Com. v. Gregory, D.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2023
• Docket: 227 EDA 2022
• Status: Unpublished

Opinion

J-S10002-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAYMON GREGORY : : Appellant : No. 227 EDA 2022

Appeal from the Judgment of Sentence Entered December 2, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004818-2019

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY PANELLA, P.J.: FILED JUNE 26, 2023

Daymon Gregory appeals from the judgment of sentence imposed after

a jury convicted him on various charges stemming from a series of controlled

buys of cocaine and fentanyl by Upper Darby police. On appeal, Gregory claims

the court erred in allowing the Commonwealth to present PennDOT records at

trial that it did not disclose during discovery, challenges the weight and

sufficiency of the evidence supporting his convictions, and argues the

sentence of 13 to 26 years’ incarceration followed by 8 years’ probation was

excessive and unreasonable. After careful review, we vacate Gregory’s

sentence for receiving stolen property and affirm in all other aspects.

At trial, the Commonwealth presented evidence Upper Darby police had

received information that an individual was selling narcotics in the area of an

Upper Darby residence. Based on that information, an undercover officer

bought narcotics, including cocaine and fentanyl, from Gregory on three J-S10002-23

separate occasions. Shortly after the third transaction, police arrested Gregory

and executed a search warrant on the Upper Darby residence using a key

found on Gregory when he was arrested. During the search, police seized

cocaine, fentanyl, methamphetamine, and several firearms, as well as

assorted drug paraphernalia associated with drug dealing.

The jury convicted Gregory of five counts of possession with the intent

to deliver (“PWID”) cocaine, three counts of PWID fentanyl, one count of PWID

methamphetamine, two counts of illegal possession of a firearm, one count of

receiving a stolen firearm, and four counts of criminal use of a communication

facility. As noted, the court imposed an aggregated sentence of 13 to 26 years

in prison, followed by an eight-year period of probation. With some intervening

procedural irregularities that will be set forth in more detail below, Gregory

then filed this appeal.

Before addressing Gregory’s claims, we will address the timeliness of

the appeal. The trial court’s Pa.R.A.P. 1925(a) Opinion requests we quash this

appeal as untimely. See Trial Court Opinion, 4/29/22 at 1. Following Gregory’s

sentencing, counsel filed a post-sentence motion on December 10, 2021. See

id. at *2. While the motion was pending, Gregory filed a pro se Notice of

Appeal on January 11, 2022. See id. The trial court reasons that Gregory’s

pro se Notice of Appeal is an example of hybrid representation which he is not

entitled to and could cause confusion in this Court. See id. at *3. Additionally,

the trial court finds this appeal to be premature, as it was filed while the post-

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sentence motions were pending and therefore the judgment of sentence was

not yet final. See id. at *4.

The trial court is correct insofar as it notes that Gregory is not entitled

to hybrid representation. See Commonwealth v. Morgan, 39 A.3d 419, 420

(Pa. Super. 2012). However, as the Commonwealth and Gregory both argue,

a Notice of Appeal is an exception to the general rule against hybrid

representation and a Notice of Appeal filed during the pendency of post-

sentence motions is treated as properly filed upon the resolution of the

motions. See Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011). As

such, Gregory’s premature pro se appeal was perfected when his counseled

post-sentence motions were denied and the judgment of sentence became

final. See Pa.R.A.P. 905(a)(5). We decline to quash and will review the merits

of this appeal.

On appeal, Gregory raises four claims of trial court error: (1) the court

erred in permitting the Commonwealth to present to the jury certain

government records that were not disclosed during discovery, (2) the

evidence presented at trial was insufficient to support his conviction for

receiving stolen property, (3) the trial court erred in concluding his convictions

were not against the weight of the evidence, and (4) the trial court imposed

an excessive and unreasonable sentence. See Appellant’s Brief, at 9-10.

Gregory first argues that Pennsylvania Department of Transportation

(“PennDOT”) records introduced at trial violated the rules of discovery. See

Appellant’s Brief, at 29. On the second day of trial the Commonwealth recalled

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Officer Barbour to enter two documents into evidence: Gregory’s driver’s

license record and driving history. Both listed his address as the residence

searched by police and where drugs, firearms, and other evidence were

seized. See N.T., 9/24/21, at 3-5. Counsel objected to the documents on the

basis that they amounted to trial by surprise and knowledge of them would

have affected his trial strategy and opening statement. See id. at 6. The trial

court reasoned that the late introduction of the documents did not violate

discovery rules, as they were materials that Gregory knew existed. See id. at

9. Further, the trial court determined that one of the documents, containing a

twenty-year-old photo of Gregory, should be excluded based on relevance but

ruled the driving history, linking Gregory to the address of the residence, was

admissible. See id. at 16-17.

We review the trial court’s conclusion that the Commonwealth did not

violate the discovery rules for an abuse of discretion. See Commonwealth

v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017). “An abuse of discretion is

not merely an error of judgment, but is rather the overriding or misapplication

of the law, or the exercise of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill-will or partiality, as shown by the evidence of

record.” Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020)

(citations omitted).

Discovery in criminal cases is governed by Pa.R.Crim.P. 573 which

provides a list of items which the Commonwealth must provide if the

defendant requests it. See Pa.R.Crim.P. 573(B)(1). Notably, the rule also

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contains a continuing duty which allows, “[i]f, prior to or during trial, either

party discovers additional evidence or material previously requested or

ordered to be disclosed by it, which is subject to discovery or inspection under

this rule, … such party shall promptly notify the opposing party …”. See

Pa.R.Crim.P. 573(D).

Gregory argues that the PennDOT records are subject to mandatory

disclosure. See Appellant’s Brief, at 31. The Commonwealth disputes this

claim, citing Gregory’s equal access to, and knowledge of, the information

contained in the records, as well as his failure to request discovery. See

Commonwealth’s Brief, at 20-22. We do not find that this argument turns on

whether the document was subject to mandatory disclosure because it was in

fact disclosed when it was discovered, pursuant to Pa.R.Crim.P. 573(D). While

Gregory forcefully argues that the Commonwealth was required to disclose

these records pre-trial, he concedes the Commonwealth did not possess them

until after the first day of trial. See Appellant’s Brief, at 35-36.1 Therefore, we

find no abuse of discretion in the trial court’s finding that the lateness of the

disclosure did not violate the rules of discovery.

Gregory’s next argument is that the evidence was insufficient to sustain

his conviction for receiving stolen property under 18 Pa.C.S.A. § 3925(a). ____________________________________________

1Gregory also presents a one-sentence argument that “[o]nce the jury has been selected, the time for investigation into evidence to present in the Commonwealth’s case-in-chief is over, and the Commonwealth may not ambush a defendant with new documents.” Appellant’s Brief, at 37. He does not provide any authority for this novel argument, and we therefore conclude he has waived this argument by failing to develop it properly.

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When we review the sufficiency of the evidence, we view the evidence

admitted at trial and make any reasonable inferences from it in favor of the

Commonwealth and decide whether it was sufficient to prove each element of

the offense beyond a reasonable doubt. See Commonwealth v. Steele, 234

A.3d 840, 845 (Pa.Super. 2020). We do not re-weigh the evidence, that duty

lies within the province of the factfinder. See id.

Gregory’s argument relies heavily on Commonwealth v. Robinson,

128 A.3d 261 (Pa. Super. 2015) (en banc). In Robinson, this Court held the

evidence was insufficient to sustain a conviction for receiving stolen property

when there was no evidence to show the defendant had guilty knowledge that

the property, a firearm, was stolen. See id. at 272. This Court has identified

the elements of receiving stolen property to be: “(1) intentionally acquiring

possession of the movable property of another; (2) with knowledge or belief

that it was probably stolen; and (3) the intent to deprive permanently.” See

id. at 265 (citations omitted). The mental state required to complete this

crime is referred to as “guilty knowledge” and cannot be satisfied by mere

recklessness or negligence. See id. This required guilty knowledge may be

inferred by the jury based on circumstantial evidence. See id. In Robinson,

we confirmed that unexplained possession of a stolen firearm, without more

evidence, is not sufficient to prove the guilty knowledge element of the crime.

See id. at 269.

In this case, the trial court provided no analysis, simply requesting we

quash the appeal. Similarly, the Commonwealth simply relies on the

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stipulation that the firearm was stolen and hidden. See Commonwealth’s

Brief, at 28. Gregory claims a lack of the required guilty knowledge” to sustain

a conviction for receiving stolen property. See Appellant’s Brief, at 39. After

a review of the record, it is clear there was no evidence introduced regarding

Gregory’s knowledge of the stolen nature of the firearm. The parties stipulated

to the fact that the firearm was stolen and had been reported stolen

approximately three years prior to the seizure in this case. See N.T., 9/23/21,

at 92. The only other information about the firearm was that it was found

behind the fireplace mantel in the bedroom of Gregory’s home with another

firearm. See id. at 53-56.

The Commonwealth argues the fact that the firearm was hidden behind

the mantel was sufficient to infer Gregory’s guilty knowledge. However, the

Commonwealth fails to acknowledge the presence of a separate firearm at the

same location. There is no evidence or argument that the separate firearm

was stolen. Therefore, the fact that the stolen firearm was hidden with another

firearm, which the Commonwealth did not contend was stolen, provides no

basis upon which to reasonably infer guilty knowledge. In the absence of any

other circumstantial evidence indicating guilty knowledge requires a

conclusion the evidence was insufficient to support the conviction.

Accordingly, we vacate the judgment of sentence on the conviction of

receiving stolen property, 18 Pa.C.S.A. § 3925(a). This decision does not

disrupt the trial court’s sentencing scheme, as the sentence for this charge

was ordered to run concurrently with other sentences, and therefore we need

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not remand for resentencing. See Commonwealth v. Melvin, 103 A.3d 1,

57 (Pa. Super. 2014).

Gregory’s third argument is that the verdict was against the weight of

the evidence. See Appellant’s Brief, at 39. Our review of a weight of the

evidence claim is limited to whether the trial court abused its discretion in

ruling on the issue. See Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.

Super 2012). We do not alter a trial court’s decision on a weight claim lightly

as we are not empowered to make decisions regarding contradictions in

testimony even if we believe a different outcome is possible. See id.

Gregory argues that since Officer Barbour’s uncorroborated testimony

was the basis for the PWID cocaine and fentanyl charges and provided the

basis for the search of the residence, the verdict was against the weight of the

evidence. See Appellant’s Brief, at 39-40. Specifically, Gregory mentions the

fact that he was arrested with only two dollars on his person makes Officer

Barbour’s testimony non-credible and that the physical evidence found in the

house was only tenuously linked to him. See id.

We do not have the benefit of the trial court’s explicit reasoning for why

it rejected Gregory’s challenge to the weight of the evidence. Nonetheless, we

can find no reason to conclude the court abused its discretion in doing so. As

the Commonwealth notes, the crux of Gregory’s argument is a challenge to

Officer Barbour’s credibility. While Gregory highlights legitimate credibility

issues, we note that defense counsel ensured that these credibility issues were

presented to the jury. And these issues are certainly not so impactful as to

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require us to rule, as a matter of law, that the jury was unreasonable in finding

Officer Barbour credible. We therefore find no abuse of discretion in the trial

court’s denial of Gregory’s request for a new trial.

Gregory’s final claim is a challenge to the discretionary aspects of his

sentence. See Appellant’s Brief, at 19. Gregory has no absolute right to a

challenge to the discretionary aspects of his sentence. See Commonwealth

v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005). He is required to make a

statement in his brief of the reasons we should allow an appeal of the

discretionary aspects of his sentence. See id. He must also show that a

substantial question exists as to whether the sentence complies with the

Sentencing Code. See id.

Gregory has complied with these requirements. He included his

statement for reasons to allow an appeal challenging the discretionary aspects

of sentencing in his brief pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief,

at 19-21. Gregory claims that the court did not provide reasons for the

sentence on the record, instead focusing only on prior record and the gravity

of the offenses. See Appellant’s Brief, at 41. These claims constitute

substantial questions. See Commonwealth v. Ritchey, 779 A.2d 1183,

1186 (Pa. Super. 2001). We therefore turn to the merits of Gregory’s

sentencing claim.

The details of a sentence are left to the discretion of the sentencing

judge and we will only disturb them if we find an abuse of discretion. See

Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007). When

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reviewing a sentence we will vacate when we find the sentencing guidelines

were applied incorrectly, applying the sentencing guidelines is unreasonable

for the case, or a sentence outside the guidelines is unreasonable. See

Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012). When

fashioning a sentence, a trial court must consider the character of the

defendant and the specific circumstances of the offenses which includes

considering prior record score, age, and rehabilitative potential. See

Commonwealth v. Bowens, 265 A.3d 730, 764 (Pa. Super. 2021).

The basis of Gregory’s argument is that the sentencing court did not

state any reasons for imposing the sentence. See Appellant’s Brief, at 42. The

record belies this assertion. The sentencing hearing included discussion of the

sentencing guidelines, see N.T., 12/2/21, at 3-4, Gregory’s criminal record,

see id. at 4, his age, see id. at 9, his personal life, see id. at 9-10, his

parenting and employment circumstances, see id., the specific facts of the

offenses, see id. at 10-11, and the pre-sentence report, see id. at 11-12.

Further, the sentencing court can meet its requirement to state the

reasons for sentence simply by indicating that it has considered the pre-

sentence report. See Commonwealth v. Goodco Mechanical, Inc., 291

A.3d 378, 407 (Pa. Super. 2023). The mere fact that the sentencing judge

reviewed a pre-sentence report creates a presumption that the sentencing

judge meaningfully weighed the sentencing factors and we will not find an

abuse of discretion. See id.

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We also note that Gregory’s repeated assertions that the sentencing

court “double-counted” his prior record score does not appear to be based in

facts on the record, the court notes his history and clearly considered it as is

required.

After announcing the sentence, the court noted Gregory’s extensive

criminal history, his illegal possession of firearms, and that Gregory had taken

no responsibility for his crimes. See N.T., 12/2/21, at 14. The court observed

there was no evidence Gregory had a drug addiction. See id. Finally, the court

indicated that if Gregory had been younger, the court might have imposed an

even longer sentence since it was clear Gregory had not learned his lessons

from prior convictions. See id. at 15.

Given the evidence presented at the hearing, and the court’s review of

the PSI, we find no abuse of discretion in these reasons for the sentence

imposed.

Judgment of sentence for 18 Pa.C.S.A. § 3925(a) vacated. Judgment of

sentence affirmed in all other aspects.

Judge Lazarus joins the memorandum.

Judge Stabile concurs in result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/26/2023

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