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Commonwealth v. Gomez

Superior Court of Pennsylvania

December 19, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
JAVIER GOMEZ Appellant

          Appeal from the Judgment of Sentence Entered October 25, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005496-2017

          BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS [*] , P.J.E.

          OPINION

          DUBOW, J.

         Appellant, Javier Gomez, appeals from the Judgment of Sentence, entered on October 25, 2018, of twelve and one-half to twenty-five years of incarceration, imposed following his conviction for numerous narcotics-related offenses, weapons-related offenses, theft charges, and motor vehicle violations.[1] We affirm.

         Following a traffic stop, Appellant repeatedly refused to provide his license, registration, and insurance information. N.T. Jury Trial, 8/6/18, at 132-37. Officers at the scene observed Appellant and the two other occupants of the vehicle make furtive movements and otherwise act strangely. See, e.g., id. 133-34 (describing how Appellant repeatedly reached to his left and right in the vehicle, used his cell phone to call an attorney, and, via social media, invited people to the scene), 135 (describing a male passenger's scratching his arms, kicking a bag inside the vehicle, and reaching around), 165 (describing male passenger's scratching), 203 (describing female passenger as "very animated in her voice and her hand expressions . . . flailing her hands . . . moving her hands toward[] her breast area . . . and even inside of her bra").

         The strange and obstinate behavior of Appellant and his passengers led police to perceive them as a threat. Id. at 134. After repeated warnings, officers broke a window to gain entry into the vehicle and extracted Appellant and his passengers. Id. at 157, 175-76.

         Upon searching the vehicle, police seized two firearms, a Charter Arms .38 caliber revolver and a Ruger 9mm pistol. Id. at 176-77. The revolver was located in the vehicle's front enter console. Id. at 176. Police discovered the pistol in a locked safe located in a storage compartment behind the driver's seat. Id. at 156-60. The key to the safe was on the same key ring as Appellant's vehicle key. Id. Both firearms were loaded, operable, and reported stolen. Id. at 189-93; N.T. Non-Jury Trial, 10/15/18, at 38, 80. Police also retrieved DNA evidence from the firearms that matched a sample provided by Appellant. N.T. Jury Trial, 8/7/18, at 291-94.

         In addition, police seized substantial amounts of narcotics, including heroin, fentanyl, cocaine, methamphetamine, suboxone, and marijuana, as well as drug paraphernalia. N.T. Non-Jury Trial, 10/15/18, at 56-69.

         Following his arrest, the Commonwealth charged Appellant as noted. The Commonwealth proceeded with a bifurcated trial process.

         In August 2018, a jury trial commenced to adjudicate the two counts of Persons Not to Possess Firearms. In addition to the evidence set forth above, the Commonwealth established that Appellant had multiple felony drug convictions from 2003 and 2013. N.T. Jury Trial, 8/6/18, at 209-11, 232-33. Following the presentation of evidence and argument, the trial court instructed the jury on the relevant law. Appellant offered no objections to the court's instructions. N.T. Jury Trial, 8/7/18, at 257, 371-89, 390-94. Following its deliberations, the jury convicted Appellant of both counts. Id. at 395.

         In October 2018, a bench trial commenced to adjudicate the remaining charges. Appellant stipulated to all evidence introduced during the jury trial. N.T. Non-Jury Trial, 10/15/18, at 36-38. At the conclusion of the bench trial, the court found Appellant guilty of all charges. N.T. Non-Jury Trial, 10/15/18, at 313-14.

         Thereafter, the trial court sentenced Appellant. See N.T. Sentencing, 10/25/2018. Appellant timely filed a Post-Sentence Motion. Appellant sought a Judgment of Acquittal on the Receiving Stolen Property convictions, challenging the sufficiency of the Commonwealth's evidence. See Post-Sentence Motion, 11/2/18, at 1-3 (unpaginated). Appellant also sought a Judgment of Acquittal on one of the firearms offenses, asserting that the Commonwealth had failed to establish that the Ruger 9mm pistol was "within his reach." Id. at 3 (unpaginated) (emphasis omitted).

         The trial court denied Appellant's Post-Sentence Motion. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement, later amended upon receipt of the non-jury trial transcripts. The court issued a responsive Opinion.

         Appellant raises the following issues, restated for clarity:

1. Whether the evidence was insufficient to establish that Appellant knew or believed that firearms seized from his automobile were stolen or probably had been stolen;
2. Regarding the crime of Persons Not to Possess Firearms, whether the evidence was insufficient to establish that Appellant possessed the Ruger 9mm pistol, where police seized this firearm from a locked safe located in a storage compartment behind the front seat of Appellant's vehicle and beyond his reach; and
3. Regarding the crime of Persons Not to Possess Firearms, whether the court erred in failing to properly instruct the jury that it must find that Appellant "was in physical possession or control of a firearm, whether visible, concealed about the person[, ] or within the person's reach." 18 Pa.C.S. § 6105(a.1)(1.1)(i)(B).

See Appellant's Br. at 8-9.

         In his first two issues, Appellant challenges the sufficiency of the Commonwealth's evidence. "A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). We review a sufficiency challenge de novo, but our scope of review is limited to the evidence of record. Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015) (en banc).

         The Commonwealth must establish each element of the crimes charged beyond a reasonable doubt, but in so doing, it may rely on wholly circumstantial evidence. Commonwealth v. Galvin, 985 A.2d 783, 789 (Pa. 2009). The fact-finder, "while passing on the credibility of the witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence." Id. "[A] reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth." Id.

         In his first issue, Appellant contends that the Commonwealth's evidence was insufficient to establish the crime of Receiving Stolen Property. Appellant's Br. at 19, 22. Appellant concedes that the firearms seized from his automobile were reported stolen. Id. at 22, 29; N.T. Non-Jury Trial, 10/15/18, at 38. However, noting that mere possession of stolen property is insufficient to enable a fact-finder to infer the requisite mens rea, Appellant suggests that the Commonwealth failed ...


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