J-A13012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.M., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.M., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 1645 EDA 2019

                 Appeal from the Order Entered March 20, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                        No(s): CP-51-JV-0000230-2019


BEFORE:       BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED JULY 21, 2020

        Appellant, K.M., appeals from the dispositional order entered on March

20, 2019, after he was adjudicated delinquent of unauthorized use of a motor

vehicle (hereinafter “unauthorized use”), 18 Pa.C.S. § 3928(a), and criminal

conspiracy, 18 Pa.C.S. § 903.          Appellant challenges the sufficiency of the

evidence to sustain his adjudications. We affirm.

        The trial court summarized the procedural history and facts of this case,

as follows:

              As a result of an incident that occurred on February 9, 2019,
        [Appellant] was arrested on charges of [unauthorized use], (M-2),
        18 Pa.C.S. § 3928([a]), [r]ecklessly [e]ndangering [a]nother
        [p]erson, (M-2), 18 Pa.C.S. § 2705, [r]eceiving [s]tolen
        [p]roperty, (F-3), 18 Pa.C.S. § 3925([a]), [f]leeing or
        [a]ttempting to [e]lude [o]fficer, (M-2), 18 Pa.C.S. § 3733([a]),
        [t]heft by [u]nlawful [t]aking, (F-3), 18 Pa.C.S. § 3721([a]),

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     [c]onspiracy, (M-2) 18 Pa.C.S. § 903, and [c]riminal [m]ischief,
     (M-3), 18 Pa.C.S. § 3304([a])(1).

           In the Delinquency Petition filed in the Philadelphia County
     Court of Common Pleas on February 10, 2019, the Commonwealth
     alleged that:

        On February 9, 2019, at or near 4400 North 6th Street,
        [Appellant], in concert with another, unlawfully took and
        operated a motor vehicle, a 2014 White Dodge Avenger,
        without the consent of the complainant/owner, Danyelle
        Austin, and with the intent to deprive him (sic) thereof.
        [Appellant], who operated the vehicle, also actively ignored
        police commands to halt the vehicle by driving erratically
        and ignoring traffic control devices. [Appellant] also caused
        damage to another vehicle in the course of the above
        conduct.

        On February 22, 2019, [Appellant] appeared before the
     Honorable Robert J. Rebstock for an [a]djudicatory [h]earing.
     After hearing the testimony of the complainant and the arresting
     police officer, the [c]ourt [adjudicated Appellant delinquent of
     unauthorized use] (M-2) and [c]onspiracy (M-2)[,] and not
     [delinquent] of all of the remaining charges. The [c]ourt found
     [Appellant] was in need of treatment, supervision[,] and
     rehabilitation[,] and [Appellant] was adjudicated delinquent. The
     matter of court costs and restitution were left open. The [c]ourt
     directed that [Appellant] be interviewed by St. Gabriel Hall and
     Summit Academy for possible placement while he remained in
     secure detention at the Philadelphia Juvenile Justice Center (RUC).
     The matter was continued until March 13, 2019, for a Dispositional
     Review Hearing.

        On March 5, 2019, [Appellant] … filed a Petition to Reconsider
     Finding of Guilt and Adjudication and a Petition to Accept Motion
     as if Timely Filed.

        On March 13, 2019, [Appellant] appeared before the [c]ourt
     for a [d]ispositional [r]eview [h]earing. The [c]ourt ordered
     [Appellant] be placed in a [r]esidential [f]acility with the
     Pennsylvania State Department of Public Welfare[,] which was the
     least restrictive type of placement that was consistent with the
     protection of the public and best suited to [Appellant’s] treatment,
     supervision, rehabilitation[,] and welfare. Restitution remained
     open and the matter was continued until March 20, 2019, for a
     [d]ispositional [r]eview [h]earing.

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         On that date, the [c]ourt ordered restitution in the amount of
      $250.00 for the benefit of the complainant. [Appellant] was
      formally placed in a [r]esidential [f]acility at Mid-Atlantic Child
      Care (MAYS) in Luzerne County. This placement was the least
      restrictive type of placement that was consistent with the
      protection of the public and best suited to [Appellant’s] treatment,
      supervision, rehabilitation[,] and welfare.       The matter was
      continued until April 3, 2019 for status of transfer.

         On April 1, 2019, [Appellant] … filed a Post-Dispositional Motion
      and Motion to Reconsider Placement. This motion was deemed
      denied by operation of law on May 1, 2019. (On June 4, 2019,
      the Clerk of Court entered an Order - Denial By Operation Of
      Law[,] which denied [Appellant’s] Post-Dispositional Motion and
      Motion to Reconsider Placement that was filed on April 1, 2019.)

Juvenile Court Opinion (JCO), 11/13/19, at 1-4.

      While awaiting the order denying his post-dispositional motion,

Appellant filed a premature notice of appeal on May 30, 2019. We will treat

his notice of appeal as having been filed on June 4, 2019, the day the Clerk

of Court entered the order denying his post-dispositional motion by operation

of law.   See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the

announcement of a determination but before the entry of an appealable order

shall be treated as filed after such entry and on the day thereof.”);

Commonwealth v. Ratushny, 17 A.3d 1269, 1272 n.4 (Pa. Super. 2011)

(treating the appellant’s notice of appeal “as having been filed after entry of

the order denying post-sentence motions” in accordance with Rule 905(a)(5)).

      Appellant thereafter complied with the juvenile court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the court filed a Rule 1925(a) opinion. Herein, Appellant states two issues for

our review:


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      1. Was not the evidence insufficient to sustain a[n adjudication]
      for unauthorized use … where [A]ppellant was never observed in
      the driver’s seat or with the ignition key, and there is no
      circumstantial evidence to suggest that he knew the car was
      stolen or that he was anything other than a mere passenger in the
      automobile?

      2. In the absence of sufficient evidence that Appellant was driving
      the car, was not the evidence also insufficient to support his
      [adjudication] for conspiracy[,] given that there is no direct
      evidence that he entered into an agreement in furtherance of a
      criminal object, the stolen car had been operated by a key that
      was not found on his person or in his presence, and the absence
      of obvious damage to the car runs contrary to any suggestion that
      [A]ppellant was aware that the vehicle was stolen before the
      driver initiated flight?

Appellant’s Brief at 3.

      Both of Appellant’s issues challenge the sufficiency of the evidence to

support his adjudications of delinquency.
      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Appellant first challenges the sufficiency of the evidence to support his

adjudication for unauthorized use, which 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.


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18 Pa.C.S. § 3928(a).      This Court has stated that, “a conviction for

unauthorized use … 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).

     In this case, the juvenile court found the following evidence sufficient to

sustain Appellant’s adjudication for unauthorized use:

           At the hearing on February 22, 2019, this [c]ourt heard the
     testimony of two (2) witnesses. The first witness, Dannyelle
     Austin, a resident of Northeast Philadelphia, testified that on the
     evening of February 8, 2019, she and her husband went grocery
     shopping in his car[,] which they parked in a driveway behind their
     home when they returned. (NT[,] 2/22/2019[, at] 5.) At that
     time, her car, a white, 2014 Dodge Avenger with PA license plate
     HRW-1901, was parked in front of their home. ([Id. at] 6.)

           After unloading the groceries and checking on their children,
     Ms. Austin indicated that she and her husband went out to his car
     about thirty (30) minutes later and noticed that it had clearly been
     rummaged through. ([Id. at] 5.) Her husband’s phone was
     missing and the doors to his vehicle were unlocked. ([Id. at] 6[.])

            Around 8:00 AM the following morning, Ms. Austin first
     realized that her car was missing. ([Id.]) Apparently, a spare
     key for her car had been stolen from her husband’s car the night
     before. ([Id.]) She immediately called the police to report that
     her car was stolen. Ms. Austin also reported this theft to her
     insurance company and her leasing company. ([Id. at] 7.) Ms.
     Austin testified that approximately five (5) hours later, around
     1:00 PM - 1:30 PM on the afternoon of February 9, 2019, she was
     driving with her husband in her neighborhood, when she saw three
     (3) people driving in her car. ([Id.]) She said they called the
     police again and tried to follow her stolen car. ([Id.]) She
     testified that the other car started to drive erratically, cutting
     down one-way streets in the wrong direction and she lost it. ([Id.
     at] 8.) Ms. Austin explained that the police were not able to find
     her car at that time, but she received a call at 2:00 AM Sunday


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     morning and was told the car had been found. ([Id.]) Ms. Austin
     was unable to retrieve her car on Monday because it had sustained
     damage to the driver’s side door, a tire, a rim, the axle and the
     center console. ([Id.]) The car was towed to a shop and she was
     driving a rental car. ([Id.]) Ms. Austin testified her car was
     perfectly fine and drivable the last time she saw it. ([Id. at] 9.)
     … [S]he had not given anyone permission to use or damage her
     car. She testified that she did not know anyone with [Appellant’s]
     … name. ([Id.]) Ms. Austin explained that her wallet was in the
     car at the time of the theft. ([Id.]) It was eventually found and
     returned to her by a woman who lived in the area where she
     chased the stolen vehicle, but her money, [and] debit and credit
     cards were gone. ([Id. at] 10.) On cross-examination, Ms. Austin
     testified that she unable to identify any of the three (3) people
     who were riding in her car on February 9, 2019. ([Id. at] 13.)

            The second witness to testify was Police Officer James
     Butler, … [who is] assigned to the Philadelphia Police
     Department’s Highway Patrol Unit. ([Id. at] 15.) Officer Butler
     testified that on the evening of February 9, 2019, around 9:00
     PM[,] he was on duty near the intersection of Fifth Street and
     Fisher Avenue in Philadelphia. ([Id. at] 16.) He explained that
     he was patrolling in a marked police car in full uniform. ([Id. at]
     16-17.) He indicated that he stopped at a traffic light on Fifth
     Street, when a white vehicle two cars ahead made an illegal left
     hand turn onto Fisher Avenue. ([Id. at] 17.) Officer Butler
     activated his lights and siren to follow the white car west on Fisher
     Avenue while his partner entered the Pennsylvania license plate
     number, HRW-1901, into the NCIC computer, which revealed that
     the white car was stolen. ([Id. at] 18-19.)

            Officer Butler testified that he followed the white car as it
     made a left turn onto Fisher Avenue then a left turn onto Sixth
     Street where it briefly pulled over then continued at a high rate of
     speed for about five (5) blocks until it reached Roosevelt
     Boulevard. ([Id. at] 17-19.) The officer testified that the driver
     of the white vehicle made a right turn onto … Roosevelt Boulevard,
     went three blocks to Ninth Street then made a left-hand turn
     against a red light[,] crossing approximately ten (10) lanes of
     traffic. ([Id. at] 19) The officer noted that all surrounding traffic
     came to a screeching halt to avoid a collision. The officer testified
     that, after clearing the intersection, he saw the white car continue
     south on Ninth Street and make a left-hand turn onto Cayuga
     Street. Officer Butler explained that he was seconds behind the
     white vehicle when it turned back on to Sixth Street and came to

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      rest facing north in the southbound lanes of travel on the 4400
      block of North Sixth Street. ([Id. at] 19-20, 23-25.) The officer
      exited his police car on foot and approached the vehicle when a
      black male exited the rear passenger door and fled northbound on
      Sixth Street. ([Id. at] 20.) Officer Butler’s partner pursued the
      runner while he apprehended the two (2) men inside the 2014
      white Dodge Avenger, Pennsylvania license plate number HRW-
      1901. ([Id. at] 20-21.)

            Officer Butler testified that [Appellant], K.M., was in the
      front seat sitting across the center console, not actually sitting in
      a seat, while another black male, the [c]o[-]defendant, was in the
      back seat. ([Id. at] 20.) Officer Butler noted that no one else
      was in the front seat and the car came to rest so close to parked
      cars that it wasn’t possible to open the doors on the front driver’s
      side of the car. ([Id. at] 25[.]) Officer Butler explained that
      during the chase the driver of the white vehicle ignored all traffic
      control devices, stop signs and traffic lights. ([Id. at] 21.)

             On cross-examination, Officer Butler testified that he could
      not identify the driver during the chase[,] nor did he recover keys
      on [Appellant] when he was arrested. ([Id. at] 33.) He explained
      that he [did not] know if there were keys in the vehicle. ([Id. at]
      32.) Officer Butler confirmed that he gave a statement to a
      detective following the chase and that statement was marked as
      Defense Exhibit 1. ([Id. at] 29.) Officer Butler acknowledged
      that the statement indicates that he told the detective two (2)
      unknown black males fled the vehicle when it finally stopped.
      ([Id. at] 31.)[] However, Officer Butler testified that he [did not]
      know why the statement indicated that he said two males fled the
      vehicle when he told the detective only one male exited through
      the right rear passenger door and his partner pursued that
      individual. ([Id. at] 32.) … Counsel [for the parties] … stipulated
      that [Appellant’s] mother was present and, if called as a character
      witness, [she] would testify that [Appellant] is a law-abiding and
      honest individual. ([Id. at] 39.)

JCO at 5-9.

      On appeal, Appellant insists that this evidence failed to prove that he

committed the offense of unauthorized use. He stresses that he was never

seen driving the vehicle, and although he was sitting close to the driver’s seat



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when Officer Butler approached the car, “it cannot be known whether other

persons bailed out of the car as it mounted the curb out of sight of the

officers.” Appellant’s Brief at 13 (footnote omitted). Appellant also notes that

the key to the car was not found in his possession. Without sufficient proof

that he drove the car, Appellant contends that the Commonwealth failed to

establish that he knew the car was stolen. He notes that he did not run from

the police, and no other evidence proved that he, as a passenger, was aware

that the driver was operating the car without the authority of its owner.

Accordingly, he maintains that his adjudication for unauthorized use must be

reversed.

      We    disagree.     First,   the    Commonwealth   presented    sufficient

circumstantial proof that Appellant was the driver of the car. Officer Butler

testified that he was only seconds behind the stolen vehicle as it came to a

stop. He saw one male flee from the rear passenger door. When Officer Butler

approached the car, one man was sitting in the backseat, and Appellant was

sitting on the console between the driver and front-passenger seats. The car

had stopped too close to parked cars for its driver’s side door to open;

therefore, no one could have fled from that side of the car. Moreover, there

was no logical reason for Appellant to have been moving from the passenger

seat to the driver’s side.     Consequently, the evidence was sufficient to

circumstantially prove that Appellant had been sitting in the driver’s seat

during the high speed chase.




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      Because the evidence demonstrated that Appellant was the driver of the

vehicle, it was also sufficient to prove that he knew he was not authorized to

use the car. In Carson, we explained:

      [T]he requisite knowledge that the car was stolen can be shown
      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.

See Carson, 592 A.2d at 1321.

      In this case, Appellant led Officer Butler and his partner on a dangerous,

high-speed chase. The officers were in a marked police car with lights and

sirens activated. Additionally, Appellant had no explanation for his possession

of the recently-stolen vehicle. We conclude that these facts were sufficient to

prove that Appellant knew he was not authorized to use the car. Accordingly,

his adjudication for unauthorized use was supported by sufficient evidence.

      The same is true for Appellant’s conspiracy adjudication.

      To convict [a defendant] of criminal conspiracy, the evidence must
      establish that the defendant entered an agreement with another
      person to commit or aid in the commission of an unlawful act, that
      the conspirators acted with a shared criminal intent, and that an
      overt act was done in furtherance of the conspiracy. 18 Pa.C.S.[]
      § 903. An explicit or formal agreement to commit crimes can
      seldom, if ever, be proved and it need not be, for proof of a
      criminal partnership is almost invariably extracted from the
      circumstances that attend its activities. An agreement sufficient
      to establish a conspiracy can be inferred from a variety of
      circumstances including, but not limited to, the relation between

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      the parties, knowledge of and participation in the crime, and the
      circumstances and conduct of the parties surrounding the criminal
      episode.

Commonwealth v. Saunders, 946 A.2d 776, 781 (Pa. Super. 2008) (citation

omitted).

      Here, Appellant contends that the evidence failed to prove that he

conspired to steal the car or use it without authorization. He insists that he

“was merely present in a stolen car[,]” and claims that “he never evidenced a

consciousness of guilt” or “join[ed] in the conduct of another that might have

suggested guilt.” Appellant’s Brief at 22. Appellant also argues that even if

the evidence was sufficient to prove his unauthorized use of the car, there was

“no evidence any of the passengers knew, let alone agreed, to possession or

control of a stolen automobile prior to the driver of the car taking flight. Nor

is there evidence that the passengers agreed to flee from the police.” Id.

Therefore, he concludes that his conspiracy adjudication must be reversed.

      While admittedly a closer issue than Appellant’s first claim, we are

nevertheless compelled to affirm his adjudication for conspiracy.       As the

Commonwealth observes:

      The unknown third passenger fled on foot as officers approached.
      As discussed above, flight from police supports an inference of
      guilty knowledge. Carson, 592 A.2d at 1321. Both [Appellant]
      and the passenger acted in ways that suggested they knew the
      car was stolen and they did not have permission to operate it.
      They were seen in a stolen car together that led police on a high-
      speed chase before it crashed and the passenger fled on foot. This
      was sufficient for a fact-finder to reasonably infer that there was
      a criminal agreement between [Appellant] and the passenger and
      [to] find [Appellant] guilty of conspiracy.



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Commonwealth’s Brief at 9. We are compelled to agree. Thus, we affirm

Appellant’s adjudication for conspiracy.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/20




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