J-S17043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

TREMAYNE SPILLMAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1298 WDA 2022

Appeal from the Judgment of Sentence Entered October 5, 2022

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0001255-2021

BEFORE: LAZARUS, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: July 7, 2023

Appellant, Tremayne Spillman, appeals from the judgment of sentence 

entered in the Fayette County Court of Common Pleas, following his jury trial 

convictions for persons not to possess firearms and receiving stolen property

(“RSP”).

1

 We affirm. 

The trial court opinion set forth some of the relevant facts of this case 

as follows:

On May 22, 2021, Pennsylvania State Troopers were 

dispatched to Adolph’s Tavern, Masontown, Fayette County 

for a report of a man brandishing a gun inside the bar. 

David Cogar testified that Appellant was at the bar that night 

with another man. Cogar, a bartender, approached the two

men asking if they needed anything else when he heard a 

“clicking noise” as if a gun was ejecting the shell. Appellant 

pointed a gun at Cogar then spun around in his seat and 

pointed it at the Disc Jockey booth. An altercation ensued 

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1 18 Pa.C.S.A. §§ 6105; 3925, respectively. 
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between the Disc Jockey, Appellant and David Cogar which 

led to Appellant being disarmed. Cogar threw the firearm 

into a garbage can inside the bar where it was recovered by 

Troopers. Appellant was removed from the bar. 

Troopers located Appellant and detained him. Trooper Strini 

testified that Appellant was taken to the barracks and read 

his Miranda[2]rights. When interviewed by Troopers

Appellant told the Troopers that he possessed a gun on the 

night in question which he purchased from an individual 

named “Quami” who sold it to him for Two Hundred Dollars

($200.00). During his interview, Appellant said he knew 

that Quami was going to report the firearm as stolen, and 

that he knew he was a felon who is not allowed to possess 

firearms. When Troopers ran an eTrace on the firearm it 

was reported stolen on May 22, 2021. 

(Trial Court Opinion, filed 1/10/23, at 2-3) (record citations omitted). 

Specifically, the eTrace revealed that someone reported the firearm stolen six 

to eight hours prior to the incident at Adolph’s Tavern. The eTrace also listed

Zetta Nicholson as the firearm owner. Zetta Nicholson is Quami’s significant 

other. Appellant claimed that Quami planned to report the firearm as stolen

two days after Appellant purchased it to collect insurance money. 

Procedurally: 

A jury trial began on June 6, 2022, with Appellant present, 

however Appellant left trial after opening statements and 

never returned nor could he be contacted. The trial 

continued in his absence. The jury found Appellant guilty of 

one count of [persons not to possess firearms] and one 

count of [RSP]. Appellant was finally located on October 3, 

2022, and on October 5, 2022, Appellant was sentenced on 

his conviction of [persons not to possess firearms] to a 

period [of] incarceration not less than eighty-four (84) 

months nor more than 18 years. [The court imposed no 

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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further penalty on the RSP conviction].

(Id. at 1-2). Appellant timely filed a post-sentence motion on October 12, 

2022. On October 18, 2022, the court denied the post-sentence motion. 

Appellant timely filed a notice of appeal on October 31, 2022. On November 

1, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of 

errors complained on of appeal. Following the grant of an extension of time, 

Appellant timely complied on December 8, 2022. 

On appeal, Appellant raises the following issues for our review: 

The evidence was insufficient to sustain a conviction and 

sentence for [RSP]. 

[Appellant] was denied a fair trial in absentia. 

(Appellant’s Brief at 2). 

In his first issue, Appellant argues the Commonwealth did not establish 

the necessary mens rea for his RSP conviction. Specifically, Appellant avers 

the Commonwealth failed to prove Appellant knew or had reason to know that 

the firearm was stolen to establish the “guilty knowledge” element of the 

crime. Appellant insists he purchased the gun from Quami for $200.00, two 

days prior to the incident at Adolph’s Tavern. Appellant claims Quami told 

him that Quami planned to report the gun as stolen two days later to receive 

insurance money. Therefore, Appellant posits that at the time he purchased

the firearm, it was not stolen. Appellant concludes the Commonwealth 

presented insufficient evidence to sustain his RSP conviction, and this Court 
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must reverse his conviction and vacate the judgment of sentence.

3

 We 

disagree. 

In reviewing a challenge to the sufficiency of the evidence, our standard 

of review is as follows: 

As a general matter, our standard of review of sufficiency 

claims requires that we evaluate the record in the light most 

favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence. Evidence will be deemed sufficient to support the 

verdict when it establishes each material element of the 

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. Any doubt about the defendant’s guilt is to be 

resolved by the fact finder 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. 

The Commonwealth may sustain its burden by means of 

wholly circumstantial evidence. Accordingly, [t]he fact that 

the evidence establishing a defendant’s participation in a 

crime is circumstantial does not preclude a conviction where 

the evidence coupled with the reasonable inferences drawn 

therefrom overcomes the presumption of innocence. 

Significantly, we may not substitute our judgment for that 

of the fact finder; thus, so long as the evidence adduced, 

accepted in the light most favorable to the Commonwealth, 

demonstrates the respective elements of a defendant’s 

crimes beyond a reasonable doubt, the Appellant’s 

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3 Appellant also argues the court should have bifurcated the charges in this 

case because the disclosure of Appellant’s prior conviction, which the 

Commonwealth introduced relative to his persons not to possess firearms

charge, prejudiced the jury regarding his RSP charge. Nevertheless, Appellant 

concedes that he did not file a motion for severance in the trial court (see 

Appellant’s Brief at 10 n.7), and he raises this claim for the first time on 

appeal. Consequently, this issue is waived, and we will give it no further 

attention. See Pa.R.A.P. 302(a) (stating issues not raised in trial court are 

waived and cannot be raised for first time on appeal). 
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convictions will be upheld. 

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019) 

(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super. 

2013)). 

The Crimes Code defines the offense of RSP, in relevant part, as follows:

§ 3925. Receiving Stolen Property

(a) Offense defined.—A person is guilty of theft if he 

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 with intent to 

restore it to the owner. 

18 Pa.C.S.A. § 3925(a). “[T]o establish the mens rea element of the crime of 

[RSP], the Commonwealth must prove that the accused possessed property

with ‘guilty knowledge,’ i.e., knowing that it has been stolen, or believing that 

it has probably been stolen.” Commonwealth v. Newton, 994 A.2d 1127, 

1132-33 (Pa.Super. 2010). “A person ‘knows’ that goods are stolen if he is 

‘aware’ of that fact.” Id. at 1132. Regarding the latter part of the test, “it is 

clear that [the statute] is designed to criminalize situations where the 

defendant does not know for certain that the goods are stolen, but 

nevertheless has: (1) considered the possibility that the goods are stolen and 

(2) concluded that the answer is at the very least, ‘probably.’” Id.

The Commonwealth may establish a defendant’s “guilty knowledge” by 

wholly circumstantial evidence. Id. “Often, intent cannot be proven directly 

but must be inferred from examination of the facts and circumstances of the 
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case.” Id. In evaluating “guilty knowledge,” this Court has explained:

A permissible inference of guilty knowledge may be 

drawn from the unexplained possession of recently 

stolen goods without infringing upon an accused’s 

right of due process or his right against selfincrimination, as well as other circumstances, such as 

the accused’s conduct at the time of arrest. 

Nonetheless, the mere possession of stolen property is 

insufficient to prove guilty knowledge, and the

Commonwealth must introduce other evidence, which can 

be either circumstantial or direct, that demonstrates that 

the defendant knew or had reason to believe that the 

property was stolen. This additional evidence can include 

the nature of the goods, the quantity of the goods involved, 

the lapse of time between possession and theft, and the 

ease with which the goods can be assimilated into trade 

channels. Further, whether the property has alterations

indicative of being stolen can be used to establish guilty 

knowledge. Finally, even if the accused offers an 

explanation for his possession of stolen property, the 

trier of fact may consider the possession as 

unexplained if it deems the explanation 

unsatisfactory.

Commonwealth v. Parker, 847 A.2d 745, 751 (Pa.Super. 2004) (quoting 

Commonwealth v. Foreman, 797 A.2d 1005, 1012-13 (Pa.Super. 2002)) 

(internal citations omitted) (emphasis added). “Any or all of the above 

circumstances, and others not enumerated, taken sometimes alone and 

sometimes in relation to each other, may give rise to the final necessary 

inference that the [defendant] knew that the property possessed was stolen 

property.” Commonwealth v. Campbell, 334 A.2d 735, 738 (Pa.Super. 

1975). 

Significantly, when the Commonwealth “establishes the recency of the 

theft, we have upheld convictions for [RSP].” Commonwealth v. Robinson, 
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128 A.3d 261, 268 (Pa.Super. 2015) (en banc). “Whether possession is 

recent, and how recent it is, are normally questions of fact for the trier of 

fact.” Commonwealth v. Hogan, 468 A.2d 493, 497-98 (Pa.Super. 1983) 

(en banc). “[W]hether possession of goods is unexplained is also a question 

of fact.” Id. at 496.

Instantly, Trooper Strini testified at trial that someone reported the 

firearm stolen six to eight hours before police discovered Appellant in 

possession of the firearm at Adolph’s Tavern. Thus, the record makes clear

Appellant was in possession of recently stolen goods at the time of his 

apprehension. See Parker, supra. Trooper Strini further testified that Zetta 

Nicholson was the owner of the firearm, and that Quami is Zetta Nicholson’s 

significant other. 

Appellant attempted to explain his possession of the firearm by claiming 

that he purchased it from Quami approximately two days earlier for $200.00, 

and that Quami had planned to report the gun as stolen two days later to 

obtain insurance money. Appellant did not inform the trooper about whether 

Quami was in possession of the gun with the owner’s permission. Additionally, 

no evidence adduced at trial corroborated Appellant’s version of events. 

Under these circumstances, the jury heard Appellant’s explanation regarding 

his possession of the firearm, and it was within the jury’s purview to reject 

the explanation as unsatisfactory and to deem Appellant’s possession as 

unexplained for purposes of considering his guilty knowledge. See id. Thus, 
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the jury was free to draw a permissible inference of Appellant’s guilty 

knowledge from his unexplained possession of recently stolen goods, and his 

first issue on appeal merits no relief. Id. 

In his second issue, Appellant argues that several witness identifications 

of Appellant that took place during trial were unfair and improper when

Appellant was absent from the courtroom. Appellant admits that he was 

present for jury selection, but he complains that the witnesses’ brief 

observations of him during that time were insufficient to positively identify 

Appellant for the jury. Appellant claims that one of the Commonwealth’s 

witnesses, David Cogar, identified Appellant from the bar on the night in 

question and stated that Appellant has a “Spillman” tattoo, even though 

Appellant insists he does not have the tattoo. Appellant also challenges the 

Commonwealth’s presentation of Appellant’s driver’s license to the jury, from 

which Trooper Strini identified Appellant. Appellant maintains that the 

Commonwealth presented no evidence to verify that the driver’s license 

displayed for the jury accurately depicted Appellant. 

For these reasons, Appellant insists the court should have provided

additional jury instructions about the witness identifications in this case. 

Specifically, Appellant claims the court should have cautioned the jury about 

the reliability of the witnesses’ identification of Appellant given Appellant’s 
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absence from trial.

4

 Appellant concedes that defense counsel did not seek

additional jury instructions regarding witness identification, but he suggests

that the court should have done so sua sponte. Under these circumstances, 

Appellant concludes that this Court should vacate and remand for a new trial. 

We disagree. 

Initially, we observe: “A defendant has an absolute right to be present 

at his trial. It is a right, however, which may be waived. It may be waived 

expressly, or waiver may be implied by a defendant’s actions.” 

Commonwealth v. Sullens, 533 Pa. 99, 102, 619 A.2d 1349, 1351 (1992). 

“[W]hen a defendant is absent without cause at the time his trial is scheduled 

to begin, he may be tried in absentia[.]” Id. at 104, 619 A.2d at 1352. See 

also Pa.R.Crim.P. 602(A) (stating: “The defendant’s absence without cause at 

the time scheduled for the start of trial or during trial shall not preclude 

proceeding with the trial, including the return of the verdict and the imposition 

of sentence”). 

Unless the defendant is prevented from attending the 

proceedings for reasons beyond his or her control, the 

defendant is expected to be present at all stages of trial. A 

defendant owes the court an affirmative duty to advise it if 

he or she will be absent. If a defendant has a valid reason 

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4 Appellant cites to Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 

(1954). “A Kloiber instruction informs the jury that an eyewitness 

identification should be viewed with caution when either the witness did not 

have an opportunity to view the defendant clearly, equivocated on the 

identification of the defendant, or has had difficulty identifying the defendant 

on prior occasions.” Commonwealth v. Sanders, 42 A.3d 325, 332 

(Pa.Super. 2012), appeal denied, 621 Pa. 702, 78 A.3d 1091 (2013). 
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for failing to appear, for example, if he or she has a medical 

emergency or is called to leave because of a family 

emergency, then the defendant can alert the court 

personally or through counsel of the problem. When, 

however, the defendant leaves the trial abruptly, without an 

explanation to either his lawyer or the court, this may be 

regarded as an absence without cause. 

Commonwealth v. Wilson, 551 Pa. 593, 600, 712 A.2d 735, 738 (1998)

(internal citations omitted). Additionally, the failure to request a jury 

instruction at the appropriate time of trial renders a complaint about the 

court’s failure to issue the instruction waived on appeal. See 

Commonwealth v. Pressley, 584 Pa. 624, 628-29, 887 A.2d 220, 222-23

(2005). 

Instantly, the trial court explained: 

Appellant was present for the jury selection process and 

opening statements. Then Appellant failed to return after 

lunch. The [c]ourt gave defense counsel time to contact 

Appellant with no avail. Clearly, Appellant had waived his 

right to be present at trial by voluntarily absenting himself 

after the beginning of his trial without cause. 

Appellant further argues that he was not afforded a fair trial 

in absentia. Specifically, Appellant raises two issues, (1) 

that the in-court identification by the witnesses was unfair 

and (2) that the judge improperly commented on the 

absence of the Appellant during the trial.[5] 

The crux of Appellant’s argument regarding in court 

identification is that “[t]rial unfairness exists if a defendant 

is identified at trial by a witness pointing to an empty chair 

due to [Appellant’s] absence from the trial.” 

However, Appellant, who was at liberty on bail, absconded 

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5 Appellant has abandoned the latter argument on appeal. 
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from the trial and is now trying to benefit from his voluntary 

absence on appeal. The Commonwealth witnesses who 

were present for the beginning of the trial were able to 

identify Appellant from the beginning of the trial and their 

experience with him on the night in question. Trooper Strini 

was not present for the beginning of trial, so the 

Commonwealth presented him with a photocopy of 

Appellant’s driver license photo for identification. Therefore, 

with the benefit of two of the witnesses and the jury seeing 

Appellant before he absented himself the in-court 

identification was proper. 

(Trial Court Opinion at 4-5). We agree with the court’s analysis.

Here, Appellant told defense counsel that Appellant was leaving trial 

after jury selection to locate a witness. Appellant failed to return. Defense 

counsel said he was unable to contact Appellant because Appellant’s phone 

was broken. (See N.T. Trial, 6/6/22, at 13). At the sentencing hearing, 

Appellant stated: “I got scared, Your Honor. I went to see my daughter. 

There’s no excuse for me not coming back [to trial].” (N.T. Sentencing 

Hearing, 10/18/22, at 1). Under these circumstances, we agree with the court 

that Appellant voluntarily waived his right to be present at trial. See Sullens, 

supra. Although Appellant now complains about the various in-court 

identifications of Appellant, it was Appellant’s voluntary absence from trial that 

caused the court to use other means for the witnesses to identify Appellant in 

his absence. Further, defense counsel posed no objection to any witness 

identification of Appellant at trial. See Commonwealth v. Gray, 867 A.2d 

560 (Pa.Super. 2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005)

(explaining that to preserve claim for review, defendant must make timely 
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and specific objection to introduction of challenged evidence at trial). 

Regarding Appellant’s request for a specific jury instruction, the trial 

court explained:

The [c]ourt requested proposed jury instructions from both 

sides. However, none were given. The [c]ourt asked 

Counsel if they had anything to add before the charge was 

given to the jury. Also, after charging the jury [the court] 

asked if Counsel had anything they wished to include before 

the jury was dismissed to deliberate. Neither counsel 

requested to include any additional jury instruction or 

objected to any of the standard jury instructions given. 

Therefore, the issue has been waived. 

* * *

The [c]ourt utilized the Pennsylvania standard jury 

instructions regarding determining the credibility and 

reliability of witnesses who testify. Therefore, even if not 

waived, this issue is without merit. 

(Trial Court Opinion at 7-8). We agree with the court’s analysis. Appellant’s 

failure to request a specific jury instruction renders waived his complaint that 

the court failed to issue such an instruction.6 See Pressley, supra. 

Therefore, Appellant’s second issue on appeal merits no relief. Accordingly, 

we affirm.

Judgment of sentence affirmed. 

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6 Moreover, Trooper Strini testified that Appellant acknowledged possessing a 

firearm on the night in question. (See N.T. Trial, 6/6/22, at 74-75). Thus, 

there was other evidence adduced at trial aside from the witnesses’

identification of Appellant as the person who possessed the firearm in the bar 

to establish Appellant’s possession of the firearm.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2023