Com. v. Hirschfeld, M. ( 2016 )

J. S35004/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARCUS HIRSCHFELD, : No. 721 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 20, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004670-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2016
Marcus Hirschfeld appeals the judgment of sentence in which the Court
of Common Pleas of Philadelphia County sentenced him to serve a term of
42 to 84 months’1 imprisonment for conspiracy to carry a firearm without a
license.2
1
On January 30, 2015, the trial court originally sentenced appellant to a
term of imprisonment of 27 to 78 months with a surrender date of
February 20, 2015. The trial court allowed him to be with his ailing father
until February 20, 2015. Appellant absconded from supervision by cutting
his ankle bracelet on January 30, 2015. He was apprehended on
February 4, 2015. The trial court imposed the new sentence on
February 20, 2015.
2
18 Pa.C.S.A. § 903 (conspiracy). The object crime of carrying a firearm
without a license is set forth in the Crimes Code at 18 Pa.C.S.A. § 6106.
J. S35004/16
On April 3, 2014, at approximately 9:00 p.m., Officer Sean Devlin
(“Officer Devlin”) and Officer Mischel Matos (“Officer Matos”) of the City of
Philadelphia Police Department were in a marked police vehicle when they
observed a gray Nissan Altima (“Vehicle”) traveling southbound on
55th Street without its headlights or taillights on. Officer Evans and
Officer Matos pulled the Vehicle over. Officer Evans approached the Vehicle
on the passenger side. He noticed a male passenger in the front seat.
(Notes of testimony, 11/24/14 at 12-14.) According to Officer Evans, the
passenger made “a motion like . . . a lean left to right while he moved from
left to right while leaning forward.” (Id. at 14.) Officer Evans observed that
the passenger was very nervous when he asked him to exit the vehicle so
Officer Evans could conduct a pat down. Officer Evans saw a very large gun
underneath the front passenger’s seat and next to the center console. At
that point, Officer Evans handcuffed the passenger and directed his partner
to detain and handcuff appellant. (Id. at 14-15.) Officer Evans explained
that appellant could have easily grabbed the weapon while he sat in the
driver’s seat. (Id. at 18.) The passenger told Officer Evans that appellant
was a “hack”3 and that he was going to a friend’s house. (Id. at 23.)
Officer Matos explained that appellant did not have a driver’s license
and that both appellant and the passenger were very nervous. According to
Officer Matos, appellant was “breathing heavy [sic], and you could see a
3
The passenger meant that appellant operated an unlicensed taxi service.
-2-
J. S35004/16
little shaking as well.” (Id. at 29.) Appellant told Officer Matos that he did
not know how the gun got in the car and did not know the passenger. (Id.
at 30.)
Following a non-jury trial, the trial court convicted appellant of the
conspiracy charge, acquitted him of three other firearms charges,4. The trial
court reasoned:
Here, there was circumstantial evidence presented
that [appellant] did have knowledge and control over
the handgun. The twenty four year-old [appellant’s]
mother owned the vehicle, and he was nervous,
breathing heavy [sic], and shaking a little at the time
of the car stop. The recovered gun was huge, easily
accessible to [appellant], and easily visible to the
officer after he extracted the passenger from the
vehicle. The passenger separated himself from
ownership of the gun by claiming that [appellant]
was a “hack” taxi, declaring that he was just getting
a ride to a friend’s house, and seeking to leave the
scene. After the gun was recovered, [appellant] told
the officers “he didn’t know how the gun got in the
car, and he didn’t know the passenger” (N.T.
11/24/14, p. 30). Based on the totality of the
circumstances, this court believed that [appellant]
did know that the gun was in the car, had the power
to control the gun, and attempted to exculpate either
himself, [the other] defendant, or both. The overt
cover-up and the totality of the surrounding
circumstances of the car stop were sufficient to
convict [appellant] of conspiracy to possess a firearm
without a license. See Commonwealth v.
Weimer, 602 Pa. 33, 39, 977 A.2d 1103, 1106
(2009)(“To sustain a criminal conspiracy conviction,
the Commonwealth must establish a defendant
4
Appellant was also charged with carrying a firearm on the public streets of
Philadelphia, 18 Pa.C.S.A. § 6108, carrying a firearm without a license,
18 Pa.C.S.A. § 6106, and persons not to possess firearms, 18 Pa.C.S.A.
§ 6105.
-3-
J. S35004/16
entered into 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
the conspiracy’s furtherance. The overt act need not
accomplish the crime-it need only be in furtherance
thereof”).
Trial court opinion, 6/22/15 at 6-7.
Appellant raises the following issue for this court’s review:
Was not the evidence insufficient to prove the
[appellant] guilty beyond a reasonable doubt of the
crime of conspiracy in that the evidence was
insufficient to prove that the [appellant] engaged in
a conspiratorial agreement to commit the crime of
possession of a firearm without a license in violation
of 18 Pa.C.S. § 6106?
Appellant’s brief at 3.
Appellant first claims that the evidence of criminal conspiracy was
insufficient. We observe:
In reviewing the sufficiency of the evidence, we view
all the evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to determine whether there is sufficient evidence to
enable the factfinder to find every element of the
crime established beyond a reasonable doubt.
Commonwealth v. Thomas, 867 A.2d 594
(Pa.Super. 2005). “This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt.” Id. at 597. And
while a conviction must be based on more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty. Id.
quoting Commonwealth v. Coon, 695 A.2d 794,
797 (Pa.Super. 1997). This Court is not free to
substitute its judgment for that of the fact-finder; if
the record contains support for the convictions they
-4-
J. S35004/16
may not be disturbed. Id. citing Commonwealth v.
Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) and
Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
A.2d 1212, 1213 (1986). Lastly, the factfinder is
free to believe some, all, or none of the evidence.
Id.
Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).
Section 903(a) of the Crimes Code defines 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; 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).
The offense of firearms not to be carried without a license, the
underlying offense to the conspiracy here, is defined:
[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 lawfully
issued license under this chapter, commits a felony
of the third degree.
18 Pa.C.S.A. § 6106(a).
To sustain a conviction for Criminal Conspiracy, the
Commonwealth must prove beyond a reasonable
doubt that the defendant (1) entered into an
-5-
J. S35004/16
agreement to commit or aid in a criminal act with
another person or persons (2) with a shared criminal
intent and that (3) an overt act was done in
furtherance of the conspiracy. 18 Pa.C.S.A. § 903.
See Commonwealth v. McCall, 911 A.2d 992, 996
(Pa.Super. 2006) (citation omitted). The overt act
necessary to establish criminal conspiracy need not
be committed by the defendant; it need only be
committed by a co-conspirator. Id. In addition, our
Court has further explained the agreement element
of conspiracy as follows:
The essence of a criminal conspiracy is a
common understanding, no matter how it
came into being, that a particular
criminal objective be accomplished.
Therefore, a conviction for conspiracy
requires proof of the existence of a
shared criminal intent. An 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.
Thus, a conspiracy may be inferred
where it is demonstrated that the
relation, conduct, or circumstance of the
parties, and the overt acts of the
co-conspirators[,] sufficiently prove the
formation of a criminal confederation.
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. Even if the
conspirator did not act as a principal in
committing the underlying crime, he is
still criminally liable for the actions of his
co-conspirators in furtherance of the
conspiracy.
McCall, 911 A.2d at 996 (citation omitted).
Commonwealth v. Johnson, 920 A.2d 873, 878-879 (Pa.Super. 2007).
-6-
J. S35004/16
Appellant argues that the evidence was insufficient to prove him guilty
beyond a reasonable doubt of the crime of conspiracy in that the evidence
was insufficient to prove that he engaged in a conspiratorial agreement to
commit the crime of possession of a firearm without a license.
According to the trial court, the evidence that supported the conviction
for conspiracy was 1) the Vehicle where the gun was found was driven by
appellant and owned by appellant’s mother; 2) appellant was nervous when
the police stopped him; 3) the gun was in plain view, accessible to
appellant; and 4) both appellant and the passenger told police that appellant
was a “hack” taxi driver and had just picked up the passenger.
With respect to appellant driving the Vehicle which was owned by his
mother, appellant argues that this fact does not prove that appellant and the
passenger agreed for appellant to have constructive possession of the gun.
For support, appellant points to Commonwealth v. Wisor, 353 A.2d 817
(Pa. 1976), where a defendant’s ownership of a car in which a marijuana
pipe was found did not prove the defendant’s constructive ownership of the
pipe where others in the car had equal access to the area where the pipe
was found. Even taking the evidence in the light most favorable to the
Commonwealth, as the prevailing party, the fact that the gun was found in
the Vehicle does not by itself indicate that appellant conspired to obtain
possession of the gun.
-7-
J. S35004/16
With respect to the fact that the police officers found appellant to be
nervous, testimony credited by the trial court as fact-finder, appellant
argues that his nervousness does not equate to proof of the elements of a
conspiracy. In Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657
(Pa.Super. 2015), this court explained that, after a traffic stop, a driver’s
nervousness is insufficient, standing alone, to establish reasonable suspicion
of criminal activity. Appellant points out that he had other reasons for
exhibiting nervousness: he was driving without a license, he was, by his
own admission and that of the passenger, operating an unlicensed taxi
service, and possibly only became aware of the presence of the gun in the
vehicle when the stop was made.
Appellant also takes issue with the trial court’s determination that the
gun was accessible to him. The only facts surrounding the gun are that
Officer Devlin saw the passenger reach down and make a movement from
left to right while leaning forward after the Vehicle was stopped. When
Officer Devlin asked the passenger to exit the vehicle so that he could
conduct a pat down, he noticed the gun underneath the passenger’s seat
next to the center console. Appellant argues that the fact that the
passenger placed his gun under the seat in a place where appellant could
reach it does not indicate that appellant intended to exercise control over
the gun and jointly possess it with the passenger or constructively possess
it. Appellant again asserts that his presence in the vehicle where the gun
-8-
J. S35004/16
was found does not establish that he engaged in a conspiracy to gain
possession of a weapon when he did not have a license to carry a firearm.
This court agrees.
In Commonwealth v. Townsend, 237 A.2d 192 (Pa. 1968), the
Pennsylvania Supreme Court held that the mere presence of an individual in
a vehicle containing two weapons was insufficient to convict that individual
of possession of a firearm without a license.
While Townsend addressed a conviction for possession of a firearm
without a license and not conspiracy for possession of a firearm without a
license, it stands to reason that without more evidence of an agreement to
commit an illegal act and with a shared criminal intent the fact that the gun
was found in appellant’s car and may have been accessible to him fails to
establish a criminal conspiracy.
Next, appellant challenges the fact that the trial court based its
decision in part on the officers’ testimony that appellant and the passenger
both stated that appellant was a “hack” taxi driver and had just picked up
the passenger. Appellant characterizes the trial court’s finding that these
statements helped to prove that appellant and the passenger were in
collusion was “not just illogical, it is almost absurd.” (Appellant’s brief at
18.) This court agrees that this statement does not support a conspiracy or
the fact that the two said essentially the same thing does not support a
conspiracy by itself.
-9-
J. S35004/16
Of course, even if each of these facts upon which the trial court relied
to find that appellant was guilty of conspiracy did not support the verdict,
the combination of the evidence could link the appellant to the crime beyond
a reasonable doubt, through the totality of the circumstances as the
Commonwealth argues. However, the conclusions drawn from those facts
are very speculative and insufficient to support the verdict. “Conviction may
not be based upon suspicion or conjecture, but rather the evidence must be
such ‘as reasonably and naturally to justify an inference of guilt of the
accused . . . and of such volume and quality as to overcome the
presumption of innocence.” Townsend, 237 A.2d at 195, citing,
Commonwealth v. Clinton, 137 A.2d 463, 466 (Pa. 1958).
Judgment of sentence reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
- 10 -