Com. v. Brown, J. , 186 A.3d 985 ( 2018 )

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2018 PA Super 115COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDMUND BROWN, III :
:
Appellant : No. 1161 WDA 2017
:
Appeal from the Judgment of Sentence July 6, 2017
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0003259-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
OPINION BY SHOGAN, J.: FILED MAY 4, 2018
James Edmund Brown, III (“Appellant”), appeals from the judgment of
sentence entered July 6, 2017, in the Court of Common Pleas of Westmoreland
County. We affirm in part and vacate and remand in part.
The charges in this case stem from the investigation of a missing gun.
On March 26, 2015, in Derry Borough, Westmoreland County, Thomas Magdic
(“Magdic”) was working as a paratransit driver for Veterans Cab Company.
N.T., 4/5-6/17, at 50. At trial, Magdic testified that on that date, he had a
leather jacket with him that was draped over the driver’s seat of the vehicle
he was driving. Id. at 52. Magdic explained that the manner in which the
jacket was draped over the seat made some of the jacket accessible to the
backseat passenger. Id. at 52-53. Magdic stated that the right bottom pocket
of the jacket contained a loaded Beretta pistol. Id.
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Magdic picked up Appellant at his residence and transported him to
Latrobe Hospital. N.T., 4/5-6/17, at 56, 72. After taking Appellant to the
hospital, Magdic transported three other fares before returning to the hospital
to get Appellant. Id. at 72-73. Appellant entered the backseat of the car on
the passenger side but later slid over behind the driver’s seat when Magdic
picked up another fare. Id. at 55-56. Magdic testified that at some point
during that trip, he felt a tug on his jacket and felt the back of his seat being
pushed. Id. at 57. Although concerned about his gun, Magdic waited to check
his jacket until he transported the occupants to their designated locations. Id.
at 57-58.
Upon investigation and while parked outside of Appellant’s residence,
Magdic discovered that his gun was missing from his jacket pocket. N.T., 4/5-
6/17, at 58. He reported the missing gun to the Derry Borough Police
Department. Id. at 58. The chief of police responded to the scene, spoke to
Magdic regarding the missing gun, and then proceeded to Appellant’s
residence and questioned him about the missing gun. Id. at 58, 116-118.
The chief conducted a pat-down of Appellant and a cursory search of the home
but did not find the gun. Id. at 118. Appellant told officers that he did not
have Magdic’s gun. Id. at 118.
The chief of police subsequently received calls indicating that Calvin
Flemming (“Flemming”) possessed the gun in question. N.T., 4/5-6/17, at
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121-122. The investigating officer contacted Flemming, and Flemming led the
officer to the gun, which was hidden in the woods behind Flemming’s
residence. Id. at 123-126. Flemming informed the officer that he received
the gun from Appellant. Id. at 128-129.
Flemming testified that Appellant was his wife’s uncle. N.T., 4/5-6/17,
at 83-84. Flemming explained that some time after April 12, 2015, Appellant
contacted him and asked him to take the gun. Id. at 84-86. Appellant paid
him $50.00 for doing so. Id.
At trial, Appellant denied taking Magdic’s gun. N.T., 4/5-6/17, at 196-
197. He also denied asking Flemming to take the gun, or paying Flemming to
hide it. Id. at 196-198. Also during trial, the Commonwealth introduced
evidence via a stipulation, that Appellant previously was convicted of robbery
on May 2, 2008, and aggravated assault on August 14, 2009. Id. at 164-165,
Commonwealth’s Exhibits 10, 11, and 12.1
The trial court summarized the procedural history of this case as follows:
On or about July 28, 2015, [Appellant] was charged with the
following offenses:
1. Count One: Theft by Unlawful Taking - Movable Property, in
violation of 18 Pa. C.S.A. § 3921(a),
2. Count Two: Receiving Stolen Property, in violation of 18 Pa.
C.S.A. § 3925(a),
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1 The crimes of robbery and aggravated assault are two of the prohibited
offenses listed under 18 Pa.C.S. § 6105(b), making Appellant ineligible to
possess, use, manufacture, control, sell, or transfer a firearm.
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3. Count Three: Possession of a Firearm Prohibited, in violation of
18 Pa. C.S.A. § 6105(a)(1), and
4. Count Four: Firearms Not to Be Carried Without a License, in
violation of 18 Pa. C.S.A. § 6106(a)(1).
On February 16, 2017, prior to the commencement of trial,
[Appellant] filed Motions in Limine including a Motion for a
Bifurcated Trial on Count Three. A hearing was held before this
[c]ourt on the same day. During the hearing, defense counsel
argued that although the Commonwealth must present evidence
that [Appellant] was disqualified from possessing a firearm, that
evidence should be introduced in the second phase of the trial
after the jury determined guilt or innocence of the underlying
charges as to not prejudice [Appellant]. Defense counsel alleged
that if the jury was to hear this upfront, the jury would assume
that [Appellant] has a history of violence. After arguments, the
[c]ourt granted [Appellant’s] Motion to Bifurcate Counts One,
Two, and Four from Three; however, the [c]ourt held that the
Commonwealth was at liberty to decide how it wanted to proceed.
On April 5, 2017, [Appellant] proceeded to a jury trial before
this [c]ourt.1 On April 6, 2017, the jury returned a verdict of guilty
of all of the above-referenced charges.[2] Sentencing was deferred
1 [Appellant] also proceeded to a jury trial at Case
Number 4206 C 2016. At Case Number 4206 C 2016,
[Appellant] was charged with two counts of
Intimidation of Witness, in violation of 18 Pa.C.S.A.
§ 4952(a)(2) and (a)(3). At the conclusion of this
trial, the jury returned a verdict of “Not Guilty” on
both counts.
pending a Pre-Sentence Investigation. On July 6, 2017,
[Appellant] was sentenced by this [c]ourt as follows: At Count
Three, [Appellant] was sentenced to forty-two (42) months to
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2 The jury was selected and heard evidence and testimony on count three,
and two intimidation-of-witnesses counts from Case Number 4206 C 2016.
After rendering its guilty verdict on count three, the same jury was then
informed of the three remaining charges of theft, receiving stolen property,
and possession of a firearm without a permit, and was instructed on those.
N.T., 4/5-6/17, at 310-315. After deliberating, it returned a verdict of guilty
on the three remaining offenses. Id. at 315-316.
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eight (8) years incarceration at the Department of Corrections.
He was given credit for time served and directed to have no direct
or indirect contact with the victim. At Count Four, [Appellant] was
sentenced to forty-two (42) months to eight (8) years
incarceration concurrent to Count Three. At Count One,
[Appellant] was sentenced to two (2) to four (4) years
incarceration concurrent to Count Three. Count Two merged with
Count One for purposes of sentencing. The sentence imposed was
outside of the mitigated range of the Pennsylvania Sentencing
Guidelines for the reason that [Appellant] participated in jail GED
classes and CRS programs.
On July 11, 2017, the Sentencing Order was amended to
reflect that at Count Four, [Appellant] was sentenced to forty-two
(42) months to seven years incarceration concurrent to Count
Three. All of the other terms and conditions of the July 6, 2017
Order of Court [were] to remain in full force and effect.
[Appellant] did not file any Post-Sentence Motions. On August 4,
2017, [Appellant] filed a Notice of Appeal to the Pennsylvania
Superior Court. On or about August 14, 2017, this [c]ourt entered
an Order of Court directing [Appellant] to file a Concise Statement
of Errors Complained of on Appeal within twenty-one days. On
September 5, 2017, [Appellant] filed said statement and raised
the following two issues: (1) Whether the trial court erred in
granting his Motion for a Bifurcated Trial on the charge of
Possession of a Firearm Prohibited in a manner, which allowed for
the jury to be exposed to the fact that [Appellant] had prior
convictions on his record for the violent offenses of Robbery and
Aggravated Assault, before deciding his guilt or innocence of not
only the Possession of Firearm Prohibited charge, but also of all of
the underlying charges, and (2) Whether there was sufficient
evidence to convict [Appellant] of all of the above-referenced
charges.
Trial Court Opinion, 9/14/17, at 4-6.
Appellant presents the following issues for our review:
Whether the guilty verdicts of the jury for the offenses of theft by
unlawful taking-movable property, receiving stolen property,
possession of firearm prohibited and firearms not be carried
without a license at counts 1 through 4 of the information were
contrary to the sufficiency of the evidence?
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Whether the trial court erred by granting the Appellant’s motion
for a bifurcated trial on the count 3 offense of possession of
firearm prohibited in a manner, which allowed for the jury to be
exposed to the fact that the [A]ppellant had prior convictions on
his record for the violent offenses of robbery and aggravated
assault, before deciding his guilt or innocence of not only the
possession of firearm prohibited offense, but of the offenses of
theft by unlawful taking-movable property, receiving stolen
property and firearms not to be carried without a license offenses,
as well?
Appellant’s Brief at 6.3
In his first issue, Appellant asserts there was insufficient evidence to
support his convictions of counts one through four. Appellant’s Brief at 15.
Specifically, Appellant contends that the Commonwealth did not meet its
“burden of proving each and every element of the aforementioned charges
beyond a reasonable doubt, in that the evidence which was presented at trial
was insufficient to establish that he stole or possessed the firearm in
question.” Id. at 17.
We first note that we could find Appellant has waived his sufficiency
claim because his Pa.R.A.P. 1925(b) statement only generally alleges that
there was insufficient evidence to support guilty verdicts on counts one
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3 We have renumbered Appellant’s issues for ease of disposition. We address
Appellant’s sufficiency challenge first because he would be entitled to
discharge if the evidence was insufficient to support the verdict. See
Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (“Because a
successful sufficiency of the evidence claim warrants discharge on the
pertinent crime, we must address this issue first.”).
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through four. Pa.R.A.P. 1925(b) Statement, 9/5/17, at ¶ 9. In order to
preserve a challenge to the sufficiency of the evidence on appeal, an
appellant’s Rule 1925(b) statement must state with specificity the element or
elements upon which the appellant alleges that the evidence was insufficient.
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009). “Such
specificity is of particular importance in cases where, as here, the appellant
was convicted of multiple crimes each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable doubt.” Id. at 281(internal citation omitted). However, in paragraph 11 of his Pa.R.A.P. 1925(b)
statement, Appellant also asserted that the Commonwealth did not meet its
burden of proof for the four charges because the evidence was insufficient to
establish that he stole or possessed the firearm. Pa.R.A.P. 1925(b)
Statement, 9/5/17, at ¶ 11. Thus, we decline to find that Appellant has waived
his issue and will proceed to address it on the merits.
The standard for evaluating sufficiency claims 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 proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
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evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
The offense of “theft by unlawful taking or disposition–movable
property” is defined as follows: “A person is guilty of theft if he unlawfully
takes, or exercises unlawful control over, movable property of another with
intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). Section 3925(a)
provides the following definition for “receiving stolen property”: “A person is
guilty of theft if he intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or disposed
with intent to restore it to the owner.” 18 Pa.C.S. § 3925(a).
The offense of “persons not to possess, use, manufacture, control, sell
or transfer firearms” is defined, in relevant part, as follows:
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). With regard to the offense of “firearms not to be
carried without a license,” Section 6106(a)(1) provides that:
[A]ny person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person, except in
his place of abode or fixed place of business, without a valid and
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lawfully issued license under this chapter commits a felony of the
third degree.
18 Pa.C.S. § 6106(a)(1).
In determining that there was sufficient evidence to sustain all of
Appellant’s convictions, the trial court provided the following explanation:
This [c]ourt, having reviewed the entire record in this case
and viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, finds that there was, in fact,
sufficient evidence presented at trial to support [Appellant’s]
conviction of Theft by Unlawful Taking-Movable Property,
Receiving Stolen Property, Possession of a Firearm Prohibited, and
Firearms not to be Carried Without a License[]. . . . [T]his [c]ourt
finds that through circumstantial evidence, the Commonwealth
has established each element of each offense charged.
The evidence at trial demonstrated that [Magdic] owned a
loaded Beretta pistol which he carried with him in his taxi cab for
his personal protection. [Magdic] testified that he concealed the
gun in his jacket which he draped over the driver’s seat of his taxi
where he was sitting. He testified that in the morning hours of
March 26, 2015, he had five fares including [Appellant]. A trainee
was also in the vehicle with him. Both [Magdic] and [Appellant]
testified that on the date of the incident, [Appellant] was sitting
directly behind [Magdic’s] seat. [Magdic] testified that while
[Appellant] was sitting behind him, he felt his jacket being tugged
and the back of his seat being pushed in which caused him to
become concerned about his gun.
After dropping [Appellant] off at his residence, [Magdic]
became aware that his gun was in fact missing and called the
police. Although Chief Glick did not immediately locate the gun
on [Appellant] or in his possession, through his investigation he
learned that Mr. Flemming was in possession of the missing gun.
Mr. Flemming and [Appellant] are related through marriage and
have occasion to spend time together. Several weeks after the
alleged theft, Mr. Flemming testified that [Appellant] asked him
to come over to his residence. There, he alleged that [Appellant]
gave him a gun and asked him to hide it. Mr. Flemming testified
that he agreed, and [Appellant] paid him $50.00. Mr. Flemming
testified that he eventually wrapped the gun in a rag and hid the
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gun in the woods behind his house.
As part of his investigation, Chief Glick learned that
Mr. Flemming may have the missing gun. Chief Glick went to
Mr. Flemming’s residence, and eventually, Mr. Flemming informed
Chief Glick that [Appellant] gave him a gun to hide. Mr. Flemming
retrieved the gun that was wrapped in a rag from the woods
behind his house, and the gun was identified as belonging to
[Magdic]. Mr. Flemming testified that he did not know [Magdic],
was never in his taxi, nor did he know any of the other fares in
the taxi on the date of the incident. Based on all of the evidence
presented, the [c]ourt concludes that it was reasonable for the
jury to find that [Magdic], Chief Glick, and Mr. Flemming testified
truthfully and accurately and the facts testified to by the witnesses
led to the conclusion that the facts in question happened.
Therefore, albeit circumstantial, the [c]ourt finds that the
Commonwealth has presented sufficient evidence for the jury to
find [Appellant] guilty of all of the above-referenced charges.
Trial Court Opinion, 9/14/17, at 10-12.
The trial court’s recitation of the evidence is supported by the record.
Accordingly, viewing the evidence in the light most favorable to the
Commonwealth, the evidence was sufficient to enable the fact-finder to
conclude that Appellant possessed, controlled, or transferred the firearm
owned by Magdic. Estepp, 17 A.3d at 943-944. Thus, there was sufficient
evidence to support Appellant’s convictions of theft by unlawful taking-
movable property, receiving stolen property, possession of a firearm
prohibited, and firearms not to be carried without a license.4 Appellant’s first
issue fails.
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4 The parties stipulated that Appellant did not possess a license to carry a
firearm. N.T., 4/5-6/17, at 315.
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In his second issue, Appellant argues that the trial court erred by
granting Appellant’s motion for a bifurcated trial on count three, possession
of a firearm prohibited, in a manner that allowed the jury to consider
Appellant’s prior convictions when deliberating on the remaining three
charges. Appellant’s Brief at 11. Specifically, Appellant complains that the
trial court’s order severing count three from the remaining three charges
allowed the Commonwealth to determine the order in which it wished to
present evidence on the charges. Id. at 13. The Commonwealth chose to
proceed first with the offense of persons not to possess a firearm pursuant to
18 Pa.C.S. § 6105. Id. By doing so, Appellant asserts that the jury was
provided with evidence of Appellant’s prior convictions of robbery and
aggravated assault, before its consideration of the remaining charges of theft,
receiving stolen property, and firearms not to be carried without a license,
which do not require evidence of prior convictions. Id. at 11-12. Accordingly,
Appellant maintains that evidence of prior convictions would lead the jury to
assume that he had a history of violence. Id. at 13. Appellant avers that he
was prejudiced by the trial court’s decision to give the Commonwealth
discretion on how to proceed in this matter and, therefore, he is entitled to a
new trial. Id. at 13-14.
“Appellate review of a trial court’s denial of a motion for severance is as
follows: A motion for severance is addressed to the sound discretion of the
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trial court, and ... its decision will not be disturbed absent a manifest abuse
of discretion.” Commonwealth v. Page, 59 A.3d 1118, 1133 (Pa. Super.
2013). Pennsylvania Rule of Criminal Procedure 583, Severance of Offenses
or Defendants, provides as follows: “The court may order separate trials of
offenses or defendants, or provide other appropriate relief, if it appears that
any party may be prejudiced by offenses or defendants being tried together.”
The prejudice of which Rule 583 speaks is, rather, that
which would occur if the evidence tended to convict the appellant
only by showing his propensity to commit crimes, or because the
jury was incapable of separating the evidence or could not avoid
cumulating the evidence. Additionally, the admission of relevant
evidence connecting a defendant to the crimes charged is a
natural consequence of a criminal trial, and it is not grounds for
severance by itself.
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010).
It is axiomatic that a charge under 18 Pa.C.S. § 6105, former convict
not to possess a firearm, requires evidence that the defendant was previously
convicted of a crime. In this case, Appellant was charged with a violation of
Section 6105 along with three other charges that did not require evidence of
a prior conviction. It is a reasonable conclusion that evidence of previous
convictions could result in prejudice against Appellant in a jury’s consideration
of the three charges not requiring evidence of prior convictions. It was for
this reason that Appellant sought severance of the Section 6105 violation from
the other charges. Motion for a Bifurcated Trial on Count 3 Section 6105
Offense, 2/16/17, at unnumbered 2-4.
This Court has previously concluded that a trial court abused its
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discretion when it did not sever a charge pursuant to 18 Pa.C.S. § 6105 from
other charges that do not require evidence of a prior conviction. As we
explained:
The crime of “Former convict not to own a firearm”, requires the
Commonwealth to show a previous conviction for a violent crime.
Thus, where these charges are brought with others, clearly the
jury is exposed to the fact that this particular defendant had
previously committed a violent crime.
Normally, in criminal trials, evidence of prior crimes
committed by a particular defendant is not admissible and any
reference to it constitutes reversible error. The purpose of this
rule is to prevent the conviction of an accused for one crime by
the use of evidence that he has committed other unrelated crimes,
and to preclude the inference that because he has committed
other crimes, he was more likely to commit that crime for which
he is being tried.
The prejudice here is a bit different. Clearly the introduction
of the fact of appellant’s former conviction of a violent crime was
required as an element of proof of the crime of “Former convict
not to own a firearm.”
Appellant claims that because of the nature of the proof
required in that crime, it could not be consolidated with other
charges, since then the prejudice of the introduction of his former
conviction would spread to all the charges. We agree. We feel to
reach any other result would be inconsistent with general
principles of evidence admissible in a criminal trial.
Normally, evidence that a particular defendant committed a
prior crime is admissible only where it tends to prove (1) motive,
(2) intent, (3) absence of mistake or accident, (4) a common
scheme, plan or design embracing the commission of two or more
crimes so related to each other that proof of one tends to prove
the others, or (5) to establish the identity of the person charged
with the commission of the crime on trial. Clearly here the
evidence of appellant’s former crime does not satisfy any of these
criteria. Thus following normal evidentiary principles, we believe
the severance should have been granted.
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However, the denial of a motion for severance is not an
abuse of discretion if the facts and elements of the two crimes are
easily separable in the minds of the jurors and if the crimes are
such that the fact of commission of each crime would be
admissible as evidence in a separate trial for the other.
We believe this test to be inapplicable to our situation. Here,
we are presented with a crime which, as part of the proof, requires
proof that the appellant had previously committed a violent crime.
Clearly the fact that appellant committed the former violent crime,
is of no evidentiary value to the proof of any of the other crimes
with which he is so charged; its only relevance is to satisfy the
requirements of “Former convict not to own a firearm”.
This being the case, we see no justification for refusing the
severance requested by appellant. Clearly, the consolidated trial
of these above enumerated offenses severely prejudiced appellant
in that the jury was exposed to the proof that appellant had
formerly committed a violent crime.
Commonwealth v. Carroll, 418 A.2d 702, 704-705 (Pa. Super. 1980)
(internal citations omitted). Although the circumstances of this case differ
from Carroll in that Appellant is challenging the order in which the charges
were presented to the jury after the trial court ostensibly granted Appellant’s
severance request, the same principles apply. The jury was exposed to proof
that Appellant had previously committed a violent crime prior to deciding
counts one, two, and four.
Accordingly, we conclude that the trial court properly granted
Appellant’s petition to sever count three from the other three charges. We
are constrained to disagree, however, with the trial court’s decision to give
the Commonwealth discretion with regard to the order in which to proceed
with prosecution of the charges. The Commonwealth’s decision to proceed
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with prosecution of Section 6105 prior to prosecution of the other three
charges before the same jury resulted in prejudice to Appellant. During
prosecution of the Section 6105 charge, the jury heard evidence of the prior
convictions of robbery and aggravated assault, as was necessary to that
charge. The jury, however, also then had available to it that same information
when subsequently considering the other three charges for which the evidence
was unnecessary, and indeed, prejudicial. In essence, the severance of count
three, with permission for the Commonwealth to prosecute that charge prior
to prosecution of the other three charges before a single jury, was an exercise
in futility. The result was the same prejudice to Appellant as would have
occurred had the trial court not severed count three from the remaining
charges.
Thus, we agree that Appellant was prejudiced by introduction of this
evidence on the charges of theft, receiving stolen property, and firearms not
be carried without a license. Accordingly, we are compelled to vacate the
judgment of sentence on the charges of theft, receiving stolen property, and
firearms not to be carried without a license, and remand these charges for a
new trial.5
In conclusion, judgment of sentence for the charge of persons not to
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5 Evidence of the prior convictions was relevant to satisfy the requirements
of “former convict not to own a firearm” under Section 6105. 18 Pa.C.S.
§ 6105. Thus, Appellant did not suffer any prejudice on prosecution of the
Section 6105 charge.
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possess a firearm pursuant to 18 Pa.C.S. § 6105 is affirmed. The judgment
of sentence on the remaining charges of theft, receiving stolen property, and
firearms not to be carried without a license is vacated, and this case is
remanded for a new trial on those charges.
Judgment of sentence affirmed in part and vacated and remanded in
part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2018
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