J-A06038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

JESUS HEARD

                            Appellant                      No. 2119 EDA 2015


              Appeal from the Judgment of Sentence June 17, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0012234-2014


BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                           FILED SEPTEMBER 07, 2017

       Heard was seen driving a stolen vehicle one week after it was stolen.

When    the    owner    arrived   to    reclaim   the    abandoned   vehicle,   Heard

approached her and asked if he could retrieve his personal items from inside

the vehicle. The trial court, sitting in a bench trial, found Heard guilty of

receiving stolen property and unauthorized use of a motor vehicle. On

appeal, Heard raises two challenges to his convictions and one challenge to

the restitution imposed. After careful review, we affirm Heard’s convictions,

but conclude that the trial court denied Heard the opportunity to present

evidence on restitution, and therefore vacate the judgment of sentence and

remand for resentencing.

       In his first issue on appeal, Heard argues that the evidence presented

at trial was insufficient to support his conviction for receiving stolen
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property. Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes    charged     is   established    beyond       a     reasonable    doubt.    See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). The

Commonwealth may meet this burden of proving every element of the crime

by utilizing only circumstantial evidence. See Commonwealth v. Bruce,

916 A.2d 657, 661 (Pa. Super. 2007).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder, so

long as the evidence presented is utterly incapable of supporting the

necessary inferences. See id. This Court does not independently assess

credibility   or   otherwise   assign    weight   to       evidence   on   appeal.   See

Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004).

      Here, Heard was convicted of receiving stolen property (“RSP”). Thus,

the Commonwealth was required to prove that “he intentionally receive[d],

retain[ed], or dispose[d] movable property of another knowing that it ha[d]

been stolen, or believing that it ha[d] probably been stolen, unless the

property is received, retained, or disposed with intent to restore it to the

owner.” 18 Pa.C.S.A. § 3925(a). The crime has three elements: (1)


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intentionally taking possession of another person’s movable property; (2)

knowing or believing that it has been stolen; and (3) an intent to deprive the

rightful owner of her property permanently. See Commonwealth v.

Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en banc).

      Heard specifically challenges the sufficiency of the Commonwealth’s

evidence to prove that he knew or had reason to believe that the car had

been stolen. He correctly argues that evidence of mere possession of stolen

property is insufficient to establish this guilty knowledge under our case law.

See id., at 267-268.

      However, we have sanctioned many other forms of circumstantial

evidence to support an inference of guilty knowledge. Evidence that the

property was only recently stolen allows for an inference of guilty

knowledge. See id., at 268. Other acceptable forms of circumstantial

evidence

      may include, inter alia, the place or manner of possession,
      alterations to the property indicative of theft, the defendant’s
      conduct or statements at the time of arrest (including attempts
      to flee apprehension), a false explanation for the possession, the
      location of the theft in comparison to where the defendant
      gained possession, the value of the property compared to the
      price paid for it, or any other evidence connecting the defendant
      to the crime.

Id. (citations omitted).

      Initially, we observe that the Commonwealth presented evidence that

Heard was seen operating the vehicle six days after it was stolen. See N.T.,

Bench Trial, 4/15/15, at 7-8, 18-19. We have previously held that evidence

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of possession within a week of the theft is sufficient to permit an inference of

guilty knowledge. See Commonwealth v. Hogan, 468 A.2d 493, 498 (Pa.

Super. 1983) (en banc) (“We cannot say as a matter of law a period of four

weeks was so great as to render impermissible the inference of guilty

knowledge …”); Commonwealth v. Walters, 378 A.2d 1232, 1236-1237

(Pa. Super. 1977) (finding inference of guilty knowledge permissible based

upon evidence of possession six days after theft).

       Heard argues that this Court has vacated a conviction for RSP where

the defendant was in possession of a damaged vehicle that had been stolen

a mere nine days previously. See Commonwealth v. Dunlap, 505 A.2d

255 (Pa. Super. 1985). However, Heard fails to acknowledge that the

Dunlap panel found that the recency evidence in that case was sufficient to

permit an inference of guilty knowledge. See id., at 257. The panel reversed

the conviction due to its conclusion that other circumstantial evidence

rendered the inference of guilty knowledge unreasonable. See id., at 257-

258.

       Heard attempts to analogize the circumstances of the present case to

those in Dunlap. There, the defendant returned to the stolen vehicle fifteen

minutes after parking it. See id., at 257. He approached the vehicle, even

though it was surrounded by uniformed police officers. See id. He asked the

police why they were present, and voluntarily admitted that he had driven

the stolen vehicle. See id., at 258.


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      The Dunlap panel quoted a previous opinion for the proposition that

“[n]ormally, a person in possession of a stolen vehicle does not stop to ask

the police for directions.” Id. (quoting Commonwealth v. Williams, 425

A.2d 795, 797 (Pa. Super. 1981)). The panel then opined that, “[s]imilarly, a

person in possession of a stolen vehicle does not normally return to the

vehicle when it is surrounded by police and civilians, ask what is the matter,

and admit to having driven the car.” Id.

      In contrast, Heard did not return to the stolen vehicle until four days

after he had abandoned it. See N.T., Bench Trial, 4/15/15, at 26. He

approached an owner of the vehicle, not uniformed police officers. See id.

This distinction is important, as the owner was not likely to attempt to arrest

or otherwise detain Heard when he admitted to having driven the vehicle.

Thus, his admission was not nearly as contrary to guilty knowledge as the

defendant’s in Dunlap.

      The evidence presented by the Commonwealth at trial was sufficient to

allow the factfinder to infer that Heard knew or had reason to believe that

the vehicle was stolen. Heard does not identify any innocent explanation for

his possession of the stolen vehicle. And none of the other circumstantial

evidence precluded a finding of guilty knowledge. Heard is due no relief on

this issue.

      In his second issue, Heard argues that the trial court erred in failing to

grant a new trial when Commonwealth failed to disclose exculpatory


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evidence until after trial. Specifically, he argues that the Commonwealth

failed to produce an insurance claim form that would have undercut the

owner’s testimony regarding damage to the vehicle. Appellant argues that

this evidence would have impeached the Commonwealth’s contention that

damage to the vehicle supported an inference of guilty knowledge.

     In Brady v. Maryland, 373 U.S. 83 (1963), the United States

Supreme Court declared that due process is offended when the prosecution

withholds evidence favorable to the accused. Heard claims that the

Commonwealth’s failure to produce the insurance form until after trial

constitutes a Brady violation. As there is simply no evidence in the record

establishing when the Commonwealth procured the insurance form prior to

turning it over, we cannot conclude that Appellant is entitled to relief. The

Commonwealth has no duty to produce a document that it or its associated

agencies do not possess. See Commonwealth v. Ovalles, 144 A.3d 957,

965 (Pa. Super. 2016) (“The duty to disclose is limited to information in the

possession of the government bringing the prosecution …”).

     In his third and final argument, Heard contends that the trial court

erred in preventing him from contesting restitution. The Commonwealth

argues that this claim is a challenge to the discretionary aspects of Heard’s

sentence. See Appellee’s Brief, at 25-26. We disagree. Heard asserted his

desire to challenge the amount of restitution sought by the Commonwealth.

See N.T., Sentencing Hearing, 6/17/15, at 10-11. After indicating that it


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would address restitution later in the hearing, the trial court ultimately did

not allow Appellant to present evidence on the issue. See id., at 14-15.

      Heard’s challenge is not to the weight or sufficiency of the evidence

supporting the restitution award. Rather, Heard’s claim is that he was

improperly denied the right to present evidence on the issue. And he is

correct. See Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super.

2004) (en banc) (“Although [restitution] is mandatory … it is still necessary

that the amount of the ‘full restitution’ be determined under the adversarial

system with considerations of due process.”) Sentencing courts are vested

with discretion regarding admission of evidence, but there is no indication in

the transcript that the court considered Heard’s proffer. As a result, we

vacate the award of restitution and remand for a full hearing on the issue.

      Convictions affirmed, judgment of sentence vacated. Case remanded

for proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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