J-A31033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOHN MICHAEL GRAFFIGNA

                             Appellant                 No. 2714 EDA 2015


           Appeal from the Judgment of Sentence September 4, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0013727-2014


BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 11, 2017

        Appellant, John Graffigna, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas.               Appellant

challenges (1) the sufficiency of the evidence, (2) the weight of the

evidence, and (3) the legality of his sentence. We affirm the judgment of

sentence on the charge of attempted theft by unlawful taking and vacate the

judgment of sentence on the charge of conspiracy to commit theft.

        The trial court summarized the facts of this case as follows:

              Rochelle Ross owned a 2005 Dark Grey Mercury
           Mariner.   Ms. Ross had given her daughter, Adrianna
           Brown, permission to use the vehicle. Ms. Brown testified
           that the last time she had seen the vehicle was at the
           corner of Van Kirk and Ditman [S]treets on Saturday,
           October 4, 2014. Ms. Brown testified that on October 4,
           2014, the car was in good condition with the exception of a

*
    Former Justice specially assigned to the Superior Court.
J-A31033-16


         faulty ignition, a crack in the front windshield, and a dent
         on the passenger’s side. She further testified that the
         vehicle was going to be towed to New Jersey, where her
         mother resides, for repairs. Adrianna Brown stated that
         the last time she was able to operate the vehicle was a
         week or two prior to the date it went missing. Neither Ms.
         Ross nor Ms. Brown knew the Appellant, nor had they
         given him permission to operate the vehicle.

             On October 8, 2014 at approximately 3:00 A.M.,
         Detective John Logan (#9047) of the Major Crimes Auto
         Squad observed the 2005 Dark Grey Mercury Mariner in
         the area of 4100 Salmon Street. The vehicle had a broken
         window, its license plates had been removed, the
         inspection sticker had been scraped off, and that the
         steering column had been ripped open.             Det. Logan
         testified that he ran the VIN number of the vehicle and
         learned that it had been reported as stolen two days prior.
         Det. Logan remained in the area in his unmarked vehicle
         for approximately one hour. At approximately 4:00 A.M.,
         Det. Logan observed the Appellant and another individual
         pull up behind the stolen vehicle in a green tow truck.
         Appellant exited the passenger side of the tow truck and
         entered the driver’s side of the Mercury Mariner. Det.
         Logan approached the Appellant and observed him seated
         in the driver’s seat sticking a piece of metal into the shifter
         release1 mechanism located in the center console. Det.
         Logan testified that based on his nineteen years in the
         Auto Squad, he considered the vehicle to be stolen.
         ____________
         1
           A “shift release” is a mechanism put into vehicles in the
         case the vehicle is disabled and needs to be removed. By
         using the shift release, the vehicle can be placed into
         neutral and subsequently towed.

Trial Ct. Op., 12/16/15, at 1-2 (record citations omitted).

      At trial, Det. Logan testified as follows:

         [Counsel for Appellant]: Now detective, you said that you
         work in Auto Squad, correct?

         A: Yes.



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        Q: So, you’re familiar with the requirements with what an
        abandoned vehicle is, correct?

        A: Yes.

                                 *    *    *

        If a Neighborhood Services Unit would have rolled up on
        the vehicle it could have been declared as abandoned
        because of the fact there were no license plates. It had a
        broken window which makes it a hazard. And I believe
        there was some other damage on the vehicle and the
        inspection stickers were removed.

           So by Neighborhood Service standards and PennDot
        standards it is an abandoned vehicle. However─

        Q: Thank you.

        The Court: Well he can finish.

        The Witness: However, being in the Auto Squad for
        nineteen years it also falls under─

        [Counsel for Appellant]: Your Honor, this is actually not
        responsive to my question.

        The Court: But I will allow him to finish.

        The Witness: It also falls under the standards of a stolen
        vehicle abandoned on the highway with a broken ignition
        and a broken window.

        Q: Detective, you had no knowledge that the car was
        stolen however it would appear to be abandoned; is that
        fair to say?

        A: When I saw the vehicle it looked stolen to me. When I
        ran it if it came back not stolen I would have notified
        Neighborhood Services to come and write it as an
        abandoned vehicle.

N.T., 4/9/15, at 18-20.



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        Following a non-jury trial, Appellant was convicted of criminal attempt-

theft by unlawful taking-movable property,1 conspiracy-theft by unlawful

taking-movable property,2 and possession of instruments of crime (“PIC”).3

He was sentenced to twenty-one to forty-two months’ incarceration, followed

by three years’ reporting probation, on both attempted theft and conspiracy.

N.T. Sentencing, 9/4/15, at 29.       For PIC, Appellant was sentenced to a

concurrent twenty-one to forty-two months’ incarceration. Id. This timely

appeal    followed.    Appellant   filed   a   court-ordered    Pa.R.A.P.   1925(b)

statement of errors complained of on appeal, and the trial court filed a

responsive opinion.

        Appellant raises the following issues for our review:

           1. Was not the evidence insufficient for conviction on all
           offenses charged, insofar as the automobile at issue
           appeared to be abandoned, and therefore there is
           insufficient evidence of [Appellant’s] intent to deprive
           another person of their property, or to conspire to do the
           same, or to use any item for criminal purposes?

           2. In the alternative, was not the verdict against the
           weight of the evidence, such that the trial court erred in
           denying the post-verdict motion for a new trial on those
           grounds?

           3. Did not the trial court impose an illegal sentence on
           [Appellant], by sentencing him on two separate inchoate


1
    18 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 903(c).
3
    18 Pa.C.S. § 907(a).



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         offenses relating to the same crime, in violation of 18
         Pa.C.S. § 906?

Appellant’s Brief at 4.

      First, Appellant argues that the evidence was insufficient to convict

him of all of the charges because “property that has been abandoned cannot

be the subject of a theft-charge . . . .” Id. at 10. He contends that

         the defense of mistake of fact (regarding the abandonment
         of the car) was clearly raised by the evidence at trial . . . .

                                    *    *    *

         While that was not in fact the case, [Appellant’s] apparent
         belief to that effect was clearly reasonable under the
         circumstances.

                                    *    *    *

             Under these circumstances, the other charges also must
         fall with the attempted theft. The conspiracy charge was
         for a conspiracy to commit the theft, therefore since the
         taking of the car would not have been a theft, it cannot
         support a conspiracy to commit theft. Similarly, when a
         [PIC] offense is predicated upon using the item to commit
         a purported crime to which there is a defense, the PIC
         charge cannot stand.

            Anyone seeing the car at issue here would have
         assumed it was abandoned. As it is not theft to take an
         abandoned car, and as the Commonwealth did not prove
         that [Appellant], in fact knew, that the car was not
         abandoned, and as any reasonable observer would have
         assumed that car was abandoned, the Commonwealth did
         not prove the requisite intent. [Appellant’s] convictions
         must be vacated.

Id. at 12-13 (citations omitted).




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J-A31033-16


     Our review is governed by the following principles:                         “A claim

challenging    the   sufficiency   of       the   evidence   is   a   question   of   law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

        [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict. . . .

                                        *     *     *

            When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt. . . .

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted).

     The Pennsylvania Crimes Code defines criminal attempt as follows:

        (a) Definition of attempt.─A person commits an attempt
        when, with intent to commit a specific crime, he does any
        act which constitutes a substantial step toward the
        commission of that crime.

18 Pa.C.S. § 901(a). Conspiracy is defined as

        (a) Definition of conspiracy.─A person is guilty of
        conspiracy with another person or persons to commit a
        crime if with the intent of promoting or facilitating its
        commission he:

              (1) agrees with such other person or persons that they
              or one or more of them will engage in conduct which



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J-A31033-16


           constitutes such crime or an attempt or solicitation to
           commit such crime; or

           (2) agrees to aid such other person or persons in the
           planning or commission of such crime or of an attempt
           or solicitation to commit such crime.

                                  *    *    *

        (c) Conspiracy with multiple criminal objectives.─If a
        person conspires to commit a number of crimes, he is
        guilty of only one conspiracy so long as such multiple
        crimes are the object of the same agreement or
        continuous conspiratorial relationship.

18 Pa.C.S. § 903(a)(1)-(2), (c). Circumstantial evidence may provide proof

of the conspiracy. Commonwealth v. Bricker, 882 A.2d 1008, 1018 (Pa.

Super. 2005).

     The Crimes Code defines theft by unlawful taking-movable property as

        (a) Movable property.─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).

     PIC is defined as follows:

        (a) Criminal instruments generally.─ A person commits
        a misdemeanor of the first degree if he possesses any
        instrument of crime with intent to employ it criminally.

18 Pa.C.S. § 907(a).

     In In re J.D., 798 A.2d 210 (Pa. Super. 2002), this Court found the

evidence was sufficient to support a conviction for attempted theft of an

automobile. This Court opined that



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J-A31033-16


          by entering the van and his co-conspirator’s tampering
          with the steering wheel once inside, these acts clearly
          constitute “substantial steps” toward the commission of
          automobile theft. The fact that [the a]ppellant and his co-
          conspirator never actually stole the car is of no import here
          as [the a]ppellant was convicted of attempted theft.
          Clearly, here the Commonwealth proved certain elements
          of the crime by circumstantial evidence. Our review of the
          evidence reveals that the Commonwealth sustained its
          burden of proving each element of the offense beyond a
          reasonable doubt. Therefore, [the a]ppellant’s argument
          must fail.

Id. at 213.

      In Commonwealth v. Meinhart, 98 A.2d 392 (Pa. Super. 1953), this

Court opined:

          One of the elements of larceny[4] is a specific intent to
          steal (animus furandi)—an intent to convert the goods
          wrongfully to the taker’s own use or permanently deprive
          the owner of their possession. Moreover, since larceny is a
          crime against possession, in order to sustain a conviction
          of larceny it must appear not only that there was a
          wrongful caption and asportation of the goods by the
          defendant, with specific criminal intent, but that the
          property itself was the subject of larceny.

Id. at 394.     In Meinhart, we held that abandoned property “belongs to no

one, nor is it regarded as being in the possession of any one. Because there

is no property right in it in any one it cannot be the subject of larceny.” Id.

at 395.

      Abandoned property is defined as property



4
  We note that larceny was a common law crime in existence prior to the
enactment of the Crimes Code.



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J-A31033-16


            to which an owner has voluntarily relinquished all
            right, title, claim and possession with the intention of
            terminating his ownership, but without vesting it in
            any other person and with the intention of not
            reclaiming       further  possession     or   resuming
            ownership, possession or enjoyment.

             Abandonment involves an intention to abandon,
         together with an act or omission to act by which such
         intention is apparently carried into effect. In determining
         whether one has abandoned his property or rights, the
         intention is the first and paramount object of inquiry, for
         there can be no abandonment without the intention to
         abandon. The intent to abandon is to be determined from
         all of the facts and circumstances of the case.         The
         question of whether a particular act amounts to an
         abandonment is generally one of intention. When deciding
         whether an object has been abandoned, we must consider
         the nature of the property, the acts and conduct of the
         parties in relation thereto and the other surrounding
         circumstances.

Commonwealth v. Wetmore, 447 A.2d 1012, 1014 (Pa. Super. 1982)

(citations omitted).

      In the case sub judice, the trial court opined:

            Based on the evidence before it, this [c]ourt was
         convinced beyond a reasonable doubt that the Appellant
         intended to deprive another of the 2005 Mercury Mariner.
         While [Appellant] offered evidence that the vehicle could
         potentially have been categorized as abandoned by
         PennDOT or the Neighborhood Services Unit, [Appellant]
         neglected to offer evidence pertaining to the Appellant’s
         state of mind. Conversely, the Commonwealth presented
         evidence that the Appellant intended to take a vehicle
         which he knew did not belong to him. First, Det. Logan
         noted that the vehicle had only been reported stolen two
         days prior. Second, Adrianna Brown testified that besides
         a faulty ignition, the car was in good condition on the day
         it went missing. Third, Det. Logan explained that the
         vehicle was found in a residential area where vehicles were
         unlikely to be abandoned. Fourth, Det. Logan testified that


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J-A31033-16


         in his sixteen years of experience as a member of the Auto
         Squad that the vehicle appeared to be stolen. Fifth, Ms.
         Ross and Ms. Brown each testified that they did not know
         the Appellant, and that the Appellant did not have their
         permission to use the vehicle. Finally, Det. Logan noted
         that the Appellant jammed a metal object into the shift
         release mechanism in an attempt to exercise control over
         the vehicle.

            Based on the totality of this evidence, this [c]ourt was
         convinced that the Appellant did not believe the vehicle to
         be abandoned, but instead intended to take a vehicle
         which did not belong to him and which he did not have
         permission to use.

                                   *     *      *

             The evidence proffered by the Commonwealth, although
         circumstantial, is sufficient to prove the existence of a
         conspiracy.    Specifically, Det. Logan testified that he
         observed the Appellant and the other individual arrive
         together, pulling up behind the stolen vehicle in a green
         tow truck. Furthermore, the Appellant exited the truck
         and entered into the driver’s side of the stolen vehicle.
         Finally, the Appellant was discovered by Det. Logan
         “jamming” a metal object into the shift release
         mechanism.        This [c]ourt determined that the
         circumstances and conduct surrounding the criminal
         episode was proof positive of an agreement between the
         two individuals, shared criminal intent, and an overt act in
         furtherance of the crime.

                                   *     *      *

             Appellant was in possession of the metal object with the
         intent to use it criminally. Det. Logan testified that he
         discovered the Appellant “jamming” a metal instrument
         into the shift release. Based on all of the evidence before
         it, the [c]ourt found that the Appellant was in possession
         of the metal object with the intent to use it criminally . . . .

Trial Ct. Op. at 4-6 (record citations omitted). We agree no relief is due.




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J-A31033-16


      Instantly, Appellant was observed with another individual in the 2005

Dark Grey Mercury Mariner, which belonged to Rochelle Ross.           Appellant

was in the driver’s seat attempting to place a piece of metal into the shifter

release mechanism.    These acts constituted substantial steps towards the

commission of automobile theft. See 18 Pa.C.S. § 901(a); In re J.D., 798

A.2d at 213. We find the evidence was sufficient to convict him of criminal

attempt, theft by unlawful taking. See 18 Pa.C.S. § 901(a); Wetmore, 447

A.2d at 1014; Meinhart, 98 A.2d 392.         Furthermore,   the   circumstantial

evidence was sufficient to prove the existence of a conspiracy.         See 18

Pa.C.S. § 903; Bricker, 882 A.2d 1008, 1017. Viewing the evidence in the

light most favorable to the Commonwealth as verdict winner, we find the

evidence was sufficient to convict Appellant of criminal attempt, theft by

unlawful taking-movable property, conspiracy and PIC.        See 18 Pa.C.S. §

901(a); 903(a); 907(a); Ratsamy, 934 A.2d at 1235-37.             We discern no

error of law. See Widmer, 744 A.2d at 751.

      Next, Appellant argues that the verdict was against the weight of the

evidence and the trial court erred in denying his motion for a new trial. 5

Appellant contends that


5
  We note that prior to sentencing, pursuant to Pa.R.Crim.P. 607, Appellant
made an oral motion for a new trial contending the verdict was against the
weight of the evidence. See N.T. Sentencing, 9/4/15, at 3-6. The trial
court denied the motion. Id. at 5.




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J-A31033-16


         the verdict of guilt overlooks the preponderance of
         evidence that the car appeared abandoned to any
         reasonable observer. Therefore, as the Commonwealth
         presented no evidence to the contrary, the weight of the
         evidence was in favor of the conclusion that [Appellant]
         would have believed it to be abandoned.

Appellant’s Brief at 15-16.

      Our Supreme Court has held that

         [a] motion for a new trial alleging that the verdict was
         against the weight of the evidence is addressed to the
         discretion of the trial court. An appellate court, therefore,
         reviews the exercise of discretion, not the underlying
         question whether the verdict is against the weight of the
         evidence. The factfinder is free to believe all, part, or
         none of the evidence and to determine the credibility of
         the witnesses. The trial court will award a new trial only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice. In determining whether this
         standard has been met, appellate review is limited to
         whether the trial judge’s discretion was properly exercised,
         and relief will only be granted where the facts and
         inferences of record disclose a palpable abuse of
         discretion. Thus, the trial court’s denial of a motion for a
         new trial based on a weight of the evidence claim is the
         least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).

      Appellant asks this Court to reweigh the evidence. This we cannot do.

See Ramtahal, 33 A.3d at 609. Instantly, the verdict was “not so contrary

to the evidence as to shock one’s sense of justice.” See id. We discern no

abuse of discretion by the trial court. See id.




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J-A31033-16


      Lastly, Appellant argues, and the Commonwealth agrees, that the trial

court imposed an illegal sentence6 by sentencing him on two separate

inchoate offenses relating to the same crime, in violation of 18 Pa.C.S. §

906.7 Appellant’s Brief at 16; Commonwealth’s Brief at 17. We agree relief

is due.

      In Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super. 1983), this

Court opined:

          [The a]ppellant was improperly convicted and sentenced
          for two inchoate crimes, possession of an instrument of
          crime (18 Pa.C.S.A. § 907(a)) and possession of a
          prohibited offensive weapon (18 Pa.C.S.A. § 908(a)).
          Conviction and imposition of sentence on both of these
          charges is clearly prohibited by 18 Pa.C.S.A. § 906. . . . In
          light of the error committed by the trial court, we have the
          option either to remand for resentencing or to amend the
          sentence directly. Since the trial court imposed identical
          sentences on the two charges, both of which are
          misdemeanors of the first degree, and directed that the
          sentences be served concurrently, it is clear that a remand
          for resentencing would not result in any change in the
          sentence.     Therefore, we will vacate the judgment of
          sentence on the charge of possession of a prohibited
          offensive weapon, and affirm the judgment of sentence on
          the charge of possession of an instrument of crime.

Id. at 1269.


6
 Although Appellant did not object to the sentence until his appeal, we have
previously held that a sentence which is illegal is not subject to waiver. See
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001).
7
  Section 906 provides that “[a] person may not be convicted of more than
one of the inchoate crimes of criminal attempt, criminal solicitation or
criminal conspiracy for conduct designed to commit or to culminate in the
commission of the same crime.” 18 Pa.C.S. § 906.



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J-A31033-16


     In the case sub judice, the court erred in sentencing Appellant on the

charge of attempted theft by unlawful taking and on the charge of

conspiracy to commit theft. See id. Because vacating one of the concurrent

sentences will not result in any change in the sentence, we vacate the

sentence on the charge of conspiracy to commit theft. See id.

     We affirm the judgment of sentence on the charge of attempted theft

by unlawful taking and vacate the judgment of sentence on the charge of

conspiracy to commit theft.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2017




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