Opinion
No. 1106 MDA 2022
01-02-2024
COMMONWEALTH of Pennsylvania v. Lastacia Marie GRIFFITH, Appellant
Appeal from the Judgment of Sentence Entered July 6, 2022, In the Court of Common Pleas of York County, Criminal Division, at No(s): CP-67-CR-0005762- 2021, Kathleen J. Prendergast, J.
Garrison J. Crow, Public Defender’s Office, York, for appellant.
James E. Zamkotowicz, Assistant District Attorney, York, appellee.
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
OPINION BY McLAUGHLIN, J.:
Lastacia Marie Griffith appeals from the judgment of sentence entered following her conviction for theft of property lost, mislaid, or delivered by mistake, Griffith argues that the evidence was insufficient to support the conviction., We affirm.
18 Pa.C.S.A. § 3924.
The full title of the statute is "Theft of property lost, mislaid, or delivered by mistake." For ease of reference, this writing refers to the statute as theft of lost property.
Following an incident in October 2021, Griffith was charged with the above crime and proceeded to a bench trial. At trial, Jocelyn Murphy ("the victim") testified that she and Griffith both attended a Halloween party in York City and afterward, there was a physical altercation between her and one of Griffith’s friends. N.T., 7/6/22, at 4-5, 7. The victim stated that Griffith and another person joined in, fighting against the victim. Id. at 7. The victim testified that, after the altercation, she was taken to the home of one of Griffith’s family members where a second altercation occurred, this time between. Id. at 9, 10, 16-17, 32. The victim said the police came and arrested every person involved. Id. at 10.
She further testified that after the second altercation, she realized that she had lost her navy blue iPhone 12 cell phone. Id. at 10-11. The victim said that she, her mother, and her best friend "called it [and Griffith] answered," Id. at 11. The victim said that when she later called the phone again, there was no answer. Id. at 12. She testified that she called Griffith the next day via Facebook Messenger, and Griffith said that the victim was "not getting [her] phone back, that it’s gone, and … to press charges," and, hung up. Id. The victim said she asked "nicely if [Griffith] could just return the phone," and Griffith "said no. It’s gone." Id. at 12-13.
The Commonwealth played a video recording of the victim conducting the Face- book Messenger call. Id. at 19. It showed the victim asking, "Can I come get my phone that y’all stole?" Com.’s Exhibit 1. Griffith responded, "It’s gone bitch, next." The victim then asked, "So y’all damaged it?" Griffith tersely answered, "Tell your mom to press charges," and hung up. Id.
The victim never got her phone back and bought a new one for $1,000. Id. at 13- 14. The victim also testified that a mutual friend of hers and Griffith called Griffith to ask her to return the phone, and Griffith refused. Id. at 14.
The day after the party, the victim contacted York City Police and spoke with Officer Ross Casteel. Id. at 21-22. Officer Casteel testified that he attempted to call the victim’s lost phone but was unable to connect and he believed the phone had been turned off. Id. at 22. Officer Casteel stated that the victim showed him what appeared to be a screenshot of a "ping" of the phone’s location. Id. at 22-23. He recalled that the location of the ping was near Griffith’s home. Id. at 24, 25. Officer Casteel testified that Griffith did not answer when he attempted to contact her on Facebook Messenger. Id. at 23.
Griffith testified in her own defense. She stated that the second altercation happened near her home. Id. at 32. According to Griffith, after the arrests, she was walking home with a cousin when they found a ringing phone on the ground. Id. at 32-33. She said that after the party she also had lost her phone, and her cousin picked up the phone believing it was Griffith’s phone because she and the victim had "the same phones." Id. at 33, 36, 37. Griffith said when the phone rang, her cousin answered it and "she answered, or whoever answered the phone." Id. at 33. Griffith testified that they realized it was not her phone and "threw, the phone back wherever, it was and left it there and haven’t seen the phone since." Id. Griffith said she heard yelling when her cousin answered the phone, and she "tossed the phone back on the floor, and [she] felt as though whoever was responsible for their phone, that was on them." Id.
Griffith testified that she knew the victim had lost her phone prior to the Face- book Messenger call because a family member, had told her. Id. at 39. She stated that she told the victim, "[I]t’s gone. Take it as a loss." Id. Griffith said she told the victim to press charges "[b]ecause she already threatened to press charges. She said I’m going to have my mom press charges. I’m basically telling her do what you have to do because I don’t have her phone." Id.
The trial court convicted Griffith of one count of theft of property lost, mislaid, or delivered, by mistake. Id. at 44. The court found:
[Griffith] was made aware that the [v]ictim had lost her phone via Facebook Messenger calls from the [v]ictim. [Griffith], in response to these calls, claimed that the phone was gone mid hung up on the [v]ictim … [.] [B]ecause [Griffith] was aware that the phone was lost, claimed the phone was gone, and hung up on the victim, [Griffith] possessed the requisite intent to deprive the [v]ietim of her property.
…
[Griffith] was aware that the phone she picked up was lost or mislaid. The recording of the phone call corroborated the victim’s testimony. While [Griffith’s] testimony was that multiple people lost personal property the evening of the altercations with the [v]ictim, we do not find [Griffith’s] version of events to be credible. [Griffith] testified that she knew the phone was not hers. Further, [Griffith] even noted that the [v]ictim was "harassing" her regarding the lost phone, Therefore, the evidence was sufficient to establish that [Griffith] knew that the cell phone in question was, lost or mislaid property.
…
[Griffith] noted that her cousin had picked up a phone assuming it belonged to [Griffith]. Upon realizing that the phone did not belong to [Griffith], they threw the phone back on the ground. [Griffith] had a phone call with the [v]ictim wherein she told the victim that the phone was gone. At no point during the conversation with the victim did [Griffith] tell her that she had found a phone on the ground and where the victim could go to look for that phone. Additionally, [Griffith], being aware of the value of an iPhone, failed to take affirmative steps to secure the phone she found on the ground. As noted by her own testimony, [Griffith] simply threw the phone back on the ground where she found it. Therefore, the, evidence was sufficient to establish that [Griffith] failed to take reasonable measures to restore the property to the person entitled to have it.
Trial Court Opinion, filed Sept. 29, 2022, at 5-7 ("1925(a) Op.").
The trial court sentenced Griffith to one year of probation and restitution in the amount of $1,000. Griffith timely appealed.
The Court stated that, if restitution was paid, the probationary period may end after six months. N.T. at 47-48.
As the Majority notes, Griffith has abandoned a challenge to the second prong.
[1] Griffith raises the following issue:
Whether there was insufficient evidence to convict Ms. Griffith of theft of lost or mislaid property where Ms. Griffith did not demonstrate the requisite intent to deprive the complainant of her property and because the Commonwealth did not provide sufficient evidence to establish Ms. Griffith failed to take a reasonable measure to restore the property when she left it where she found it?
Griffith’s Pa.R.A.P. 1925(b) statement also included a challenge to the sufficiency of the evidence to support a finding that she knew the property had been lost or mislaid. However, Griffith does not argue the issue in her brief. She has therefore abandoned it and we will not address it.
To the extent the Majority and trial court find that the intent to deprive arose at this point in time, I disagree. Griffith did not have physical possession of the phone at this time, because, as the trial court found, she had thrown it back to its original location.
[2-5] When reviewing a challenge to the sufficiency of the evidence, we "must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt." Commonwealth v . Feliciano , 67 A.3d 19, 23 (Pa.Super. 2013) (en banc) (citation omitted). "Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail." Id. (citation omitted). This standard applies equally where the Commonwealth’s evidence is circumstantial. Commonwealth v. Patterson , 180 A.3d 1217, 1229 (Pa.Super. 2018). In conducting this analysis, we may not substitute our judgment for that of the factfinder. Id. at. 1230. Additionally, the Com- monwealth’s evidence "need not preclude every possibility of innocence." Feliciano , 67 A.3d at 23 (citation omitted). The factfinder is free to believe all, part, or none of the evidence. Id.
Griffith argues the Commonwealth failed to present sufficient evidence to sustain the conviction for theft of lost or mislaid property. She argues that the evidence merely showed that she interacted with the phone after the second altercation. In her view, it did not show an intent to deprive the victim of the phone. Griffith claims that her statements that, the phone was "gone" and that the victim should press charges were expressions of frustration and not evidence of an intent to deprive the victim of the phone. She asserts that her statements reflected her beliefs that the phone was gone and that the animosity stemming from recent altercations with the victim would inevitably lead the victim to press charges. She further argues that the act of picking up the phone, answering it, and putting it back where it had been lying it did not demonstrate either that she had the intent to deprive or that she knew that it belonged to the victim.
Griffith also argues that leaving the phone where she found it was a reasonable measure to return the phone to its owner. She contends that she was not obligated to help the victim to find the phone, and that the record does not reveal an effort by Griffith to conceal it from the victim. Griffith, maintains she did not lie, about the phone’s whereabouts or actively mislead the victim regarding the phone. She also contends that her actions did not amount to abandonment of the phone, and leaving it where it was made it more likely that the owner would find it, as compared to attempting to find the owner.
The statute criminalizing theft of property lost, mislaid, or delivered by mistake provides:
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with the intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.
18 Pa.C.SA § 3924.
[6–8] "Deprive" has several meanings for purposes of Section 3924, including "to dispose of the property so as to make it unlikely that the owner will recover it." 18 Pa,C.S.A. § 3901. "[I]ntent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances." Commonwealth v. Franklin , 69 A.3d 719, 723 (Pa.Super. 2013) (quoting Commonwealth v . Faulk , 928 A.2d 1061, 1070 (Pa.Super. 2007)).
"Subject to additional definitions contained in subsequent provisions of this chapter which are applicable to specific provisions of this chapter, the following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
‘Deprive.’
(1) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or
(2) to dispose of the property so as to make it unlikely that the owner will recover it."
18 Pa.C.S.A. § 3901.
[9] Griffith’s arguments lack merit. Firsts there was enough evidence to prove that Griffith had "the intent to deprive the owner" of the phone. The testimony was that there was a fight during which Grif- fith and the victim were on opposing sides. After a second fight, Griffith discovered the phone near her home; which was near the scene of the second altercation. She later learned that the victim had lost her phone. The victim contacted her and in response to the victim’s asking if should get her phone "that y'all stole," Griffith said, "It’s gone, bitch. Next." The victim then asked Griffith if she had damaged it, and she told her to press charges and hung up. This evidence was sufficient - when viewed in the Commonwealth’s favor - to prove inferentially, beyond a reasonable doubt, that Griffith had the intent to deprive the victim of her phone.
The dissent misinterprets our decision. We do not hold that "by failing to take reasonable measures to return [the phone] after controlling it," Griffith "must have had the intent to deprive Murphy of [it.]" Dissenting Opinion at 579. Contrary to the dissent’s characterization, we find the mens rea met by the plethora of evidence that Griffith not only knew Murphy’s phone was lost, but repeatedly informed Murphy that the phone was "gone," that is, that Murphy would be permanently deprived of it. The dissent’s hypothetical are, respectfully, inapt. Griffith was not a stranger, and beyond her and her cousin’s throwing the phone down, she also made subsequent statements and took actions towards Murphy that were sufficient to establish her "intent to deprive the owner" of the phone.
[10] Second, the Commonwealth presented sufficient evidence to prove that Griffith failed to take reasonable measures to "restore" the property. According to her own testimony, Griffith tossed it on the ground after determining it was not hers. See N.T. at S3. She made no effort to see that it got back to the victim, such as alerting law enforcement or telling the victim where she had found it. She failed to do anything to "restore" the phone to its rightful owner even though she knew the victim’s phone was missing and she had found the phone close to the site of the second altercation. Yet according to Griffith, she was aware that the phone matched the description of the victim’s phone. The evidence was sufficient to prove that Griffith failed "to take reasonable measures to restore the property to a person entitled to have it."
The trial court states generally that it found Griffith’s version of events not credible but appears to have credited at least her testimony that she threw the phone back on the ground, See 1925(a) Op. at 7.
Judgment of sentence affirmed.
Judge Sullivan joins the opinion.
President Judge Emeritus Bender files a dissenting opinion.
DISSENTING OPINION BY BENDER, P.J.E.:
I respectfully dissent. The facts as found by the trial court in this bench trial established only that Griffith was a casual, temporary possessor of Jocelyn Murphy’s iPhone. I conclude that the General Assembly, when enacting the theft of lost property statute,1a did hot intend to punish a person who temporarily controls an item. The Majority, in contrast, holds that citizens are forced to act as bailees if they happen to pick up a lost item. This holding is inconsistent with the fact that a citizen has no duty to help another absent special circumstances that are not present here. I would therefore discharge Griffith’s conviction.
In my view, the Majority has been led astray by the fact that Griffith and Murphy do not like each other. That hostility is then used to bootstrap a conclusion that Griffith intended to deprive Murphy of her phone. I begin with the statutory text:
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with the intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a, person entitled to have it.
Breaking this statute apart, there must be proof that (1) Griffith, came "into control" of Murphy’s iPhone, (2) with knowledge that it was lost or mislaid. If those two prongs are met, the Commonwealth then must show that said control was, (3) "with the intent to deprive" Murphy of the iPhone, and that (4) Griffith failed to take reasonable measures to return the iPhone to Murphy.
As I interpret the Majority opinion, my learned colleagues conclude that the Commonwealth met the first prong when Griffith and her ; cousin held the phone and threw it back to the ground where they found it.2a Then, by failing to take reasonable measures to return the item, after controlling it, the Majority concludes that she must have had the intent to deprive Murphy of the iPhone, as reflected in this passage from its opinion:
Griffith knew the victim had lost her phone and that the phone matched the description of the victim’s phone (Griffith said her cousin mistakenly thought it was Griffith’s phone at first as she and the victim had the same model of phone). But rather than telling the victim, the phone’s location or taking steps to secure it, she told the victim that the phone was "gone." This evidence was sufficient – when viewed in the Commonwealth’s favor – to raise a, reasonable inference, beyond a, reasonable doubt, that Griffith "dispose[d] of the property so as to make it unlikely that the owner will recover it."
Second, the Commonwealth presented sufficient evidence to establish that Griffith failed to take reasonable measures to "restore" the property. According to her own testimony, Griffith tossed it on the ground after determining it was not hers. She took no steps to secure it or inform the victim, even though she knew the victim’s phone was missing and found the phone near the location of the second altercation, and the phone matched the description of the victim’s phone. Accordingly, the evidence was sufficient to prove that Griffith failed "to take reasonable measures to restore the property to a person entitled to have it."
Majority Op. at 577–78 (citation and footnote omitted).
I agree that prongs one and two were met, but I conclude that the third was not. The Majority effectively reads out the third prong by focusing on Griffith’s failure to take reasonable steps to return the property as required by the fourth prong. The Majority thus appears to view the statutory requirement, "to take reasonable measures" as existing independently of the need to establish an intent to deprive the owner of their property. But that cannot be correct, as exercising control over an item does not, by itself, create a legal duty to return the item. Citizens generally owe no duties to aid another in the absence of some special relationship. "Generally, however, there is no duty to protect or rescue someone who is at risk on account of circumstances the defendant had no role in creating." Seebold v. Prison Health Servs„ Inc., 618 Pa. 632, 57 A.3d 1232, 1246 (2012) (citing Yania v. Bigan , 397 Pa. 316, 155 A.2d 343, 346 (1959)). As Yania states, the duty to act is largely one of morals, not law. "The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position." Yania , 155 A.2d at 346. This principle readily extends to whether Griffith was required to take ownership of Murphy’s phone and then try to return it to her. Certainly, had Griffith opted to take ownership, the theft of lost property statute imposes a duty to take reasonable measures to return it. But that requirement is triggered only if there is an intent to permanently deprive. The temporary possession of the phone, followed by throwing it back where it was found, precludes a finding that the intent was to permanently deprive Griffith of her phone.
At this juncture, I believe that a hypothetical scenario illustrates the point. Suppose that Murphy had left her phone in the pocket of an airplane seat. The next passenger sits down and notices the phone. Hoping that the phone might belong to a handsome bachelor, she presses the power button and sees a profile picture of Murphy, Realizing that a Hollywood "meet cute" will not happen, our passenger decides she does not want to help and puts the phone back where she found it. Has the passenger come into control of the phone, as required by prong one? Yes. Has she failed to take reasonable measures to have the item returned, as required by prong four? Again, yes; the passenger could have flagged a flight attendant or taken possession to see if the owner called. Has the passenger committed theft of lost property? I cannot speculate what the Majority would conclude, but I think it obvious that the passenger has committed no crime, because there was no specific intent to deprive Murphy of the phone as required by prong three. Returning the phone to where it was found relinquishes whatever degree of temporary control existed by picking it up. Placing the phone where it was found effectively restores the status quo with respect to the passenger’s legal duties. There may be a moral duty to help, but there is no legal duty. Thus, unless and until our passenger takes possession of the item for herself, she is under no obligation to help return the item and cannot be guilty of theft.
The difference between that scenario and this case lies in the existing relationship between the parties. But I do not think that this makes any difference. Returning to our hypothetical, suppose the passenger happened to be Griffith. Seeing the lost phone, Griffith decides that she wants to help and presses the on button. She then sees Murphy’s profile picture. Laughing at the absurd coincidence, Griffith decides to put the phone back where she found it. Has Griffith committed a crime? No, for the reasons set forth above. Her subjective motivation, for declining to help is entirely irrelevant. A legal duty to help return the item arises if, and only if, the person ends up exercising more than temporary control over the item. It is not enough that a person briefly possesses the lost property and then fails to take reasonable measures to secure, or return it.
The Majority attempts to find an intent to deprive by citing the statutory definition of "deprive" separately set forth at Section 3901 of the Crimes Code:
(1) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or
(2) to dispose of the property so as to make it unlikely that the owner will recover it.
The Majority relies on the second definition, concluding that Griffith’s act of throwing the phone back on the ground made it unlikely that Murphy would recover the item. I disagree that this definition of "deprive" applies under the circumstances. Significantly, the General Assembly copied this definition of "deprive" from Section 223.0 of the Model Penal (Code ("MPC"). See 18 Pa.C.S. § 3901, Jt. St. Govt. Comm. Comment - 1967. The. commentary to the MPC explains what this language was designed to address:
Subsection (1) (b) of Section 223.0 is of course primarily designed to take account of the embezzlement case where at the time of taking the actor intends to return or pay back the money, though he plans to spend it in the meantime. The bank teller who loses the proceeds of his embezzlement at the racetrack will thus have disposed "of the property so as to make it unlikely that the owner will recover it." No new ground is broken in including such conduct within the coverage of provisions on theft.
MPC § 223.2, comment.
I therefore do not agree that, under these factual circumstances, the definition of deprive to mean "unlikely that the owner will recover it" applies. The language "disposes of" contemplates an affirmative act with respect to the property, not, as here, simply leaving the property where it was lost or mislaid. This is evident from the language itself, which uses "disposes of" as a verb, and the MPC commentary discussing a total conversion of property. This language would apply if, for example, Griffith took the phone and then sold it to a third party. By leaving the phone where it was lost, Griffith did not create the condition that made its recovery unlikely. By returning the phone to where she found it, Griffith neither increased nor decreased the probability that Murphy would find it.
Accordingly, I conclude that the Commonwealth was required to show a permanent deprivation as encompassed by the first definition of "deprive." Returning to the MPC, this view is consistent with what behavior the theft of lost property statute is designed to punish:
Theft penalties are not imposed on persons who merely learn of the whereabouts of lost property but do not assume some control over it. If it is desirable to provide criminal sanctions for the failure to communicate helpful information to the owners of lost property, this should be done by separate legislation not carrying the moral imputation of theft or the potentially severe sanctions traditionally associated with it. On the other hand, those who find property and assume more than casual control over it are, under certain circumstances, appropriate subjects of prosecution for theft.
MPC § 223.2, comment (emphasis added).
Griffith had only casual control over the item, as reflected in the trial court’s findings of fact. As the Majority states, on the one hand, the trial court claimed Griffith was not credible, but in other portions of its Rule 1925(a) opinion, the court credited aspects of her testimony. Specifically, the trial court stated the following:
Here, Griffith noted that her cousin had picked up a phone assuming it belonged to Griffith. Upon realizing that the phone did not belong to Griffith, they threw the phone back on the ground. Griffith had a phone call with [Murphy] wherein she told [Murphy] that the phone was gone. At no point during the conversation with [Murphy] did Griffith tell her that she had found a phone on the ground and where [Murphy] could go to look for that phone. Additionally, Griffith, being aware of the value of an iPhone, failed to take affirmative steps
to secure the phone she found on the ground.
Trial Court Opinion, 9/29/22, at 7.
The Majority and trial court both err by deeming it significant that Griffith, when later contacted by Murphy, did not reveal that she had found the phone on the ground.3a As discussed, I conclude that Griffith had no legal duty to take affirmative steps to secure the phone, nor any duty to help Murphy find her phone. As far as the record is concerned, the phone was left exactly where Murphy lost it, and Murphy could have, simply checked the area for the iPhone. The statutory requirement to take reasonable measures to return the property flows, directly from taking permanent ownership of the item. Because Griffith was a mere casual possessor of the item, she was under no obligation to help Murphy. I agree that Griffith, hoped that Murphy would never find her, lost phone, but that is merely condemnable behavior, not criminal. I would discharge the conviction and therefore respectfully dissent.