J-S54026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    PHILLIP MICHAEL WOLFE

                             Appellant                  No. 211 WDA 2017


           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.:                      FILED NOVEMBER 17, 2017

        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


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S54026-17



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?

          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.

Wolfe’s Br. at 6 (full capitalization omitted).

      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

                                       -2-
J-S54026-17


           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.

           (d)   Exception.--This section shall not apply to secured
                 transactions as defined in Title 13 (relating to
                 commercial code).

18 Pa.C.S. § 3932.

                                       -3-
J-S54026-17



      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.


                                      -4-
J-S54026-17


           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).

                                           ...

              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.

1925(a) Op. at 9-10.

       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.1

       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.


____________________________________________


       1As 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.

                                           -5-
J-S54026-17



      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




                                        -6-
J-S54026-17



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.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




                                        -7-
ti   -
                                                                                     Circulated 11/02/2017 01:57 PM




               IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                                                  -
                           PENNSYLVANIA CRIMINAL DIVISION


         COMMONWEALTH OF PENNSYLVANIA

                      VS.
                                                                 No. 1546 C 2015
                      PHILLIP MICHAEL WOLFE,
                                      Defendant.


                                   STATEMENT OF THE COURT
                             ISSUED PURSUANT TO PA.R.A.P. RULE 1925


               AND NOW, this 67       //day of March,      2017, it appearing to the Court that the

         Defendant filed a Notice of Appeal from the Court's dismissal of his post-sentence

         motions on January 5, 2017, and that Defendant filed a Concise Statement of the Errors

         Complained of on Appeal as Ordered by this Court, pursuant to Rule 1925(a) of the Rules

         of Appellate Procedure, the reasons for said decision are as follows:

         FACTUAL HISTORY:

                The charges in this matter arise from a rental contract that was executed in 2012

         by PennWest and Agtek Metal Works in Mount Pleasant, Westmoreland County. The

         facts as set forth herein are derived from testimony presented at the non-jury trial of this

         matter that occurred on August 24, 2016.

                John Quail, rental manager at PennWest (a forklift dealership), located in Mount

         Pleasant, Westmoreland' County, testified that on or around August 22, 2011, he spoke

         with Defendant by phone. Defendant stated that he wished to rent a forklift capable of

                                                                  APPENDIX       C

                                                       1
lifting 15,000 pounds. (TT 8).1 On October 23, 2011, a rental agreement
                                                                        was executed for

a Toyota forklift (serial number 70271) to be leased to Defendant.
                                                                   Defendant's company

                                                                          address was
address was listed as 7325 Kelsay Road, Hartville, Missouri. The shipping

listed as 3'73 South Pleasant Avenue, Somerset, Pennsylvania. A bill of lading
                                                                               was also

                                                                             by
prepared, wherein Agtek Metal Works was listed as the consigner, accompanied
                                                                      at $65,000. (TT
Defendant's phone number. Quail testified that the machine was valued

12). While the term       of the rental on the rental agreement was to begin on October 25,

2011, the next     line-the     end date -remained empty. (1T 12). Quail noted that this was

                                                                   that they will
common, since many customers are unsure of the precise time period

require rental equipment. (TT 12).
                                                                         was listed as
        The forklift was delivered to Defendant on October 25, 2011, and
                                                                        of the contract,
having 1,0'76 hours of activity. (TT. 11, 27). Quail noted that as part
                                                                    voluntarily or
Defendant was "not to part with possession of the equipment, either
                                                                          as stated on page       or assign any right
 involuntarily, or remove from ship to location               .   .   .                       1


                                                                   stated that Defendant
 hereunder without the prior consent of the owner." (TT 20). Quail
                                                             delivery site, (TT 21).
 never asked for permission to remove the equipment from the
                                                                                       by
         James Richards, a truck driver for Black Mountain Enterprises, was contracted
                                                                  stated that upon
 PennWest to deliver the forklift to Defendant. (Tr 33). Richards
                                                                   He also received a
 delivery, he met with Defendant, who signed the rental agreement.

 check from Defendant in the amount of $650. (TT 35-36).


                                                                               which was held on August 24, 2016, and
  The acronym "TT" refers to specinc pages o t the non -fury trial transcript,
  I


 made a part of the record herein.
                                                          2
          Richards noted that at some point after he delivered the forklift, PennWest

contracted him to travel back to the delivery location in Somerset County to try to

recover the piece of machinery. (TT 38). He described that when he returned to the

Somerset location:

                  .   pulled up to the location because I had been there before
                      .   I
                and there wasn't any people around. Everything was locked
                up. I called our rental officer and he tried to get a hold of
                would imagine he tried to get a hold of Mr. Wolfe with no
                answer. I know usually if there's nobody at the facility I can
                make a phone call trying to get a hold of a customer. There
                wasn't anybody there and the facility was locked,
                (TT 38).

Richards testified that he returned to the location two or three more times, with the same

result.   (IT 38).
          Joseph Bubas, controller for PennWest, testified that he first became aware of

Defendant and his rental agreement in 2012, when he was informed that Defendant was

several months behind in rental payments. (TT 41). At that point, Bubas attempted to

contact Defendant by e-mail and by phone. (TI' 41). When those attempts were

unsuccessful, he attempted to recover the forklift by contracting with Black Mountain

Enterprises and James Richards. That attempt, too, failed, (1" I' 41). Bubas also noted that

 after Defendant initially paid PennWest by check, all other payments were made by credit

 card. (TT 42), Bubas stated that there were no problems with payments until August

 2012, when the transaction was declined. He noted that no payments on the forklift were

 received thereafter. (TT 43).




                                                3
      Mark Gaier, owner of PennWest, testified that he became aware of Defendant's

delinquent account in 2013. (TT 53). Gaier stated he attempted to contact Defendant by

phone on several occasions, but those attempts were unsuccessful. (TT 53), Specifically,

Gaier "did a Google search to verify the accuracy of the address that was on the rental

documents and the phone numbers and they matched to an Agtek phone number," at

which point he "initiated several phone calls trying to contact [Defendant]." (TT 53).

After these failed attempts, he contacted the Pennsylvania State Police ("PSP") and

entered the forklift's serial number into Toyota's database and had it identifed as stolen.

(TT 54). In March 2014, he received notice from a Toyota parts department in Eastern

Pennsylvania that a "hit" had occurred on the serial number. (TT 54, 56). Specifically:

              A service call was generated by an individual representing
              themselves as Agtek, equipment needing service at the
              location where the lift truck was operating. That is different
              from it being taken by [Defendant] to a servicing dealer. It's a
              field service repair. In other words, a mechanic is dispatched
              to their location to make a repair.
              (IT     60)

Gaier then contacted the PSP again to notify them of its location. (TT 54). The PSP took

possession of the forklift until PennWest could arrange for pick-up. (TT 55). Gaier also

testified that after the forklift was recovered, repair costs totaled $1,705. (TT 57). The

repair order also noted that the forklift had been used for 2033 hours at the time of

recovery (a difference of 957 hours). (TT 56, 103).

       Trooper John Sherid of the PSP testified that Joe Bubas of PennWest contacted

him on March     1,   2013 regarding Defendant and the rented forklift. (Yr 70). Trooper

 Sherid met with Bubas on March      1,   2013, and Bubas informed Trooper Sherid that he

                                               4
had not received payment for the rented forklift in six months, and that attempts to

recover the forklift at the Somerset location had been fruitless. At that point, Trooper

Sherid attempted to contact Defendant by telephone, but was unsuccessful, (TT 72). After

speaking with Wright County, Missouri, Sheriff Adler on March 20, 2013, Trooper

Sherid learned that there were several active warrants against Defendant. Sheriff Adler

attempted to serve the warrants on that date, but was unable to locate Defendant. (TT 72).

Those attempts were also unsuccessful, Trooper Sherid filed a criminal complaint on

May 2, 2013, after several months of failed attempts to locate and recover the forklift,

(TT 72). On May 13, 2014, Trooper Sherid learned that the forklift had been recovered.

(TT 74).

       Defendant testified that he initially rented the forklift for the purpose of moving

factory- machinery as part of Agtek business operations. (TT 83). He stated that he had

been engaged in business for Agtek for nine years. (TT 84). Ire also indicated that his

jobs requiring a forklift lasted for approximately six months. (TT 84).

       Defendant related that at some point during his rental of the forklift, he transported

the equipment to Scranton, Pennsylvania for a job. (TT 84). He also stated that at some

point, he discontinued payments. He elaborated that he "had a problem with payables

coming in.   .   .   and was fighting some of those payables trying to get money received." (TT

85). He stated that he did not receive any letters or correspondence from PennWest

during that time. He testified that the forklift eventually required service while in the

Scranton area, although he stated that he was at a California Campbell's Soup plant at the

time. (TT 85, 92). He testified that his foreman contacted him about the required service,

                                                   5
and Defendant informed him that he should call PennWest or a Toyota dealer to handle

the repairs. (TT 85). ITis foreman then reported to him that "somebody was picking up

the forklift." (TT 85). Defendant stated that was the last contact he had with PennWest or

the forklift. (TT 86).

       Defendant also related that he believed he was permitted to move the forklift, and

that "as long as I was paying for it we could move it. I didn't actually read all the fine

print on the sheet. It's too fine. (TT 86). Tie testified that he was never directly contacted

by PennWest, but stated that in September 2012, PennWest did send him an invoice. (TT

89). He stated, "I had an invoice that was mailed to me, but when       I'm out in the field I

usually didn't get anything but e -mails or phone calls and I didn't get any from

[PennWest]." (TT 89). When asked whether he contacted PennWest by phone in

September 2012, he stated that it was possible. (TT 89). The Assistant District Attorney

then inquired about a note in PermWest's file that indicated that as part of the September

phone call, Defendant apologized for being behind on payments, that he and his wife had

been in the hospital, and that he was waiting to receive payment from customers so that

he could pay PennWest. (TT 89-90). Defendant related that although he did not recall the

particular phone call, he remembered that Pennl,Vest had called because "I was just

getting out of the hospital." (TT 90).

        The Assistant District Attorney then inquired about several other contacts with

PennWest, which were contained in PennWest's files:

               A.D.A.: Now, they have a note here on October the 1st of
               2012 that you called again stating that you would make


                                               6
              payment by the end of the week October 5, 2012, do you
              recall that?
              Defendant Yes. I believe we made a payment.
              A.D.A.: Well, at the end of October you indicated you called
              PennWest again saying you would make a $2,000 wire
              payment, that you were waiting for a check to clear the bank
              and this would happen on November the 7th, isn't that true?
              Defendant: I verbally did do that.
              A.D.A.: But, in fact, there was some problem and you never
              paid PennWest?
              Defendant: I don't recall that, but.   .   .




              A.D.A.: There's another entry in November of 2012 that Mr.
              Quail sent you a text message but he didn't receive any
              response?
              Defendant: I don't remember getting a text message.
              A.D.A.: All right. And Mr. Bubas testified that you hadn't
              made a payment to PcnnWest since August of 2012. Do you
              have any documents to dispute that?
              Defendant: No, I don't.
              (TT 90-91).

        Upon cross-examination, Defendant also stated that the forklift had been

transported to Maine at some point before it was recovered in Scranton, Pennsylvania.

(TT 93). He also testified that he had been utilizing the forklift for .vork jobs between

August 2012 and March 2014. (TT 93).

        The Court found Defendant guilty of Theft of Leased Property. On November 22,

2016, Defendant was sentenced to 16 months to 7 years incarceration (RRRI eligible at

12   months). He was also ordered to pay $37,705.27 in restitution to PennWest Industrial

Trucks.

        Defendant asserts that the Court erred by denying Defendant's motion for

Judgment of Acquittal, "as no evidence was presented to prove that the Defendant

intentionally dealt with the property at issue as his own." See Supplement to Defendant's


                                             7
Statement of Matters Complained of on Appeal. Defendant also asserts that there was not

sufficient evidence to convict him of Theft of Leased Property. Last, Defendant avers that

the guilty verdict was against the weight of the evidence, as "even though removing the

leased property from the location from which 41 was delivered was prohibited by a

provision of the leasing contract, it does not equate to a criminal offense   .   .   ."Id.

ANALYSIS:


   I.      WHETHER THE COURT ERRED IN DENYING DEFENDANT'S
           MOTION FOR JUDGMENT OF ACQUITTAL; OR WHETHER
           SUFFICIENT EVIDENCE EXISTED TO CONVICT DEFENDANT?
   Defendant challenges both the sufficiency of the evidence and the Court's denial of

his motion for Judgment of Acquittal; both of these challenges are essentially a question

of whether sufficient evidence existed to convict Defendant.     A motion for          Judgment of

Acquittal "challenges the sufficiency of the evidence to sustain a conviction on a

particular charge, and is granted only in cases in which the Commonwealth has failed to

carry its burden regarding that charge." Comm.        v.   Hutchinson, 947 A.2d 800, 805

(Pa.Super. 2008).

        In reviewing a sufficiency of the evidence claim, a court must:


               [D]eterrnine 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.



                                              8
                        Comm.   v.   Feliciano, 67 A.3d     23-24 (Pa.Super.2013),
                                                                  19,
                    citing Comm. v. Stokes, 38 A.3d 846, 853-54
                    (Pa.Super.2011) (internal citations and quotations omitted).

Defendant was only charged with one count, Theft of Leased Property. Under that statute,

the Commonwealth has the burden of proving the following elements:

                        Theft of leased property
                  (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, 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.
                    18 Pa.C.S.A. §3932

           Thus, the Commonwealth must prove that Defendant acquired the property by

agreement, and that intentionally dealt with the property as his own. It is uncontested that

a    rental agreement between Defendant and PennWest existed; thus, the only issue is

whether Defendant dealt with the property as his own.

           There is a dearth of case law regarding this specific statute. However, the

testimony presented at trial established that Defendant stopped making payments after

August 2012 until the forklift was recovered in March 2014.2 Defendant did not dispute

this contention at trial. (TT 90-91). The Commonwealth's witnesses testified that they

each tried to contact Defendant in a variety of different ways after his account became

delinquent. While Defendant contended that he did not receive                     a   majority of these

2   A.D.A.: Were specific invoices sent to the defendant regarding the payment?
    Bubas: Yes.
    A.D.A.: And did you receive payment?
    Bubas: Not after the payment we received in August of 2012.
    (TT 43).


                                                           9
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. Defendant did not return the

forklift on 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

Defendant (the equivalent of 120 days of work at     8   hours per day).

       The Court also did not find Defendant's testimony to he credible. Specifically, the

Court stated:

                I agree with the Commonwealth      if it had been a month or two
                and the defendant couldn't pay and he did make some phone

                we wouldn't be here today, but then all contact stopped. Ile
                knew that this did not belong to him. He knew this was a
                $65,000 piece of equipment. It clearly states so on the rental
                agreement. He did deal with it as his own, and if he couldn't
                make the payments he should have called and said I'm sorry,
                I cannot make the payments.
                (TT 104).

Conversely, the Court found the Commonwealth's witnesses to be credible. Each of them

detailed their role at PennWest and their unsuccessful efforts to contact Defendant. (TT

38, 41, 53, 72).

       Although Defendant asserts that his relocation of the forklift to various locations

does not represent a criminal charge, Defendant was not convicted based on this fact.

Rather, Defendant's evasion of all contact with PennWest after October 2012 and

continued use the forklift as his own supported the charge of Theft of Leased Property.


                                              10
       For these reasons, there was sufficient evidence to convict Defendant, and the

Court did not err by denying Defendant's motion for Judgment of Acquittal.


          WIIETIIER DEFENDANT'S CONVICTION WAS AGAINST TIIE
          WEIGHT OF THE EVIDENCE?

   In the alternative, Defendant avers that his conviction was against the weight of the

evidence. In order to support a claim that a jury verdict was against the weight of the

evidence and for a trial court to   gant a new trial, the verdict must   he "so contrary to the

evidence as to shock one's sense of justice and [make] the award of a new trial               [


imperative so that right may be given another opportunity to prevail." Comm.       v.   Whitney,

512 A.2d 1152, 1155-56 (Pa. 1986). Moreover:

              Appellate review of a weight claim is a review of the exercise
              of discretion, not of the underlying question of whether the
              verdict is against the weight of the evidence. Commonwealth
              v. Brown, 538 Pa. 410, 648 A,2d 1177, 1189 (1994).
              Because the trial judge has had the opportunity to hear and
              see the evidence presented, an appellate court will give the
              gravest consideration to the findings and reasons advanced by
              the trial judge when reviewing a trial court's determination
              that the verdict is against the weight of the evidence.
              Commonwealth v. Farguharson, 467 Pa. 50, 354 n.2d 545
              (Pa.1976), One of the least assailable reasons for granting or
              denying a new trial is the lower court's conviction that the
              verdict was or was not against the weight of the evidence and
              that a new trial should be granted in the interest of justice.
              Comm. v. Widmer, 744 A2d 745, 753 (Pa.2000).

       As the finder of fact, the Court determined that Defendant's testimony was not

credible, and that the Commonwealth's witnesses were credible, as discussed, supra,

Although Defendant contends in his Concise Statement that "no direct nor circumstantial

evidence was presented that would indicate that the Defendant intentionally dealt with the

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leased property as his own," this is inaccurate. Defendant testified that he used the

property as part of his work after he stopped paying PennWest, and ceased

communications in October 2012. He also testified that he was on notice that his credit

card payments were not processing, and that he contacted PennWest by phone and

apologized for being behind on payments. (TT 90-91). Thus, Defendant was on notice

that he was not paying for the equipment that he was using, whether he was in California

or Pennsylvania. Defendant did not voluntary relinquish possession of the forklift, and it

was recovered only after Defendant's co-worker attempted to procure repairs for the

equipment. Thus, Defendant's conviction certainly does not shock the conscious, nor is it

against the weight of the evidence.


CONCLUSION:

       For the foregoing reasons of fact and of law, the Court has determined that the

issues raised on appeal lack merit; this Court did not err and the verdict was supported by

the evidence presented.


                                         BY THE COURT,




                                                           Rita Donovan Hathaway, Judge/
ATTEST:




Clerk of Courts

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File
Allen Powanda, Esq., .Assistant District Attorney
Patrice DiPietro, Esq., Counsel for Defendant
Pamela Niederhiser, Esq., Court Administrator's Office




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