J-S68019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TRAMAINE HOWARD

                            Appellant               No. 3322 EDA 2013


           Appeal from the Judgment of Sentence November 8, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009245-2012


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 01, 2014

        Following a non-jury trial, the court found Tramaine Howard guilty of

receiving stolen property and sentenced him to two years’ probation.

Howard filed a timely notice of appeal, and both Howard and the trial court

have complied with Pa.R.A.P. 1925. The lone issue in this direct appeal is

whether the evidence is sufficient to sustain Howard’s conviction for

receiving stolen property1. We affirm.

____________________________________________


1
    Howard frames this issue as follows:

              WHERE THE COMMONWEALTH SHOWED ONLY THAT
              APPELLANT FELL ASLEEP FOR A BRIEF PERIOD IN A
              PARKED CAR THAT HAD BEEN STOLEN MONTHS
              BEFORE, WHERE THERE WAS NO PROOF THAT
              APPELLANT EVER ATTEMPTED TO DRIVE, OPERATE,
              OR OTHERWISE ASSERT DOMINION OR CONTROL
              OVER THE VEHICLE, AND WHERE THERE WAS NO
(Footnote Continued Next Page)
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      Our standard of review for challenges to the sufficiency of the evidence

is well-settled:

             [W]hether[,] viewing all the evidence admitted at
             trial   in    the  light most     favorable   to  the
             [Commonwealth as the] verdict winner, there is
             sufficient evidence to enable the fact-finder to find
             every element of the crime beyond a reasonable
             doubt. In applying [the above] test, we may not
             weigh the evidence and substitute our judgment for
             the fact-finder. In addition, we note that the facts
             and       circumstances     established     by    the
             Commonwealth need not preclude every possibility
             of innocence. Any 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.    The
             Commonwealth may sustain its burden of proving
             every element of the crime beyond a reasonable
             doubt by means of wholly circumstantial evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

      A person is guilty of receiving stolen property “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
                       _______________________
(Footnote Continued)

             SHOWING THAT APPELLANT KNEW OR SHOULD
             HAVE KNOWN THE CAR WAS STOLEN, THE
             EVIDENCE WAS INSUFFICIENT TO SUPPORT HIS
             CONVICTION FOR RECEIVING STOLEN PROPERTY.

Brief for Appellant, p. 10.



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owner.” 18 Pa.C.S. § 3925(a). As used in this statute, “receiving” means

“acquiring possession, control or title, or lending on the security of the

property.”    18 Pa.C.S. § 3925(b).      The Commonwealth can prove the

element of intent

             entirely through circumstantial evidence. While it is
             clear that mere possession without more is
             insufficient to show that the defendant knew or
             should have known that the property was stolen,
             other facts can make the inference of guilty
             knowledge reasonable, even compelling. Such
             circumstances include but are not limited to the
             unexplained possession of recently stolen property,
             flight from the police or other evidence indicating an
             attempt to avoid capture and the condition of the
             property indicating a theft.

Commonwealth v. Carson, 592             A.2d 1318, 1321 (Pa.Super.1991)

(footnote omitted).

      Construed in the light most favorable to the Commonwealth, the

evidence is as follows: at 1:22 a.m. on November 5, 2011, Officer Marco

Padilla came across Howard asleep in the driver's seat of a car parked on the

4100 block of 8th Street in Philadelphia.    N.T., 11/8/13 (“Tr.”), pp. 9-10.

The officer noticed that the car's ignition was broken, and its interior

appeared to have been ransacked.       Tr., p. 10-11.   There were numerous

scratches and dents to its exterior. Tr., p. 11. The officer checked the car's

status and determined that it had been stolen on August 17, 2011. Tr., p.

10. After feeling the engine and finding it cold, the officer knocked on the




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car's window and woke up Howard. Tr., pp. 10-11. Howard told the officer

he was inside the car to sleep. Tr., p. 12.

      The parties stipulated that (1) the car had been stolen from the house

of Nancy Fuhrmeister in Philadelphia on August 17, 2011; (2) she did not

know Howard; and (3) she did not give him permission to take her car. Tr.,

pp. 12-13. Howard testified that on the evening of November 5, 2011, he

got drunk with his friend on his friend's front porch on 8th Street. Tr., pp.

18-19.    He stated that he got into the car at approximately 1:00 a.m.

because his friend's mother would not allow him to spend the night at his

house. Tr., p. 16. Howard claimed that he thought the car was abandoned,

and that he did not notice the broken ignition because he was too drunk.

Tr., p. 18.

      Construed in the light most favorable to the Commonwealth, the

circumstantial evidence establishes that Howard was guilty of receiving

stolen property.   Howard did not have the owner's consent to be in the car,

which was stolen from her home in Philadelphia less than two months

before, yet he was sitting by himself in the driver’s seat of the car, and he

admitted entering the car in order to go to sleep.      Commonwealth v.

Grabowski, 549 A.2d 145, 148 (Pa.Super.1987) (possession of stolen car

parts three months after theft contributes to reasonable inference of guilty

knowledge);    Commonwealth        v.   Grabowski,   452   A.2d   827,   830

(Pa.Super.1982) (sufficient evidence of receiving stolen property where car


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had been reported stolen eleven months prior).          Howard could not have

missed unmistakable signs that the car was stolen.              The car’s interior

appeared to be ransacked, its exterior had numerous scratches and dents,

and the ignition directly in front of the driver’s seat was broken.      Carson,

supra, 592 A.2d at 1323 (broken steering column indication that car had

been stolen); In the Interest of Scott, 566 A.2d 266, 267 (Pa.Super.1989)

(same); Commonwealth v. Murray, 371 A.2d 910, 913 (Pa.Super.1977)

(ignition wires of the car pulled down).     This evidence demonstrates that

Howard intentionally acquired possession of a car that he knew was stolen or

believed had probably been stolen.

       Howard cites three decisions -- Commonwealth v. Scudder, 416

A.2d   1003    (Pa.1980),    Commonwealth         v.   Henry,    875   A.2d   302

(Pa.Super.2005),    and     In   the   Interest   of   Scott,    566   A.2d   266

(Pa.Super.1989) -- for the proposition that he was not in possession of the

car at the time of his encounter with Officer Padilla. All three decisions are

distinguishable.

       In Scudder, two patrol vehicles chased a van for three miles after the

officers received a report that it was stolen. The defendant was a passenger

in the van. Also inside the van were two stolen lawn mowers, a spray can of

blue paint that apparently had been used to paint the van's side windows

after it had been stolen from the owner. and a jumped ignition switch

hanging under the van's dashboard. Our Supreme Court held that there was


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insufficient evidence to sustain the defendant’s conviction for receiving

stolen property, because “as a passenger in the vehicle, there is no basis for

finding that appellant ‘received’ either the van or the mowers. There is no

showing that appellant exercised conscious control or dominion over these

goods.” Id., 416 A.2d at 1005. Furthermore, the spray can did not create

any inference that the defendant knew the van was stolen: “The fact that

the side windows had been recently painted and the paint and the gloves

used to do the painting [were] in the van do not help to support such an

inference. The painting of windows on such a vehicle is not so uncommon

an event as would arouse the suspicion of the reasonably prudent man.” Id.

at 1006. Nor did the jumped ignition switch create any inference that the

defendant knew the van was stolen:

            The significance of this fact when offered against the
            operator of a vehicle pales when it is offered to
            establish the guilty knowledge of the passenger. The
            Commonwealth relies upon the fact that the
            condition was observable. Knowledge that the van
            was started without a key is not the critical factor
            pointing to guilt. The inference of guilt flows from the
            fact that the operator would be aware of why he was
            required to use this means to start the motor. Here,
            there is no showing that appellant was privy to such
            information.




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Id.2   In this case, Howard was the only occupant of a stolen car and was

sitting in the driver’s seat in front of a broken ignition switch. Moreover, the

car had other visible signs of theft on its exterior. Thus, in contrast to the

passenger in Scudder, Howard had to have known that he was in

possession of a stolen car.

       In Henry, police officers found a vehicle one day after it was stolen.

The side door lock was broken, and the defendant’s fingerprints were on a

placard inside the vehicle.         The owner of the vehicle did not know the

defendant or give him permission to use the car. This Court held that there

was insufficient evidence to sustain the defendant’s conviction for receiving

stolen property:

              [Appellant’s] fingerprint on the placard reveals only
              that at some point Appellant was present in the
              vehicle and nothing more. Since the vehicle was
              found more than a day after being reported stolen
              with the driver's side door lock broken, Appellant
              could have had access to the interior of the vehicle
              after it was abandoned by the perpetrator who stole
              the car. The fingerprint alone is insufficient to
              establish operation, i.e., conscience control or
              dominion over the vehicle, beyond a reasonable
              doubt.
____________________________________________


2
   The Court also refused to hold that the driver’s decision to flee indicated
that the defendant knew the van was stolen, because there was “[no]
showing that the passenger directed, encouraged or consented to the
actions of the operator in this regard. The inference of guilt arising from
flight may not be imputed to a passenger unless there is some evidence to
indicate that the passenger concurred in the judgment to flee.”            Id.
Obviously, the evidence in the present case does not raise any issue of
flight.



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Id., 875 A.2d at 306.      Here, in contrast, when Officer Padilla encountered

Howard, he was sitting asleep in the driver’s seat of a stolen vehicle in front

of a broken ignition.     This is much sturdier evidence of intent to exercise

possession over a stolen vehicle than the single fingerprint in Henry.

       Finally, in Scott, the juvenile appellant was one of two people who

abandoned a stolen car and fled from police on foot, but police were unable

to specifically identify him as the driver. Nevertheless, this Court affirmed

his   adjudication   of   delinquency,     finding   sufficient   evidence   of   joint

possession by both occupants of the car based on the appellant’s flight from

the vehicle and his failure to provide any explanation for his flight. Id., 566

A.2d at 268-69. Scott does not help Howard’s cause. While Howard did not

attempt to flee from Officer Padilla, the other circumstances described above

provide proof of Howard’s intentional receipt of stolen property.

       Howard’s testimony that he thought the car had been abandoned, and

that he only intended to sleep inside it temporarily, is irrelevant for purposes

of evaluating the sufficiency of the evidence.            Our standard of review

requires examination of the evidence in the light most favorable to the

Commonwealth.        Troy, supra.         By focusing on his own self-serving

testimony, Howard asks us in so many words to construe the evidence in the

light most favorable to him instead of the Commonwealth.

       For these reasons, the evidence of Howard’s receipt of stolen property

is sufficient to affirm his conviction.

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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2014




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