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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: D.D., A MINOR          :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
APPEAL OF: D.D., A MINOR                   :
                                           :
                                           :
                                           :
                                           :
                                           :     No. 613 EDA 2016

             Appeal from the Dispositional Order January 29, 2016
             In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-JV-0000101-2016

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                               FILED April 25, 2017

        Appellant, D.D., appeals from the Dispositional Order entered after the

Philadelphia County juvenile court adjudicated him delinquent of acts

constituting Theft by Unlawful Taking of Movable Property and Unauthorized

Use of an Automobile.1 After careful review, we conclude that the evidence

presented by the Commonwealth was insufficient to establish either charge

and we, therefore, reverse.

        The evidence adduced at trial, as gleaned from the record, is as

follows. On January 17, 2016, between 1:00 and 2:00 pm, Victoria Santa

(“Santa”) returned from the store, parked her 2003 Honda Accord, and went

into the house to switch vehicles with her daughter.      N.T., 1/29/16, at 6.



1
    18 Pa.C.S. §§ 3921(a) and 3928(a), respectively.
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She left the keys in the vehicle while she went inside the house. Id. at 7.

When her daughter went outside, she noticed that the car was gone.                Id.

Santa called the police and reported the vehicle stolen. Id.

      Officer   Asa   Winchester   (“Officer   Winchester”)   testified   that,    at

approximately 7:25 pm that same day, she “observed a car drive through

the intersection of Green and Queen Lane.”             Id. at 11-12.        Officer

Winchester testified that this was an “infraction” and that she stopped the

car. Id. at 12. Appellant, who was driving the vehicle, pulled over as soon

as Officer Winchester signaled the car to stop, and cooperated with Officer

Winchester throughout the stop. Id. at 14.

      In addition to Appellant, there were two female and two male

passengers in the car. Id. When no one was able to produce identification

or a driver’s license, Officer Winchester took down their names. Id. at 12.

One of the males in the rear passenger compartment explained that the

vehicle belonged to his uncle.2 Id. at 14. At some point during the stop,

radio dispatch notified Officer Winchester that the vehicle was the same one

reported stolen by Santa earlier in the day. Id. at 12. Officer Winchester

then took all of the vehicle occupants into custody. Id. at 12.

      Appellant was arrested and charged with the above-mentioned

offenses.   On January 29, 2016, the juvenile court held an Adjudicatory

2
 Officer Winchester was not asked and did not testify regarding whether the
vehicle occupants were asked or able to provide registration or proof of
ownership for the car.



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Hearing, at the close of which it adjudicated him delinquent of acts

constituting Theft by Unlawful Taking of Movable Property and Unauthorized

Use of an Automobile, and summarily ordered that he be placed in a

residential facility.

      Appellant filed a timely Notice of Appeal, and complied with Pa.R.A.P.

1925(b). The trial court filed a cursory Pa.R.A.P. 1925(a) Opinion that lacks

a single citation to relevant authority and ignores Appellant’s challenge to

the manner in which the trial court adjudicated him delinquent and ordered

him placed in a residential facility.

      On appeal, Appellant raises two issues:

      1. Was not the evidence insufficient as a matter of law to sustain
      [A]ppellant’s finding of guilt for theft by unlawful taking and
      unauthorized use of an automobile in that the Commonwealth
      failed to prove more than mere possession of a vehicle in stolen
      status, where the vehicle [A]ppellant was driving did not exhibit
      any damage indicative of a theft, a key was being used,
      [A]ppellant cooperated with police[,] and one of the passengers
      stated that the car belonged to his uncle?

      2. Did not the juvenile court err and abuse [its] discretion in
      adjudicating [A]ppellant delinquent without holding a hearing,
      inquiring into whether, or making a finding that, [A]ppellant was
      in need of treatment, rehabilitation[,] or supervision?

Appellant’s Brief at 3.

      In his first issue, Appellant challenges the sufficiency of the evidence

to establish Theft by Unlawful Taking of Movable Property and Unauthorized

Use of an Automobile. Evidentiary sufficiency is a question of law; thus, our




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standard of review is de novo and our scope of review is plenary.

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

      In determining whether the evidence was sufficient to support a

verdict, we view the evidence and all reasonable inferences to be drawn

therefrom   in    the   light   most       favorable   to   the   verdict   winner,   the

Commonwealth herein. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.

Super. 2013) (en banc). Furthermore,

      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence. Significantly, we may not
      substitute our judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)

(citations and internal quotations omitted).

      Appellant was adjudicated delinquent of Theft by Unlawful Taking of

Movable Property, which is defined as follows: “A person is guilty of theft if

he unlawfully takes, or exercises unlawful control over, movable property of

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

guilty of Theft by Unlawful Taking, “the actor's intention or conscious object

must be to take unlawfully the property of another for the purpose of

depriving   the   other   of    his   or    her   property.”      Commonwealth v.

Dombrauskas, 418 A.2d 493, 496-97 (Pa. Super. 1980) (citing, inter alia,

18 Pa.C.S. § 302(b)(1)(ii)).


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      While a conviction for theft “may be based on circumstantial evidence

alone, it must meet the standard of proof beyond a reasonable doubt.”

Commonwealth v. Bailey, 378 A.2d 998, 1001 (Pa. Super. 1977).

“Although the Commonwealth does not have to establish guilt to a

mathematical certainty, and may              in a proper      case rely wholly on

circumstantial evidence, the conviction must be based on more than mere

suspicion or conjecture.”        Commonwealth v. Cichy, 323 A.2d 817, 818

(Pa. Super. 1974).

      Where a defendant is charged with Theft by Unlawful Taking of

Movable Property, “[i]t is constitutional for the trier of fact to draw a

permissible   inference     of    guilty   knowledge   from    the   unexplained,   or

unsatisfactorily    explained,       possession   of    recently     stolen   goods.”

Commonwealth v. Plath, 405 A.2d 1273, 1274 (Pa. Super. 1979).

However, “mere possession of recently stolen property is but one factor to

be considered in determining guilt of theft, and a conviction based solely

upon an inference from possession cannot stand.”                Commonwealth v.

Willetts, 419 A.2d 1280, 1282 (Pa. Super. 1980).

      In Plath, a patrol officer witnessed the appellant entering and driving

a vehicle that had been stolen only hours earlier.            Plath, supra at 1274.

When the officer began following the vehicle, appellant “attempted to evade

the officer by speeding up; after running a red light, [the appellant] crashed

into a building.”     Id.        After crashing the vehicle, the appellant then



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attempted to flee on foot.       Id.   Upon review, this Court found sufficient

evidence to sustain a conviction for Theft by Unlawful Taking based on the

appellant’s possession of recently stolen goods because “appellant’s conduct

at the time immediately preceding his arrest is totally inconsistent with

innocent behavior and merely adds weight to the factfinder’s conclusion that

appellant knew the vehicle was stolen.”                 Id. (quotation and citation

omitted).    See also Commonwealth v. Jones, 461 A.2d 276, 278 (Pa.

Super. 1983) (holding that evidence was sufficient to sustain a conviction for

Theft by Unlawful Taking based on appellant’s unexplained possession of a

recently    stolen   vehicle,   coupled    with   his     flight    from   the   scene);

Commonwealth v. Galvin, 985 A.2d 783, 791 (Pa. 2009) (finding evidence

was sufficient to establish Theft by Unlawful Taking where appellant was

caught driving a van using the owner’s keys, towards a remote wooded area

late at night, without headlights illuminated, and with the vehicle owner’s

boyfriend’s dead body in the cargo area and a container filled with gasoline

in the front passenger seat).

      In the instant case, although Appellant was found in possession of the

vehicle only five hours after it was reported stolen, there were no

surrounding circumstances to support an inference that Appellant stole the

vehicle or operated the vehicle knowing that it was stolen and with the

intent to deprive the true owner of her property.                  The Commonwealth’s

witness, Officer Winchester, testified that when she signaled for Appellant to



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stop, he pulled the car over immediately, and was cooperative throughout

the car stop. N.T. at 14. Appellant was in possession of keys to the vehicle,

and there was no sign of damage to the vehicle. Id. at 10, 14-15. Officer

Winchester further testified that, during the stop, one of the males in the

back seat told her that the car belonged to his uncle. Id. at 14. All personal

effects and identifying information that would have tied the vehicle to Santa

had been dumped from the vehicle at some point prior to the stop. Id. at

10.   Pursuant to Willets, we conclude that Appellant’s Theft by Unlawful

Taking conviction, “based solely upon an inference from possession[,]

cannot stand.” Willets, supra at 542.

      We turn next to Appellant’s argument that the Commonwealth failed to

prove the required mens rea to sustain a conviction of Unauthorized Use of

an Automobile. Unauthorized Use of an Automobile is defined 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.

18 Pa.C.S. § 3928(a). “[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).

      With respect to the intent required to sustain a conviction for

Unauthorized Use of an Automobile, the Commonwealth must only establish


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that the defendant was reckless “with respect to the owner’s lack of consent

to the [defendant’s] operation of the vehicle.” Commonwealth v. Dunlap,

505 A.2d 255, 257 (Pa. Super. 1985) (citation omitted). Further, it is well-

settled that:

      a permissible inference of guilty knowledge may be drawn from
      the unexplained possession of recently stolen goods . . . .
      However, the mere possession of stolen property is insufficient
      to permit an inference of guilty knowledge; there must be
      additional evidence, circumstantial or direct, which would
      indicate that the defendant knew or had reason to know that the
      property was stolen.

Commonwealth v. Matthews, 632 A.2d 570, 572 (Pa. Super. 1993).

      After careful review, and based upon the same evidence and reasoning

discussed supra, we conclude that the Commonwealth failed to provide the

required “additional evidence” that would support a reasonable inference

that Appellant “knew or had reason to know that the property was stolen.”

Id.

      Our analysis is consistent with the standard of review prescribed for

determining whether the evidence is sufficient to support a guilty verdict.

We accept as true the Commonwealth’s evidence that the 2003 Honda

Accord belonged to the victim, Victoria Santa, and that Appellant did not

have her permission to drive the vehicle.3    However, the question is not


3
  Although Santa did not have an opportunity to testify whether she ever
gave Appellant permission to drive her car, she did state that she had never
seen Appellant before her testimony at the Adjudicatory Hearing. N.T. at 9.
The Commonwealth attempted to ask whether Santa had given Appellant



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whether the vehicle in fact belonged to the passenger’s uncle, but whether

Appellant believed that the vehicle belonged to the passenger’s uncle and

that he was driving it with permission from that uncle.       Appellant’s belief

that he was driving the car of his friend’s uncle with permission from the

uncle would negate the mens rea required to sustain a conviction for Theft

by Unlawful Taking of Movable Property.

      Similarly, Appellant’s honest belief that he was driving the car with

permission from the owner negates the mens rea required to sustain a

conviction for Unauthorized Use of an Automobile, unless the Commonwealth

can   prove,   beyond   a   reasonable   doubt,   that   Appellant   “consciously

disregarded a substantial and unjustifiable risk that the owner has not

consented.” Carson, supra at 1322.

      The Commonwealth had the burden of proving every element of the

above offenses beyond a reasonable doubt.         After a careful review of the

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

conclude that the Commonwealth has merely proved that Appellant was

found in possession of a vehicle that was recently stolen. A passenger in the

back seat explained that the car belonged to his uncle, and there were no

surrounding circumstances presented by the Commonwealth that suggest

Appellant either (a) knew the statement about the uncle was false, or (b)

permission to use her car, but the trial court cut the Commonwealth off mid-
sentence, saying “She said she had never seen him before in her life. Give
me something real.” Id.



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should have known that the statement about the uncle was false.       Where

Appellant was in possession of the keys to the vehicle, the vehicle had no

damage to the steering column or windows that would suggest it had been

stolen or tampered with, where Appellant immediately pulled the car over

and cooperated with law enforcement, and where a passenger claimed that

the car belong to his uncle, Appellant’s behavior is equally consistent with

that of a young man who reasonably, but mistakenly, believed that he had

permission to operate the vehicle.

     In light of the facts of this particular case, we conclude that the

Commonwealth failed to meet its burden of proof, beyond a reasonable

doubt, to sustain an adjudication of delinquency for acts constituting Theft

by Unlawful Taking of Movable Property and Unauthorized Use of an

Automobile. We, therefore, reverse Appellant’s adjudication of delinquency

and discharge him without reaching the merits of Appellant’s second claim.4



4
  We would be remiss, however, if we did not convey our concerns about the
curt manner in which the juvenile court adjudicated Appellant delinquent and
ordered him placed in a residential facility. As our Supreme Court has made
clear, a two-step process is required before a trial court can make a finding
of delinquency: first, the trial court must determine whether the child has
committed the acts in question, and then the court must determine whether
“the child is in need of treatment, supervision, or rehabilitation.” In re
M.W., 39 A.3d 958, 964 (Pa. 2012). By its plain language, the Juvenile Act
calls for a hearing in which both the Commonwealth and the juvenile may
present “evidence as to whether the child is in need of treatment,
supervision[,] or rehabilitation[.]” 42 Pa.C.S. § 6341(b). In the instant
case, the trial court did not provide any opportunity for the parties to
present evidence or argument, and instead told the lawyers to “sit down”



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       Dispositional Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2017




before summarily announcing that Appellant is “a willful child” in need of
placement. N.T. at 20-21.



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