Com. v. Robinson, J. , 128 A.3d 261 ( 2015 )

J-E02008-15
2015 PA Super 238COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES JUMAH ROBINSON, :
:
Appellant : No. 912 MDA 2014
Appeal from the Sentencing May 23, 2014,
Court of Common Pleas, Berks County,
Criminal Division at No. CP-06-CR-0002523-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN,
ALLEN, LAZARUS, MUNDY and STABILE, JJ.
OPINION BY DONOHUE, J.: FILED NOVEMBER 19, 2015
Appellant, James Jumah Robinson (“Robinson”), appeals from the
judgment of sentence following his convictions of carrying a firearm without
a license, 18 Pa.C.S.A. § 6106(a)(1), and receiving stolen property, 18
Pa.C.S.A. § 3925(a). On appeal, Robinson challenges the sufficiency of the
evidence supporting the conviction of receiving stolen property, contending
that the Commonwealth did not prove that he possessed the requisite mens
rea for the crime. For the reasons that follow, we reverse Robinson’s
conviction of receiving stolen property, vacate the judgment of sentence,
and remand for resentencing on the remaining firearms conviction.
On May 19, 2013, Officers Christopher Dinger and Brett Sneeringer
intervened in a domestic dispute between Robinson and Adrianne Myers
(“Myers”), with another female (Mercedes Hodge (“Hodge”)) also at the
J-E02008-15
scene. N.T., 2/11/2014, at 15. According to Officer Dinger, Myers was
“screaming very loudly and … seemed to be very angry at [Robinson].” Id.
While Officer Dinger talked with Myers and Hodge, Hodge “quietly informed”
the officer that Robinson was currently carrying a firearm in his pocket. Id.
at 17. Officer Dinger testified that he then approached Robinson and asked
if he had any weapons on his person, to which Robinson “just froze where he
stood” and “stared at [the officer] stone-faced.” Id. Officer Dinger
conducted a Terry pat down search of Robinson’s exterior for weapons, at
which time he felt a large revolver in Robinson’s left front coat pocket. Id.
at 17-18. Officer Dinger held the revolver tightly through the jacket and
asked Robinson if he had a permit to carry the weapon. Id. at 18.
Robinson again offered no response, remaining “stone-faced” and just stood
“without moving or saying anything”. Id. Officer Sneeringer handcuffed
Robinson and Officer Dinger removed a loaded .357 Magnum revolver,
manufacturer’s serial number 140594, from his left front coat pocket. Id. at
18-19. Officer Dinger contacted the county dispatcher, who advised that a
search indicated that Robinson did not possess a permit to carry a firearm
and that he had a scofflaw warrant for an unpaid harassment ticket. Id. at
28.
Officer Dinger identified Jeffery Schoenberger (“Schoenberger”) of
Lebanon, Pennsylvania, as the probable owner of the handgun. Id. at 24.
Schoenberger testified that he purchased the weapon in a private sale and
-2-
J-E02008-15
then took it to a local gun shop to complete the transaction. Id. at 38. He
kept the handgun in his basement, and the last time he could remember
seeing it was July 2010. Id. at 39. He did not know that it was missing
until May 2013 when Officer Dinger contacted him. Id. at 39-40. At that
time, Schoenberger reported the weapon as missing, but subsequently
decided not to pursue charges because he believed that his stepson likely
took it and “sold it for money or traded it for drugs.” Id. at 42.
Schoenberger indicated that he did not know Robinson and had not given
him the handgun. Id. at 40.
After a jury trial on February 11, 2014, Robinson was convicted of the
two above-referenced crimes.1 On the conviction of firearms not to be
carried without a license, the trial court sentenced him to a term of
incarceration of not less than forty-two months or more than seven years.
On the conviction of receiving stolen property, the trial court sentenced
Robinson to a consecutive term of incarceration of not less than two years or
more than ten years.
1
At the time of arrest, the Commonwealth also charged Robinson with a
violation of 18 Pa.C.S.A. § 6105 (persons not to possess, use, manufacture,
control, sell or transfer firearms). At trial, however, the Commonwealth
presented no evidence relating to this charge and the trial court did not
submit it to the jury for consideration. N.T., 2/11/2014, at 66-69. In
connection with its recordation of the jury’s guilty verdicts, the trial court
indicated that it granted a motion for judgment of acquittal for the 6105
charge.
-3-
J-E02008-15
On appeal, Robinson challenged only the sufficiency of the evidence
supporting his conviction of receiving stolen property. In a memorandum
decision issued on December 23, 2014, a panel of this Court reversed the
conviction of receiving stolen property and remanded for resentencing. This
Court subsequently granted en banc review for further consideration of the
sufficiency of the evidence for the disputed conviction. Robinson contends
that the Commonwealth presented no evidence at trial to establish that he
knew, or had reason to know, that the firearm in his possession was stolen.
The Commonwealth disagrees, arguing that it introduced circumstantial
evidence that, when viewed in the light most favorable to the verdict winner,
permitted the jury to infer that Robinson possessed the requisite mens rea
for a conviction of receiving stolen property.
Our standard of review for a challenge to the sufficiency of the
evidence is de novo, but our scope of review is limited to considering the
evidence of record, and all reasonable inferences arising therefrom, viewed
in the light most favorable to the Commonwealth as the verdict winner.
Commonwealth v. Rushing, 99 A.3d 416, 420–21 (Pa. 2014). Evidence is
sufficient if it can support every element of the crime charged beyond a
reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.
Super. 2015); Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.
Super. 2014). The trier of fact, while passing upon the credibility of
witnesses and the weight of the proof, is free to believe all, part, or none of
-4-
J-E02008-15
the evidence. Commonwealth v. Watkins, 843 A.2d 1203, 1211 (Pa.
2003).
The crime of receiving stolen property is defined by statute as follows:
§ 3925. Receiving stolen property
(a) Offense defined.--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.A. § 3925(a). Based upon this definition, this Court has identified
the elements of the crime, as relevant here, 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. Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super.
2012) (quoting Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super.
2011), appeal denied, 48 A.3d 1249 (Pa. 2012)), appeal denied, 72 A.2d
602 (Pa. 2013).
Robinson contests the sufficiency of the evidence only with respect to
the second element of the crime, sometimes referred to as “guilty
knowledge” of the crime. See Commonwealth v. Matthews, 632 A.2d
570, 572 (Pa. Super. 1993). This Court has commented on the basic
requirement for satisfaction of this second element as follows:
Importantly, the Legislature expressly defined
the required mental state as “knowing” or
-5-
J-E02008-15
“believing.” Because the Legislature excluded
mental states such as recklessness, negligence, or
naïveté about the stolen status of the property,
those mental states are insufficient.
Commonwealth v. Dunlap, 505 A.2d 255, 257 (Pa.
Super. 1985); see also Commonwealth v.
Ostrosky, 909 A.2d 1224, 1230 n. 7 (Pa. 2006)
(express inclusion of certain statutory terms implies
the exclusion of those that are not mentioned);
compare 18 Pa.C.S.A. § 302(c) (where the
Legislature does not define the relevant mental
state, a finding of recklessness is sufficient). This
reasoning is consistent with the common recognition
that penal statutes are to be strictly construed.
Commonwealth v. Jarowecki, 985 A.2d 955, 959
(Pa. 2009), citing 1 Pa.C.S.A. § 1928(b)(1). Thus,
courts may not hold that a less culpable mental state
satisfies a criminal statute where the statute
demands proof of the more culpable mental state.
See Dunlap; compare 18 Pa.C.S.A. 302(d)
(generally, if the Commonwealth proves a more
culpable mental state, then the less culpable mental
state is satisfied).
Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa. Super. 2010),
appeal denied, 8 A.3d 898 (Pa. 2010).
Accordingly, the Commonwealth had the burden to establish either
that Robinson knew the firearm in question was stolen, or believed that it
had probably been stolen. A person “knows” that goods are stolen if he is
“aware” of that fact. Id. (citing 18 Pa.C.S.A. § 302(b)(2)(i)). In this case,
as in most cases, the Commonwealth acknowledges that there is no direct
proof that Robinson knew for a fact that the handgun was stolen.
Commonwealth’s Substituted Brief at 9-10. Instead, the Commonwealth
contends that it introduced sufficient evidence to prove that Robinson
-6-
J-E02008-15
believed the firearm was probably stolen. Id. In this regard, the
Commonwealth correctly notes that the guilty knowledge required here (like
all culpable mental states) may be inferred from circumstantial evidence.
Id. at 8; Commonwealth v. Pruitt, 951 A.2d 307, 314 (Pa. 2008), cert.
denied, 556 U.S. 1131 (2009).
The viability of inferences of guilty knowledge in connection with the
crime of receiving stolen property has a long history. In early cases, this
Court sanctioned an evidentiary presumption that a defendant’s unexplained
possession of recently stolen property was sufficient proof to support a
conviction of receiving stolen property. See, e.g., Commonwealth v.
Pittman, 118 A.2d 214 (Pa. Super. 1955); Commonwealth v. Kaufman,
116 A.2d 316 (Pa. Super. 1955). In two cases, however, the United States
Supreme Court ruled that a criminal presumption is unconstitutional unless
the fact presumed “more likely than not” flows from the facts proven at trial.
Leary v. United States, 395 U.S. 6, 36 (1969); Turner v. United States,
396 U.S. 398, 405 (1970).
In response to Leary and Turner, our Supreme Court, in
Commonwealth v. Owens, 271 A.2d 230 (Pa. 1970), ruled that the old
evidentiary presumption for recently stolen property violated due process.
Id. at 233. Moreover, in Owens the Supreme Court emphasized that in the
absence of proof by the Commonwealth that the property had been stolen
recently, no evidentiary basis had been established to support a conviction
-7-
J-E02008-15
for receiving stolen property, with or without an explanation from the
appellant. The handgun in Owens had been stolen approximately seven
weeks prior to the appellant’s arrest, and without any other evidence of
guilty knowledge from the Commonwealth, the conviction could not stand:
We reiterate that there is nothing whatever in the
record touching upon how appellant originally came
into possession of the stolen pistol, and the
possibilities of innocent acquisition seem myriad: a
gift, payment for services rendered, payment of a
debt, purchase from a seemingly reputable dealer in
used guns.
Id. According to the Supreme Court, the seven week delay between the
theft of the handgun and the arrest provided ample time for any number of
transfers in “seemingly innocent circumstances,” and thus, the
Commonwealth had not provided the jury with any evidentiary basis to infer
that the appellant knew or had reason to know that the handgun was stolen.
Id.
Two years later, in Commonwealth v. Shaffer, 288 A.2d 727 (Pa.
1972), our Supreme Court again revisited this issue, ruling that while (per
Owens) a jury may not presume guilty knowledge based upon “recency
plus lack of explanation,” a jury can infer guilty knowledge based upon the
same evidentiary showing.2 Id. at 736. In contrast to Owens, in Shaffer
2
In Barnes v. United States, 412 U.S. 837 (1973), the United States
Supreme Court agreed, concluding in a case involving the unexplained
possession of recently stolen treasury checks, “common sense and
experience tell us that petitioner must have known or been aware of the
-8-
J-E02008-15
the Commonwealth’s evidence established the recency of the theft, as the
appellant was found in possession of jewelry stolen just one day before his
arrest. This evidence of recency permitted the jury to infer that the
appellant knew the jewelry was stolen, as this factual predicate
“competently established that the possessor of the recently stolen property
could be the thief.” Id. (emphasis added). Unlike in Owens, where the
lapse of time precluded any inference of guilty knowledge, the proof of
recency in Shaffer provided the jury with an evidentiary basis to infer guilty
knowledge, with or without any attempt by Shaffer to explain his
possession:
The inference in the instant case merely accords the
evidence its natural probative force, the inference of
guilt is simply a result that the triers of fact are
permitted to reach based on the evidence. We
stress that the triers of fact are permitted to reach
the inference, but they may also reject it, the result
is within the jury's discretion, and they are in no way
compelled to reach any conclusion. In the instant
case, the trial judge properly stressed the fact
that the possession must be recent, he pointed
out that appellant did not have the burden of
explaining possession, he more than adequately
charged the jury on the presumption of innocence,
he informed the jury that the Commonwealth had
the burden of proving every element of the crime
beyond a reasonable doubt, he informed the jury of
high probability that the checks were stolen.” Id. at 846. The Supreme
Court rejected petitioner’s contention that allowing the unexplained nature of
the possession to be used against him violated his privilege against self-
incrimination, indicating that while it could increase the pressure on him to
testify, “the mere massing of evidence against a defendant” does not violate
the privilege. Id.-9-
J-E02008-15
the significance of Shaffer's defense and stated that
the jury could not draw anything from the fact that
certain defendants did not testify in their own behalf,
and lastly he stated the jury could infer guilt from
the possession, thereby making it clear that it was
within their discretion.
Id. (emphasis added).
Finally, in Commonwealth v. Williams, 362 A.2d 244 (Pa. 1976),3
our Supreme Court again affirmed the “recency plus lack of explanation”
inference for recently stolen property, holding that “a permissible inference
of guilty knowledge may be drawn from the unexplained possession of
recently stolen goods without infringing on an accused’s right of due process
or his right against self-incrimination.” Id. at 248-49 (footnotes omitted).
Williams involved an appellant’s unexplained possession of a stolen car just
twelve days after its theft. Id. at 250. In reversing the decision of this
Court and reinstating the judgment of the trial court on the conviction of
receiving stolen property, the Supreme Court in Williams indicated that
“[c]ircumstantial evidence from which guilty knowledge can be inferred is
3
In a subsequent case, Commonwealth v. Doman, 416 A.2d 507 (Pa.
1980), the Supreme Court referred to Williams as a plurality decision. Id.
at 509. A review of the Williams opinion, however, suggests that it was in
fact a 6-1 majority decision, with four justices joining in the majority
decision and two concurring in the result. Justice Eagan authored the
majority decision with two justices (Jones, C.J. and O’Brien, J.) joining.
Justice Pomeroy filed a concurring opinion in which he amplified on the
constitutional history of the evidentiary presumption/inference at issue. In
his concurring opinion, Justice Pomeroy agreed with both the majority’s
decision to reinstate the judgment of the trial court and Justice Eagan’s
reasons for doing so. Williams, 362 A.2d at 250-51 (Pomeroy, J.,
concurring).
- 10 -
J-E02008-15
sufficient to sustain a conviction if the underlying circumstantial evidence is
sufficiently strong to support the inference beyond a reasonable doubt.” Id.
at 248.
In assessing the strength of the inference, the Supreme Court
indicated that mere possession of stolen property, without more, is not
sufficient circumstantial evidence to support an inference of guilty
knowledge. Id. at 248 n.7 (“[M]ere possession is insufficient to establish or
permit an inference of guilty knowledge….”). Proof that the goods were
recently stolen, however, may provide the jury with sufficient circumstantial
evidence to support an inference of guilty knowledge, since the
“circumstances of possession as presented by the Commonwealth” (the
recency of the theft) suggest “an explanation for the possession” (that the
accused was the thief, per Shaffer). Id. at 248. In other words, a jury
may infer guilty knowledge from evidence of recency, which in turn may
require the appellant to offer an alternative explanation for his possession of
the stolen item. It is the Commonwealth’s circumstantial evidence of guilty
knowledge (recency) that compels the need for an explanation, since in the
absence of an explanation the jury may infer guilty knowledge beyond a
reasonable doubt based upon the Commonwealth’s evidence. Even if the
accused offers an explanation, the jury may nevertheless find it
unsatisfactory and reach a finding of guilty knowledge based upon the
recency of the theft. Id.
- 11 -
J-E02008-15
Subsequent to Williams, this Court has had many opportunities to
apply its teachings, including that the mere possession of stolen property is
not sufficient to prove guilty knowledge. See, e.g., Commonwealth v.
Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002) (“[T]he mere possession
of stolen property is insufficient to prove guilty knowledge, and the
Commonwealth must introduce other evidence, which can be either
circumstantial or direct, that demonstrates that the defendant knew or had
reason to believe that the property was stolen.”); Commonwealth v.
Matthews, 632 A.2d 570, 571 (Pa. Super. 1993) (“[T]here must be
additional evidence [beyond mere possession], circumstantial or direct,
which would indicate that the defendant knew or had reason to know that
the property was stolen.”); Commonwealth v. Mayger, 395 A.2d 933, 935
(Pa. Super. 1978) (“All that was proved was that appellant had in his
possession a set of keys that were part of an ‘extensive list’ of things stolen
from a house in Levittown.”); Commonwealth v. Stover, 436 A.2d 232,
233-34 (Pa. Super. 1981) (possession thirty-seven days after the theft of an
automobile was not recent, and no other evidence linked the defendant to
the theft); Commonwealth v. Caesar, 369 A.2d 341, 344 (Pa. Super.
1976) (guilty knowledge would be “conjectural at best” where the theft of an
automobile was four weeks prior and the defendant was in jail at that time).
On the other hand, when the Commonwealth (per Williams)
establishes the recency of the theft, we have upheld convictions for receiving
- 12 -
J-E02008-15
stolen property. See, e.g., Commonwealth v. Hogan, 468 A.2d 493, 498
(Pa. Super. 1983) (en banc) (“We cannot say as a matter of law a period of
four weeks was so great as to render impermissible the inference of guilty
knowledge …”); Commonwealth v. Walters, 378 A.2d 1232, 1236-37 (Pa.
Super. 1977) (guilty knowledge properly inferred by unexplained possession
of stolen furniture six days after theft, where the defendant fled to avoid
police); but see Matthews, 632 A.2d at 572 (judgment of sentence
vacated where the defendant, who was in possession of an automobile
stolen three days prior, provided a satisfactory explanation, namely that he
had rented it in exchange for two rocks of crack cocaine).
Evidence of the recency of the theft is not the only basis for an
inference of guilty knowledge. See Commonwealth v. Stevenson, 363
A.2d 1144, 1145 (Pa. Super. 1976) (“[C]riminal intent or guilty knowledge
may be inferred where facts and evidence are such as to show that element
of the crime.”). Circumstantial evidence of guilty knowledge may include,
inter alia, the place or manner of possession, alterations to the property
indicative of theft, the defendant’s conduct or statements at the time of
arrest (including attempts to flee apprehension), a false explanation for the
possession, the location of the theft in comparison to where the defendant
gained possession, the value of the property compared to the price paid for
it, or any other evidence connecting the defendant to the crime. See, e.g.,
Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa. Super. 2006) (listing
- 13 -
J-E02008-15
factors); Foreman, 797 A.2d at 1009 (the owner of a motorcycle repair
shop in possession of motorcycles, engines, and other parts, where the
serial numbers on several of the motorcycle engines had been visibly
altered); Commonwealth v. Grabowski, 452 A.2d 827, 830 (Pa. Super.
1982) (attempts to sell a stolen car); Commonwealth v. Worrell, 419
A.2d 1199, 1201-02 (Pa. Super. 1980) (VIN numbers on frame of vehicle
and engine mutilated); Commonwealth v. Brabham, 407 A.2d 424, 426-
27 (Pa. Super. 1979) (flight from law enforcement at the time of arrest);
Commonwealth v. Phillips, 392 A.2d 708, 710 (Pa. Super. 1978)
(appellant in possession of repainted motorcycle in the same city where it
had been stolen, with the serial number marred).
In this case, the Commonwealth presented no evidence that would
support an inference of guilty knowledge. The Williams “recency plus lack
of explanation” inference does not apply, as the Commonwealth introduced
no evidence to satisfy the recency requirement.4 Schoenberger testified only
that he had last seen the handgun in July 2010, and did not know it was
missing until May 2013 when he was contacted by Officer Dinger after
4
While the Supreme Court in Williams indicated that issues regarding
recency are “normally questions of fact for the trier of fact,” Williams, 362
A.2d at 249, such is not the case here, as the lack of evidence regarding a
definitive date of the theft provided the jury with no basis on which to make
any findings of fact regarding recency (other than speculation).
- 14 -
J-E02008-15
Robinson’s arrest.5 N.T., 2/11/2014, at 39-40. Likewise, none of the other
recognized indicia of knowledge of the stolen nature of the property is
present. The handgun in Robinson’s possession was located in an
unremarkable location (his coat pocket), and it had not been altered in any
way to conceal its stolen status, as the manufacturer’s serial number
remained plainly visible. Robinson’s conduct at the time of arrest likewise
provided no indicia of guilty knowledge, as he merely stared “stone-faced” in
response to Officer Dinger’s inquiries, and he did not offer any false
explanation for his possession of the handgun or make any effort to flee
apprehension. In sum, the Commonwealth introduced no evidence
whatsoever at trial regarding how, when, or where Robinson acquired the
handgun, or from whom. Instead, the Commonwealth proved only that
Robinson possessed stolen property, which, as indicated, by itself is not
sufficient to prove guilty knowledge. See, e.g., Williams, 362 A.2d at 248
n.7; Foreman, 797 A.2d at 1012.
5
Schoenberger speculated that his stepson may have taken the weapon
between July 2011 and October 2011, when Schoenberger was driving a
truck. N.T., 2/11/2014, at 40. He offered no reasons, however, as to why
he believed the handgun may have been stolen during this period, as
opposed to any other time between July 2010 and May 2013. In any event,
if his stepson did steal the handgun in 2011, this still leaves nearly two
years before it was found in Robinson’s possession, which plainly does not
satisfy the recency requirement for the Williams inference. See, e.g.,
Commonwealth v. McFarland, 308 A.2d 592, 593 n.1 (Pa. 1973) (jury
instruction on “recency plus lack of explanation” was improper where the
arrest occurred eleven months after the theft).
- 15 -
J-E02008-15
Because the Commonwealth did not establish the recency of the theft
and provided no other circumstantial evidence of guilty knowledge, Robinson
had no obligation to offer any explanation for his possession of the handgun.
As our review of Shaffer and Williams makes clear, any necessary
compulsion for a defendant to provide an explanation must be in response to
the Commonwealth’s introduction of sufficient circumstantial evidence of
guilt to provide the jury with an inference beyond a reasonable doubt. In
those cases, once the Commonwealth proved the recency of the thefts, the
jury was free to infer the defendant’s guilt (that he could have been the
thief) unless the defendant could offer a satisfactory alternative explanation
for his possession of the stolen goods. Shaffer, 288 A.2d at 736; Williams,
362 A.2d at 248. In the present case, in contrast, because the
Commonwealth introduced no circumstantial evidence of guilty knowledge,
nothing compelled Robinson to offer evidence to explain his possession of
the handgun.
Nevertheless, the trial court ruled that Robinson’s failure to prove that
he had “registered” his ownership of the handgun was evidence that he
knew that it was probably stolen. Trial Court Opinion, 7/16/2014, at 5.
According to the trial court, Robinson’s “failure to obtain lawful ownership of
a firearm found in his possession indicates that [he] knew or had reason to
know that the firearm he possessed was likely taken from another individual
who had rightful ownership of the firearm.” Id. In particular, the trial court
- 16 -
J-E02008-15
found that “[t]o own a firearm in Pennsylvania, an individual must register
ownership with the State,” and that since “no paperwork was provided at
trial to show [Robinson’s] lawful ownership of any firearm, [Robinson] likely
received the firearm through improper means.” Id.
The trial court’s analysis is in error, in substantial part because it
reflects a basic misunderstanding of Pennsylvania law with respect to the
sale of firearms and the absence of any paperwork to demonstrate firearm
ownership. Specifically, no requirement exists under Pennsylvania law to
obtain a license, permit, or other permission to own a firearm, and the
Commonwealth does not maintain a registry of ownership of firearms.
Likewise, no state agency issues any documentation evidencing the
ownership of a firearm. Ownership of a firearm in Pennsylvania bears little
similarity to ownership of, for example, an automobile.
The trial court’s confusion may have resulted from Schoenberger’s
mistaken testimony that he was the “registered owner” of the handgun
because he had gone through a “registration process” at the local gun shop
when he purchased it.6 N.T., 2/11/2014, at 43. As indicated, however, no
6
Evidence of Schoenberger’s compliance with section 6111, without more,
was not evidence of Robinson’s noncompliance. The Commonwealth did not
charge Robinson with a violation of section 6111. At most, Schoenberger’s
testimony regarding his compliance allowed the jury to speculate as to
whether Robinson also complied, and fell far short of the proof necessary for
the Commonwealth to satisfy its evidentiary burden for the guilty knowledge
element of the crime. See, e.g., Barnes, 412 U.S. at 845 n.9 (“But the
burden of proving beyond a reasonable doubt that the defendant did have
- 17 -
J-E02008-15
“registration process” exists in Pennsylvania. Instead, the only requirement
in Pennsylvania before purchasing/transferring a firearm is to obtain an
instant background check by the Pennsylvania State Police (“PSP”). 7 18
Pa.C.S.A. § 6111. As with Schoenberger’s purchase, private sales/transfers
must be completed with an instant background check performed at the place
of business of a licensed importer, manufacturer, or dealer, or at a county
sheriff’s office. 18 Pa.C.S.A. § 6111(c). In connection with the background
checks, the PSP maintains a database of transactions.8 The failure to obtain
an instant background check may subject the seller/transferor to criminal
liability. A buyer/transferee may be subject to criminal liability under section
knowledge that the property was stolen, an essential element of the crime,
remains on the Government.”).
7
Pursuant to subsections 6111(b)(3)-(5), a licensed importer, licensed
manufacturer, or licensed dealer must, prior to selling or transferring a
firearm, contact the PSP for a background check (criminal history, juvenile
delinquency, and mental health records) on the purchaser/transferee, obtain
an approval number from the PSP, and issue a receipt with that approval
number on it to the purchaser/transferee. 18 Pa.C.S.A. § 6111(b)(3)-(5).
8
Pursuant to subsection 6111(b)(1), sales or transfers of handguns require
the seller/transferor to submit to the PSP a one-page application/record of
sale based upon information obtained from the buyer/transferee. 18
Pa.C.S.A. § 6111(b)(1). The seller/transferor must provide the
buyer/transferee with a copy of the application/record of sale and maintain a
copy of the same in its records for twenty years. Id. There is no
requirement that the buyer/transferee retain his/her copy of the document.
- 18 -
J-E02008-15
6111 only for making false statements or providing false identification to the
seller/transferor.9 18 Pa.C.S.A. § 6111(g).
Importantly, an instant background check does not constitute
registration of gun ownership or evidence of gun ownership. As our
Supreme Court has emphasized, section 6111 does not require background
checks at all for handguns (1) owned in Pennsylvania but obtained while
outside of the state, or (2) procured through transfers between spouses,
parents and children, or grandparents and grandchildren. Allegheny Cnty.
Sportsmen’s League v. Rendell, 860 A.2d 10, 21-22 (Pa. 2004); 18
Pa.C.S.A. § 6111(c). As a result, the PSP’s database (through which Officer
Dinger identified Schoenberger) is not a “registry of ownership” and is not a
“survey of existing [handgun] ownership.”
It is undisputed that the database at issue
is not a registry of ownership, but rather, merely
reflects the applications/records of sale for handgun
purchases that occur in Pennsylvania. The database
does not maintain a record of all firearms owned by
Pennsylvanians, which would include long guns, or
firearms that are owned by Pennsylvanians, but not
purchased in the Commonwealth. Additionally, the
database of handgun sales does not include
handguns that are transferred between spouses,
parents and children, and grandparents and
9
Subsection 6111(g) sets forth various criminal penalties for a
seller/transferor who fails to comply with these obligations. 18 Pa.C.S.A. §
6111(g)(1)-(3), (5)-(6). A buyer/transferee’s criminal liability under section
6111 is limited to knowingly or intentionally making false statements or
providing false identification in connection with the above-described process.
18 Pa.C.S.A. § 6111(g)(4).
- 19 -
J-E02008-15
grandchildren. See 18 Pa.C.S. § 6111(c). Nor is
the database a survey of existing ownership.
Id. (emphasis added). Instead, the database “merely contains information
regarding the sales of handguns in the Commonwealth.” Id.
For these reasons, the trial court’s contention that Robinson failed to
“register his ownership” of the handgun at issue is mistaken, as there is no
process or method in this Commonwealth for registering the ownership
status of a handgun. To the contrary, in this case the most that could be
said is that no instant background check was performed in connection with
Robinson’s acquisition (by sale or transfer) of the weapon. Even this
conclusion is not supported by the certified record, however, as the
Commonwealth introduced no evidence that an instant background check
was required at the time of Robinson’s acquisition (i.e., that he obtained it
while in Pennsylvania, and not from a spouse, parent, child, grandparent or
grandchild). Even if the evidence of record did demonstrate that an instant
background check should have been performed (which it does not),
compliance would be the responsibility of the individual who sold or
transferred the handgun to Robinson, rather than the responsibility of
Robinson (as the purchaser/transferee). The noncompliant seller/transferor
would face possible criminal penalties, not Robinson. For these reasons, no
evidentiary basis exists on this record to support the trial court’s assertion
that the jury could properly infer, beyond a reasonable doubt, that Robinson
- 20 -
J-E02008-15
must have obtained the handgun by “improper means.” Trial Court Opinion,
7/16/2014, at 5.
The Commonwealth alternatively contends, citing to section 6111, that
“the sale of handguns are highly regulated and they cannot easily be
obtained from legitimate dealers,”10 and “the factfinder was told that the gun
was stolen at some undetermined point [and thus,] it would have been
difficult for the firearm to be assimilated back into legal trade channels.”
Commonwealth’s Substituted Brief at 10. This argument is misleading at
best, since Schoenberger did not report the handgun as stolen until after
Robinson’s arrest, when he was contacted by Officer Dinger regarding its
whereabouts. N.T., 2/11/2014, at 39-42. As such, the Commonwealth
offered no evidence that the handgun at issue could not have been
assimilated back into legal trade channels.
Finally, the Commonwealth suggests that Robinson’s lack of a license
to carry the weapon was circumstantial evidence of his guilty knowledge.
Commonwealth’s Substituted Brief at 10. The Commonwealth does not offer
10
On this point, the Commonwealth cites to this Court’s decision in
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004). In significant
contrast to the present case, in Parker the Commonwealth introduced
evidence that the appellant was a convicted felon. Id. at 751. As such, the
appellant knew that it was illegal for him to obtain a handgun and that a
criminal background check thus would have prevented a purchase from a
legitimate dealer in legal trade channels. Id. Also in Parker, unlike in this
case, the handgun had been stolen the previous month near where the
police arrested the appellant, and the appellant made incriminating
statements both to the gun’s owner and to federal agents. Id. at 751-52.
- 21 -
J-E02008-15
any supporting argument for this contention, and we fail to grasp the
connection between ownership of a particular handgun and the lack of a
license to carry. Licenses to carry a handgun are issued to individuals
pursuant to 18 Pa.C.S.A. § 6109 based upon the applicant’s qualifications
(including, inter alia, his/her character, criminal history, juvenile
delinquency, or prior drug or alcohol abuse). 18 Pa.C.S.A. § 6109(e).
Ownership of a handgun is not a prerequisite to the issuance of a license to
carry, and the license is not issued for a particular handgun. Conversely, a
person may own a handgun without obtaining a license to carry, as was true
of Schoenberger in this case. N.T., 2/11/2014, at 44. Robinson was
charged, convicted, and sentenced for the crime of carrying a firearm
without a license, 18 Pa.C.S.A. § 6106(a)(1), and he does not contest that
conviction in this appeal. Without more, however, this conviction does not
implicate Robinson for the separate crime of receiving stolen property.
In conclusion, the Commonwealth proved only that Robinson
possessed a stolen handgun. The Commonwealth did not introduce any
evidence that would support a jury inference, beyond a reasonable doubt,
that Robinson knew or had reason to believe that the handgun was stolen.
In the absence of any evidence to support the second element of the crime
of receiving stolen property, the conviction must be reversed.
Judgment of sentence vacated on the conviction of receiving stolen
property, 18 Pa.C.S.A. § 3925(a). Case remanded for resentencing on the
- 22 -
J-E02008-15
conviction of carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1).
Jurisdiction relinquished.
P.J.E. Bender and Judges Panella, Shogan, Lazarus and Stabile join the
Opinion.
P.J. Gantman and Judge Mundy concur in the result.
Judge Allen did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2015
- 23 -