J. A12034/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
CHELSIE LEE DAHLKE,                     :          No. 1386 WDA 2018
                                        :
                       Appellant        :


     Appeal from the Judgment of Sentence Entered August 30, 2018,
             in the Court of Common Pleas of McKean County
             Criminal Division at No. CP-42-CR-0000460-2017


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 12, 2019

     Chelsie Lee Dahlke appeals from the August 30, 2018 judgment of

sentence entered by the Court of Common Pleas of McKean County following

her conviction of unauthorized use of automobiles and other vehicles, driving

without a license, and driving while operating privilege is suspended or

revoked.1 After careful review, we affirm.

     The trial court provided the following factual history:

           In July of 2017 Patrick Chastain allowed [appellant] to
           use his 1998 Jeep Grand Cherokee. [Appellant] had
           asked to use the vehicle to pick up her minor son[s]
           for a scheduled weekend visit with her. Mr. Chastain
           testified that [appellant] was to bring the vehicle back
           to Mr. Chastain the same day that she used it – which
           was July 14, 2017. She did not return it when she
           was supposed to. Mr. Chastain’s repeated attempts

1 18 Pa.C.S.A. § 3928(a) and 75 Pa.C.S.A. §§ 1501(a) and 1543(a),
respectively.
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              to contact [appellant] were unsuccessful. He utilized
              the same cell phone number to call and send text
              messages to that he had reached [appellant] at in the
              past. On July 18, 2017, he received a text message
              response from [appellant] that simply indicated where
              his vehicle could be located – that it was alongside
              Route 155.     When he found his vehicle “it was
              trashed[”;] “My front bumper was ripped off of the
              passenger side. It was covered in mud.”

Trial court opinion, 12/20/18 at (unnumbered page) 6 (citations to the record

omitted).

        The Commonwealth charged appellant with the above-referenced

offenses, as well as criminal mischief – intentionally damages property.2 A

jury convicted appellant of unauthorized use of automobiles and other

vehicles, driving without a license, and driving while operating privilege is

suspended or revoked and acquitted her of criminal mischief – intentionally

damages property. On August 30, 2018, the trial court sentenced appellant

to 23 months’ probation and ordered her to perform 15-70 hours of

community service.

        Appellant filed a timely notice of appeal to this court. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court

then filed an opinion pursuant to Pa.R.A.P. 1925(a).

        Appellant raises the following issues for our review:

              A.    Whether the evidence was sufficient to sustain
                    a finding of guilt under 18 Pa. C.S.[A.]

2   18 Pa.C.S.A. § 3304(a)(5).


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                   § 3928(a), Unauthorized Use of Automobiles
                   and Other Vehicles, 75 Pa.C.S.[A.] § 1501(a),
                   Driving Without a License, and 75 Pa.C.S.[A.]
                   § 1543(a), Driving While Operating Privilege
                   Suspended     or    Revoked,    where     the
                   Commonwealth’s evidence was insufficient to
                   prove beyond a reasonable doubt that
                   [a]ppellant operated or drove the vehicle in
                   question between July 15, 2017, and July 18,
                   2017?

            B.     Whether the evidence was sufficient to sustain
                   a finding of guilt under 18 Pa.C.S.[A.]
                   § 3928(a), Unauthorized Use of Automobiles
                   and Other Vehicles, where the Commonwealth’s
                   evidence was insufficient to prove beyond a
                   reasonable doubt that [a]ppellant lacked the
                   owner’s consent to operate the vehicle in
                   question or knew or had reason to know she
                   lacked the owner’s consent?

Appellant’s brief at 6.

            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,



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                 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 convictions will be upheld.

           Commonwealth v. Franklin, 69 A.3d 719, 722-723
           (Pa.Super. 2013) (internal quotations and citations
           omitted). Importantly, “the jury, which passes upon
           the weight and credibility of each witness’s testimony,
           is free to believe all, part, or none of the evidence.”
           Commonwealth v. Ramtahal, [], 33 A.3d 602, 607
           ([Pa.] 2011).

Commonwealth v. Sebolka, 205 A.3d 329, 337-338 (Pa.Super. 2019).

     In her first issue on appeal, appellant challenges whether the

Commonwealth proved beyond a reasonable doubt that appellant operated

and/or drove the Jeep—which is a required element to obtain a conviction for




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unauthorized use of automobiles and other vehicles,3 driving without a

license,4 and driving while operating privilege suspended or revoked.5

      In order to obtain a conviction for unauthorized use of automobiles and

other vehicles, the Commonwealth need not “prove that the appellant was

operating the vehicle in motion. [Rather, t]he Commonwealth need only show

that the defendant was in the vehicle behind the wheel and had control and

management of it.”      Commonwealth v. Johnson, 489 A.2d 821, 823

(Pa.Super. 1985), citing Commonwealth v. Taylor, 352 A.2d 137 (Pa.Super.

1975). Likewise, in order to obtain a conviction for appellant’s two charges

under the Motor Vehicles Code, the Commonwealth must meet a similar

burden. The Motor Vehicles Code defines “driver” as “a person who drives

or is in physical control of a vehicle.”         75 Pa.C.S.A. § 102 (driver)

(emphasis added).




3 “A person is guilty of a misdemeanor of the second degree if [s]he operates
the automobile . . . of another without the consent of the owner.” 18 Pa.C.S.A.
§ 3928(a) (emphasis added).

4“No person, except those expressly exempted, shall drive any motor vehicle
upon a highway or public property in this Commonwealth unless the person
has a driver’s license valid under the provisions of this chapter.” 75 Pa.C.S.A.
§ 1501(a) (emphasis added).

5 “[A]ny person who drives a motor vehicle on any highway or trafficway of
this Commonwealth after the commencement of a suspension, revocation, or
cancellation of the operating privilege and before the operating privilege has
been restored is guilty of a summary offense . . . .” 75 Pa.C.S.A. § 1543(a)
(emphasis added).


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      At trial, the Commonwealth called Mr. Chastain to testify. Mr. Chastain

testified that appellant asked to borrow his Jeep so that she could pick up her

sons. (Notes of testimony, 7/30/18 at 16.) Mr. Chastain permitted her to do

so, with the understanding that appellant would return the Jeep that evening.

(Id. at 16-17.) Mr. Chastain testified that appellant failed to do so. (Id. at

17.) The evidence further reflects that appellant eventually sent Mr. Chastain

a text message indicating where his Jeep could be found alongside Route 155.

(Id. at 23.)

      Based upon our review of the record, when viewed in the light most

favorable to the Commonwealth, as verdict winner, we find that the

Commonwealth presented sufficient evidence to prove beyond a reasonable

doubt that appellant operated and/or drove Mr. Chastain’s Jeep.            The

circumstantial evidence presented by the Commonwealth permitted the jury

to reasonably infer that appellant was in Mr. Chastain’s Jeep, was behind the

wheel, and that she had control and management of the Jeep. See Johnson,

489 A.2d at 823. Accordingly, appellant’s first issue is without merit.

      Appellant further avers that the Commonwealth failed to present

sufficient evidence that either appellant operated Mr. Chastain’s Jeep without

his consent or that appellant knew or had reason to know that she lacked

Mr. Chastain’s consent to operate his Jeep.        (Appellant’s brief at 21.)

Specifically, appellant argues that Mr. Chastain failed to clearly communicate




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to appellant that he wanted her to return the Jeep to him after she picked up

her sons for the weekend. (Id. at 23.)

     This court has previously held that,

           the Commonwealth is not obligated to disprove every
           possible explanation for appellant’s unauthorized use
           of the automobile. It must only introduce sufficient
           facts and circumstances from which, if believed, a jury
           could conclude beyond a reasonable doubt that
           appellant knew that [s]he was operating the
           automobile without the owner’s consent.

Commonwealth v. Lloyd, 361 A.2d 430, 432-433 (Pa.Super. 1976), citing

Commonwealth v. Clark, 311 A.2d 910 (Pa. 1973).

     Here, Mr. Chastain testified that he permitted appellant to borrow his

Jeep on the understanding that she would return the Jeep to him the same

day. (Notes of testimony, 7/30/18 at 16-17.) The record further reflects that

after appellant failed to return his Jeep the evening of the day she borrowed

it, Mr. Chastain attempted to reach appellant several times via text message

to inquire as to the whereabouts of his Jeep.      (Id. at 18.)      Finally, the

Commonwealth presented evidence that appellant texted Mr. Chastain several

days after she was to return his Jeep to notify him that the Jeep was located

alongside Route 155. (Id. at 23.)

     Viewed in the light most favorable to the Commonwealth, we find that

this evidence permitted the jury to reasonably infer that appellant lacked

Mr. Chastain’s permission to continue using his Jeep. See Franklin, 69 A.3d

at 722-723. Therefore, we find that appellant’s second issue is without merit.



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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2019




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