Com. v. Gregory, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAYMON GREGORY :
:
Appellant : No. 227 EDA 2022
Appeal from the Judgment of Sentence Entered December 2, 2021
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004818-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 26, 2023
Daymon Gregory appeals from the judgment of sentence imposed after
a jury convicted him on various charges stemming from a series of controlled
buys of cocaine and fentanyl by Upper Darby police. On appeal, Gregory claims
the court erred in allowing the Commonwealth to present PennDOT records at
trial that it did not disclose during discovery, challenges the weight and
sufficiency of the evidence supporting his convictions, and argues the
sentence of 13 to 26 years’ incarceration followed by 8 years’ probation was
excessive and unreasonable. After careful review, we vacate Gregory’s
sentence for receiving stolen property and affirm in all other aspects.
At trial, the Commonwealth presented evidence Upper Darby police had
received information that an individual was selling narcotics in the area of an
Upper Darby residence. Based on that information, an undercover officer
bought narcotics, including cocaine and fentanyl, from Gregory on three
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separate occasions. Shortly after the third transaction, police arrested Gregory
and executed a search warrant on the Upper Darby residence using a key
found on Gregory when he was arrested. During the search, police seized
cocaine, fentanyl, methamphetamine, and several firearms, as well as
assorted drug paraphernalia associated with drug dealing.
The jury convicted Gregory of five counts of possession with the intent
to deliver (“PWID”) cocaine, three counts of PWID fentanyl, one count of PWID
methamphetamine, two counts of illegal possession of a firearm, one count of
receiving a stolen firearm, and four counts of criminal use of a communication
facility. As noted, the court imposed an aggregated sentence of 13 to 26 years
in prison, followed by an eight-year period of probation. With some intervening
procedural irregularities that will be set forth in more detail below, Gregory
then filed this appeal.
Before addressing Gregory’s claims, we will address the timeliness of
the appeal. The trial court’s Pa.R.A.P. 1925(a) Opinion requests we quash this
appeal as untimely. See Trial Court Opinion, 4/29/22 at 1. Following Gregory’s
sentencing, counsel filed a post-sentence motion on December 10, 2021. See
id. at *2. While the motion was pending, Gregory filed a pro se Notice of
Appeal on January 11, 2022. See id. The trial court reasons that Gregory’s
pro se Notice of Appeal is an example of hybrid representation which he is not
entitled to and could cause confusion in this Court. See id. at *3. Additionally,
the trial court finds this appeal to be premature, as it was filed while the post-
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sentence motions were pending and therefore the judgment of sentence was
not yet final. See id. at *4.
The trial court is correct insofar as it notes that Gregory is not entitled
to hybrid representation. See Commonwealth v. Morgan, 39 A.3d 419, 420
(Pa. Super. 2012). However, as the Commonwealth and Gregory both argue,
a Notice of Appeal is an exception to the general rule against hybrid
representation and a Notice of Appeal filed during the pendency of post-
sentence motions is treated as properly filed upon the resolution of the
motions. See Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011). As
such, Gregory’s premature pro se appeal was perfected when his counseled
post-sentence motions were denied and the judgment of sentence became
final. See Pa.R.A.P. 905(a)(5). We decline to quash and will review the merits
of this appeal.
On appeal, Gregory raises four claims of trial court error: (1) the court
erred in permitting the Commonwealth to present to the jury certain
government records that were not disclosed during discovery, (2) the
evidence presented at trial was insufficient to support his conviction for
receiving stolen property, (3) the trial court erred in concluding his convictions
were not against the weight of the evidence, and (4) the trial court imposed
an excessive and unreasonable sentence. See Appellant’s Brief, at 9-10.
Gregory first argues that Pennsylvania Department of Transportation
(“PennDOT”) records introduced at trial violated the rules of discovery. See
Appellant’s Brief, at 29. On the second day of trial the Commonwealth recalled
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Officer Barbour to enter two documents into evidence: Gregory’s driver’s
license record and driving history. Both listed his address as the residence
searched by police and where drugs, firearms, and other evidence were
seized. See N.T., 9/24/21, at 3-5. Counsel objected to the documents on the
basis that they amounted to trial by surprise and knowledge of them would
have affected his trial strategy and opening statement. See id. at 6. The trial
court reasoned that the late introduction of the documents did not violate
discovery rules, as they were materials that Gregory knew existed. See id. at
9. Further, the trial court determined that one of the documents, containing a
twenty-year-old photo of Gregory, should be excluded based on relevance but
ruled the driving history, linking Gregory to the address of the residence, was
admissible. See id. at 16-17.
We review the trial court’s conclusion that the Commonwealth did not
violate the discovery rules for an abuse of discretion. See Commonwealth
v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017). “An abuse of discretion is
not merely an error of judgment, but is rather the overriding or misapplication
of the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020)
(citations omitted).
Discovery in criminal cases is governed by Pa.R.Crim.P. 573 which
provides a list of items which the Commonwealth must provide if the
defendant requests it. See Pa.R.Crim.P. 573(B)(1). Notably, the rule also
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contains a continuing duty which allows, “[i]f, prior to or during trial, either
party discovers additional evidence or material previously requested or
ordered to be disclosed by it, which is subject to discovery or inspection under
this rule, … such party shall promptly notify the opposing party …”. See
Pa.R.Crim.P. 573(D).
Gregory argues that the PennDOT records are subject to mandatory
disclosure. See Appellant’s Brief, at 31. The Commonwealth disputes this
claim, citing Gregory’s equal access to, and knowledge of, the information
contained in the records, as well as his failure to request discovery. See
Commonwealth’s Brief, at 20-22. We do not find that this argument turns on
whether the document was subject to mandatory disclosure because it was in
fact disclosed when it was discovered, pursuant to Pa.R.Crim.P. 573(D). While
Gregory forcefully argues that the Commonwealth was required to disclose
these records pre-trial, he concedes the Commonwealth did not possess them
until after the first day of trial. See Appellant’s Brief, at 35-36.1 Therefore, we
find no abuse of discretion in the trial court’s finding that the lateness of the
disclosure did not violate the rules of discovery.
Gregory’s next argument is that the evidence was insufficient to sustain
his conviction for receiving stolen property under 18 Pa.C.S.A. § 3925(a).
____________________________________________
1Gregory also presents a one-sentence argument that “[o]nce the jury has
been selected, the time for investigation into evidence to present in the
Commonwealth’s case-in-chief is over, and the Commonwealth may not
ambush a defendant with new documents.” Appellant’s Brief, at 37. He does
not provide any authority for this novel argument, and we therefore conclude
he has waived this argument by failing to develop it properly.
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When we review the sufficiency of the evidence, we view the evidence
admitted at trial and make any reasonable inferences from it in favor of the
Commonwealth and decide whether it was sufficient to prove each element of
the offense beyond a reasonable doubt. See Commonwealth v. Steele, 234
A.3d 840, 845 (Pa.Super. 2020). We do not re-weigh the evidence, that duty
lies within the province of the factfinder. See id.Gregory’s argument relies heavily on Commonwealth v. Robinson,
128 A.3d 261 (Pa. Super. 2015) (en banc). In Robinson, this Court held the
evidence was insufficient to sustain a conviction for receiving stolen property
when there was no evidence to show the defendant had guilty knowledge that
the property, a firearm, was stolen. See id. at 272. This Court has identified
the elements of receiving stolen property to be: “(1) intentionally acquiring
possession of the movable property of another; (2) with knowledge or belief
that it was probably stolen; and (3) the intent to deprive permanently.” See
id. at 265 (citations omitted). The mental state required to complete this
crime is referred to as “guilty knowledge” and cannot be satisfied by mere
recklessness or negligence. See id. This required guilty knowledge may be
inferred by the jury based on circumstantial evidence. See id. In Robinson,
we confirmed that unexplained possession of a stolen firearm, without more
evidence, is not sufficient to prove the guilty knowledge element of the crime.
See id. at 269.
In this case, the trial court provided no analysis, simply requesting we
quash the appeal. Similarly, the Commonwealth simply relies on the
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stipulation that the firearm was stolen and hidden. See Commonwealth’s
Brief, at 28. Gregory claims a lack of the required guilty knowledge” to sustain
a conviction for receiving stolen property. See Appellant’s Brief, at 39. After
a review of the record, it is clear there was no evidence introduced regarding
Gregory’s knowledge of the stolen nature of the firearm. The parties stipulated
to the fact that the firearm was stolen and had been reported stolen
approximately three years prior to the seizure in this case. See N.T., 9/23/21,
at 92. The only other information about the firearm was that it was found
behind the fireplace mantel in the bedroom of Gregory’s home with another
firearm. See id. at 53-56.
The Commonwealth argues the fact that the firearm was hidden behind
the mantel was sufficient to infer Gregory’s guilty knowledge. However, the
Commonwealth fails to acknowledge the presence of a separate firearm at the
same location. There is no evidence or argument that the separate firearm
was stolen. Therefore, the fact that the stolen firearm was hidden with another
firearm, which the Commonwealth did not contend was stolen, provides no
basis upon which to reasonably infer guilty knowledge. In the absence of any
other circumstantial evidence indicating guilty knowledge requires a
conclusion the evidence was insufficient to support the conviction.
Accordingly, we vacate the judgment of sentence on the conviction of
receiving stolen property, 18 Pa.C.S.A. § 3925(a). This decision does not
disrupt the trial court’s sentencing scheme, as the sentence for this charge
was ordered to run concurrently with other sentences, and therefore we need
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not remand for resentencing. See Commonwealth v. Melvin, 103 A.3d 1,
57 (Pa. Super. 2014).
Gregory’s third argument is that the verdict was against the weight of
the evidence. See Appellant’s Brief, at 39. Our review of a weight of the
evidence claim is limited to whether the trial court abused its discretion in
ruling on the issue. See Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.
Super 2012). We do not alter a trial court’s decision on a weight claim lightly
as we are not empowered to make decisions regarding contradictions in
testimony even if we believe a different outcome is possible. See id.Gregory argues that since Officer Barbour’s uncorroborated testimony
was the basis for the PWID cocaine and fentanyl charges and provided the
basis for the search of the residence, the verdict was against the weight of the
evidence. See Appellant’s Brief, at 39-40. Specifically, Gregory mentions the
fact that he was arrested with only two dollars on his person makes Officer
Barbour’s testimony non-credible and that the physical evidence found in the
house was only tenuously linked to him. See id.We do not have the benefit of the trial court’s explicit reasoning for why
it rejected Gregory’s challenge to the weight of the evidence. Nonetheless, we
can find no reason to conclude the court abused its discretion in doing so. As
the Commonwealth notes, the crux of Gregory’s argument is a challenge to
Officer Barbour’s credibility. While Gregory highlights legitimate credibility
issues, we note that defense counsel ensured that these credibility issues were
presented to the jury. And these issues are certainly not so impactful as to
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require us to rule, as a matter of law, that the jury was unreasonable in finding
Officer Barbour credible. We therefore find no abuse of discretion in the trial
court’s denial of Gregory’s request for a new trial.
Gregory’s final claim is a challenge to the discretionary aspects of his
sentence. See Appellant’s Brief, at 19. Gregory has no absolute right to a
challenge to the discretionary aspects of his sentence. See Commonwealth
v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005). He is required to make a
statement in his brief of the reasons we should allow an appeal of the
discretionary aspects of his sentence. See id. He must also show that a
substantial question exists as to whether the sentence complies with the
Sentencing Code. See id.Gregory has complied with these requirements. He included his
statement for reasons to allow an appeal challenging the discretionary aspects
of sentencing in his brief pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief,
at 19-21. Gregory claims that the court did not provide reasons for the
sentence on the record, instead focusing only on prior record and the gravity
of the offenses. See Appellant’s Brief, at 41. These claims constitute
substantial questions. See Commonwealth v. Ritchey, 779 A.2d 1183,
1186 (Pa. Super. 2001). We therefore turn to the merits of Gregory’s
sentencing claim.
The details of a sentence are left to the discretion of the sentencing
judge and we will only disturb them if we find an abuse of discretion. See
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007). When
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reviewing a sentence we will vacate when we find the sentencing guidelines
were applied incorrectly, applying the sentencing guidelines is unreasonable
for the case, or a sentence outside the guidelines is unreasonable. See
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012). When
fashioning a sentence, a trial court must consider the character of the
defendant and the specific circumstances of the offenses which includes
considering prior record score, age, and rehabilitative potential. See
Commonwealth v. Bowens, 265 A.3d 730, 764 (Pa. Super. 2021).
The basis of Gregory’s argument is that the sentencing court did not
state any reasons for imposing the sentence. See Appellant’s Brief, at 42. The
record belies this assertion. The sentencing hearing included discussion of the
sentencing guidelines, see N.T., 12/2/21, at 3-4, Gregory’s criminal record,
see id. at 4, his age, see id. at 9, his personal life, see id. at 9-10, his
parenting and employment circumstances, see id., the specific facts of the
offenses, see id. at 10-11, and the pre-sentence report, see id. at 11-12.
Further, the sentencing court can meet its requirement to state the
reasons for sentence simply by indicating that it has considered the pre-
sentence report. See Commonwealth v. Goodco Mechanical, Inc., 291
A.3d 378, 407 (Pa. Super. 2023). The mere fact that the sentencing judge
reviewed a pre-sentence report creates a presumption that the sentencing
judge meaningfully weighed the sentencing factors and we will not find an
abuse of discretion. See id.- 10 -
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We also note that Gregory’s repeated assertions that the sentencing
court “double-counted” his prior record score does not appear to be based in
facts on the record, the court notes his history and clearly considered it as is
required.
After announcing the sentence, the court noted Gregory’s extensive
criminal history, his illegal possession of firearms, and that Gregory had taken
no responsibility for his crimes. See N.T., 12/2/21, at 14. The court observed
there was no evidence Gregory had a drug addiction. See id. Finally, the court
indicated that if Gregory had been younger, the court might have imposed an
even longer sentence since it was clear Gregory had not learned his lessons
from prior convictions. See id. at 15.
Given the evidence presented at the hearing, and the court’s review of
the PSI, we find no abuse of discretion in these reasons for the sentence
imposed.
Judgment of sentence for 18 Pa.C.S.A. § 3925(a) vacated. Judgment of
sentence affirmed in all other aspects.
Judge Lazarus joins the memorandum.
Judge Stabile concurs in result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2023
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