J-A10029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CRISTAL A. SACHS

                            Appellant              No. 1531 MDA 2014


             Appeal from the Judgment of Sentence July 31, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003673-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                             FILED JUNE 02, 2015

        Appellant, Cristal A. Sachs, appeals from the July 31, 2014 judgment

of sentence of two years’ probation imposed following her conviction for

unauthorized use of automobiles and other vehicles.1 After careful review,

we affirm.

        We summarize the relevant factual and procedural background of this

case as follows.     Appellant became acquainted and developed a friendship

with Gerald Mikus through their workplace. N.T., 6/10/14, at 21-22. In May

or June of 2012, Appellant informed Mikus that she was facing eviction from

her residence, and Mikus offered to have Appellant and her daughter stay at

his home until Appellant “got back on her feet.” Id. at 24, 33. Mikus’ home
____________________________________________


1
    18 Pa.C.S.A. § 3928.
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was located in Plymouth, Pennsylvania, in Luzerne County. Id. at 20. Mikus

owned a pick-up truck, his primary-use vehicle, and a 2001 white Saturn

(the car).    Id. at 26.   Mikus gave Appellant permission to use the car for

taking her daughter to and from school, to go grocery shopping, and to run

errands, locally. Id. at 26-27.

      In August 2012, Mikus returned home after work and found that the

room Appellant shared with her daughter was empty.         Id. at 28.     Mikus

described the home as looking “almost ransacked;” however, nothing of

Mikus’ from inside the home was missing.        Id. All of Appellant and her

daughter’s possessions were gone, along with the car.         Id.   Mikus called

Appellant every few days in an attempt to reach her, but she never

answered any of his calls. Id. at 29. At one point, Appellant left a message

on Mikus’ answering machine while he was at work, but she did not mention

the car or its whereabouts. Id. After approximately two weeks of trying to

contact Appellant, Mikus called the police to report the car missing. Id.

      Approximately one to two weeks after Mikus reported his car stolen,

he began receiving citations from the Philadelphia Parking Authority. Id. at

30, 46.      Mikus traveled to Philadelphia and recovered his car from the

Parking Authority garage where it was being held.       Id.    At no point did

Appellant contact Mikus about his car, nor had Mikus had any further contact

from Appellant as of the time of trial. Id. at 30.




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       On September 7, 2012, the Commonwealth charged Appellant with the

aforementioned offense.2         Appellant proceeded to a two-day jury trial on

June 9, 2014. At the conclusion of the trial, the jury found Appellant guilty

of unauthorized use of automobiles and other vehicles.          The trial court

sentenced Appellant on July 31, 2014. Appellant filed a post-trial motion on

August 5, 2014, and the trial court denied said motion on August 11, 2014.

Appellant filed the instant, timely appeal on September 4, 2014.3

       On appeal, Appellant raises the following issues for our review.

                    [I.] Whether the Commonwealth failed to
              present evidence sufficient to establish beyond a
              reasonable doubt, pursuant to 18 Pa.C.S.[A.]
              § 3928(a), the mens rea element of the offense or
              that [Appellant] operated the vehicle without the
              consent of the owner?

                    [II.] Whether the Commonwealth failed to
              present sufficient evidence to establish beyond a
              reasonable doubt that [Appellant] violated 18
              Pa.C.S.[A.]    §    3928(a)    where     [Appellant]
              demonstrated, pursuant to 18 Pa.C.S.[A.] § 3928(b),
              that she reasonably believed that the owner of the
              vehicle would have consented to her use of it had he
              known?
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2
  We note that the docket reflects the criminal complaint was filed on
September 10, 2012, while the criminal complaint was file-stamped on
September 7, 2012. However, “[a]lthough the trial court docket is part of
the official record, when it is at variance with the certified record it
references, the certified record controls.”     Shelly Enters., Inc. v.
Guadagnini, 20 A.3d 491, 494 (Pa. Super. 2011). As such, we deem
September 7, 2012 the date the criminal complaint was filed.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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                    [III.] Whether the trial court erred by failing
              to deliver to the jury the Pennsylvania Standard
              Criminal Jury Instruction 15.3928B (Unauthorized
              Use of Automobiles and Other Vehicles – Defense)
              where [Appellant] presented evidence that she
              believed the owner of the vehicle would have
              consented to her operation of the vehicle?

Appellant’s Brief at 2.4

       Appellant’s first and second issues challenge the sufficiency of the

Commonwealth’s evidence, so we begin by outlining our well established

standard of review.         “In reviewing the sufficiency of the evidence, we

consider whether the evidence presented at trial, and all reasonable

inferences drawn therefrom, viewed in a light most favorable to the

Commonwealth as the verdict winner, support the jury’s verdict beyond a

reasonable doubt.”       Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.

Ct. 1400 (2015).        “The Commonwealth can meet its burden by wholly

circumstantial evidence and any doubt about the defendant’s guilt is to be

resolved by the fact finder unless the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
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4
  For ease of our review, we have elected to review Appellant’s issues in a
slightly different order than they appear in her brief.



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appeal denied, 95 A.3d 277 (Pa. 2014).                 As an appellate court, we must

review “the entire record … and all evidence actually received[.]”                    Id.

(internal quotation marks and citation omitted).              “[T]he 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. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014).                    “Because evidentiary

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.”       Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

      Appellant challenges her conviction for unauthorized use of an

automobile, which is codified as follows.

            § 3928. Unauthorized use of automobiles and
            other vehicles

            (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 it.

18 Pa.C.S.A. § 3928.           Further, “A conviction for unauthorized use of a

vehicle must be predicated on proof that the defendant operated the vehicle


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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)

(citation omitted), appeal denied, 600 A.2d 533 (Pa. 1991).

       In   Appellant’s     first   sufficiency   challenge,   she   argues,   “the

Commonwealth failed to present evidence to establish beyond a reasonable

doubt that [Appellant] operated the vehicle without the permission of

Mikus.” Appellant’s Brief at 9. Specifically, Appellant argues the evidence is

insufficient to support the conviction because Appellant “had permission to

use the vehicle, and the only real distinction is whether she had permission

to take the car to Philadelphia.” Id. at 9.5 She argues, alternatively, “the

Commonwealth failed to present evidence sufficient to establish beyond a

reasonable doubt that [Appellant] knew or had reason to know that she

lacked such permission.” Id. at 11. We disagree.

       At trial, Mikus testified as follows regarding Appellant’s use of his car.

              [The Commonwealth]:

              Q.    And you tell [Appellant] she could use [the
              car]?

              [Mikus]:
____________________________________________


5
  We note the only authority Appellant cites in this portion of her argument
is Commonwealth v. Crooks, 36 Pa.D.&C. 3d 209 (C.P. York 1984), which
is not binding authority on this Court. See Barren v. Com., 74 A.3d 250,
254 n. 2 (Pa. Super. 2013) (observing that decisions from the courts of
common pleas are not binding on the Superior Court).



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          A.   Yes.

          Q.   How did he tell her she could use it?

          A.    Basically[,] to take her daughter to school and
          grocery shopping or whatever else she needed it
          during the day.

          Q.    Did you say, [“]You know what, [Appellant],
          you’re living with me, your car now, take it[”]?

          A.   No.    I never said that.   It was always in my
          name.

          Q.   When you came home at night, would the car
          always be there?

          A.   Yes, most of the time. Yes.

                                    …

          Q.   So you give her permission to take the car to
          school, to the grocery store, around town?

          A.   Uh-hum.

                                    …

          Q.    In around August of 2012, did there come a
          point where your car went missing?

          A.   Yes.

          Q.   Why don’t you tell the jury how that
          happened?

          A.    Well, I came home one night from my second
          job. I came home, car wasn’t on the street and
          nobody was in the house.          The little girl or
          [Appellant] were not in the house. And then I went
          up to their room and the room was basically empty,
          everything that they had they took with them.


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N.T., 6/10/14, at 26-29.   Mikus further testified he tried to call Appellant

every few days, and she did not answer his calls. Id. at 29.         Appellant

eventually called Mikus while he was at work and left a message, but she did

not mention his car. Id. Two weeks after finding his car missing, Appellant

contacted the police and reported that his car was missing.          Id. The

Commonwealth further questioned Mikus as follows.

           [The Commonwealth]:

           Q.    … Why did you eventually contact the police?

           [Mikus]:

           A.     Because I was getting no response to the calls
           [made to Appellant]. I was getting no response in
           the mail until I started getting those parking things[,
           i.e., the Philadelphia Parking Authority citations].

           Q.    You said that you assume that she went down
           to Philly to see a sick aunt. Did she ever say to you,
           [ ]
            “ you know, I really need the car, I’ve got to go
           down to Philly, my aunt’s sick[”]?

           A.    No.

           Q.    Did she ever ask permission to go to Philly with
           the car?

           A.    No.

           Q.    Did she ever ask permission to take the car
           overnight?

           A.    No.

                                     ---




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             Q.     Did she ever ask to take the car in a way
             differently than the way she normally used it?

             A.   No.

Id. at 37.

      Viewing the evidence and all reasonable inferences in the light most

favorable to the Commonwealth, we conclude sufficient evidence was

presented to prove beyond a reasonable doubt that Appellant operated the

car without Mikus’ consent and that Appellant knew his consent was lacking.

See Patterson, supra.      Mikus gave unequivocal testimony that Appellant

did not have permission to take his car, drive to Philadelphia, and keep it

from him for weeks. See N.T., 6/10/14, at 37. Further, the jury was free to

infer that when Appellant left Mikus’ home with her daughter, their

possessions, and Mikus’ car, and did not seek permission or respond to

Mikus’ repeated phone calls, she knew such permission was lacking.        See

Watley, supra. Accordingly, Appellant is not entitled to relief on this issue.

      In Appellant’s third claim of error, she argues the trial court erred by

failing to deliver a requested jury instruction. Appellant’s Brief at 13. We

initially observe, “[o]ur standard of review when considering the denial of

jury instructions is one of deference-an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation

omitted). “Where a defendant requests a jury instruction on a defense, the

trial court may not refuse to instruct the jury regarding the defense if it is

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supported by evidence in the record.”          Commonwealth v. Clouser, 998

A.2d 656, 658 (Pa. Super. 2010) (citation omitted), appeal denied, 26 A.3d

1100 (Pa. 2011). Further, “[w]hen there is evidence to support the defense,

it is for the trier of fact to pass upon that evidence and improper for the trial

judge to exclude such consideration by refusing the charge.”         Id. (citation

omitted). Moreover, “[t]he relevant inquiry for this Court when reviewing a

trial court’s failure to give a jury instruction is whether such charge was

warranted by the evidence in the case.”         Commonwealth v. Baker, 963

A.2d 495, 506 (Pa. Super. 2008) (citation omitted), appeal denied, 992 A.2d

885 (Pa. 2010).

      Appellant’s specific claim of error is that the trial court failed to deliver

Pennsylvania Standard Criminal Jury Instruction 15.3928B, which follows.

            Evidence has been presented in this case that the
            defendant believed that the owner would have
            consented to the operation of the vehicle if [he]
            [she] had known about it.         The effect of this
            evidence is to provide the defendant with a defense
            to the crime of unauthorized use of [an automobile]
            [a vehicle] provided that the defendant’s belief was
            reasonable.      Therefore, you should find the
            defendant not guilty unless you find beyond a
            reasonable doubt that the defendant did not believe
            that the owner would have consented to the
            operation of the vehicle if [he] [she] had known
            about it, or that such belief was unreasonable in the
            circumstances.

Pa.S.S.J.I (Crim.) 15.3928B (brackets in original). Appellant reasons, “the

record reflects that the relationship between [Appellant] and Mikus was that

of close friends who helped each other in times of need.” Appellant’s Brief at

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14. She summarizes the evidence presented that would support the defense

as follows.

              It was Mikus’[] own testimony that, at the time
              of the incident, he was aware that [Appellant]
              had a sick relative in Philadelphia, and that
              when she left his home, he assumed that was
              where she went. Additionally, according to both
              [Appellant] and Mikus, [Appellant] used the vehicle
              every day with Mikus’ consent. The record reflects it
              was not unreasonable for [Appellant] to believe that
              Mikus would have given his permission for her
              to drive to Philadelphia had she asked;
              therefore[,] it was an abuse of discretion by the trial
              court to refuse to give Pennsylvania Standard
              Criminal Jury Instruction 15.3928B and permit the
              trier of fact to properly pass upon the evidence.

Id. at 14-15 (citations omitted, emphasis added).

      As noted, it is a defense to the crime of unauthorized use of

automobiles and other vehicles if Appellant “reasonably believed that the

owner would have consented to the operation had he known it.”              18

Pa.C.S.A. § 3928(b) (emphasis added).             However, Appellant’s entire

argument is not that Mikus did not know of her operation of his vehicle, but

that he would have consented to her use of it had she sought such

permission.     See Appellant’s Brief 13-15.     Therefore, by Appellant’s own

argument, she is not entitled to the jury instruction, as the evidence does

not support, nor does Appellant argue, that Mikus did not know Appellant




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was operating his vehicle.6 See Clouser, supra. Any attempt by Appellant

to distinguish Mikus’ knowledge of her operation of the vehicle, which the

evidence amply establishes, and his consent to the operation had she sought

permission is disingenuous, and no such distinction is implicated in the

defense to the crime charged. See 18 Pa.C.S.A. § 3928(b).         Accordingly,

we discern no abuse of discretion by the trial court in its decision to not

instruct on the defense to unauthorized use of automobiles and other

vehicles. See Baker, supra.

       Lastly, we review Appellant’s sufficiency challenge regarding her belief

of Appellant’s consent. Appellant argues she “reasonably believed that the

owner of the vehicle would have consented to her use of [the car] had he

known.” Appellant’s Brief at 11. Therefore, she argues she has a defense to

her conviction pursuant to Section 3928(b). Id. at 12.

       In the instant case, as demonstrated above, viewing the evidence in a

light most favorable to the Commonwealth, the Commonwealth proved that

Appellant operated Mikus’ vehicle without his consent and that she knew or

had reason to know such consent was lacking. See Paterson, supra. As

such, the Commonwealth has met their evidentiary burden to convict

Appellant of unauthorized use of automobiles and other vehicles. Although
____________________________________________


6
  Additionally we note, Officer Gina Kotowski of the Plymouth Borough Police
Department testified that when Mikus reported the car missing, he advised
her “[t]hat [Appellant] was sharing a home with [Mikus] and that [Appellant]
took off with his car.” N.T., 6/10/14, at 42.



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Appellant attempts to argue she proved the statutory defense to the crime,

as discussed, the trial court properly denied Appellant’s request to have the

jury instructed on the defense. Therefore, she is not entitled to relief on this

basis.

         Based on the foregoing, we conclude Appellant’s arguments on appeal

do not entitle her to relief, and we affirm the July 31, 2014 judgment of

sentence.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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