Com. v. Cruceta-Ferreira, E. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
EDUARD CRUCETA-FERREIRA, : No. 1423 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered July 19, 2019,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0002812-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 09, 2020
Eduard Cruceta-Ferreira appeals from the judgment of sentence entered
July 19, 2019 by the Court of Common Pleas of Berks County following his
conviction of one count each of firearms not to be carried without a license
and careless driving.1 The trial court sentenced appellant to a term of
182-364 days’ incarceration, followed by 5 years’ probation. After careful
review, we affirm.
The trial court provided the following factual and procedural history:
On June 13, 2018, Joshua Krick was cut off by a car
at a construction merge point almost causing him to
hit a median. When he honked at the vehicle and
threw his hands in the air, it “brake checked” him
several times during the traverse of the one lane
construction zone. At some point, the two vehicles
ended up side by side. Mr. Krick testified that the
1 18 Pa.C.S.A. § 6106(a)(1) and 75 Pa.C.S.A. § 3714(a), respectively.
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driver of the other vehicle, [appellant], pulled a pistol
out of the middle console, waved it in the air and
laughed at him. Mr. Krick called 911. When Mr. Krick
saw a police car stopped waiting to make a turn from
the opposite direction, he approached the police car in
a panic. He indicated that the operator of a black
vehicle with plastic over the rear window had pulled a
gun on him. He pointed to a vehicle about four cars
further north on [State Route] 61. Officer
Alan Shinkus of the Northern Berks Regional Police
Department pursued the vehicle which stopped in the
parking lot of a local business, Century Cabinetry.
[Appellant’s] girlfriend, Frances Feliciano, was
employed at Century Cabinetry. Ms. Feliciano was
asked by police if she kept a gun in the car. She
answered yes and told police that her weapon was in
the center console. When the console was opened,
the pistol was not there. It was in the back seat of
the car partially concealed in a black plastic binder on
the floor behind the passenger seat. [Appellant]
admitted to Ms. Feliciano that he threw the gun in the
back seat because he was nervous. Officer Shinkus
testified that the gun was loaded when it was
recovered. Ms. Feliciano testified that she had put the
gun in [appellant’s] car the evening before to remove
it from her home during a party when she thought her
son may have been playing with it. [Appellant] was
in the kitchen preparing food when she told him she
put the gun in the car. At the time of the incident,
[appellant] was 19 years old. A records check
indicated he did not have a license for a concealed
weapon.
Trial court opinion, 11/4/19 at 2-3.
On July 12, 2019, after a jury trial, [appellant] was
found guilty of firearms not to be carried without a
license. There was a hung jury as to one count of
terroristic threats and not guilty verdicts as to
harassment and disorderly conduct. Sentencing was
scheduled for July 19, 2019. [Appellant had] a prior
record score of zero. The offense gravity score [was]
9 and the standard guideline range was
12-24 months. A sentence of 182 days to 364 days
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followed by five years of probation was imposed. This
was a mitigated range sentence. [Appellant] was also
convicted of careless driving. No fine was imposed
but [appellant] was ordered to pay the costs. On
July 25, 2019, a post[-]sentence motion was filed
arguing the lack of sufficiency of the evidence and that
the verdict was against the weight of the evidence.
The post[-]sentence motion was denied without a
hearing on July 31, 2019. [A] notice of appeal was
filed on August 26, 2019. On August 29, 2019, the
[trial] court ordered that a concise statement of
matters to be complained upon appeal be filed. The
timely 1925(b) statement was filed on September 19,
2019.
Id. at 1 (citations and extraneous capitalization omitted). The trial court filed
an opinion pursuant to Pa.R.A.P. 1925(a) on November 4, 2019.
Appellant raises the following issues for our review:
[I.] Whether the evidence was sufficient to establish
all elements of firearms not to be carried
without a license[?]
[II.] Whether the verdict convicting appellant of
firearms not to be carried without a license was
against the weight of the evidence[?]
[III.] Whether the Felony 3 grading of firearms not to
be carried without a license was proper[?]
[IV.] Whether the trial court erred in determining that
potential character witnesses could be
questioned regarding their knowledge of
appellant’s pending simple assault charges[?]
[V.] Whether the trial court erred in failing to instruct
the jury that the mens rea element of firearms
not to be carried without a license applies to the
possession of a firearm inside a vehicle.
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Appellant’s brief at 11-12 (extraneous capitalization and footnote omitted).2
In his first issue on appeal, appellant contends that the Commonwealth
failed to establish that appellant knowingly, intelligently, or recklessly carried
a firearm without a license in his vehicle. (Appellant’s brief at 23.)
In reviewing a challenge to the sufficiency of the
evidence, our standard of review is as follows:
As a general matter, our standard of
review of sufficiency claims requires that
we evaluate the record in the light most
favorable to the verdict winner giving the
prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need
not establish guilt to a mathematical
certainty. Any doubt about the
defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak
and inconclusive that, as a matter of law,
no probability of fact can be drawn from
the combined circumstances.
The Commonwealth may sustain its
burden by means of wholly circumstantial
evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s
participation in a crime is circumstantial
does not preclude a conviction where the
evidence coupled with the reasonable
inferences drawn therefrom overcomes
the presumption of innocence.
2 In his brief, appellant concedes that the trial court’s instructions to the jury
were proper, thereby abandoning his fifth issue on appeal. (Appellant’s brief
at 12 n.1.)
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Significantly, we may not substitute our
judgment for that of the fact finder; thus,
so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the
respective elements of a defendant’s
crimes beyond a reasonable doubt, the
appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-723
(Pa.Super. 2013) (internal quotations and citations
omitted). Importantly, “the jury, which passes upon
the weight and credibility of each witness’s testimony,
is free to believe all, part, or none of the evidence.”
Commonwealth v. Ramtahal, [], 33 A.3d 602, 607
([Pa.] 2011).
Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).
In the instant appeal, appellant challenges his conviction of firearms not
to be carried without a license, which the Crimes Code defines as:
(a) Offense defined.--
(1) Except as provided in paragraph
(2), any 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)(1).
In his brief, appellant argues that, “he never noticed the firearm in the
vehicle until the interaction with [Mr. Krick].” (Appellant’s brief at 25.) Put
another way, appellant maintains that he was not aware there was a firearm
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in his vehicle, therefore, he did not possess the requisite intent. (Id. at 26.)
As noted by the trial court, the Commonwealth presented evidence to the
contrary. (See trial court opinion, 11/4/19 at unnumbered pages 4-5.)
Indeed, appellant’s then-girlfriend, Frances Feliciano, testified that she
told appellant that she had put her firearm in the center console of appellant’s
car on June 12, 2018. (Notes of testimony, 7/11/19 at 42.) Ms. Feliciano also
testified that after the incident, appellant told her that after he was pulled over
by the police, appellant put the firearm in the driver’s manual and then put
the firearm on the back seat. (Id. at 41.)
Additionally, the Commonwealth introduced testimony from Mr. Krick.
Mr. Krick testified that after an interaction with appellant in traffic, Mr. Krick’s
vehicle was adjacent to appellant’s at a red light, at which point Mr. Krick
nonverbally expressed frustration with appellant due to what Mr. Krick
described as appellant’s erratic driving. (Id. at 11-12.) Mr. Krick then
testified that appellant “proceeded to reach in his middle console and pull out
a semiautomatic pistol.” (Id. at 12.) Appellant then waved his gun at
Mr. Krick. (Id. at 13.)
When reviewing this evidence in the light most favorable to the
Commonwealth, as verdict winner, we find that the Commonwealth sufficiently
proved beyond a reasonable doubt that appellant either knowingly,
intelligently, or recklessly carried a firearm without a license in his vehicle.
Accordingly, appellant’s first issue is without merit.
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In his second issue, appellant alleges that his conviction of firearms not
to be carried without a license was against the weight of the evidence, and
that the trial court abused its discretion when it failed to overturn the jury’s
verdict. (Appellant’s brief at 26.)
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a
review of the exercise of discretion, not of
the underlying question of whether the
verdict is against the weight of the
evidence. Because the trial judge has had
the opportunity to hear and see the
evidence presented, an appellate court
will give the gravest consideration to the
findings and reasons advanced by the trial
judge when reviewing a trial court’s
determination that the verdict is against
the weight of the evidence. One of the
least assailable reasons for granting or
denying a new trial is the lower court’s
conviction that the verdict was or was not
against the weight of the evidence and
that a new trial should be granted in the
interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained:
The term “discretion” imports the exercise
of judgment, wisdom and skill so as to
reach a dispassionate conclusion within
the framework of the law, and is not
exercised for the purpose of giving effect
to the will of the judge. Discretion must
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be exercised on the foundation of reason,
as opposed to prejudice, personal
motivations, caprice or arbitrary actions.
Discretion is abused where the course
pursued represents not merely an error of
judgment, but where the judgment is
manifestly unreasonable or where the law
is not applied or where the record shows
that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, [], 64 A.3d 1049, 1055
([Pa.] 2013) (internal citations omitted).
Commonwealth v. McClelland, 204 A.3d 436, 447 (Pa.Super. 2019),
appeal denied, 217 A.3d 214 (Pa. 2019). Further, it is axiomatic in this
Commonwealth that credibility determinations are in the sole purview of the
jury, who is free to believe all, none, or some of the evidence presented.
Commonwealth v. Cramer, 195 A.3d 594, 600 (Pa.Super. 2018), citing
Commownealth v. Talbert, 129 A.3d 536, 545 (Pa.Super. 2015), appeal
denied, 138 A.3d 4 (Pa. 2016). “Resolving contradictory testimony and
questions of credibility are matters for the factfinder.” Id., quoting
Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.Super. 2000).
Here, appellant raises the argument that his “testimony was credible
when he stated that he did not realize that the gun was there prior to
[Mr. Krick’s] interaction with him.” (Appellant’s brief at 27-28.) As noted
above, credibility determinations are in the sole purview of the jury, and we
cannot substitute our own credibility determinations for that of the jury. See
Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.Super. 2017), appeal
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denied, 174 A.3d 558 (Pa. 2017), citing Commonwealth v. Johnson, 668
A.2d 97, 101 (Pa. 1995) (citation omitted).
Appellant also argues that because the jury did not convict him of
terroristic threats and disorderly conduct, “it can be inferred that the jury
believed that [a]ppellant did pick the gun up, but it does not show beyond a
reasonable doubt that he knew that the firearm was there prior to that
moment, which was the assertion made by [Mr. Krick].” (Appellant’s brief at
28.) Put another way, appellant’s weight of the argument relies upon the fact
that the jury reached an inconsistent verdict.
Our supreme court has held the following relating to inconsistent
verdicts:
While recognizing that the jury’s verdict appears to be
inconsistent, we refuse to inquire into or to speculate
upon the nature of the jury’s deliberations or the
rationale behind the jury’s decision. Whether the
jury’s verdict was the result of mistake, compromise,
lenity, or any other factor is not a question for this
Court to review. See [Commonwealth v.
Campbell, 651 A.2d 1096, 1100-1101 (Pa. 1994)
(discussing United States v. Powell, 469 U.S. 57(1984)]. We reaffirm that an acquittal cannot be
interpreted as a specific finding in relation to some of
the evidence, and that even where two verdicts are
logically inconsistent, such inconsistency alone cannot
be grounds for a new trial or for reversal.
Furthermore, the “special weight” afforded the fact of
an acquittal plays no role in the analysis of
inconsistent verdicts, because, by definition, one of
the verdicts will always be an acquittal.
Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012).
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Accordingly, appellant is not entitled to relief for his weight of the
evidence claim.
Next, appellant avers that his firearms not to be carried without a license
conviction was improperly graded as a third-degree felony because the
sentencing court, and not the jury, “determined that this grading was
appropriate based upon the testimony at trial.” (Appellant’s brief at 30.)
Appellant further argues that while testimony was offered that appellant was
only 19 years of age at the time of the incident at issue, “the jury was not
instructed to make a finding that [a]ppellant was ineligible to obtain a license
to carry a firearm.” (Id. at 30-31.) Appellant ultimately concludes that he
“was subjected to a higher sentence based upon a finding of ineligibility, this
is a fact that must go before the jury to determine.” (Id. at 31, citing Alleyne
v. United States, 570 U.S. 99 (2013).)
In [Commonwelath v. Bavusa, 832
A.2d 1042 (Pa. 2003)], our Supreme
Court held that the existence of mitigating
factors permitting a lesser grade of an
offense does not impose upon the
Commonwealth an additional evidentiary
burden of negating that mitigating factor
to obtain a conviction of the more severe
grade of the same offense.
[Commonwealth v. Norley, 55 A.3d 26, 530
(Pa.Super. 2012)] (citing Bavusa, 832 A.2d at 1052).
In Bavusa, the statute at issue was 18 Pa.C.S.A.
§ 6106(a) (carrying a concealed firearm without a
license). Under Section 6106(a)(1) generally, a
person who carries a concealed firearm without a valid
license commits a felony of the third degree.
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However, that same subsection notes an exception for
a person otherwise eligible to possess a license if that
person has not committed any other criminal
violation. In that case, the person commits a
misdemeanor of the first degree rather than a felony
of the third degree. See 18 Pa.C.S.A. § 6106(a)(2).
The Supreme Court ruled that “the availability in
subsection (2) of a downgrade from third degree
felony to first degree misdemeanor if certain ‘personal
status factors’ exist (license eligibility and never
having committed any other crime) does not create
new elements of the crime in question (carrying a
concealed firearm).” Norley, 55 A.3d at 530 (citing
Bavusa, 832 A.2d at 1055). To be convicted of the
crime, the Commonwealth must show that the
individual carried an unlicensed concealed firearm.
“The ‘personal status factors’ are not elements of the
crime, but are instead grading factors.” Id.
Commonwealth v. Hodges, 193 A.3d 428, 433-434 (Pa.Super. 2018),
appeal denied, 202 A.3d 40 (Pa. 2019).
Here, as noted by the trial court—and as conceded by appellant—
appellant was 19 years of age at the time of the incident in question.
Accordingly, he was ineligible to lawfully obtain a license to carry a concealed
firearm. See 18 Pa.C.S.A. § 6109(b) (stating that an individual must be
21 years of age or older to apply for a license to carry a concealed firearm).
We, therefore, discern no error on the part of the trial court when it graded
appellant’s firearms not to be carried without a license conviction as a
third-degree felony. Appellant’s third issue is without merit.
In his fourth issue, appellant contends that the trial court erred when it
determined that appellant’s potential character witnesses could be questioned
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regarding their knowledge of appellant’s pending simple assault charges. (Id.
at 31.)
The Pennsylvania Rules of Evidence permit a criminal defendant to
introduce evidence of his or her character or a pertinent character trait, so
long as that evidence is not used to “prove that on a particular occasion the
person acted in accordance with the character or trait.” Pa.R.E. 404(a)(1).
Such evidence may be proven by testimony about the person’s reputation.
Pa.R.E. 405(a). As this court further explained:
In a criminal case, the defendant may offer character
witnesses to testify as to that defendant’s reputation
in the community regarding a relevant character trait.
See Pa.R.E. 404(a)(1); 405(a). Of course, the
Commonwealth may attempt to impeach those
witnesses. Commonwealth v. Hoover, 16 A.3d
1148, 1149 (Pa.Super. 2011) (citing
Commonwealth v. Morgan, [] 739 A.2d 1033, 1035
([Pa.] 1999)). “For example, when cross-examining
character witnesses offered by the accused, the
Commonwealth may test the witnesses’ knowledge
about specific instances of conduct of the accused
where those instances are probative of the traits in
question.” Hoover, 16 A.3d at 1149-1150 (citing
Pa.R.E. 405(a)). However, the Commonwealth’s right
to cross-examine character witnesses is not
unlimited: the Commonwealth may not cross-
examine a character witness about a defendant’s
uncharged criminal allegations, Morgan, 739 A.2d at
1035-1036, or a defendant’s arrests that did not lead
to convictions. Commonwealth v. Scott, [] 436
A.2d 607, 611-612 ([Pa. 1981).
Commonwealth v. Kuder, 62 A.3d 1038, 1057-1058 (Pa.Super. 2013),
appeal denied, 114 A.3d 416 (Pa. 2015); see also Pa.R.E. 405(a)(2) (“In a
criminal case, on cross-examination of a character witness, inquiry into
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allegations of other criminal conduct by the defendant, not resulting in
conviction, is not permissible.”).
Here, the record reflects that appellant intended to introduce character
evidence pertaining to appellant’s reputation in the community for
nonviolence, law-abidingness, peacefulness, and honesty. (Notes of
testimony, 7/11/19 at 84.) Appellant raised an oral motion in limine in which
he sought to preclude the Commonwealth from inquiring as to pending
criminal charges3 during its cross-examination of appellant’s character
witnesses. (Id. at 6.) The Commonwealth argued that “those allegations
absolutely are something that it would be within [its] right to question a
witness who’s stating that he has a reputation for non-violence and
law-abidingness about.” (Id. at 85.) The trial court agreed with the
Commonwealth, stating that, “While I agree it may be less probative, I believe
if it’s character testimony and, therefore, reputation in the community, some
limited questions could be asked as to whether there is an awareness of any
other allegations.” (Id. at 85-86.) During his case-in-chief, appellant’s
counsel noted that he had elected not to call any character witnesses as the
result of the trial court’s ruling on his motion in limine, stating as follows:
Your Honor, we had intended to call some character
witnesses and that had been our intention at the
outset of this being listed for trial, but I just wanted
3 Appellant was charged with simple assault as a result of an alleged domestic
incident. (Id. at 84-85.) At the time of trial in the instant matter, appellant
averred that he had not yet had a preliminary hearing on the simple assault
charge. (Id. at 85; see also Commonwealth’s brief at 15.)
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to put it on the record in view of Your Honor’s rulings
because of the new pending charges and the
intricacies of interpreting from the Spanish language
and the danger of opening the door was too great, so
I decided not to call them. And I explained that to
[appellant,] and he understands that and that’s why
we’re not calling those witnesses, but they were here
and we had planned on doing so.
Id. at 105.
Based on our review of the record and the relevant rules and case law,
we find that the trial court abused its discretion when it denied appellant’s
motion in limine seeking to preclude the Commonwealth from raising criminal
allegations that had not resulted in a conviction during cross-examination.
Indeed, the plain language of Pa.R.E. 405(a)(2) explicitly states that, “inquiry
into allegations of other criminal conduct by the defendant, not resulting in
conviction, is not permissible.” Id.; see also Kuder, 62 A.3d at 1057-1058.
Our inquiry, however, cannot end here. Indeed, the Commonwealth
maintains that any error on the part of the trial court relating to this issue was
harmless. (See Commonwealth’s brief at 16-17.) Our supreme court has
defined harmless error as follows:
The doctrine of harmless error is a technique of
appellate review designed to advance judicial
economy by obviating the necessity for a retrial where
the appellate court is convinced that a trial error was
harmless beyond a reasonable doubt. Its purpose is
premised on the well-settled proposition that a
defendant is entitled to a fair trial but not a perfect
one.
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Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012), cert. denied
sub nom. Allshouse v. Pennsylvania, 569 U.S. 972 (2013), quoting
Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quotation
marks and brackets omitted).
As noted by the trial court,
[T]he presentation of a peaceful character or law
abidingness is not relevant to the issue of intentional
possession of a weapon in the car which [is] at issue
for the sole count on which [appellant] was convicted.
By returning a guilty verdict on this count, while
rendering not guilty verdicts on others, and after
being instructed on what it means to act intentionally
or knowingly, the jury made both credibility and
factual determinations showing they believed
[appellant] knew the gun was in the car.
Trial court opinion, 11/4/19 at unnumbered pages 11-12.
Accordingly, we find that any error on the part of the trial court in
denying appellant’s motion in limine was harmless, as appellant was not
convicted of any offenses where the character evidence at issue would have
been relevant and admissible. Appellant, therefore, is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/09/2020
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