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.
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. We affirm.
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").
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.
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.
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.
his arrest, the Commonwealth charged Appellant as noted. The
Commonwealth proceeded with a bifurcated trial process.
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
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.
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).
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.
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.
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).
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
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 ...