Com. v. Clugston, N. ( 2023 )

J-S39023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS LEE CLUGSTON :
:
Appellant : No. 169 MDA 2022
Appeal from the Judgment of Sentence Entered May 27, 2021
In the Court of Common Pleas of Juniata County Criminal Division at
No(s): CP-34-CR-0000021-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS LEE CLUGSTON :
:
Appellant : No. 170 MDA 2022
Appeal from the Judgment of Sentence Entered May 27, 2021
In the Court of Common Pleas of Juniata County Criminal Division at
No(s): CP-34-CR-0000122-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 21, 2023
Appellant, Nicholas Lee Clugston, appeals from the judgments of
sentence of an aggregate term of four to ten years’ incarceration imposed
following his convictions for, inter alia, access device fraud and receipt of
stolen property. We affirm.
The facts are straightforward. On November 27, 2019, Collin Smith
received an alert from his bank that his debit card was involved in suspicious
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activity. Smith realized that his debit card was missing and checked his bank
records. He noticed two unauthorized purchases on November 27: one from
a Rutter’s convenience store at 6:55 p.m., and the other from a Sheetz
convenience store at 10:14 p.m. Smith called the Pennsylvania State Police
and spoke to Trooper Zebulin Evans. Smith testified that he did not authorize
Appellant or anyone else to make these purchases.
Chelsea Hosler testified that her car was broken into and her wallet was
taken.1 Hosler received a text message from her bank reporting suspicious
activity; specifically, that her card was being used at 3:03 a.m. at the
Mifflintown Mart. Hosler did not authorize anyone to make this purchase.
Trooper Evans testified that he spoke to Smith on November 27, 2019.
Based on that information, he proceeded to the Rutter’s store. The employees
permitted Trooper Evans to examine their video surveillance. He determined
that around the time of the reported transaction a silver, dual-wheeled diesel
truck entered the parking lot. A male is seen exiting the passenger side of
the vehicle and making purchases in the store. The male is then seen
reentering the passenger side of the vehicle.
Trooper Evans took images of the truck and met with Trooper Cody
Booher. The two men were able to determine that the vehicle was an early
2000s Chevrolet diesel truck. The two separated. Shortly thereafter, Trooper
Booher radioed Trooper Evans to report a sighting of a vehicle matching the
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1Ms. Hosler was not certain of the date, testifying it occurred a day or two
before Thanksgiving, which fell on November 28, 2019.
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description. He effectuated a traffic stop and spoke with the driver, later
identified as Appellant. During the interaction, Appellant told Trooper Booher
that he did not have any identification and gave the name John Clugston, who
is Appellant’s brother. Trooper Booher saw cartons of cigarettes and a debit
card in the center console. The name on the card was Collin Smith. Appellant
informed him that the card may have belonged to a friend of his by the name
of John Mosser. Trooper Booher took the card and radioed Trooper Evans,
who confirmed that Collin Smith was one of the victims and agreed to meet
Trooper Booher. Trooper Evans arrived, and as the two approached
Appellant’s vehicle, Appellant sped off at a high rate of speed and a police
pursuit commenced. The chase lasted almost one hour, and Appellant struck
several police vehicles during the chase. Eventually, Trooper Booher was able
to initiate a PIT (precision immobilization technique), causing Appellant’s
vehicle to travel down an embankment and into a field. Appellant fled the
scene on foot and was not apprehended that evening.
Troopers recovered a bag inside the vehicle with Appellant’s name on
the tag. Trooper Booher obtained Appellant’s driver’s license photograph and
confirmed that he was the driver. Trooper Evans also recovered from the
vehicle an additional card belonging to Smith, as well as Hosler’s bank card
and her wallet. The cigarettes were determined to have been purchased
during one of the fraudulent transactions.
Appellant was thereafter charged at the above-captioned dockets. At
docket CP-34-CR-21-2020, Appellant was charged with thirty-eight counts, all
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of which related to the police chase. Appellant does not raise any challenges
to his convictions at that docket. At docket CP-34-CR-0000122-2020,
Appellant was charged with two counts of access device fraud, 18 Pa.C.S. §
4106(a)(3), and two counts of receipt of stolen property, 18 Pa.C.S. §
3925(a). This consolidated appeal exclusively challenges those four
convictions.
The matters were consolidated for trial and Appellant was found guilty
of several charges, including the four convictions at issue here, following a
jury trial held on March 22, 2021. Appellant was sentenced on May 27, 2021.
At each count of access device fraud, Appellant received a sentence of 6 to 12
months of incarceration, set consecutively to each other and consecutive to
the other docket. The trial court determined that the receipt of stolen property
charges merged with the access device fraud charges. Appellant filed a timely
notice of appeal at each docket, and we consolidated the appeals. Appellant
raises two issues for our review:
1. Was the evidence at trial insufficient to prove beyond a
reasonable doubt that Appellant committed the crime of access
device fraud where the Commonwealth failed to establish that
Appellant possessed an access device knowing that it belonged to
another person?
2. Was the evidence at trial insufficient to prove beyond a
reasonable doubt that Appellant committed the crime of receiving
stolen property where the Commonwealth failed to establish that
Appellant intentionally retained a debit card knowing it had been
stolen or believing it had probably been stolen?
Appellant’s Brief at 10.
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Each claim challenges the sufficiency of the evidence to convict. Our
standard of review is well-settled:
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the [fact-finder] to find every element
of a crime beyond a reasonable doubt.
Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations
and quotation marks omitted). We must determine whether the evidence
admitted, and all reasonable inferences drawn from that evidence, support
the elements of the offenses beyond a reasonable doubt. Commonwealth.
v. Woodard, 129 A.3d 480, 490 (Pa. 2015). The Commonwealth may sustain
its burden by wholly circumstantial evidence. Commonwealth v. Spell, 28
A.3d 1274, 1278 (Pa. 2011). “The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the defendant’s
innocence, but the question of any doubt is for the jury 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.” Commonwealth v. Aguado,
760 A.2d 1181, 1185 (Pa. Super. 2000).
Beginning with the access device fraud charges, Appellant was convicted
of violating 18 Pa.C.S. § 4106(a)(3), which requires the Commonwealth to
establish that the actor “possess[ed] an access device knowing that it is
counterfeit, altered, incomplete or belongs to another person who has not
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authorized its possession.” The statute defines “access device” to include the
credit/debit cards at issue here.
Appellant challenges the element of possession and directs our attention
to Commonwealth v. Ballard, 244 A.3d 815 (Pa. Super. 2020), a case that,
like this one, involves a conviction for access device fraud where direct proof
that the defendant used the access devices was lacking. In Ballard, a store
manager observed suspicious activity at the store’s gas pumps. Specifically,
he saw an individual, known from previous encounters, pumping gas into two
vehicles, a black SUV and a tan SUV. The manager knew that this individual
had previously used multiple cards to pump gas into multiple cars. This
individual was not the appellant.
A police officer responded and stopped the respective drivers of the two
SUVs, Todd Williams and Michael Hawkins. The officer asked both men if they
had any credit cards in their possession, and they each turned over several
cards that were later determined to be fraudulent. Hawkins allowed the officer
to search his vehicle, where the appellant was seated. The appellant turned
over five credit cards that the officer determined, via a credit card reader,
were fraudulent. The officer acknowledged that the appellant was not seen
pumping gas or using any of the credit cards.
The Ballard decision is significant largely for its analysis of what
constitutes an “access device.” The appellant in Ballard argued that the
Commonwealth failed to present sufficient evidence that the cards in question
were capable of being used. See id. at 819 n.2 (explaining that the appellant
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conceded the Commonwealth is not required to show actual use of the cards
but claimed that “that the statute’s plain text requires that the prosecution
establish only that the card he possessed had the capability to do so”) (citing
brief). We disagreed, explaining that the statute does not require proof that
the access device “be actually or technologically capable of working” and that
the plain meaning of “can be used” simply means that the item could possibly
be used. Id. at 820. We noted that a contrary interpretation would produce
absurd results, as an individual who managed to cancel or deactivate a stolen
access device would thereby “absolv[e] defendants who happen to have stolen
from a prudent card-holder.” Id.
Appellant argues that this case is unlike Ballard in that he did not
possess the access devices on his person. “Rather, [Appellant] merely
complied with a request by police that he hand them the debit card” located
in the vehicle’s console, which was “a communal space available to any
occupant of the vehicle, past or present.” Appellant’s Brief at 21. In this
regard, Appellant suggests that the surveillance video which showed an
individual exiting Appellant’s passenger side establishes that the passenger is
the guilty party.
We agree that Ballard is distinguishable in terms of actual possession.
But this is of no help to Appellant as the Commonwealth may establish the
element of possession via constructive possession.
This Court has held that “[p]ossession can be found by proving
actual possession, constructive possession, or joint constructive
possession.” Commonwealth v. Heidler, 741 A.2d 213, 215
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(Pa. Super. 1999). Where a defendant is not in actual possession
of the prohibited items, the Commonwealth must establish that
the defendant had constructive possession to support the
conviction. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013) (conviction under 18 Pa.C.S. § 6106(a) supported
by a finding of constructive possession). See also
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004)
(same). “Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.”
Hopkins, supra at 820 (citation and quotation omitted). “We
have defined constructive possession as conscious dominion,”
meaning that the defendant has “the power to control the
contraband and the intent to exercise that control.” Id. (citation
and quotation omitted). “To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.” Id. (citation and quotation omitted).
Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018).
Constructive possession may be proved by circumstantial evidence. Id. at
37.
Appellant’s brief does not discuss constructive possession. He does,
however, reference the concept by claiming “he was merely present in a
vehicle in which a debit card was in an open common area of the vehicle.”
Appellant’s Brief at 22. It is true that mere presence is insufficient to establish
constructive possession. Parrish, 191 A.3d at 37. However, the
Commonwealth may prove the elements of constructive possession via a
totality of the circumstances. In this regard, Appellant fails to address the
significant circumstantial evidence of guilt. First, Appellant’s vehicle contained
Hosler’s wallet in addition to the access devices. To the extent that the
evidence suggests a second actor may have been involved, the fact that an
item that was stolen from Hosler’s vehicle was in his presence suggests that
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Appellant was a participant in any joint scheme. Second, and relatedly,
authorities found cigarettes inside Appellant’s vehicle that were purchased
during the fraudulent transactions reported by the victims. Again, as a matter
of circumstantial proof, the proceeds being present in the vehicle where
Appellant is the sole occupant is powerful evidence. Finally, Appellant
diminishes the inferences that may be drawn from his flight and evasive
behavior. In Commonwealth v. Cruz, 21 A.3d 1247 (Pa. Super. 2011), this
Court addressed whether the Commonwealth established constructive
possession of a firearm located in a compartment on the passenger side of a
vehicle. Like here, the appellant in Cruz was the sole person in the vehicle.
We stated:
[The a]ppellant was the only person found in the vehicle. The gun
in question was found in a compartment on the passenger side of
the vehicle. Officer Doyle testified that [the] appellant was
observed moving sideways toward the passenger side of the
vehicle immediately after Officer Doyle turned on his lights and
siren. During questioning, [the] appellant gave Officer Doyle five
or six different names and multiple birthdates, thus exhibiting a
consciousness of guilt. Under these circumstances, we think the
trial court was justified in concluding that [the] appellant had
knowledge of the gun, had the power and intent to exercise
control of the gun, and, therefore, had constructive possession of
the gun….
Instantly, [the] appellant was the only person in the vehicle, he
was seen moving toward where the gun was found as soon as he
was aware that he was being stopped, and he exhibited a marked
consciousness of guilt. We find that the evidence at trial was
sufficient to find constructive possession.
Id. at 1253.
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The evidence of flight and the corresponding strength of the inference
regarding guilty knowledge is much stronger here. In addition to giving the
name of his brother during the traffic stop, Appellant led officers on a chase
that lasted almost one hour. These actions are highly suggestive of
consciousness of guilt.2 We therefore conclude that the Commonwealth met
its burden.
Turning to the sufficiency of the evidence to convict Appellant of receipt
of stolen property, much of our foregoing analysis applies. To establish that
crime, the Commonwealth must establish that Appellant “(1) intentionally
acquir[ed] 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. Arias, 286 A.3d 341, 350 (Pa. Super.
2022) (quoting Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super.
2015) (en banc)).
Appellant challenges the second element, often referred to as “guilty
knowledge” of the crime. Commonwealth v. Gomez, 224 A.3d 1095, 1099
(Pa. Super. 2019). To prove that Appellant knew the property in his
possession was stolen or believed it was probably stolen, the Commonwealth
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2 Appellant also avers that the Commonwealth failed to establish that he knew
the access devices belonged to persons who did not authorize his possession.
This assertion is essentially duplicative of the claim that the Commonwealth
failed to establish the elements of receipt of stolen property, and the
circumstantial evidence cited therein equally applies to that aspect of his
access device fraud charges.
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may rely on circumstantial evidence, including the lack of an explanation for
possessing recently stolen goods. Id. at 1100.
Circumstances that can establish the requisite knowledge on the
part of the defendant include: a short time between the theft and
defendant’s possession; the defendant’s conduct at arrest and
while in possession of the stolen property; the type of property;
the location of the theft in comparison to the location where the
defendant gained possession; the value of the property compared
to the price paid for it; and the quantity of the stolen property.
Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa. Super. 2006) (citation
omitted).
Just as mere presence is not enough to establish constructive
possession, the mere possession of property that is stolen is likewise
insufficient. Id. However, “guilty knowledge may be inferred from
unexplained, or unsatisfactorily explained, possession of recently stolen
goods.” Id. (quoting Commonwealth v. Bowens, 265 A.3d 730, 745-46
(Pa. Super. 2021) (en banc)).
As with our analysis of constructive possession, the circumstantial
evidence justifies the inference that Appellant believed that the access devices
were probably stolen. His flight from a routine traffic stop makes little sense
otherwise. Furthermore, the nature of the access device cards themselves is
significant. Appellant possessed a card bearing Smith’s name. While we are
required to view the evidence in the light most favorable to the
Commonwealth, even viewing the evidence in the light most favorable to
Appellant illustrates that his flight makes no sense. If Appellant truly believed
that his friend had left the card in his possession, the logical question would
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be why Mosser had a card belonging to someone else. The obvious and logical
inference is that Appellant had guilty knowledge and responded by trying to
flee. The circumstantial evidence was sufficient to establish Appellant’s guilty
knowledge, and no relief is due.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2023
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