Commonwealth v. Spain

• Decision Date: 07 April 2021
• Docket Number: J-S04030-21,No. 1309 MDA 2020,1309 MDA 2020
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. KHIRI KASHIER SPAIN Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA Appellee v. KHIRI KASHIER SPAIN Appellant

J-S04030-21

No. 1309 MDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 7, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence entered August 26, 2020

In the Court of Common Pleas of Berks County

Criminal Division at No: CP-06-CR-0003029-2019

BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:

Appellant, Khiri Kashier Spain ("Spain" or "Appellant"), appeals from the judgment of sentence entered in the Court of Common Pleas of Berks County on August 26, 2020, following Appellant's convictions of persons not to possess firearms, receiving stolen property, and firearms not to be carried without a license.¹ Appellant contends that the evidence was not sufficient to support his convictions, that the verdicts were against the weight of the evidence, and that he is entitled to a new trial based on a Batson² violation. Upon review, we affirm.

The trial court summarized the relevant facts as follows:

On November 1, 2018, deputies from the Berks County Sheriff's Office were on duty when they observed Spain walking in the 800 block of Penn Street, Reading, Berks County, Pennsylvania. They made contact with Spain and asked for his name. He provided them with the name of Tyler. Spain handed over his backpack and gave the deputies permission to open it to retrieve his identification. During the encounter, one of the deputies attempted to handcuff Spain but Spain swung his arms to break away from the deputy and fled.³ The deputies deployed their taser with no effect. Spain continued to run but, after a struggle, was caught and taken into custody. During the struggle, Spain was observed reaching down towards his legs and waistband. Spain was wearing athletic pants. One of the deputies drew his firearm and commanded Spain to show his hands due to his fear that Spain may be reaching for a weapon. Spain's right shoe came off during the altercation revealing that he had socks on. Spain continued to run until a bystander intervened and assisted in his apprehension.

After Spain was taken into custody, Spain was observed leaning over as if he was tired and trying to shield his body from the deputies. A brief pat-down of Spain's waist was performed and he was placed in the rear passenger seat of the deputies' SUV. Spain's legs and underwear were not checked. Nothing was discovered on Spain during the pat-down. Spain's hands were handcuffed behind his back while in the SUV. Two of the deputies retraced the route they followed while chasing Spain. Spain's backpack was never located.

The deputies transported Spain in the SUV and dropped him off at central processing to be booked before travelling in the same SUV to a separate location to execute a warrant. As they arrived at this location, the deputy operating the SUV slammed on the SUV's brakes to allow the deputies to exit the SUV and make contact with another individual. When they re-entered the SUV, the deputies observed a pink handgun sticking out fromunderneath the seat Spain was seated in. Between a half-hour to an hour and a half elapsed between the time Spain was placed in the SUV and the discovery of the pink handgun. Nobody else was transported in the SUV during that time.

After the firearm was recovered, law enforcement learned that it was owned by Gerald and Amanda Shaeffer and had been reported stolen. The serial number on the firearm was partially obliterated. Also, law enforcement discovered that Spain did not have a license to carry a firearm.

A DNA sample was obtained from Spain and the firearm was swabbed twice for DNA. The DNA swabs both showed that Spain's DNA was present on the firearm. On the first DNA swab, Spain was one of three DNA contributors. Spain contributed more DNA than the other two individuals. Spain was the only DNA contributor on the second swab of the firearm.

Trial Court Opinion, 11/10/20, at 2-4 (references to notes of testimony omitted).

At the conclusion of trial, the jury returned guilty verdicts indicated above.⁴ On August 26, 2020, the trial court sentenced Spain to a cumulative sentence of six to 12 years in prison to be served concurrently with a sentence imposed in a separate action. The trial court denied Spain's post-sentence motions on September 9, 2020. This timely appeal followed. Both Spain and the trial court complied with Pa.R.A.P. 1925.

Spain presents three issues for our consideration.

[1.] Whether the Commonwealth presented evidence that was legally insufficient to support an inference that Appellant ever possessed or received a stolen firearm, where the only inculpatory circumstance was his DNA's [sic] being found on a handgun—along with the DNA of at least two other people—which did not rule out the equally likely possibility, consistent with Appellant's innocence, that this was owing merely to an accidental DNA-transfer or -drop that occurred at some point during his time in custody in the passenger-seat directly under which the gun was eventually found; and where no evidence at all was present to show that Appellant had guilty knowledge of the gun's [sic] being stolen over four weeks earlier?

[2.] Whether Appellant's convictions were against the weight of the evidence, where, inter alia, none of the officers involved in his pursuit and arrest ever saw, heard, felt or otherwise perceived the presence of a gun on Appellant at any time; and it would have been practically impossible for Appellant to manage to secrete a gun beneath a the seat of a police-car, while handcuffed and tightly secured, without attracting the notice of the guarding officer seated right next to him?

[3.] Whether the Commonwealth committed an unconstitutional Batson violation by peremptorily striking the only black member from a panel of at least forty-eight potential jurors, and failing to offer a valid, non-pretextual, racially neutral explanation therefor, as it did not apply the same supposedly disqualifying criteria to similarly situated white jurors?

Appellant's Brief at 13-14.

In his first issue, Spain challenges the sufficiency of evidence supporting his convictions. Specifically, he contends the Commonwealth failed to present sufficient evidence to establish that he ever possessed a firearm and, therefore, all his convictions fall. Appellant's Brief at 24.⁵

In Commonwealth v. Newton, 994 A.2d 1127 (Pa. Super. 2010), this Court reiterated:

Our standard of review in a sufficiency of the evidence challenge is to determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering all the evidence admitted at trial, and drawing all reasonable inferences therefrom in favor of the Commonwealth as the verdict-winner. The trier of fact bears the responsibility of assessing the credibility of the witnesses and weighing the evidence presented. In doing so, the trier of fact is free to believe all, part, or none of the evidence.

Id. at 1131 (quoting Commonwealth v. Pruitt, 951 A.2d. 307, 318 (Pa. 2008) (citations omitted), cert. denied, 556 U.S. 1131 (2009)).

With respect to receiving stolen property, in Commonwealth v. Galvin, 985 A.2d 783 (Pa. 2009), our Supreme Court explained:

Receiving stolen property is established by proving that the accused "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 of with intent to restore it to the owner."

Id. at 792 (quoting 18 Pa.C.S.A. § 3925(a)). "Illegal possession of a firearm may be established by constructive possession." Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation omitted).

Concerning constructive possession, this Court has held:

When contraband is not found on the defendant's person, the Commonwealth must establish "constructive possession," that is, the power to control the contraband and the intent to exercise that control. The fact that another person may also have control and access does not eliminate the defendant's constructive possession . . .. As with any other element of a crime, constructive possession may be proven by circumstantial evidence. The requisite knowledge and intent may be inferred from the totality of the circumstances.

McClellan, 178 A.3d at 878 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996), appeal denied, 692 A.2d 563 (Pa. 1997) (citations omitted)). "Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." McClellan, 178 A.3d at 878 (citation omitted).

In the context of the case before us, the Commonwealth had the burden of establishing that Spain constructively possessed the handgun and "knew the firearm in question was stolen, or believed that it had probably been stolen. A person 'knows' the goods are stolen if he is 'aware' of that fact." Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en banc) (citing 18 Pa.C.S.A. § 302(b)(2)(i)).

Spain suggests that the presence of his DNA on the handgun does not support an inference of possession and that circumstances must corroborateconstructive possession. Appellant's Brief at 36. "Constructive possession is an inference arising from a set of facts"—not just one equivocal fact—"that possession of the contraband was more likely than not." Id. (quoting McClellan, 178 A.3d at 878).

The trial court concluded the evidence established Spain's constructive possession of the firearm, noting:

Spain was wearing socks and athletic pants when he was encountered by the deputies. During Spain's struggle with the deputies, Spain was observed reaching down towards his legs and waistband which raised concern that Spain was reaching for a weapon. After Spain was taken into custody, he was observed attempting to shield his body from the deputies. The jury could have inferred that Spain's actions were

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