Com. v. Shields, M.

J-S70017-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL SHIELDS, :
:
Appellant : No. 1978 EDA 2014
Appeal from the Judgment of Sentence June 9, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0001658-2013
BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 04, 2015
Michael Shields (“Shields”) appeals from the judgment of sentence
entered following his convictions of firearms not to be carried without a
license, tampering with public records, criminal conspiracy, unsworn
falsifications to authorities and violations of the Uniform Firearms Act
(“VUFA”).1 We affirm.
In January 2012, Shields convinced his fiancée, Listeree Brickey
(“Brickey”) to purchase a gun. Shields told Brickey that he would pay for
the gun, but that she had to use her debit card to buy it. On March 1, 2012,
Brickey purchased a Hi-Point JHP .45 caliber gun online, which was shipped
to a store for her to pick up. When filling out the requisite state and federal
paperwork at the gun dealer’s store, Brickey falsely stated that she was not
1
18 Pa.C.S.A §§ 6106(a)(1), 4911(a)(1), 903, 4904(a)(1), 6111(g)(1),(4).
*Retired Senior Judge assigned to the Superior Court.
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buying the firearm for another person. This occurred two more times in May
2012, with Shields providing money to Brickey to purchase the firearms, and
with Brickey denying that she was buying them for another person.
In July 2012, Antonio Pickney was arrested and found in possession of
the .45 caliber gun Brickey purchased on March 1, 2012. In August 2012,
Manuel Santiago, an agent with the Attorney General’s Gun Violence Task
Force, contacted Brickey regarding this firearm and asked to meet with her.
When Brickey mentioned this up-coming meeting to Shields, Shields told her
that if Agent Santiago asked if she lived with anyone, she should not use his
real name, but refer to him by a particular fake name. In her meeting with
Agent Santiago, Brickey stated that she did not know Antonio Pickney and
when asked if she lived with anyone, she gave Agent Santiago the fake
name designated by Shields. During the meeting, Agent Santiago asked
Brickey if they could go to her apartment and to look for her guns. Brickey
contacted Shields while en route to their apartment and told Shields that she
and Agent Santiago were coming to their home to look for the guns she had
purchased. Shields instructed her to tell Agent Santiago that she had
purchased the guns as gifts for her father. Agent Santiago and Brickey
could not find any of the guns in Brickey’s and Shields’ home.
Subsequently, Shields told Brickey to file a police report for the .45 caliber
firearm that was recovered from Antonio Pickney. On this police report,
Brickey identified Shields by his real name as a cohabitant of her home.
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Brickey eventually admitted to Agent Santiago that she lied to him
about Shields’ identity and that she did not buy the guns for her father, but
that she had given them to Shields. Agent Santiago arrested Brickey on
multiple VUFA charges for acting as a straw purchaser for firearms. While
she was in prison on these charges, Shields wrote to Brickey, telling her to
say that she bought the guns for protection and as gifts for her aunt and
mother. Brickey turned these letters over to the Philadelphia District
Attorney’s Office, with whom she was cooperating, and also agreed to record
her phone calls with Shields. In these calls, Brickey tried to convince Shields
to get the guns back, and Shields indicated that he would need $250 to do
so. In December 2012, Shields told Brickey that he succeeded in getting
one of the guns back and that he would deliver it to her mother’s house.
Brickey informed Agent Santiago of this and Agent Santiago retrieved the
gun from Brickey’s mother’s house. Agent Santiago subsequently placed
Shields under arrest.
Following a jury trial, Shields was convicted of the above-mentioned
crimes. He was sentenced to an aggregate term of six and a half to thirteen
years in prison. This timely appeal follows, in which Shields raises only one
question, “[w]hether the evidence was insufficient to support all of [his]
convictions, which were based on a theory of conspiracy liability, because
the evidence was insufficient to sustain the conspiracy conviction?” Shields’
Brief at 4.
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Our standard of review for a claim challenging the sufficiency of the
evidence is as follows:
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. 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 proof 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 the evidence
actually received must be considered. Finally, the
trier of fact while passing on the credibility of
witnesses and the weight of the evidence produced,
is free to believe all, part[,] or none of the evidence.
Commonwealth v. Yong, 120 A.3d 299, 311 (Pa. Super. 2015) (quoting
Commonwealth v. Pappas, 845 A.2d 829, 835-36 (Pa. Super. 2004)).
As stated above, Shields alleges that the evidence was insufficient to
support his conspiracy conviction, and therefore, none of his convictions can
stand because they all are premised on his participation in a conspiracy.
Shields’ Brief at 8.
Section 903 of the Crimes Code defines conspiracy as follows:
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(a) Definition of conspiracy.--A person is guilty
of conspiracy with another person or persons
to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or
(2) agrees to aid such other person or persons
in the planning or commission of such crime or
of an attempt or solicitation to commit such
crime.
18 Pa.C.S.A. § 903(a). Furthermore,
[o]nce the trier of fact finds that there was an
agreement, and that the defendant intentionally
entered into the agreement, that defendant may be
liable for the overt acts committed in furtherance of
the conspiracy regardless of which co-conspirator
committed the act. See Commonwealth v.
Wayne, [] 720 A.2d 456, 463–64 ([Pa.] 1998).
The essence of a criminal conspiracy, which
distinguishes it from accomplice liability, is an
agreement between the co-conspirators. See
Commonwealth v. Lambert, 795 A.2d 1010, 1016
(Pa. Super. 2002). However, “[a]n explicit or formal
agreement to commit crimes can seldom, if ever, be
proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities.”
Commonwealth v. Johnson, 719 A.2d 778, 785
(Pa. Super. 1998) (en banc) (citations omitted).
Therefore, where the conduct of the parties indicates
that they were acting in concert with a corrupt
purpose, the existence of a criminal conspiracy may
properly be inferred. Commonwealth v. Snyder, []
483 A.2d 933, 942 ([Pa. Super.] 1984). Non-
exclusive circumstances that may establish proof of a
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conspiracy include: (1) an association between
alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene
of the crime; and (4) participation in the object of
the conspiracy. Commonwealth v. Swerdlow, []
636 A.2d 1173, 1177 ([Pa. Super.] 1994).
Yong, 120 A.3d at 312.
We begin with the definition of conspiracy:
A person is guilty of conspiracy with another person
or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or
(2) agrees to aid such other person or persons
in the planning or commission of such crime or
of an attempt or solicitation to commit such
crime.
18 Pa.C.S.A. § 903(a).
“A conviction for criminal conspiracy … is sustained where the
Commonwealth establishes that the defendant entered an agreement to
commit or aid in an unlawful act with another person or persons with a
shared criminal intent and an overt act was done in furtherance of the
conspiracy.” Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.
Super. 2002) (en banc) (citation omitted).
Shields argues that “if Brickey believed that she was telling the truth
[on the paperwork required for the purchase of the guns], then it necessarily
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follows that she did not believe that she was involved in a criminal
enterprise.” Shields’ Brief at 11. He concludes that “if she was not a
knowing participant in a criminal conspiracy … then it is legally impossible
for a criminal conspiracy to have been formed.” Id. We agree with Shields
that an agreement between the actors is an essential element of conspiracy.
See 18 Pa.C.S.A. § 903. However, Shield’s argument hinges on the
acceptance of Brickey’s claim that she did not share an agreement with
Shields to act as a straw purchaser for firearms that he would later sell.2
This argument speaks to a claim that the conviction was against the weight
of the evidence, not that the evidence was insufficient to support the
conviction. See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super.
2009) (holding that argument that the finder of fact should have credited a
witness' testimony goes to the weight of the evidence, not the sufficiency of
the evidence). “[A] weight of the evidence claim must be preserved either
in a post-sentence motion, by a written motion before sentencing, or orally
prior to sentencing. Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in its opinion.”
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)
2
As recounted above, the evidence establishes that on three occasions,
Brickey purchased firearms for Shields and at his request; that she lied on
the federal and state documentation that she was required to fill out; that
she lied to Agent Santiago about Shields’ identity and falsely claimed that
she gave two of the guns to her estranged father. The jury was free to
reject Brickey’s explanations for her actions, see Commonwealth v.
Pruitt, 951 A.2d 307, 313 (Pa. 2008), which it obviously did.
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(internal citations omitted); see also Pa.R.Crim.P. 607. The record reveals
that Shields’ only post-sentence motion was a request for reconsideration of
his sentence and that he did not raise this claim prior to sentencing in any
manner. See Trial Court Order, 6/16/14; N.T., 6/9/14, at 2-8. Accordingly,
Shields has not preserved this challenge for appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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