Opinion
J-S54026-17 No. 211 WDA 2017
11-17-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. PHILLIP MICHAEL WOLFE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 22, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001546-2015 BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY MOULTON, J.:
Former Justice specially assigned to the Superior Court.
Phillip Michael Wolfe appeals from the November 22, 2016 judgment of sentence entered in the Westmoreland County Court of Common Pleas following his conviction for theft of leased property, 18 Pa.C.S. § 3932(a). We affirm.
The opinion of the Honorable Rita Donovan Hathaway set forth the factual history of this case, which we adopt and incorporate herein. See Stmt. of the Court Issued Pursuant to Pa.R.A.P. Rule 1925, 3/27/17, at 1-7 ("1925(a) Op."). On August 24, 2016, after a bench trial, Wolfe was convicted of the aforementioned offense. On November 22, 2016, the trial court sentenced Wolfe to 16 months to 7 years' incarceration and ordered Wolfe to pay $37,705.27 in restitution to PennWest Industrial Trucks ("PennWest"). On December 1, 2016, Wolfe filed a post-sentence motion. On January 5, 2017, after a hearing, the trial court denied the motion. On January 26, 2017, Wolfe timely filed a notice of appeal.
Wolfe raises two issues on appeal:
I. Whether the verdict was against the weight of the evidence as no direct or circumstantial evidence was presented that would indicate that [Wolfe] intentionally dealt with the leased property as his own?Wolfe's Br. at 6 (full capitalization omitted).
II. Whether the verdict was against the sufficiency of the evidence to allow the fact finder to find every element of the crime charged was proven beyond a reasonable doubt.
We address Wolfe's second issue first. Our standard of review for a sufficiency of the evidence claim is as follows:
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. 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.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and 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.Commonwealth v. Rodriguez , 141 A.3d 523, 525 (Pa.Super. 2016) (quoting Commonwealth v. Tarrach , 42 A.3d 342, 345 (Pa.Super. 2012)).
Section 3932 of the Crimes Code defines theft of leased property as follows:
(a) Offense defined.--A person who obtains personal property under an agreement for the lease or rental of the property is guilty of theft if he intentionally deals with the property as his own.
(b) Definition.--As used in this section:
(1) A person "deals with the property as his own" if he sells, secretes, destroys, converts to his own use or otherwise disposes of the property.
(2) A "written demand to return the property is delivered" when it is sent simultaneously by first class mail, evidenced by a certificate of mailing, and by registered or certified mail to the address provided by the lessee.
(c) Presumption.--A person shall be prima facie presumed to have intent if he:
(1) signs the lease or rental agreement with a name other than his own and fails to return the property within the time specified in the agreement; or
(2) fails to return the property to its owner within seven days after a written demand to return the property is delivered.
18 Pa.C.S. § 3932.
(d) Exception.--This section shall not apply to secured transactions as defined in Title 13 (relating to commercial code).
Wolfe argues that the evidence was insufficient to convict him because the Commonwealth did not present evidence that Wolfe sold, secreted, destroyed, converted to his own use, or otherwise disposed of the property. According to Wolfe, the Commonwealth presented no documentary evidence that PennWest attempted to contact him regarding the delinquent account, which is required "to prove both elements of the crime." Wolfe's Br. at 11. Wolfe also asserts that "the mere fact that [he] continued to utilize the forklift after his account became delinquent in a location other than where the forklift was origin[]ally delivered does not does not equate to proof that [Wolfe] intentionally dealt with the property as his own." Id. Additionally, Wolfe asserts that witnesses from PennWest testified "that they lacked any firsthand knowledge that [Wolfe] tried to sell the forklift, represent it as his own[,] destroy[] the equipment, or secrete[] it." Id.
The trial court concluded that the evidence was sufficient to support Wolfe's conviction:
[T]he testimony presented at trial established that [Wolfe] stopped making payments after August 2012 until the forklift was recovered in March 2014. [March] did not dispute this contention at trial. The Commonwealth's witnesses testified that they each tried to contact [Wolfe] in a variety of different ways after his account became delinquent. While [Wolfe] contended that he did not receive a majority of these contacts, he testified that he used the forklift for work jobs between August 2012 and March 2014, approximately 19 months. Moreover, he transported the forklift out of state to Maine, and to eastern Pennsylvania during that period. [Wolfe] did not return the forklift of his own volition, and it was only recovered after it was labeled as stolen and identified when a call for its repair was placed.
When the forklift was taken in for repairs after it was recovered, it was revealed that it had been used for a total of 957 hours by [Wolfe] (the equivalent of 120 days of work at 8 hours per day).1925(a) Op. at 9-10.
. . .
Although [Wolfe] asserts that his relocation of the forklift to various locations does not represent a criminal charge, [Wolfe] was not convicted based on this fact. Rather, [Wolfe]'s evasion of all contact with PennWest after October 2012 and continued use [of] the forklift as his own supported the [conviction for] Theft of Leased Property.
We agree with the trial court that there was ample evidence that Wolfe converted the forklift to his own use and, as a result, the evidence was sufficient to convict Wolfe of theft of leased property.
As the trial court noted, there is a dearth of case law interpreting section 3932 of the Crimes Code. The only reported case is Commonwealth v. Lebron , 765 A.2d 293 (Pa.Super. 2000), where we affirmed the trial court's quashal of the criminal information because the Commonwealth failed to present evidence that Lebron intended to secrete a rented vehicle or that Lebron received notice supporting a presumption that Lebron intended to deprive the rental company of the vehicle. 765 A.2d at 295-96. --------
We disagree with Wolfe's contention that the Commonwealth had to show written notice from PennWest. While the statute discusses written notice, it does so only in the context of creating a rebuttable presumption of intent. See 18 Pa.C.S. § 3932(c). A plain reading of the statute shows that written notice is not an element of the offense, and that the Commonwealth remains free to prove intent in other ways. Further, the trial court did not convict Wolfe based on any presumption of intent.
Next, Wolfe argues that his convictions were against the weight of the evidence. Our standard of review for a weight of the evidence claim is as follows:
[A challenge to the weight of the evidence] concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or give the equal weight with all the facts is to deny justice.Commonwealth v. Fisher , 47 A.3d 155, 158 (Pa.Super. 2012) (quoting Commonwealth v. Widmer , 744 A.2d 745, 751-52 (Pa. 2000)).
Wolfe argues that "a guilty verdict was . . . not warranted as this case is a matter to be decided in civil court, rather than criminal." Wolfe's Br. at 12. Further, Wolfe asserts that the trial court incorrectly concluded that he did not "relinquish the forklift even after being on notice that he was delinquent in payment." Wolfe asserts that testimony that he directed a foreman to call PennWest for service shows that the verdict was against the weight of the evidence because "[a] man who is secreting a forklift or dealing with it as his own would not direct his foreman to call the very company the forklift was leased from." Id. at 13.
Wolfe's arguments are unavailing. Wolfe's assertion that this matter should have been litigated civilly is irrelevant to the weight of the evidence presented. Further, while Wolfe testified that he instructed his foreman "to call PennWest or a Toyota dealer," N.T., 8/24/16, at 85, the trial court discredited Wolfe's testimony. The court, as trier of fact, further found that Wolfe "did not voluntarily relinquish possession of the forklift," which was "recovered only after [Wolfe]'s co-worker attempted to procure repairs for the equipment." 1925(a) Op. at 12. Because Wolfe continued to use the forklift after PennWest notified him that his account was delinquent and ceased communications with PennWest after stating that he would make arrangements to pay PennWest, we conclude that the trial court did not abuse its discretion in finding that Wolfe's "conviction certainly does not shock the conscious, nor is it against the weight of the evidence." Id.
Judgment of sentence affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/17/2017
Image materials not available for display.