J-S48045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF A.T.,                   :   IN THE SUPERIOR COURT
    A MINOR                                    :      OF PENNSYLVANIA
                                               :
                                               :
    APPEAL OF A.T.,                            :
    A MINOR                                    :     No. 2304 EDA 2018


                   Appeal from the Order Entered July 3, 2018
              in the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-JV-0000989-2018

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED OCTOBER 29, 2019

       A.T. (Appellant) appeals from the July 3, 2018 dispositional order,

following his adjudication of delinquency for unauthorized use of a motor

vehicle. On appeal, Appellant alleges that the evidence was insufficient to

sustain his adjudication. Upon review, we affirm.

       On May 27, 2018, while on patrol in a marked car, Philadelphia Police

Officer Terrell1 and his partner witnessed Appellant and another juvenile male

pushing a motorbike2 by the handlebars shortly after midnight on Fairmount

Avenue in Philadelphia. Officer Terrell’s partner directed Appellant and the

other individual to stop.       Appellant and the other individual dropped the



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1 The officer’s first name is not a part of the notes of testimony from the
adjudication hearing. See generally, N.T., 7/3/2018.

2The record refers to the vehicle as a motorbike, bike, and motorcycle. For
consistency, we will refer to it as a motorbike.

* Retired Senior Judge assigned to the Superior Court.
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motorbike and fled on foot. Appellant was apprehended by Officer Terrell; the

other individual was not apprehended.            According to Officer Terrell, he

observed a key broken off in the ignition of the motorbike. Upon running the

motorbike’s license plate, Officer Terrell learned it was listed as stolen. The

day before, on May 26, 2018, the motorbike’s owner, Alexander Rylander, had

reported his motorbike stolen from the front of his home.            Rylander was

contacted by Officer Terrell and came to the scene shortly after.3          Officer

Terrell testified that Rylander then started the motorbike with the broken key.

       Based upon this incident, Appellant was charged with theft, receiving

stolen property, and unauthorized use of a motor vehicle. After a hearing on

July 3, 2018, the juvenile court granted Appellant’s motion for judgment of

acquittal for the theft and receiving stolen property charges, adjudicated

Appellant delinquent of unauthorized use of a motor vehicle, and ordered

Appellant to pay restitution of $250.00.         This timely-filed appeal followed.

Both Appellant and the juvenile court complied with Pa.R.A.P. 1925.

       On appeal, Appellant challenges the sufficiency of the evidence to

adjudicate him delinquent of unauthorized use of motor vehicle. Appellant’s

Brief at 3. Specifically, Appellant argues that the “act of pushing a motorbike

did not meet the definition of operation under the statute.” Id.




____________________________________________
3 According to Rylander, when he arrived at the scene, no key was in the
ignition and he possessed the keys to the motorbike.

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      We begin with the law applicable to Appellant’s contention that the

evidence offered by the Commonwealth was insufficient to sustain his

adjudication.

      In a juvenile proceeding, the hearing judge sits as the finder of
      fact. The weight to be assigned the testimony of the witnesses is
      within the exclusive province of the fact finder. When considering
      a challenge to the sufficiency of the evidence following an
      adjudication of delinquency, we must review the entire record and
      view the evidence in the light most favorable to the
      Commonwealth.

      In determining whether the Commonwealth presented sufficient
      evidence to meet its burden of proof, the test to be applied is
      whether, viewing the evidence in the light most favorable to the
      Commonwealth and drawing all reasonable inferences therefrom,
      there is sufficient evidence to find every element of the crime
      charged. The Commonwealth may sustain its burden of proving
      every element of the crime beyond a reasonable doubt by wholly
      circumstantial evidence.

Interest of J.J.M., ___ A.3d ___, 2019 WL 4267109 at *2 (Pa. Super. 2019)

(citations and quotation marks omitted).

      Our legislature has defined the crime of unauthorized use of automobiles

and other vehicles as follows.

      (a) Offense defined.--A person is guilty of a misdemeanor of the
      second degree if he operates the automobile, airplane,
      motorcycle, motorboat, or other motor-propelled vehicle of
      another without consent of the owner.

      (b) Defense.--It is a defense to prosecution under this section
      that the actor reasonably believed that the owner would have
      consented to the operation had he known of it.

18 Pa.C.S. § 3928.




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      [A] conviction for unauthorized use of a vehicle must be
      predicated on proof that the defendant operated the vehicle
      without the owner’s consent and that the defendant knew or had
      reason to know that he lacked the owner’s permission to operate
      the vehicle.

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

(citations omitted).   To be convicted of unauthorized use of a vehicle, the

Commonwealth need not prove the defendant was actually driving the vehicle,

but must establish that he or she had “the requisite dominion and control over

the [vehicle].” Id. at 1322-23, citing In re Scott, 566 A.2d 266, 267 (Pa.

Super. 1989).    The requisite dominion and control, i.e., operation of the

vehicle, may be established by circumstantial evidence and inferred based on

the totality of the circumstances. Id.

      With respect to the element of operation under the statute, the juvenile

court offered the following.

            As to operation of the vehicle, Officer Terrell clearly and
      credibly testified that he witnessed a key in the ignition and that
      the owner was able to start the [motorbike] upon his arrival.
      Thus[,] the vehicle was operational and had been operated by
      [Appellant] as evidenced by the key in the ignition.

                                         ***

            In the instant case, the totality of the circumstances
      demonstrated: 1. [Appellant] pushing [motorbike], 2. flight upon
      seeing police officer, 3. key broken in the ignition, and 4. the
      owner’s testimony of non[-]permission. [The juvenile] court
      found the evidence sufficient to uphold a finding of guilt and
      adjudicated [Appellant] delinquent.

Juvenile Court Opinion, 10/22/2018, at 4-6.


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      Viewing the evidence and all reasonable inferences therefrom in the light

most favorable to the Commonwealth, we find that the juvenile court, as

factfinder, could reasonably conclude from the totality of the circumstances

that Appellant was guilty of unauthorized use of a vehicle. There is no dispute

that the Commonwealth proved the motorbike was recently stolen and that

its owner had not given Appellant permission to operate it. The juvenile court

found the totality of the circumstances sufficient to infer Appellant’s dominion

and control over the vehicle.    The evidence established that shortly after

midnight, Appellant was pushing a stolen motorbike with a broken key in the

ignition, in close proximity to and a short time after the theft occurred. N.T.,

7/3/2018, at 3-6, 12-13.      The broken key was later used to start the

motorbike. Id. at 12. The court could reasonably infer that Appellant was

the person who moved the motorbike to that location and placed the key in

the ignition, establishing Appellant’s dominion or control over the motorbike.

Further, Appellant dropped the motorbike and fled the scene when police

arrived. Id. at 4; see also Carson, 592 A.2d at 1322 (“[E]vidence of flight

corroborates the inference of guilty knowledge.”). Based on the foregoing,

the totality of the circumstances establishes that Appellant was guilty of

unauthorized use of a vehicle.     See Carson, 592 A.2d at 1323 (finding

sufficient evidence to establish Carson operated car under unauthorized use

of vehicle statute, where Carson exited a parked car and fled upon seeing

police officers, and car was recently stolen, parked close to where it had been


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stolen,   and   had   a   broken   steering   column    and    vent   window);

Commonwealth v. Marrero, 914 A.2d 870, 873 (Pa. Super. 2006) (affirming

conviction for unauthorized use of vehicle where sole direct evidence was the

presence of Marrero’s fingerprints under the hood of the stolen vehicle,

“allow[ing] for an inference that [Marrero] was the person who removed the

engine, which was an exercise of conscious control or dominion over the

vehicle”); Commonwealth v. Johnson, 489 A.2d 821 (Pa. Super. 1985)

(holding evidence sufficient to establish Johnson operated vehicle within

meaning of unauthorized use of vehicle statute, where Johnson was sitting

behind wheel of vehicle that was “hung up” on guardrail and partially blocking

roadway, with a key in the ignition, even though vehicle was not running or

functional); In re Scott, 566 A.2d at 269 (holding “where a passenger in a

stolen vehicle flees for the purpose of avoiding arrest, a fact finder may infer

therefrom the dominion and guilty knowledge necessary to convict” on a

charge of unauthorized use of a vehicle).

      To the extent Appellant argues that the court should have believed

Rylander’s testimony relating to the key, see Appellant’s Brief at 8, such a

claim goes to the weight, not sufficiency, of the evidence. It is apparent that

the juvenile court credited Officer Terrell’s testimony and we cannot re-weigh

such evidence. Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa. Super.

2017) (“[T]he 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


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and substitute our judgment for that of the fact-finder.”) (citation omitted).

Further, to the extent that Appellant argues there are discrepancies between

Officer Terrell’s and Rylander’s testimony, see Appellant’s Brief at 8, “[s]uch

credibility determinations … go to the weight, not the sufficiency of the

evidence.”   Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super.

2012).

      Based on the foregoing, the evidence is sufficient to sustain Appellant’s

adjudication for unauthorized use of an automobile and we discern no error

by the juvenile court. Accordingly, Appellant’s claim that there was insufficient

evidence to sustain his conviction fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/19




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