J-S56029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 EVELYN MADISON                          :
                                         :
                   Appellant             :   No. 1204 EDA 2019

       Appeal from the Judgment of Sentence Entered March 25, 2019
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0007337-2018


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 14, 2020

     Appellant, Evelyn Madison, appeals from the judgment of sentence

entered on March 25, 2019. On this direct appeal, Appellant's counsel filed a

petition for leave to withdraw and an accompanying brief pursuant to Anders

v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We conclude that Appellant's counsel has complied with

the procedural requirements necessary to withdraw. Furthermore, after

independently reviewing the record, we conclude that the appeal is wholly

frivolous. We, therefore, grant counsel's petition to withdraw and affirm the

judgment of sentence.

     The factual background and procedural history of this case are as

follows. On September 25, 2018, Appellant rented a 2018 Volkswagen from

Enterprise Rent-A-Car (“Enterprise”). Trial Court Opinion, 6/21/19, at 1. The

agreement, which was signed by Appellant, stated that she was the only
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authorized driver of the vehicle. N.T. Trial, 3/21/19, at 8. Appellant, however,

“drove the vehicle from the Enterprise lot and immediately gave it to her

grandson.” Trial Court Opinion, 6/21/19, at 1. “The vehicle was due back,

after an extension, on October 1, 2018.” Id.

      Appellant failed to return the vehicle on October 1, 2018.            Id.

Thereafter, Enterprise made numerous attempts to contact Appellant to return

the vehicle. Id. In particular, on October 15, 2018, Enterprise forwarded

Appellant a written demand to return the car within seven days, which it sent

via Federal Express with a return receipt requested. N.T. Trial, 3/21/19, at

39.   At trial, Appellant admitted that she signed the demand letter and

returned a copy to Enterprise. Id. at 61. Nonetheless, Appellant failed to

return the vehicle, and as such, a criminal complaint was filed against her on

November 7, 2018. Criminal Complaint, 11/7/18, at 1. Finally, “sometime

late on November 12, 2018 or in the early morning hours of November 13,

2018[,],” six weeks after the original return deadline, “the vehicle was

returned to an Enterprise location in the state of Delaware.”       Trial Court

Opinion, 6/21/19, at 1-2.    Upon its return, the vehicle was damaged and

Enterprise did not receive any payment for the “six weeks that passed beyond

the expiration of the lease agreement.” Id. at 2.




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        Appellant’s bench trial commenced on March 21, 2019. On March 25,

2019, the trial court convicted Appellant of theft of leased property 1 and

sentenced her to one year of probation. N.T. Trial, 3/25/19, at 3-6. On April

23, 2019, counsel timely filed a notice of appeal.2

         On August 15, 2019, counsel filed with this Court an Anders brief and

a petition to withdraw as counsel.3 As such, we proceeded in our review of

counsel’s Anders brief, as well as the certified record. This Court, however,

was unable to determine whether the appeal was wholly frivolous because the

trial court failed to state its reasons for finding Appellant guilty of theft of

leased property in its 1925(a) opinion. Accordingly, on December 3, 2019,

we remanded the case to allow the trial court to prepare a supplemental

opinion.4 On December 10, 2019, the trial court complied with our request
____________________________________________


1   18 Pa.C.S.A § 3932.

2 On April 24, 2019, the trial court entered an order directing Appellant to file
a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). After securing an extension from the trial court, in accordance
with Rule 1925(c)(4), Appellant’s counsel informed the court that he intended
to file an Anders brief. On June 21, 2019, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).

3Appellant did not file a response to counsel’s petition to withdraw or to the
Anders brief.

4 On remand, we explained that if the trial court determined that the
presumption under 18 Pa.C.S.A § 3932(c)(2) applied, this appeal would be
non-frivolous. In doing so, we relied upon our Supreme Court’s decision in
Commonwealth v. Lebron, 765 A.2d 293 (Pa. 2000), which is the only
reported case interpreting 18 Pa.C.S.A. § 3932. The Supreme Court in
Lebron made clear that the failure to comply with the statutory requirements



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and issued a supplemental opinion. Hence, we now proceed in our analysis of

whether counsel has fulfilled the necessary procedural requirements for

withdrawing as counsel. See Commonwealth v. Flowers, 113 A.3d 1246,

1248–1249 (Pa. Super. 2015) (citation omitted).

       “In order to withdraw from appellate representation pursuant to

Anders, certain procedural and substantive requirements must be met.”

Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).

Procedurally, counsel must,

       (1) petition the court for leave to withdraw stating that, after
       making a conscientious examination of the record, counsel has
       determined that the appeal would be frivolous; (2) furnish a copy
       of the brief to the defendant; and (3) advise the defendant that
       he or she has the right to retain private counsel or raise additional
       arguments that the defendant deems worthy of the court's
       attention.

Id. at 359.      Substantively, counsel must file an Anders brief, in which

counsel:

       (1) provide[s] a summary of the procedural history and facts, with
       citations to the record; (2) refer[s] to anything in the record that
       counsel believes arguably supports the appeal; (3) set[s] forth
____________________________________________


of Section 3932(c)(2) will prevent a prima facie presumption of intent from
arising. See id. at 295-296. Thus, to raise a legal presumption of intent
pursuant to Section 3932(b)(2), the Commonwealth needed to show that
Enterprise sent two demand letters, one “by first[-]class mail, evidenced by a
certificate of mailing” and another “by registered or certified mail to the
address provided by the lessee.” 18 Pa.C.S.A. § 3932(b)(2). Enterprise,
however, sent only a single demand letter via Federal Express and as such,
did not meet the requirements set forth in Section 3932(b)(2). Nonetheless,
as the trial court did not rely on the Section 3932(b)(2)’s presumption, we
conclude that this appeal is wholly frivolous. See Trial Court Opinion,
12/10/19, at 2.

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      counsel's conclusion that the appeal is frivolous; and (4) state[s]
      counsel's reasons for concluding that the appeal is frivolous.

Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015),

quoting Santiago, 978 A.2d at 361.

      In this case, we acknowledge counsel’s compliance with Anders’

procedural and substantive requirements.        “Therefore, we now have the

responsibility ‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016),

quoting Flowers, 113 A.3d at 1248.

      Appellant's counsel raises one issue in his Anders brief:

      Whether the evidence was insufficient to sustain the verdict
      because Appellant’s grandson controlled the vehicle after the
      lease expired and thus[,] Appellant did not intend to deal with the
      car as if it were hers, and the Enterprise letter was sent via Federal
      Express, not certified or registered mail?

Anders Brief at 4.

      Our standard of review regarding the sufficiency of the evidence is as

follows:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, 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. In applying the above test, we may
      not weigh the evidence and substitute our judgment for that of
      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

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      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. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, 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.

Commonwealth v. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)

(citations omitted).

      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).

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18 Pa.C.S.A § 3932.

       Herein, counsel aptly noted that the case “rest[ed] on whether Appellant

intended to deal with the car as if it were hers.”         Anders Brief at 7.

Previously, in Commonwealth v. Lebron, 765 A.2d 293 (Pa. 2000), our

Supreme Court interpreted 18 Pa.C.S.A. § 3932 and explained how the

Commonwealth may prove that a defendant possessed the requisite intent to

sustain a conviction under Section 3932.5 Lebron clarified that there are two

alternative methods of proof available.

       First, under Section 3932(a), the Commonwealth can demonstrate a

defendant’s intent through direct evidence if it can show that she “intentionally

deal[t] with the property as [her] own.” 18 Pa.C.S.A. § 3932(a). To do so,

the Commonwealth must prove that the defendant “[sold], secrete[d],

destroy[ed], convert[ed] to [her] own use or otherwise dispose[d] of the

property.” 18 Pa.C.S.A. § 3932(b). Second, the Court explained that if there

is no direct evidence available, “the prosecution [can] show intent[] through

circumstantial evidence.” Lebron, 765 A.2d at 295. To do so, it must rely

on the presumptions set forth in Section 3932(c)(1) (explaining that a

____________________________________________


5 In 2008, following the Supreme Court’s decision in Lebron, the legislature
amended 18 Pa.C.S.A § 3932. The two versions, however, are substantively
similar. Indeed, the legislature simply added the following definition to
Section 3932(b)(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.” 18 Pa.C.S.A. § 3932(b)(2). Accordingly, our reliance on Lebron and
its interpretation of the alternate proofs of intent under the statute is proper,
notwithstanding the subsequent amendment of the statute.

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presumption of intent arises when an individual signs an agreement with “a

name other than [her] own” and fails to return the property) or Section

3932(c)(2) (explaining that a presumption of intent arises when an individual

fails to return the property within seven days of the owner making a written

demand to return it). Id. at 295-296.

        Herein, the Commonwealth presented evidence that, pursuant to the

rental agreement with Enterprise, Appellant was the only authorized driver of

the vehicle. N.T. Trial, 3/21/19, at 8. Indeed, Anai Daniels, an Enterprise

management trainee, specifically told Appellant that “if an additional driver

was to be authorized[,] that person’s driver’s license and major credit card”

would be required. Trial Court Opinion, 12/10/19, at 3; see also N.T. Trial,

3/21/19, at 11. Appellant, however, admitted to driving the “vehicle from the

Enterprise lot” and then, “immediately [giving] it to her grandson,” and “never

[driving] the vehicle again.” Trial Court Opinion, 12/10/19, at 3. In addition,

Appellant failed to return the vehicle until six weeks after the original return

date.    Trial Court Opinion, 12/10/19, at 3.       Thus, the aforementioned

evidence, when viewed in the light most favorable to the Commonwealth,

demonstrates that Appellant intentionally dealt with the vehicle as her own.

See 18 Pa.C.S.A. § 3932(a). We, therefore, conclude that the evidence was

sufficient to convict Appellant of theft of leased property, and as such, discern

that a challenge to the sufficiency of evidence in this case would be frivolous.




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      Additionally, we conducted an independent review of the entire record

as required by Anders and did not discern any other potentially non-frivolous

issues.

      Judgment of sentence affirmed. Petition to withdraw as counsel granted.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/20




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