J-S03033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAKE WILLIAM LAZIER

                            Appellant                 No. 1326 EDA 2015


              Appeal from the Judgment of Sentence April 9, 2015
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000093-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 14, 2016

        Appellant Jake William Lazier appeals from the judgment of sentence

entered in the Pike County Court of Common Pleas following his jury trial

conviction for theft by unlawful taking1 and theft by deception.2 We affirm.

        The conviction stems from Appellant’s sale of Gary Page’s motorcycle

to Richard Repa for $500.00. Appellant failed to inform Mr. Repa that he did

not have authority to sell the motorcycle.

        The trial court summarized the testimony at trial as follows:

           [W]itness Diane Taylor was in a relationship with the
           motorcycle’s [] owner, Gary Page, for eight (8) years.
           [N.T., 1/21/2015, at 99:18-25]. Ms. Taylor had Mr. Page
           removed from her home in 2008 as a result of domestic
____________________________________________


1
    18 Pa.C.S. § 3921(a).
2
    18 Pa.C.S. § 3922(a).
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          problems. Id. at 98:18-19. The motorcycle was among
          many personal possessions Mr. Page left behind in the
          wake of his removal. Mr. Page also testified at trial:

              Well, I felt it was best to begin to get some of my
              personal property back a little at a time. I thought
              that if we went nice and easy and she calmed down
              and she wasn't so upset that I could begin to get my
              personal property and take the motorcycle last since
              that was the biggest thing.

              In the beginning[,] we did meet in public places and
              exchange a few personal items that were mine, but it
              was getting less and less. Every time I met her, I
              would get just a few items. The items that I wanted
              such as clothing and things of that sort[,] pictures of
              my family, she wouldn’t give me.

              I played the guitar for many years I couldn't get that
              back I told her she can keep the furniture, because it
              was part of the household that she was living in and
              I didn’t want to disrupt it, so I said, “It’s furniture,
              it’s old, you know, you can have that,” so I never
              thought, never thought that eventually I wouldn’t get
              my motorcycle back from her.              I miss my
              motorcycle, I mean, you know, it’s mine.

          [N.T., 1/21/2015, at 74:12 - 75:7].

          [Ms. Taylor testified to the following:3]

              Q. You mention in 2012 you moved from the home in
              Dingmans Ferry, you didn’t know where you were
              going to be going, did you make arrangements for
              the motorcycle to be kept someplace?

              A. Yes, I did.
____________________________________________


3
  The trial court noted that although Ms. Taylor testified that “the motorcycle
was ‘abandoned’ at her home, she was referring to Mr. Page’s failure to have
it removed therefrom, which has no bearing on whether [] the motorcycle
was ‘abandoned’ under the law when Appellant sold it. In fact, Ms. Taylor
did not abandon the motorcycle at the home when she vacated it in 2012.”
Opinion 8/25/2015, at 5.



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              Q. Could you tell me about that?

              A. A friend of my son[] offered to help me out and
              take it, garage it where he was living.

          [N.T., 1/21/2015, at 100:18 – 25].

          Mr. Jamie Finnegan,[4] who lived at the home at which the
          motorcycle was stored when Ms. Taylor left the Dingman’s
          Ferry home[,] testified on direct examination by the
          Assistant District Attorney:

              Q. What's your understanding of whose motorcycle
              that was?

              A. I really don’t know his name totally. I know it was
              a big controversy with the motorcycle, but it was
              Jessie Taylor that I was looking after it for.

              Q. Sir, where was that motorcycle kept?

              A. In the driveway under a tarp.

              Q. Sir, had you ever been spoken to by Jake Lazier
              about selling that -- him selling that motorcycle or
              taking that motorcycle?

              A. Yes.

              Q. Tell me about that?

              A. On a few different occasions and I told him not to
              touch it.

              Q. Did you ever give him permission to sell that
              motorcycle and say it was okay for him to do that?

              A. No, sir.

          [N.T., 1/21/2015, at 198:1-19].


____________________________________________


4
  Jamie Finnegan was married to Appellant’s mother, Theresa Finnegan, who
also resided at the home where the motorcycle was stored.            N.T.,
1/21/2015, at 136, 138.



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          Appellant was aware that he had no authority to sell the
          motorcycle in question, as illustrated by his mother’s
          testimony on cross examination by Appellant’s attorney:

              Q. Now, about this Facebook page, is it your
              testimony that you had a Facebook conversation with
              your son Jake?

              A. Yes, sir.

              Q. That he asked you if your husband would get mad
              if you sold the motorcycle that was lying around?

              A. Yes.

              [Q. Did he ever say – and you said yes, he would get
              mad?

              A. Yes.

          N.T., 1/21/2015, at 183:2 -17].

          The buyer, Mr. Repa, testified on direct examination by the
          Assistant District Attorney:

              Q. What was the story [Appellant] told you about it;
              if you remember?

              A. Basically[,] that it belonged to his dad and his
              dad’s friend and something to do with his dad’s
              friend going through divorce or something like that
              and it’s been sitting there for years he says.

              Q. So, you offered him $700.00 for it?

              A. Correct.

              Q. Did he take you up on it at that time?

              A. No, he told me he had to speak to his dad and his
              dad’s friend or his father or somebody.

          [N.T., 1/21/2015, at 220:6-16.5]
____________________________________________


5
  Later that evening Appellant texted Mr. Repa and told him he would sell
the motorcycle for $700.00. Mr. Repa informed Appellant he now only had
(Footnote Continued Next Page)


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Opinion, 8/25/2015, at 4-7.

      On January 22, 2015, the jury found Appellant guilty of theft by

unlawful taking and theft by deception.           On April 9, 2015, the trial court

sentenced Appellant to concurrent sentences of 14 months to 4 years’

imprisonment on the theft convictions.

      Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issues on appeal:

          1. Whether the evidence was insufficient to establish
          Appellant’s conviction of [t]heft by [u]nlawful [t]aking
          because the Commonwealth did not disprove the properly
          raised defense of abandonment.

          2. Whether the evidence was insufficient to establish
          Appellant’s conviction of [t]heft by [d]eception because the
          Commonwealth did not disprove the properly raised
          defense of abandonment.

          3. Whether the evidence was insufficient to establish that
          the motorcycle was not abandoned property as defined by
          Pennsylvania Law.

          4. Whether the [t]rial [c]ourt erred and abused its
          discretion by denying Appellant’s [m]otion for [a]rrest of
          [j]udgment also known as [m]otion for [j]udgment of
          [a]cquittal because the motorcycle was abandoned
          property.




                       _______________________
(Footnote Continued)

$500.00, and Appellant agreed to sell the motorcycle for $500.00 to Mr.
Repa. N.T., 1/21/2015, at 220-21.




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Appellant’s Brief at 6. All four of Appellant’s issues raise the same question:

Whether the Commonwealth failed to present sufficient evidence of the

crimes because the motorcycle was abandoned.

      We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether viewing all the evidence admitted at trial in the

light most favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a

reasonable doubt.”      Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth

v. DiStefano, 782 A.2d 574 (Pa.Super.2001)).            When we apply this

standard, “we may not weigh the evidence and substitute our judgment for

the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”     Lehman, 820 A.2d at

772 (quoting DiStefano, 782 A.2d at 574).           Moreover, “[a]ny doubts

regarding a defendant’s guilt may be resolved by the fact-finder unless the

evidence is so weak and inconclusive that as a matter of law no probability

of fact may be drawn from the combined circumstances.”              Id.   “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Id.

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

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Further, “the trier of fact while passing upon the credibility of witnesses and

the weight of the evidence produced, is free to believe all, part or none of

the evidence.” Id.

       Appellant was convicted of theft by unlawful taking6 and theft by

deception.7      A person is guilty of theft by unlawful taking where he

“unlawfully takes, or exercises unlawful control over, moveable property of

another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). Theft by

deception is defined as:

          (a) Offense defined.--A person is guilty of theft if he
          intentionally obtains or withholds property of another by
          deception. A person deceives if he intentionally:

          ...

          (2) prevents another from acquiring information which
          would affect his judgment of a transaction . . . .

18 Pa.C.S. § 3922(a).

       Abandonment        is   a   defense     to   the   crime   of   theft.   See

Commonwealth v. Meinhart, 98 A.2d 392, 394-95 (Pa.Super.1953)

(finding person cannot be convicted of larceny of abandoned property,

reasoning abandoned property does not qualify as property subject to

larceny because “[i]t belongs to no one, nor is it regarded as being in the

____________________________________________


6
 The jury found Appellant guilty of the unlawful taking of Mr. Page’s
motorcycle.
7
  The jury found Appellant guilty of theft by deception of Mr. Repa’s
$500.00.



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possession of any one”).     This Court has defined abandoned property as

property “to which an owner has voluntarily relinquished all right, title, claim

and possession with the intention of terminating his ownership, but without

vesting it in any other person and with the intention of not reclaiming further

possession    or    resuming        ownership,   possession   or   enjoyment.”

Commonwealth v. Wetmore, 447 A.2d 1012, 1014 (Pa.Super.1982). We

have further noted:

         Abandonment involves an intention to abandon, together
         with an act or omission to act by which such intention is
         apparently carried into effect. In determining whether one
         has abandoned his property or rights, the intention is the
         first and paramount object of inquiry, for there can be no
         abandonment without the intention to abandon. The intent
         to abandon is to be determined from all of the facts and
         circumstances of the case. The question of whether a
         particular act amounts to an abandonment is generally one
         of intention. When deciding whether an object has been
         abandoned, we must consider the nature of the property,
         the acts and conduct of the parties in relation thereto and
         the other surrounding circumstances.

Id. (internal citations omitted).

      At trial, the trial court stated the elements of the theft charges and

instructed the jury that the Commonwealth was required to prove all

elements of theft beyond a reasonable doubt. N.T., 1/22/2015, at 119, 121-

22, 116.     It also accurately defined abandonment, using the definition




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provided by this Court in Wetmore. Id. at 120-21.8 The trial court then

stated: “It is up to you as jurors to determine whether the property in this

matter, based on the evidence that you have heard, meets the definition of

abandonment.” Id. at 121. The instructions never discussed the burden of

proof for abandonment, and never shifted the Commonwealth’s burden to

prove all elements of the crime beyond a reasonable doubt.9

       There was sufficient evidence for a jury to conclude that Mr. Page had

not abandoned the motorcycle and that Appellant knew the motorcycle had

not been abandoned. Mr. Page, the victim, testified he had not abandoned

it. Ms. Taylor testified that the motorcycle belonged to Mr. Page and that it

was being stored in Jamie Finnegan’s garage.                Mr. and Mrs. Finnegan

testified that the motorcycle belonged to someone and that they had told

Appellant he could not dispose of it.

       Accordingly, sufficient evidence existed for the jury to find all elements

for theft by unlawful taking beyond a reasonable doubt. The Commonwealth

established    that    Appellant    intentionally   took,   and   sold,   Mr.   Page’s
____________________________________________


8
  During deliberations, the jury requested that the court again define
abandonment, and the trial court read the same definition of abandonment
as it read during the initial instructions. N.T., 1/22/2015, at 129-30.
9
  Although the trial court’s 1925(a) opinion discussed the burden of proof,
stating Appellant had the burden of persuasion as to the defense of
abandonment, the jury instructions contained no such suggestion. Opinion,
8/25/2015, at 4. The instructions stated the elements of the crimes, defined
abandonment, and stated that the Commonwealth had the burden to prove
each element beyond a reasonable doubt. This was not error.



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motorcycle, which was “property of another.” Further, the Commonwealth,

therefore, established all elements of theft by deception beyond a

reasonable doubt. The testimony established that Mr. Repa paid Appellant

$500.00 for the motorcycle, that the motorcycle was not abandoned, and

that Appellant did not inform Mr. Repa that he did not have the authority to

sell the motorcycle.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2016




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