Opinion
No. 1430 MDA 2018
12-20-2019
COMMONWEALTH of Pennsylvania, Appellee v. Joseph Manuel MALDONADO-VALLESPIL, Appellant
Lauren E. Otero, Public Defender, Reading, for appellant. Matthew A. Thren, Assistant District Attorney, Reading, for Commonwealth, appellee.
Lauren E. Otero, Public Defender, Reading, for appellant.
Matthew A. Thren, Assistant District Attorney, Reading, for Commonwealth, appellee.
BEFORE: BOWES, OLSON, and STABILE, JJ.
OPINION BY STABILE, J.:
Appellant, Joseph Manuel Maldonado-Vallespil, appeals from the judgment of sentence imposed on July 19, 2018 in the Court of Common Pleas of Berks County after a jury convicted him of receiving stolen property, 18 Pa.C.S.A. § 3925. Appellant contends the trial court did not have jurisdiction over the crime. We agree and, therefore, vacate the judgment of sentence.
In its Rule 1925(a) opinion, the trial court provided the following statement of facts:
On October 31, 2017, the victim in this case, Jose Munoz ("Mr. Munoz"), resided at 507 N. 14th Street, Reading, Berks County, Pennsylvania ("the Residence"), and was the owner of the Sonador construction company. Appellant was one of Mr. Munoz's employees.
On the above date, Appellant contacted Mr. Munoz and informed him that he would not be working for him anymore. On that same day, Mr. Munoz arrived at work and noticed that he was missing some tools from the inside of his truck. When Mr. Munoz arrived at the Residence later that afternoon, he contacted the police department regarding the missing items. Law enforcement officers arrived at the Residence and Mr. Munoz showed them where the tools were supposed to be inside of his truck. While the officers were present, Mr. Munoz contacted Appellant via telephone and asked him to return the tools. Appellant admitted that he took Mr. Munoz's tools and sold them. Appellant stated that he needed to speak to the purchaser of the tools in order to have them returned. Appellant was instructed by law enforcement to return the tools by 8:00 a.m. the following day. No charges were filed that evening in order to allow Appellant to return the missing tools. Appellant
subsequently requested that Mr. Munoz grant him some additional time but Mr. Munoz adhered to the 8:00 a.m. deadline. Appellant failed to return the tools.
Trial Court Opinion, 11/7/18, at 2-3 (references to notes of trial testimony omitted).
Appellant was charged with theft from a motor vehicle, receiving stolen property, and theft by unlawful taking or disposition. The case proceeded to a jury trial on July 18, 2018. After the prosecution rested, Appellant's counsel moved for a judgment of acquittal, arguing the Commonwealth failed to establish jurisdiction. Following argument, the trial court denied the motion. At the conclusion of the defense case, counsel again moved for a judgment of acquittal and the trial court again denied the motion.
Following deliberations, the jury found Appellant guilty of receiving stolen property but acquitted him on the theft charges. The trial court sentenced Appellant to serve one to five years in a state correctional facility and gave him credit for time served totaling 246 days. Appellant filed a post-sentence motion, which the trial court denied. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant asks us to consider one issue in this appeal:
Whether the trial court erroneously denied Appellant's motion for judgment of acquittal that asserted the court lacked subject matter jurisdiction once the prosecution failed to establish the locus of the criminal act.
Appellant's challenge is limited to subject matter jurisdiction. Appellant's Brief at 10. As the Commonwealth recognizes, Appellant does not challenge venue, which "can only be proper where jurisdiction already exists." Commonwealth Brief at 6 (quoting Commonwealth v. Bethea , 574 Pa. 100, 828 A.2d 1066, 1075 (2003) ).
As a challenge to the trial court's subject matter jurisdiction, Appellant presents a question of law for which our standard of review is de novo . Commonwealth v. Bethea , 574 Pa. 100, 828 A.2d 1066, 1071 n.5 (2003). The scope of our review is plenary. Id.
As this Court recently noted:
Subject matter jurisdiction "relates to the competency of the individual court ... to determine controversies of the general class to which a particular case belongs." Green Acres Rehab. & Nursing Ctr. v. Sullivan , 113 A.3d 1261, 1268 (Pa. Super. 2015). "The want of jurisdiction over the subject matter may be questioned at any time. It may be questioned either in the trial court, before or after judgment, or for the first time in an appellate court, and it is fatal at any stage of the proceedings, even when collaterally involved ...." In re Patterson's Estate , 341 Pa. 177, 19 A.2d 165, 166 (1941). Moreover, it is "well settled that a judgment or decree rendered by a court which lacks jurisdiction of the subject matter or of the person is null and void ...." Com. ex rel. Howard v. Howard , 138 Pa. Super. 505, 10 A.2d 779, 781 (1940). The question of subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte . Grimm v. Grimm , 149 A.3d 77, 82 (Pa. Super. 2016).
Strasburg Scooters, LLC v. Strasburg Rail Road, Inc. , 210 A.3d 1064, 1067-68 (Pa. Super. 2019).
In accordance with our Crimes Code, "a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct [if] the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth ." 18 Pa.C.S.A. § 102(a)(1) (emphasis added). Here, Appellant was convicted of the sole charge of receiving stolen property. The offense of "receiving stolen property" is defined as follows: "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). "As used in this section the word ‘receiving’ means acquiring possession, control or title, or lending on the security of the property." 18 Pa.C.S.A. § 3925(b).
Here, we have the unusual situation in which Appellant acknowledged in a cell phone conversation with Mr. Munoz that he took and later sold Mr. Munoz's tools. However, nowhere in the testimony presented at trial is there any indication that Appellant or the tools were within the Commonwealth when Appellant "received, retained, or disposed" the tools. Specifically, there was no testimony as to the location of Mr. Munoz's construction company or the location of his truck when Mr. Munoz discovered that tools were missing. The testimony from Mr. Munoz revealed only that he arrived "at work" on October 31 and noticed that tools were missing from his truck. He later returned to his residence, which we acknowledge was located in Berks County, Pennsylvania. However, we do not know the location from which Mr. Munoz returned to his residence. From his Berks County residence, Mr. Munoz contacted the police to report his tools were stolen. It was at the Berks County residence that Mr. Munoz showed the officers where the tools "were supposed to be" inside his truck. From the residence, he contacted Appellant by phone. However, the record is silent as to where Appellant was located when he spoke with Mr. Munoz.
In its brief, the Commonwealth concedes:
The Commonwealth acknowledges, as it must, that the record from trial is silent as to the location where the theft occurred, the location of the unlawful disposition of the property to a third party, the location where the property was last seen prior to being stolen, the location of the truck at the moment the victim discovered his tools were missing, and [Appellant's] physical location when he confessed by telephone.
Commonwealth Brief at 9. Despite the lack of any evidence that any "conduct which is an element of the offense ... occur[red] within this Commonwealth," as required for jurisdiction under 18 Pa.C.S.A. § 102(a)(1), the Commonwealth asserts, "Nevertheless, the trial court had subject matter jurisdiction because [Appellant] communicated his ability and intent to restore the property to the victim in Pennsylvania and subsequently failed to do so. Id. We cannot agree. The fact that Mr. Munoz was at his Pennsylvania residence when he spoke with Appellant by phone about the stolen items was not essential to the crime of receiving stolen property and does not constitute the occurrence within Pennsylvania of an element of the crime.
In his brief, Appellant contends:
The incident at issue took place sometime between October 28 through 31, 2017. On [or] about October 28, 2017, [Mr. Munoz] left his work truck at an unknown job site. He returned to the job site on October 31, 2017, and discovered tools missing from the truck's toolbox.[ ] The missing tools included three
We note that there was no testimony to indicate the window of time during which the tools were removed from Mr. Munoz's truck. The testimony simply indicated that Mr. Munoz discovered the tools were missing when he went to work on October 31, 2017.
drills, one compressor, two grinders, and one impact drill.
[Mr. Munoz returned to his home, called the Reading police, and reported the theft. Two officers arrived at Mr. Munoz's home. Mr. Munoz related his suspicion that Appellant took the tools. Mr. Munoz then phoned Appellant in the officers' presence and told Appellant to return the tools. Appellant agreed but then failed to return the tools, leading to charges being filed against Appellant.]
During this phone call, Appellant never revealed his location while on the phone or while in possession of the stolen tools. There were also no witnesses to Appellant's alleged actual possession of the stolen property. Rather the officers only pursued Mr. Munoz's suspicion that Appellant took his property, and obtained no other substantive evidence to use against Appellant.
Appellant's Brief at 8-9 (references to notes of trial testimony omitted).
The Commonwealth failed to establish that any element of the crime of receiving stolen property, i.e. , receiving, retaining, or disposing of property, occurred within Pennsylvania. The Commonwealth suggests:
While communicating to the victim at a time when the victim was present at his Pennsylvania home, [Appellant] acknowledged his present intent and ability to retrieve the stolen property and return it to the victim in Pennsylvania. [Appellant's] subsequent refusal to retrieve the property and return it to the victim further established that he "retained" movable property of another with intent to permanently deprive and thus complete the crime.
Commonwealth Brief at 10 (emphasis in original). The trial court determined:
Based on the conversation between Appellant and Mr. Munoz, it can be inferred that Appellant agreed to return the tools to Mr. Munoz at the residence located in Berks County, Pennsylvania, but failed to do so. Appellant had previously informed Mr. Munoz that he would not be working for him anymore. As a result, an assumption can be made that the return of the tools would not have occurred at a Sonador work site. Appellant was instructed to return the tools to Mr. Munoz by 8:00 a.m. on the morning following the telephone call from the residence. In the absence of specific testimony regarding the location of the agreed upon tool return, it was clear to this court that Appellant had agreed to return the tools to Mr. Munoz at the residence in Berks County, Pennsylvania.
Upon consideration of the evidence presented in this case, this court found that the Commonwealth satisfied its burden by presenting evidence of Appellant's overt act of retaining Mr. Munoz's tools that 1) were supposed to be inside of Mr. Munoz's truck that was parked by the residence in Berks County, Pennsylvania; 2) were the subject of the telephone call made while Mr. Munoz was in Berks County, Pennsylvania; and 3) were to be returned to Mr. Munoz at the residence located in Berks County, Pennsylvania. The evidence established that the crime of receiving stolen property was sufficiently related to the locus where [Appellant] was being prosecuted. Furthermore, the Commonwealth presented prima facie evidence that Appellant's criminal act of retaining Mr. Munoz's tools and failing to return them to
Mr. Munoz at the residence occurred within the territorial jurisdiction of this court. Therefore, this court had subject matter jurisdiction over the charges.
Trial Court Opinion, 11/7/18, at 5-6 (emphasis added; some capitalization omitted).
As reflected in the above excerpt, the trial court stated three evidentiary bases for determining that the Commonwealth satisfied its burden of proof. The court first referenced "Appellant's overt act of retaining Mr. Munoz's tools that [ ] were supposed to be inside of Mr. Munoz's truck that was parked by the residence in Berks County." Trial Court Opinion, 11/7/18, at 6. However, the fact the truck was eventually parked in Berks County is irrelevant to where the truck was located when Appellant received, retained or disposed of the tools. To the extent the trial court may be suggesting the truck was parked at the residence at the time of the crime, that suggestion is wholly unsupported in the record.
The court next noted that the tools were the subject of the call made by Mr. Munoz in Berks County, Pennsylvania, and surmised the tools would be returned to the residence there. However, neither Mr. Munoz's location when he made the call nor the location of his residence as a potential return point is relevant to where Appellant was when he received, retained or disposed of the tools. Simply stated, the Commonwealth never established Appellant's location at the time he received, retained, or disposed of the tools. Without evidence of conduct that is an element of the crime of receiving stolen property occurring in Pennsylvania, the trial court simply did not have jurisdiction in this case and, consequently, Appellant's conviction cannot stand.
The dissent suggests Appellant had constructive possession over the tools and contends that "Appellant's statements via telephone to Mr. Munoz and Officer Valdez establish that Appellant maintained continuous ‘constructive possession’ of the stolen items." Dissenting Opinion at 167–68 (citing Commonwealth Brief at 10). Even if constructive possession—a theory not raised by the Commonwealth before the trial court nor discussed by the trial court in its Rule 1925(a) opinion—were applicable here, the dissent ignores the fact there was no evidence as to where either Appellant or the tools were located when Appellant stole them or at any time thereafter.
The dissent maintains that constructive possession may be established via circumstantial evidence and may be inferred from the totality of the circumstances. Id. at 168 (citing Commonwealth v. Haskins , 450 Pa.Super. 540, 677 A.2d 328, 330 (1996). However, any inference that Appellant "maintained continuous ‘constructive possession’ " is unsupported in the record. According to Mr. Munoz, Appellant told him "he needed to go to the gentleman, that he needed to speak with the gentleman that he had sold it to so he can have the tools back." N.T. Trial, 7/18/18, at 23. Appellant indicated "he would return the tools the following day at 8:00 in the morning." Id. Appellant then called Mr. Munoz around 11:00 p.m. that night and asked him "to give him another chance" and allow him to return the tools between 8:00 and 9:00 a.m. Id. at 24. Mr. Munoz refused any extension and Appellant never returned the tools. Id. at 24-25. Mr. Munoz's testimony does not support a finding that Appellant actually regained—or could regain—control in Berks County over the tools that he had already sold. In other words, there was no evidence that Appellant had "the ability to exercise a conscious dominion over" the tools in Berks County and, therefore, there was no evidence of constructive possession in Berks County so as to come within the trial court's jurisdiction. Commonwealth v. Johnson , 611 Pa. 381, 26 A.3d 1078, 1093 (2011) (defining constructive possession).
The dissent then posits that Appellant and the person to whom he sold the tools had joint control and equal access to the tools and "thus both may constructively possess the contraband." Dissenting Opinion at 168 (citing Haskins , 677 A.2d at 330. However, Haskins is apposite. In that case, the driver of a car was found in constructive possession of money and cocaine located in a car he occupied along with a passenger. By contrast, Appellant stole tools from an unknown location and then sold them to an unknown person in an unknown location. There is no evidence to suggest Appellant was able to regain possession of the tools or whether he was even able to contact the buyer to request return of the tools.
The dissent also cites Commonwealth v. Grekis , 411 Pa.Super. 494, 601 A.2d 1275, 1282 (1992), for the proposition that physically handling stolen goods is not required for constructive possession and that dominion and control over the goods may be exercised through another. Dissenting Opinion at 168. Grekis , a cigarette fencing case, is similarly distinguishable. There, this Court determined that "[t]he jury was entitled to reject as implausible, incredible or self-serving, appellant's protestations that he transferred control of the business [from which the cigarettes were sold] to his brother-in-law and that he himself had no role in running the restaurant." Id. at 1281. Therefore,
the jury certainly could infer that appellant in fact controlled the operation of the [ ] restaurant. As owner and operator, appellant could reasonably be found to exercise dominion and control over a continuous and voluminous flow of stolen cigarettes which were openly stored in and sold from his restaurant on a daily basis during a six month period, particularly since he was seen there on a frequent basis by the detectives.
Id. No such inference regarding Appellant's supposed dominion and control over the stolen tools can be drawn from the evidence presented in the case before us.
The dissent further contends that this case is analogous to Commonwealth v. Farrar , 271 Pa.Super. 434, 413 A.2d 1094 (1979) and Commonwealth v. Kuykendall , 318 Pa.Super. 429, 465 A.2d 29 (1983). Dissenting Opinion at 169. The dissent explains that the "prohibition against retaining and disposing of stolen property makes this offense ‘ongoing.’ " Id. at 167 (quoting Farrar at 1098 ). However, Farrar and Kuykendall are factually distinguishable. Both cases involved theft of items from locations outside of Pennsylvania that were recovered from the thieves within Pennsylvania. In both cases, the prosecution could "be maintained in a county in which the accused is found to be in possession of the stolen property." Id. (quoting Commonwealth v. Downs , 334 Pa.Super. 568, 483 A.2d 884, 890 (1984) ). By contrast, there was no evidence presented at trial to suggest the theft occurred in Berks County, nor was Appellant ever found to be in possession of the stolen property in Berks County. Importantly, Appellant sold the tools and consequently no longer "retained" the tools even as early as when he spoke with Mr. Munoz and Officer Valdez by telephone.
Finally we note that the testimony offered by Officer Valdez was based on the report he prepared a full two months after the incident. According to that report, he advised Appellant that he had until 8:00 a.m. the following morning to return the tools or be charged. Appellant admitted he had taken the tools and said he would return them. Officer Valdez's testimony did not include any reference to Appellant having sold the tools or having the ability to regain control over them in Berks County. Again, he testified based on the statement he prepared two months after the incident, while acknowledging it is not good police practice to wait two month to prepare a report.
In summary, the Commonwealth failed to prove that any conduct that is an element of receiving stolen property occurred within the Commonwealth. We expect information was available to the Commonwealth that would pinpoint the location of Mr. Munoz's workplace and where his truck was parked on October 31, 2017 and the days prior to that date. However, the Commonwealth did not elicit any testimony to establish that those locations were within Pennsylvania or that any conduct involved in the crime of receiving stolen property occurred in Pennsylvania. Certainly, the crime may have occurred in Pennsylvania and may have occurred in Berks County. However, it just as easily may have been in a neighboring state. "[T]he Commonwealth bears the burden of proving facts sufficient to establish jurisdiction[.]" Commonwealth v. Passmore , 857 A.2d 697, 709 (Pa. Super. 2004) (citing Commonwealth v. Bradfield , 352 Pa.Super. 466, 508 A.2d 568, 571 (1986) ). While it may rely upon circumstantial evidence to meet its burden, see id. , the Commonwealth failed to prove facts sufficient to establish jurisdiction by either direct or circumstantial evidence. Therefore, we are constrained to vacate Appellant's judgment of sentence.
Judgment vacated. Jurisdiction relinquished.
Judge Olson joins the opinion.
Judge Bowes files a dissenting opinion.
DISSENTING OPINION BY BOWES, J.:
I respectfully dissent. In my view, the certified record adequately established that the locus of Appellant Joseph Manuel Maldonado-Vallespil's crime of theft by receiving stolen property was in Berks County under Pennsylvania law. Therefore, I believe that the trial court properly exercised subject matter jurisdiction and that Appellant's judgment of sentence should be affirmed.
I would affirm on an alternative basis than the one explicitly relied upon by the trial court. See Commonwealth v. Toanone , 381 Pa.Super. 336, 553 A.2d 998, 1001 (1989) ("An appellate court may affirm a trial court order on a basis other than that relied upon by the trial court.").
The factual history of this case is central to my analysis and despite the learned Majority's apt summary, I believe that the legal significance of a number of key facts has been overlooked. On October 31, 2017, the victim in this case, Jose Munoz, discovered that numerous tools and equipment were missing from his truck. He suspected that Appellant had stolen these items based upon Appellant's abrupt departure from Mr. Munoz's employ earlier that same day. Mr. Munoz contacted the Reading Police Department, and officers responded to Mr. Munoz's residence at 507 N. 14th Street, Reading, Pennsylvania, which is located within Berks County. With the officers present, Mr. Munoz called Appellant on a cellular telephone that he had given to Appellant during the course of his employment. Appellant answered the call and admitted that he had stolen the tools from Mr. Munoz's truck and sold them to an undisclosed third party. See N.T. Trial, 7/18/18, at 23. During this phone call, Appellant also stated that he remained in contact with this individual and could retrieve the tools from him. Id. at 23-24. Appellant also spoke directly with Officer Steve Valdez, who recounted the telephone conversation as follows:
Q: And what do you say to the individual on the other end of the phone?
A: I told him if he had the tools, that he had until the next day to return them. If not, he would be charged.
Q: And what did that individual say to you?
A: He said he was going to return them.
Q: Did he say anything else?
A: He told me that he took them and that he was going to return them. That's what he had said.
Id. at 43. Thus, Appellant represented that: (1) he had continued access to the tools such that he could retrieve them; and (2) that he was able and willing to restore the tools to Mr. Munoz. Id . at 24, 42-43.
Appellant was given a deadline of 8:00 a.m. on the following day to return the stolen tools, and had agreed that he would return the tools by that time. Id. at 23-25, 42-43. Appellant did not follow through on his promise. On November 9, 2017, a criminal complaint and affidavit of probable cause was filed by the Reading Police Department based on the above-recited facts. That same day, a magisterial district judge issued an arrest warrant for Appellant. On November 14, 2017, the arrest warrant was served and Appellant was taken into custody at the Berks County Sheriff's Office Central Booking Center at 633 Court Street, Reading, Pennsylvania, which is situated within the borders of Berks County. See Berks County Sheriff Fee Bill, 11/14/17, at 1.
As the Majority has correctly noted, our standard of review in this context is de novo , and our scope of review is plenary. See Commonwealth v. Bethea , 574 Pa. 100, 828 A.2d 1066, 1071 n.5 (2003). Furthermore, this Court may affirm a judgment or verdict for any reason appearing of record. See Commonwealth v. Melvin , 103 A.3d 1, 19 (Pa.Super. 2014).
In assessing subject matter jurisdiction, the learned Majority focuses upon the evidence adduced by the Commonwealth at trial. However, that approach fails to consider the fundamental nature of the crime of which Appellant was convicted: theft by receiving stolen property. See 18 Pa.C.S. § 3925(a). In relevant part, this crime is defined as follows: "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, ...." Id. (emphasis added). Based upon the aforecited language, this Court has concluded that "the legislature's inclusion of a prohibition against retaining and disposing of stolen property makes this offense ‘ongoing.’ " Commonwealth v. Farrar , 271 Pa.Super. 434, 413 A.2d 1094, 1098 (1979) ; see also Commonwealth v. Kuykendall , 318 Pa.Super. 429, 465 A.2d 29, 31 (1983) (same). Specifically, this Court has previously held that "the retention of stolen property is a ‘continuing’ offense which does not terminate until the stolen property is taken from the accused." Commonwealth v. Kelly , 300 Pa.Super. 451, 446 A.2d 941, 943-44 (1982). Because theft by receiving stolen property is an "ongoing" offense, "prosecution may be maintained in a county in which an accused is found to be in possession of the stolen property." Commonwealth v. Downs , 334 Pa.Super. 568, 483 A.2d 884, 889-90 (1984).
In the instant case, Appellant was never observed in possession of Mr. Munoz's stolen tools, and those items were never recovered. Even though Appellant freely confessed his theft, Appellant apparently fenced his ill-gotten goods to the unknown buyer discussed above. I submit that Appellant's own statements via telephone to Mr. Munoz and Officer Valdez establish that Appellant maintained continuous "constructive possession" of the stolen items. See Commonwealth's brief at 10 ("Under such circumstances, [Appellant] would have constructively possessed the victim's property in [Berks County]."). In this context, constructive possession means that Appellant had "the power to control the contraband and the intent to exercise that control." Commonwealth v. Haskins , 450 Pa.Super. 540, 677 A.2d 328, 330 (1996). Furthermore, constructive possession may be established via circumstantial evidence and "[t]he requisite knowledge and intent may be inferred from examination of the totality of the circumstances." Id. Here, Appellant's statements during the phone call clearly evinced both his continuing ability to exercise control over the stolen tools, and also his intent to exercise that control. See N.T. Trial, 7/18/18, at 23-25, 41-44 (unchallenged representations that Appellant stated that he had ongoing access to the stolen tools and intended to exercise that control).
It is also well-established under Pennsylvania precedent that "[t]he fact that another person may also have control and access does not eliminate the defendant's constructive possession; two actors may have joint control and equal access and thus both may constructively possess the contraband." Haskins , supra at 330. Accordingly, that Appellant may have sold the stolen items to an unnamed third-party is not dispositive regarding Appellant's constructive possession. See Commonwealth v. Grekis , 411 Pa.Super. 494, 601 A.2d 1275, 1282 (1992) ("[T]here is no requirement that appellant actually physically have handled the stolen goods in order to have possessed them for purposes of this offense."). Moreover, Appellant's statements also indicate that Appellant was exercising control over these items via the unnamed third party. Id. ("[A]ppellant's dominion and control over the goods may be exercised through another, ...."). Either way, Appellant was exercising "constructive possession" over the at-issue contraband, e.g. , the stolen tools.
Based upon Appellant's above-referenced statements promising to return these items, his constructive possession of the stolen tools continued unabated until he was located and arrested within the physical borders of Berks County. Thus, at the moment that Appellant was taken into custody in Berks County, he was still in constructive possession of the stolen tools, which is sufficient to satisfy the territoriality requirements set forth at 18 Pa.C.S. § 102(a)(1) as they relate to subject matter jurisdiction. See Commonwealth v. Ellis , 233 Pa.Super. 169, 335 A.2d 512, 515 n.3 (1975) ("Thus, the offense is an ongoing one, still occurring in the instant case at the time the officer [arrested] the appellant."). Moreover, a demonstration of constructive possession is sufficient on its own to support a conviction for theft by receiving stolen property at § 3925. See Commonwealth v. Brady , 385 Pa.Super. 279, 560 A.2d 802, 806 (1989) ("To establish that appellant received or possessed the stolen property, it was sufficient to show that appellant had joint or constructive possession of it."). I would conclude that constructive possession similarly qualifies as an overt act for the purposes of § 102(a)(1).
There is also no indication in the certified record that some definitive event terminated Appellant's constructive possession. See Commonwealth v. Hawkins , 294 Pa.Super. 57, 439 A.2d 748, 752 (1982) ("[T]he offense was a ‘continuing’ one which did not terminate until the stolen property was taken from [defendant] ....").
The holding in Commonwealth v. Ellis , 233 Pa.Super. 169, 335 A.2d 512 (1975) did not address jurisdiction, but adjudicated whether a police officer had probable cause to arrest a defendant observed in possession of stolen property. However, this Court explicitly cited and relied upon Ellis in Commonwealth v. Farrar , 271 Pa.Super. 434, 413 A.2d 1094 (1979). Thus, its inclusion here as persuasive authority is appropriate.
Overall, I find this case to be analogous to the holdings in Farrar and Kuykendall . In those cases, the defendants were found in possession of stolen property that was initially misappropriated outside of Pennsylvania's territorial borders. They challenged subject matter jurisdiction upon the basis that the underlying overt acts of criminality did not occur within the Commonwealth. See Farrar , supra at 1098 ; Kuykendall , supra at 31. This Court ultimately concluded that ongoing possession of the stolen property while within the Commonwealth was sufficient to establish subject matter jurisdiction. Id. Assuming, arguendo , that Appellant's receipt of stolen property did not occur within Berks County, I would affirm based upon Appellant's ongoing constructive possession of the stolen property when, having failed to return the stolen property, he was taken into custody within the borders of Berks County.
Such a holding has the additional virtue of comporting with the U.S. Supreme Court's seminal precedent in Strassheim v. Daily , 221 U.S. 280, 284-85, 31 S.Ct. 558, 55 L.Ed. 735 (1911) (Holmes, J.), stating that "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power." Even if the precise situs of Appellant's misappropriation is unknown, it was undeniably directed at, and created a detrimental effect upon, a resident of Berks County.
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I respectfully dissent.