Com. v. Tipton, J.

J-S26004-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIE ANN TIPTON :
:
Appellant : No. 720 WDA 2019
Appeal from the Judgment of Sentence Entered March 14, 2019
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000143-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 23, 2020
Julie Ann Tipton (Appellant) appeals from the judgment of sentence
imposed after a jury convicted her of conspiracy to commit persons not to
possess firearms.1 After careful review, we affirm.
On February 24, 2017, Appellant was charged with two counts of
intentionally/knowingly returning a firearm to a person with a current
Protection from Abuse (PFA) order, 18 Pa.C.S.A. § 6105(a.1)(5), stemming
from an incident that occurred on September 25, 2016. That day, Sergeant
Benjamin Whitmore, while investigating an unrelated incident, observed
Appellant’s husband, William Tipton (Tipton), retrieve a semi-automatic
firearm from his residence and allow his six-year-old daughter to hold the gun
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 903 and 6105(a)(1).
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and fire a shot into the woods. Affidavit of Probable Cause, 2/24/17. Sergeant
Whitmore approached Tipton, who informed Sergeant Whitmore that he was
not permitted to own a firearm because he is a convicted felon, but that the
firearm belonged to his wife, Appellant.2 Tipton and Appellant informed
Sergeant Whitmore that they had two firearms, a handgun and a shotgun,
which were purchased for protection.
On February 4, 2019, Appellant filed a motion to dismiss the criminal
information, asserting that the charges should be dismissed because Tipton
was not a defendant in a PFA action. In response, on February 5, 2019, the
Commonwealth filed a motion to amend the criminal information. A hearing
on both motions occurred on February 7, 2019. At its conclusion, the trial
court granted the Commonwealth’s motion to amend the criminal information
and denied Appellant’s motion to dismiss. Accordingly, the Commonwealth
amended the criminal information to remove the two counts of
intentionally/knowingly returning a firearm to a person with a current PFA–
order, and added one count of conspiracy to commit persons not to possess
firearms.
A one-day jury trial commenced on February 12, 2019, after which the
jury convicted Appellant of the one count of conspiracy in the amended
criminal information. On February 20, 2019, Appellant filed a motion for new
trial, which the trial court denied, and on March 14, 2019, Appellant filed a
____________________________________________
2 It is undisputed that Tipton has a conviction that disqualifies him from
possessing a firearm. See N.T., 2/12/19, at 89.
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motion for extraordinary relief, which the court also denied. The trial court
sentenced Appellant to 22 months to 44 months at a state correctional facility
on March 14, 2019. Appellant filed a timely but unsuccessful post-sentence
motion. This appeal followed. Both the trial court and Appellant have
complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents two issues for our review (reordered for ease of
discussion):
1. Whether the trial court abused its discretion in permitting the
Commonwealth to amend the [c]riminal [i]nformation 4 days
before trial finding that (a) the amendment of the substantive
offense from “Knowing/Intentionally Returning a Firearm to
Someone with a Protection from Abuse Order” to “Conspiracy
to Commit Person Not to Possess Firearms” does not charge
an additional or different offense, and (b) the [Appellant] was
not prejudiced by the 11th hour amendment?
2. Whether there was sufficient evidence to find the [Appellant]
guilty beyond a reasonable doubt of Conspiracy to Commit
Person Not to Possess Firearms where the evidence presented
by the Commonwealth clearly failed to demonstrate (a) an
agreement between the [Appellant] and her co-defendant, (b)
a share[d] criminal intent to effectuate the object of said
conspiracy, and (c) an overt act in furtherance of the
conspiracy?
Appellant’s Brief at 5.
In her first issue, Appellant contends that the trial court erred by
allowing the Commonwealth to amend the criminal information four days
before trial. Appellant’s Brief at 13-21. Appellant avers:
The amendment completely changed the elements that the
Commonwealth must prove i.e. that the [Appellant] knowingly
allowed someone with a PFA access to firearms that was given to
[Appellant] for safekeeping to the [Appellant] entered into an
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agreement with another with the shared criminal intent and
purpose of committing Person Not to Possess Firearms and
thereafter taking some overt act in furtherance of the conspiracy.
Id. at 19.
We have explained:
[W]hen presented with a question concerning the propriety of an
amendment, we consider:
[w]hether the crimes specified in the original
indictment or information involve the same basic
elements and evolved out of the same factual
situation as the crimes specified in the amended
indictment or information. If so, then the defendant
is deemed to have been placed on notice regarding his
alleged criminal conduct. If, however, the amended
provision alleges a different set of events, or the
elements or defenses to the amended crime are
materially different from the elements or defenses to
the crime originally charged, such that the defendant
would be prejudiced by the change, then the
amendment is not permitted. Additionally, [i]n
reviewing a grant to amend an information, the Court
will look to whether the appellant was fully apprised
of the factual scenario which supports the charges
against him. Where the crimes specified in the
original information involved the same basic elements
and arose out of the same factual situation as the
crime added by the amendment, the appellant is
deemed to have been placed on notice regarding his
alleged criminal conduct and no prejudice to
defendant results.
Further, the factors which the trial court must consider in
determining whether an amendment is prejudicial are:
(1) whether the amendment changes the factual
scenario supporting the charges; (2) whether the
amendment adds new facts previously unknown to the
defendant; (3) whether the entire factual scenario
was developed during a preliminary hearing; (4)
whether the description of the charges changed with
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the amendment; (5) whether a change in defense
strategy was necessitated by the amendment; and (6)
whether the timing of the Commonwealth’s request
for amendment allowed for ample notice and
preparation.
In re D.G., 114 A.3d 1091, 1094–95 (Pa. Super. 2015) (citations omitted).
Here, the trial court concluded:
The [Appellant] asserts she was prejudiced because, if the
Commonwealth would have proceeded on the initial charge, she
would have been able to demonstrate that there was no active
PFA order against her husband, William Tipton. Although this may
be true it ignores the fact that the [Appellant] told Sergeant
Whitmore that she knew her husband “wasn’t supposed to have a
gun but that they had it for protection.” She did not mention a
PFA or that she knew there was a PFA, she only indicated that she
knew he wasn’t allowed to possess the firearm. Therefore, there
is no showing that the amendment created last minute surprise.
Also, the [Appellant] asserted that, had she had more time from
the amendment to the start of trial she may have been able to
present a different defense. However, she has failed to
demonstrate that this is actually the case. Had the trial been
continued the Commonwealth would have presented the same
evidence that William Tipton was convicted of offenses that
prohibited him from possessing a firearm; and, that the
[Appellant] knew about this because she told Sergeant Whitmore
that she knew he wasn’t supposed to have a gun. Mr. Tipton may
have been called by the defense if the case was continued, but,
calling Mr. Tipton would likely strengthen the fact that he was
convicted of prior offenses that prohibited him from possessing a
firearm; and, the Commonwealth could have questioned him
regarding his substantial relationship with the [Appellant]. Any
testimony he would provide about the [Appellant’s] lack of
knowledge of this prohibition would be in direct contrast to her
statements to Sergeant Whitmore that she did. Also, the defense
certainly should have been prepared to call him regardless of
whether the assertion was that his wife didn’t have knowledge of
a PFA, or, his prior convictions. Therefore, the court properly
found that the elements of the initial counts in the information and
the amended counts involved the same facts and the same basic
elements; and, the [Appellant] has failed to demonstrate any
actual prejudice entitling her to relief.
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Trial Court Opinion, 10/10/19, at 9-10.
The record supports the trial court’s rationale. Appellant was on notice
that the Commonwealth intended to charge her with a crime relating to
Tipton’s unlawful possession of a firearm. Appellant does not articulate any
specific prejudice she suffered by the amendment; rather, she generally
alleges that the amendment “changed the defense to the charges, i.e. that
Mr. Tipton never owned firearms and never had a PFA to there was no
agreement between Appellant and Mr. Tipton, with no shared intent and no
act in furtherance.” Appellant’s Brief at 19. While true, we note that the
factual scenario was unchanged, and in defending the conspiracy charge,
there appears to be no prejudice where Appellant was aware of the same facts
and extensively cross-examined Sergeant Whitmore about Appellant’s
knowledge of Tipton’s access to the firearm, and elicited testimony from him
regarding Appellant’s role in Tipton possessing the firearm. N.T., 2/12/19, at
78-80, 90-94.
Appellant also suggests that she suffered prejudice because, had she
been on notice of the Commonwealth’s intention to amend the information,
she may have called Tipton and Pennsylvania State Trooper Maxim to testify
on her behalf. Appellant’s Brief at 20. However, as stated by the trial court,
Tipton’s testimony would have likely supported the Commonwealth’s assertion
that Tipton was convicted of an offense that prohibited him from possessing a
firearm. Further, although Appellant asserts that she may have called Trooper
Maxim to testify, she fails to explain how his testimony would have helped her
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defense. We also note that Appellant never requested a postponement to
make arrangements for additional witnesses or otherwise attend to her
defense. Accordingly, Appellant’s first issue lacks merit.
In her second issue, Appellant argues the evidence was insufficient to
support her conviction for conspiracy to commit persons not to possess
firearms. Our standard of review
requires that we consider the evidence admitted at trial in a light
most favorable to the Commonwealth, since it was the verdict
winner, and grant it all reasonable inferences which can be derived
therefrom. The evidence, so viewed, will be deemed legally
sufficient to sustain the jury’s conviction on appeal only if it proves
each element of the offense charged beyond a reasonable doubt.
Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011).
A jury convicted Appellant pursuant to 18 Pa.C.S.A. §§ 903 and 6105,
which provide:
§ 903. Criminal conspiracy
(a) Definition of a 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 . . . .
§ 6105. Persons not to possess, use, manufacture, control, sell
or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b) ... shall not possess,
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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.A. §§ 903(a)(1) and 6105(a)(1). “[T]o sustain a conviction for
criminal conspiracy, the Commonwealth must establish that the defendant (1)
entered into an agreement to commit or aid in an unlawful act with another
person or persons, (2) with a shared criminal intent and (3) an overt act was
done in furtherance of the conspiracy.” Commonwealth v. Murphy, 795
A.2d 1025, 1037–38 (Pa. Super. 2002) (quotations omitted).
Appellant contends that “it is abundantly clear” that there was no
agreement between Appellant and her husband for him to possess a firearm.
Appellant’s Brief at 24. Appellant asserts that she informed officers that she
owned the firearm, not Tipton, and that she never agreed to allow him to
possess or have access to the firearm. Id. at 25.
In considering this issue, “we bear in mind that the Commonwealth may
sustain its burden by means of wholly circumstantial evidence, and the trier
of fact, while passing upon the credibility of witnesses and the weight of the
evidence, is free to believe all, part, or none of the evidence.”
Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013).
[A]ny doubt about the defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be drawn from the
combined circumstances. It is improper for this Court to re-weigh
the evidence and substitute our judgment for that of the fact-
finder. Additionally, the entire record must be evaluated and all
evidence actually received must be considered.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013).
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“A conspiracy is almost always proved through circumstantial evidence.
The conduct of the parties and the circumstances surrounding their conduct
may create a web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.” Commonwealth v. Lambert, 795 A.2d 1010,
1016 (Pa. Super. 2002).
Among the circumstances which are relevant, but not sufficient by
themselves, to prove a corrupt confederation are: (1) an
association between alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene of the crime;
and (4) in some situations, participation in the object of the
conspiracy. The presence of such circumstances may furnish a
web of evidence linking an accused to an alleged conspiracy
beyond a reasonable doubt when viewed in conjunction with each
other and in the context in which they occurred.
Id.
Instantly, Sergeant Whitmore testified that “both [Appellant] and
[Tipton] knew [Tipton] wasn’t supposed to have a gun but that they had it for
protection and that it was her firearm not [Tipton’s] and that even though he
wa [sic]– she knew he wasn’t supposed to have it, they had it for protection.”
N.T., 2/12/19, at 84. Sergeant Whitmore recounted his observations:
[Appellant’s Counsel]: Okay. Now, at some point in time, did Mr.
Tipton go in the house to retrieve the firearm?
[Sergeant Whitmore]: Yes.
[Appellant’s Counsel]: Where was [Appellant] at that point?
[Sergeant Whitmore]: Standing on the porch.
[Appellant’s Counsel]: Okay. She was out there the whole time[?]
[Sergeant Whitmore]: Correct.
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[Appellant’s Counsel]: She didn’t go in the house[?]
[Sergeant Whitmore]: Correct.
[Appellant’s Counsel]: So, Bill Tipton went in there of his own
accord, retrieved a firearm, came back outside[?]
[Sergeant Whitmore]: Yes.
* * *
[Appellant’s Counsel]: Now, when Bill Tipton came back outside
with this firearm, he went with this child and shot it, correct?
[Sergeant Whitmore]: Correct.
[Appellant’s Counsel]: [Appellant] played no part in that, right?
[Sergeant Whitmore]: That’s correct.
[Appellant’s Counsel]: Was she talking to you while all this was
going on?
[Sergeant Whitmore]: No.
[Appellant’s Counsel]: Okay. She was just standing there[?]
[Sergeant Whitmore]: Correct.
* * *
[Appellant’s Counsel]: When Bill Tipton came outside with the
firearm, did [Appellant] tell him anything to the effect of “Take
that back inside?”
[Sergeant Whitmore]: Not that I heard, sir.
N.T., 2/12/19, at 91, 93-94.
The above excerpt evinces a “web of evidence” from which the jury could
find that Appellant and Tipton entered into an agreement for Appellant to
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purchase a firearm so that Tipton could possess it. Appellant witnessed Tipton
go into their home, retrieve the firearm, and reappear with the firearm — all
without Appellant expressing any objection. When interviewed by police,
Appellant indicated that “they” – Appellant and Tipton – purchased the firearm
for protection. Id. at 84 (emphasis added). This evidence, viewed in the light
most favorable to the Commonwealth as the prevailing party, is sufficient to
establish an agreement between Appellant and Tipton for Tipton’s possession
of the firearm.
With regard to the element of shared criminal intent, Appellant claims
“there was not even [a] modicum of evidence presented to suggest a shared
criminal intent, other than the Appellant indicating that ‘they’ needed the
firearm for protection.” Appellant’s Brief at 25. Appellant argues that while
she and her husband needed the firearm for protection, Appellant owned the
firearm without ever agreeing that Tipton could possess or have access to it.
Id.
The general rule of law pertaining to the culpability of conspirators
is that each individual member of the conspiracy is criminally
responsible for the acts of his co-conspirators committed in
furtherance of the conspiracy. The co-conspirator rule assigns
legal culpability equally to all members of the conspiracy. All co-
conspirators are responsible for actions undertaken in furtherance
of the conspiracy regardless of their individual knowledge of such
actions and regardless of which member of the conspiracy
undertook the action. The premise of the rule is that the
conspirators have formed together for an unlawful purpose, and
thus, they share the intent to commit any acts undertaken in order
to achieve that purpose, regardless of whether they actually
intended any distinct act undertaken in furtherance of the object
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of the conspiracy. It is the existence of shared criminal intent that
is the sine qua non of a conspiracy.
Commonwealth v. Wayne, 720 A.2d 456, 463–64 (Pa. 1998) (citations
omitted).
It is Appellant’s position that “Mr. Tipton’s access or possession of any
firearm was not at the behest of the Appellant, in fact, there was no evidence
presented by the Commonwealth indicating that the Appellant was even aware
that her husband went into the home and retrieved the firearm and/or that
she knew that her husband had access to the firearm . . . .” Appellant’s Brief
at 25-26. The record does not support this claim.
Through the following testimony, the Commonwealth presented
sufficient evidence to prove otherwise. According to Sergeant Whitmore:
[Appellant stated] both her and [Tipton] knew he wasn’t supposed
to have a gun but that they had it for protection and that it was
her firearm not [Tipton’s] and that even though he wa [sic]– she
knew he wasn’t supposed to have it, they had it for protection.
* * *
they had said they needed a handgun and a shotgun for
protection.
N.T., 2/12/19, at 84 (emphasis added).
This testimony was sufficient for the jury to conclude that Appellant
knew Tipton was not permitted to possess a firearm, and despite this
knowledge, purchased the firearm for Appellant to access and possess.
Accordingly, Appellant’s argument as to shared criminal intent is without
merit.
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For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2020
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