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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARCUS HIRSCHFELD, : No. 721 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, February 20, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0004670-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2016

Marcus Hirschfeld appeals the judgment of sentence in which the Court 

of Common Pleas of Philadelphia County sentenced him to serve a term of 

42 to 84 months’1imprisonment for conspiracy to carry a firearm without a 

license.2

 

1 On January 30, 2015, the trial court originally sentenced appellant to a 

term of imprisonment of 27 to 78 months with a surrender date of 

February 20, 2015. The trial court allowed him to be with his ailing father 

until February 20, 2015. Appellant absconded from supervision by cutting 

his ankle bracelet on January 30, 2015. He was apprehended on 

February 4, 2015. The trial court imposed the new sentence on 

February 20, 2015.

2 18 Pa.C.S.A. § 903 (conspiracy). The object crime of carrying a firearm 

without a license is set forth in the Crimes Code at 18 Pa.C.S.A. § 6106.
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On April 3, 2014, at approximately 9:00 p.m., Officer Sean Devlin 

(“Officer Devlin”) and Officer Mischel Matos (“Officer Matos”) of the City of 

Philadelphia Police Department were in a marked police vehicle when they 

observed a gray Nissan Altima (“Vehicle”) traveling southbound on 

55th Street without its headlights or taillights on. Officer Evans and 

Officer Matos pulled the Vehicle over. Officer Evans approached the Vehicle 

on the passenger side. He noticed a male passenger in the front seat. 

(Notes of testimony, 11/24/14 at 12-14.) According to Officer Evans, the 

passenger made “a motion like . . . a lean left to right while he moved from 

left to right while leaning forward.” (Id. at 14.) Officer Evans observed that 

the passenger was very nervous when he asked him to exit the vehicle so 

Officer Evans could conduct a pat down. Officer Evans saw a very large gun 

underneath the front passenger’s seat and next to the center console. At 

that point, Officer Evans handcuffed the passenger and directed his partner 

to detain and handcuff appellant. (Id. at 14-15.) Officer Evans explained 

that appellant could have easily grabbed the weapon while he sat in the 

driver’s seat. (Id. at 18.) The passenger told Officer Evans that appellant 

was a “hack”3and that he was going to a friend’s house. (Id. at 23.)

Officer Matos explained that appellant did not have a driver’s license 

and that both appellant and the passenger were very nervous. According to 

Officer Matos, appellant was “breathing heavy [sic], and you could see a 

 

3 The passenger meant that appellant operated an unlicensed taxi service.
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little shaking as well.” (Id. at 29.) Appellant told Officer Matos that he did 

not know how the gun got in the car and did not know the passenger. (Id.

at 30.)

Following a non-jury trial, the trial court convicted appellant of the 

conspiracy charge, acquitted him of three other firearms charges,4. The trial 

court reasoned:

Here, there was circumstantial evidence presented 

that [appellant] did have knowledge and control over 

the handgun. The twenty four year-old [appellant’s] 

mother owned the vehicle, and he was nervous, 

breathing heavy [sic], and shaking a little at the time 

of the car stop. The recovered gun was huge, easily 

accessible to [appellant], and easily visible to the 

officer after he extracted the passenger from the 

vehicle. The passenger separated himself from

ownership of the gun by claiming that [appellant] 

was a “hack” taxi, declaring that he was just getting 

a ride to a friend’s house, and seeking to leave the 

scene. After the gun was recovered, [appellant] told 

the officers “he didn’t know how the gun got in the 

car, and he didn’t know the passenger” (N.T. 

11/24/14, p. 30). Based on the totality of the 

circumstances, this court believed that [appellant] 

did know that the gun was in the car, had the power 

to control the gun, and attempted to exculpate either 

himself, [the other] defendant, or both. The overt 

cover-up and the totality of the surrounding 

circumstances of the car stop were sufficient to 

convict [appellant] of conspiracy to possess a firearm 

without a license. See Commonwealth v. 

Weimer, 602 Pa. 33, 39, 977 A.2d 1103, 1106 

(2009)(“To sustain a criminal conspiracy conviction, 

the Commonwealth must establish a defendant 

 

4Appellant was also charged with carrying a firearm on the public streets of 

Philadelphia, 18 Pa.C.S.A. § 6108, carrying a firearm without a license, 

18 Pa.C.S.A. § 6106, and persons not to possess firearms, 18 Pa.C.S.A. 

§ 6105.
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entered into an agreement to commit or aid in an 

unlawful act with another person or persons, with a 

shared criminal intent, and an overt act was done in 

the conspiracy’s furtherance. The overt act need not 

accomplish the crime-it need only be in furtherance 

thereof”).

Trial court opinion, 6/22/15 at 6-7.

Appellant raises the following issue for this court’s review:

Was not the evidence insufficient to prove the 

[appellant] guilty beyond a reasonable doubt of the 

crime of conspiracy in that the evidence was 

insufficient to prove that the [appellant] engaged in 

a conspiratorial agreement to commit the crime of 

possession of a firearm without a license in violation 

of 18 Pa.C.S. § 6106?

Appellant’s brief at 3.

Appellant first claims that the evidence of criminal conspiracy was 

insufficient. We observe:

In reviewing the sufficiency of the evidence, we view 

all the evidence admitted at trial in the light most 

favorable to the Commonwealth, as verdict winner, 

to determine whether there is sufficient evidence to 

enable the factfinder to find every element of the 

crime established beyond a reasonable doubt. 

Commonwealth v. Thomas, 867 A.2d 594 

(Pa.Super. 2005). “This standard is equally 

applicable to cases where the evidence is 

circumstantial rather than direct so long as the 

combination of the evidence links the accused to the 

crime beyond a reasonable doubt.” Id. at 597. And 

while a conviction must be based on more than mere 

suspicion or conjecture, the Commonwealth need not 

establish guilt to a mathematical certainty. Id.

quoting Commonwealth v. Coon, 695 A.2d 794, 

797 (Pa.Super. 1997). This Court is not free to 

substitute its judgment for that of the fact-finder; if 

the record contains support for the convictions they 
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may not be disturbed. Id. citing Commonwealth v. 

Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) and 

Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 

A.2d 1212, 1213 (1986). Lastly, the factfinder is 

free to believe some, all, or none of the evidence. 

Id.

Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).

Section 903(a) of the Crimes Code defines a conspiracy:

A person is guilty of conspiracy with another person 

or persons to commit a crime if with the intent of 

promoting or facilitating its commission he:

(1) agrees with such other person or persons 

that they or one or more of them will 

engage in conduct which constitutes such 

crime or an attempt or solicitation to 

commit such crime; or

(2) agrees to aid such other person or 

persons in the planning or commission of 

such crime or of an attempt or 

solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

The offense of firearms not to be carried without a license, the 

underlying offense to the conspiracy here, is defined: 

[A]ny person who carries a firearm in any vehicle or 

any person who carries a firearm concealed on or 

about his person, except in his place of abode or 

fixed place of business, without a valid and lawfully 

issued license under this chapter, commits a felony 

of the third degree.

18 Pa.C.S.A. § 6106(a).

To sustain a conviction for Criminal Conspiracy, the 

Commonwealth must prove beyond a reasonable 

doubt that the defendant (1) entered into an 
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agreement to commit or aid in a criminal act with 

another person or persons (2) with a shared criminal 

intent and that (3) an overt act was done in 

furtherance of the conspiracy. 18 Pa.C.S.A. § 903. 

See Commonwealth v. McCall, 911 A.2d 992, 996 

(Pa.Super. 2006) (citation omitted). The overt act 

necessary to establish criminal conspiracy need not 

be committed by the defendant; it need only be 

committed by a co-conspirator. Id. In addition, our 

Court has further explained the agreement element 

of conspiracy as follows:

The essence of a criminal conspiracy is a 

common understanding, no matter how it 

came into being, that a particular 

criminal objective be accomplished. 

Therefore, a conviction for conspiracy 

requires proof of the existence of a 

shared criminal intent. An explicit or 

formal agreement to commit crimes can 

seldom, if ever, be proved and it need 

not be, for proof of a criminal partnership 

is almost invariably extracted from the 

circumstances that attend its activities. 

Thus, a conspiracy may be inferred 

where it is demonstrated that the 

relation, conduct, or circumstance of the 

parties, and the overt acts of the 

co-conspirators[,] sufficiently prove the 

formation of a criminal confederation. 

The conduct of the parties and the 

circumstances surrounding their conduct 

may create a web of evidence linking the 

accused to the alleged conspiracy beyond 

a reasonable doubt. Even if the 

conspirator did not act as a principal in 

committing the underlying crime, he is 

still criminally liable for the actions of his 

co-conspirators in furtherance of the 

conspiracy.

McCall, 911 A.2d at 996 (citation omitted).

Commonwealth v. Johnson, 920 A.2d 873, 878-879 (Pa.Super. 2007).
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Appellant argues that the evidence was insufficient to prove him guilty 

beyond a reasonable doubt of the crime of conspiracy in that the evidence 

was insufficient to prove that he engaged in a conspiratorial agreement to 

commit the crime of possession of a firearm without a license. 

According to the trial court, the evidence that supported the conviction 

for conspiracy was 1) the Vehicle where the gun was found was driven by 

appellant and owned by appellant’s mother; 2) appellant was nervous when 

the police stopped him; 3) the gun was in plain view, accessible to 

appellant; and 4) both appellant and the passenger told police that appellant 

was a “hack” taxi driver and had just picked up the passenger.

With respect to appellant driving the Vehicle which was owned by his 

mother, appellant argues that this fact does not prove that appellant and the 

passenger agreed for appellant to have constructive possession of the gun. 

For support, appellant points to Commonwealth v. Wisor, 353 A.2d 817 

(Pa. 1976), where a defendant’s ownership of a car in which a marijuana 

pipe was found did not prove the defendant’s constructive ownership of the 

pipe where others in the car had equal access to the area where the pipe 

was found. Even taking the evidence in the light most favorable to the 

Commonwealth, as the prevailing party, the fact that the gun was found in 

the Vehicle does not by itself indicate that appellant conspired to obtain 

possession of the gun.
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With respect to the fact that the police officers found appellant to be 

nervous, testimony credited by the trial court as fact-finder, appellant 

argues that his nervousness does not equate to proof of the elements of a 

conspiracy. In Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657 

(Pa.Super. 2015), this court explained that, after a traffic stop, a driver’s 

nervousness is insufficient, standing alone, to establish reasonable suspicion 

of criminal activity. Appellant points out that he had other reasons for 

exhibiting nervousness: he was driving without a license, he was, by his 

own admission and that of the passenger, operating an unlicensed taxi 

service, and possibly only became aware of the presence of the gun in the 

vehicle when the stop was made.

Appellant also takes issue with the trial court’s determination that the 

gun was accessible to him. The only facts surrounding the gun are that

Officer Devlin saw the passenger reach down and make a movement from 

left to right while leaning forward after the Vehicle was stopped. When 

Officer Devlin asked the passenger to exit the vehicle so that he could 

conduct a pat down, he noticed the gun underneath the passenger’s seat 

next to the center console. Appellant argues that the fact that the 

passenger placed his gun under the seat in a place where appellant could 

reach it does not indicate that appellant intended to exercise control over 

the gun and jointly possess it with the passenger or constructively possess 

it. Appellant again asserts that his presence in the vehicle where the gun 
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was found does not establish that he engaged in a conspiracy to gain 

possession of a weapon when he did not have a license to carry a firearm. 

This court agrees.

In Commonwealth v. Townsend, 237 A.2d 192 (Pa. 1968), the 

Pennsylvania Supreme Court held that the mere presence of an individual in 

a vehicle containing two weapons was insufficient to convict that individual 

of possession of a firearm without a license.

While Townsend addressed a conviction for possession of a firearm 

without a license and not conspiracy for possession of a firearm without a 

license, it stands to reason that without more evidence of an agreement to 

commit an illegal act and with a shared criminal intent the fact that the gun 

was found in appellant’s car and may have been accessible to him fails to 

establish a criminal conspiracy.

Next, appellant challenges the fact that the trial court based its 

decision in part on the officers’ testimony that appellant and the passenger 

both stated that appellant was a “hack” taxi driver and had just picked up 

the passenger. Appellant characterizes the trial court’s finding that these 

statements helped to prove that appellant and the passenger were in 

collusion was “not just illogical, it is almost absurd.” (Appellant’s brief at 

18.) This court agrees that this statement does not support a conspiracy or 

the fact that the two said essentially the same thing does not support a 

conspiracy by itself.
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Of course, even if each of these facts upon which the trial court relied 

to find that appellant was guilty of conspiracy did not support the verdict, 

the combination of the evidence could link the appellant to the crime beyond 

a reasonable doubt, through the totality of the circumstances as the 

Commonwealth argues. However, the conclusions drawn from those facts 

are very speculative and insufficient to support the verdict. “Conviction may 

not be based upon suspicion or conjecture, but rather the evidence must be 

such ‘as reasonably and naturally to justify an inference of guilt of the 

accused . . . and of such volume and quality as to overcome the 

presumption of innocence.” Townsend, 237 A.2d at 195, citing,

Commonwealth v. Clinton, 137 A.2d 463, 466 (Pa. 1958).

Judgment of sentence reversed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2016