furthermore, Appellant and his girlfriend resided in a small
camper. Appellant’s argument that he would refrain from possessing the
firearm due to his prior conviction proves the necessity of the constructive
possession doctrine, which is “a pragmatic construct to deal with the realities
of criminal law enforcement.” Mudrick, supra at 1213. Obviously, it would
frustrate legitimate law enforcement purposes if Appellant, who is prohibited
from lawfully possessing a firearm, could insulate himself from prosecution
by claiming his own legal disability as a pseudo defense to the charge.
These circumstances are similar to Commonwealth v. Sanes, 955
A.2d 369 (Pa.Super. 2008), in which Sanes was convicted of, inter alia,
possession of a firearm discovered during a search warrant. Sanes, who was
discovered in a bedroom along with his girlfriend, showed police where two
guns were located. Id. at 371. We affirmed, stating, “[M]ere presence at
the scene is insufficient to prove constructive possession . . . [but] appellant
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lived in the residence, knew exactly where the firearms were, and led police
to them.” Id. at 374 (citations omitted). Viewing the totality of the
circumstances in the light most favorable to the Commonwealth as verdict
winner, we conclude that the evidence was sufficient to sustain the finding of
constructive possession.
Appellant’s fourth issue challenges the trial court’s ruling that Chanel
Kantz, whom Appellant called as a defense witness, properly invoked her
Fifth Amendment privilege against offering testimony. The following
discussion occurred.
THE COURT: Well, Mr. Best, what questions because not all
questions would be privileged I would assume. What questions
would you pose to Ms. Kantz?
MR. BEST: Your Honor, my questions are going to hone in on
the issue of the firearm that specifically that she was the owner
of the firearm. As to my understanding that she kept the
firearm in a lock box or habit of keeping the firearm in a lock
box, and as to where that firearm had been stowed on the day in
question and as to whether or not Ms. Kantz had taken it out of
the lock box on the date in question. And I was also intending to
ask her about whether or not she had acquired the oil can with
the intention of using it as a solvent catcher. I would argue to
the Court if the privilege is invoked that those would be lawful
activities for her and may not necessarily be covered by
privilege. I represent to the Court that I do not intend at all to
ask her anything to do with any allegations of marijuana
cultivation or use.
N.T., 10/11/16, at 63.
As reflected by Appellant’s response, there were at least two separate
topics with respect to the firearm: the generic possession of the firearm, and
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its adaptation for silent discharge. After Ms. Kantz stated under oath that
she intended to invoke her rights, the trial court granted a blanket privilege,
i.e. a privilege not to answer any questions, a practice our law generally
disfavors. “In addition, a witness may ordinarily only assert the privilege to
avoid responding to a particular question. A blanket privilege generally is not
permitted.” Commonwealth v. Treat, 848 A.2d 147, 148 (Pa.Super.
2004) (citing Commonwealth v. Tielsch, 789 A.2d 216, 217 (Pa.Super.
2001)).
The instant ruling is reviewed for an abuse of discretion. Tielsch,
supra at 217; Commonwealth v. Doolin, 24 A.3d 998 (Pa.Super. 2011)
(“[W]e cannot conclude that the trial court abused its discretion by granting
[the witness] a blanket Fifth Amendment privilege in this case.”). The Treat
Court summarized the applicable legal principles.
As we stated in [Commonwealth v. Kirwan, 847 A.2d 61
(Pa.Super. 2003)], “[t]here is no formula for determining when
and how the Fifth Amendment privilege can be asserted (nor do
we think one should be created)....” Kirwan, 847 A.2d at 65.
We are confident that trial courts can draw on their wealth of
experience and fashion procedures appropriate to the
practicalities of the case and that will allow the judge to make a
sufficiently informed decision. We are likewise confident that
lower courts will create a record sufficient to demonstrate the
propriety of permitting or denying the privilege at the same time
as preserving any Fifth Amendment right.
The relevant parameters of the privilege are clear. The privilege
extends not only to statements that by themselves would be
evidence that the declarant has committed a crime, but also to
assertions that would be “a link in the chain” of evidence needed
to convict. Commonwealth v. Kopicz, 2003 Pa. Super. 499, ¶
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19, 840 A.2d 342. “An individual who invokes the privilege must
have a reasonable basis for believing that the testimony to be
given will be incriminatory.” Commonwealth v. Rizzo, 455
Pa.Super. 311, 688 A.2d 185, 190 (1996), rev'd on other
grounds, 556 Pa. 10, 726 A.2d 378 (1999)
....
[T]he trial court must decide for itself whether the privilege
exists. “It is for the court to say whether [the witness'] silence
is justified.” Hoffman v. United States, 341 U.S. 479, 486, 71
S. Ct. 814, 95 L. Ed. 1118 (1951). Unless the privilege clearly
does not apply, the trial court should not require the witness to
answer.
Id. at 148–49 (footnote and paragraph numbers omitted).
We find no cause to disturb the trial court’s ruling. First, with respect
to any questions about the oil filter adapter, Kantz was awaiting trial on a
prohibited offense weapon charge. Thus, any questions regarding that topic
would clearly be covered by the privilege.
Second, we find that the same logic extends to questions regarding
the possession of the gun. The parties did not dispute that Kantz purchased
the firearm, and her possession of the weapon in and of itself was not illegal.
Therefore, Appellant plausibly posited that Kantz could answer generic
questions about the gun and how it was stored. However, possession is an
element of the crime of prohibited offensive weapon. Thus, we cannot say
the privilege clearly does not apply, and therefore the court did not abuse its
discretion.
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Additionally, we note that in Commonwealth v. Knox, 105 A.3d 1194
(Pa. 2014), our Supreme Court observed that a criminal defendant may be
held accountable for the illegal possession of a firearm by another.
The facts underlying this appeal are cumbersome. In general,
they reflect a recurring scenario in which a defendant (presently,
Appellant) is charged with a possessory weapons offense
deriving from the role of a firearm in a broader criminal
undertaking, although, factually, another person (here,
Appellant's brother) actually possessed the weapon during the
episode and the defendant himself was unarmed.
Id. at 1195. This case implicates a variation of that scenario, as Appellant
was lawfully prohibited from possessing a firearm due to a prior conviction.
Thus, any admission by Kantz that she knowingly possessed the firearm and
permitted Appellant access could subject her to later prosecution, on a
theory of accomplice or conspiratorial liability for Appellant’s prohibited
possession of a firearm, assuming it could be established that Kantz knew
Appellant was not permitted to possess a firearm. Therefore, her testimony
would possibly provide a link in a chain of evidence needed to convict.
Appellant’s remaining issues concern sentencing. He posits that the
trial court erred by failing to order a pre-sentence investigation (“PSI”)
report. Next, regarding the actual sentence, Appellant argues that the trial
court abused its discretion in imposing consecutive sentences. Finally,
Appellant maintains that the Commonwealth failed to establish that he
possessed twenty-one plants. We conclude that Appellant is entitled to a
new sentencing hearing because the court erroneously sentenced Appellant
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without the benefit of a PSI report, and we do not reach the remaining
sentencing issues.
“[A] claim that the court erred in failing to order a PSI report raises a
discretionary aspect of sentencing of which a defendant's right to appellate
review is exceptionally limited.” Commonwealth v. Flowers, 950 A.2d
330, 331 (Pa.Super. 2008). Before we review such a claim on the merits,
we engage in a four part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [see
Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate under the
sentencing code. ...
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation
omitted). This appeal was timely filed and includes a separate statement of
reasons as required by Pa.R.A.P. 2119(f). Additionally, Appellant specifically
objected to the lack of a PSI report at the sentencing hearing, preserving the
issue for our review. Finally, Appellant alleges that the court did not state
adequate reasons for dispensing with the report. This claim presents a
substantial question. Flowers, supra.
We now examine the merits. Pursuant to Pa.R.Crim.P. 702(A)(2)(a), a
judge is required to explain the reasons for dispensing with a PSI report
when, as here, incarceration for one year or more is a possible sentence.
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The trial court did not give an on-the-record explanation for its failure.
Instead, the trial court justified its decision in its Pa.R.A.P. 1925(a) opinion
as follows.
The Court had the Sentencing Guideline forms and based the
sentence on those. The sentences all were within the standard
range of the Sentencing Guidelines and the Court did not deviate
in any way from a standard range sentence.
The defense has failed to cite any reason why a delay in
sentencing would have aided the Defendant or assisted the Court
in fashioning any type of a different sentence.
Trial Court Opinion, 12/29/16, at 8.
The failure to set forth this rationale at the sentencing hearing itself
warrants reversal. “[A] sentencing court's reasons for a particular sentence
must be given contemporaneously with the imposition of the sentence. A
more extensive explanation in an opinion filed pursuant to Rule 1925(a) will
not cure a failure to articulate reasons at the time of sentencing.”
Commonwealth v. Serrano, 150 A.3d 470, 475, n.7 (Pa.Super. 2016)
(citation omitted). Even if there is a distinction to be drawn between the
reasons for a sentence and the reasons for dispensing with a PSI, the trial
court incorrectly focused its analysis on the length of the sentence. Yet that
conclusion overlooks the fact that Appellant’s PSI claim pertains to whether
the sentence was appropriately individualized. In other words, Appellant’s
claim challenges the means by which the trial court arrived at its sentence,
not the actual sentence.
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We recognize that the failure to order a PSI does not warrant reversal
per se. In Flowers, supra, we held that Rule 702(A)(2) does not require a
court to specifically document the reasons for dispensing with a report if the
judge possesses the necessary information from another source. Thus,
Flowers recognized that the harmless error doctrine might apply “[if] the
court elicited sufficient information during the colloquy to substitute for a PSI
report, thereby allowing a fully informed sentencing decision.” Id. at 333.
However, the fact that the trial court faulted Appellant for not offering
mitigating information after-the-fact amounts to a concession that the court
failed to “elicit[ ] sufficient information . . . to substitute for a PSI report” at
the time of sentencing. Flowers, supra. Appellant did not bear the burden
of establishing that a PSI would have been helpful. Accordingly, this
sentence was not individualized and therefore must be vacated. Since we
conclude Appellant is entitled to resentencing we need not address
Appellant’s remaining sentencing claims.
Finally, we note that, following submission of briefs in this matter,
counsel filed an application to withdraw representing that his contract with
Snyder County for court appointments terminated during the pendency of
these proceedings. We grant that application. Upon remand, the trial court
shall appoint new counsel for any further proceedings.
Judgment of sentence vacated. The application of James L. Best, Esq.
to withdraw granted. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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