J-S56029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 EVELYN MADISON                           :
                                          :
                     Appellant            :    No. 1204 EDA 2019

       Appeal from the Judgment of Sentence Entered March 25, 2019
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0007337-2018


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 03, 2019

      Appellant, Evelyn Madison, appeals from the judgment of sentence

entered on March 25, 2019. On this direct appeal, Appellant's counsel has

filed a petition for leave to withdraw and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).            Upon review, we remand with

instructions.

      The factual background and procedural history of this case are as

follows. On September 25, 2018, Appellant rented a 2018 Volkswagen from

Enterprise Rent-A-Car (“Enterprise”). Trial Court Opinion, 6/21/19, at 1. The

agreement, which was signed by Appellant, stated that she was the only

authorized driver of the vehicle. N.T. Trial, 3/21/19, at 8. Appellant, however,

“drove the vehicle from the Enterprise lot and immediately gave it to her
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grandson.” Trial Court Opinion, 6/21/19, at 1. “The vehicle was due back,

after an extension, on October 1, 2018.” Id.

        Appellant failed to return the vehicle on October 1, 2018.         Id.

Thereafter, Enterprise made numerous attempts to contact Appellant to return

the vehicle. Id. In particular, on October 15, 2018, Enterprise forwarded

Appellant a written demand to return the car within seven days, which it sent

via Federal Express with the return receipt requested. N.T. Trial, 3/21/19, at

39.    At trial, Appellant admitted that she signed the demand letter and

returned a copy to Enterprise. Id. at 61. Nonetheless, Appellant failed to

return the vehicle, and as such, a criminal complaint was filed against her on

November 7, 2018. Criminal Complaint, 11/7/18, at 1. Finally, “sometime

late on November 12, 2018 or in the early morning hours of November 13,

2018[,],” six weeks after the original return deadline, “the vehicle was

returned to an Enterprise location in the state of Delaware.”       Trial Court

Opinion, 6/21/19, at 1-2.         Upon its return, the vehicle was damaged and

Enterprise did not receive any payment for the “six weeks that passed beyond

the expiration of the lease agreement.” Id. at 2.

        Appellant’s bench trial commenced March 21, 2019. On March 25, 2019,

the trial court convicted Appellant of theft of leased property 1 and sentenced



____________________________________________


1   18 Pa.C.S.A § 3932.




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her to one year of probation. N.T. Trial, 3/25/19, at 3-6. On April 23, 2019,

counsel timely filed a notice of appeal.2

       On August 15, 2019, counsel filed an Anders brief and a petition to

withdraw as counsel.3 Therefore, before reviewing the merits of this appeal,

this Court must first determine whether counsel has fulfilled the necessary

procedural requirements for withdrawing as counsel. See Commonwealth

v. Flowers, 113 A.3d 1246, 1248–1249 (Pa. Super. 2015) (citation omitted).

       “In order to withdraw from appellate representation pursuant to

Anders, certain procedural and substantive requirements must be met.”

Commonwealth v. Tejada, 176 A.3d 355, 358 (Pa. Super. 2017).

Procedurally, counsel must,

       (1) petition the court for leave to withdraw stating that, after
       making a conscientious examination of the record, counsel has
       determined that the appeal would be frivolous; (2) furnish a copy
       of the brief to the defendant; and (3) advise the defendant that
       he or she has the right to retain private counsel or raise additional
       arguments that the defendant deems worthy of the court's
       attention.




____________________________________________


2 On April 24, 2019, the trial court entered an order directing Appellant to file
a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). After securing an extension from the trial court, in accordance
with Rule 1925(c)(4), Appellant’s counsel informed the court that he intended
to file an Anders brief. For this reason, on June 21, 2019, the trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a), but failed to state its reasons
for finding Appellant guilty of theft of leased property.

3Appellant has not filed a response to counsel’s petition to withdraw or
Anders brief.

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Id. at 359.    Substantively, counsel must file an Anders brief, in which

counsel:

      (1) provide[s] a summary of the procedural history and facts, with
      citations to the record; (2) refer[s] to anything in the record that
      counsel believes arguably supports the appeal; (3) set[s] forth
      counsel's conclusion that the appeal is frivolous; and (4) state
      counsel's reasons for concluding that the appeal is frivolous.

Commonwealth v. Hankerson, 118 A.3d 415, 419–420 (Pa. Super. 2015),

quoting Santiago, 978 A.2d at 361.

      In this case, we acknowledge counsel’s compliance with Anders’

procedural and substantive requirements.        “Therefore, we now have the

responsibility ‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016),

quoting Flowers, 113 A.3d at 1248.

      Appellant's counsel raises one issue in his Anders brief:

      Whether the evidence was insufficient to sustain the verdict
      because Appellant’s grandson controlled the vehicle after the
      lease expired and thus[,] Appellant did not intend to deal with the
      car as if it were hers, and the Enterprise letter was sent via Federal
      Express, not certified or registered mail?

Anders Brief at 4.

      Our standard of review regarding the sufficiency of the evidence is as

follows:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence


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      to enable the fact[-]finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our judgment for that of
      the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth may not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the 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. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)

(citations omitted).

      Section 3932 of the Crimes Code defines theft of leased property as

follows:

      (a) Offense defined.—A person who obtains personal property
      under an agreement for the lease or rental of the property is guilty
      of theft if he intentionally deals with the property as his own.

      (b) Definition.—As used in this section:

           (1) A person “deals with the property as his own” if he sells,
           secretes, destroys, converts to his own use or otherwise
           disposes of the property.

           (2) A “written demand to return the property is delivered”
           when it is sent simultaneously by first[-]class mail,
           evidenced by a certificate of mailing, and by registered or
           certified mail to the address provided by the lessee.

      (c) Presumption.—A person shall be prima facie presumed to
      have intent if he:




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          (1) signs the lease or rental agreement with a name other
          than his own and fails to return the property within the time
          specified in the agreement; or

          (2) fails to return the property to its owner within seven
          days after a written demand to return the property is
          delivered.

       (d) Exception.—This section shall not apply to secured
       transactions as defined in Title 13 (relating to commercial code).

18 Pa.C.S.A § 3932.

       Herein, counsel aptly noted that the case “rest[ed] on whether Appellant

intended to deal with the car as if it were hers.”             Anders Brief at 7.

Previously, in Commonwealth v. Lebron, 765 A.2d 293 (Pa. 2000), our

Supreme Court interpreted 18 Pa.C.S.A. § 3932 and explained how the

Commonwealth may prove that a defendant possessed the requisite intent to

be convicted under Section 3932.4              Lebron clarified that there are two

alternative methods of proof available.

       First, under Section 3932(a), the Commonwealth can demonstrate a

defendant’s intent through direct evidence if it can show that she “intentionally

deal[t] with the property as [her] own.” 18 Pa.C.S.A. § 3932(a). To do so,

the Commonwealth must prove that the defendant “[sold], secrete[d],
____________________________________________


4 Lebron is the only reported case interpreting 18 Pa.C.S.A. § 3932. The
legislature, however, amended the statute in 2008, after Lebron. Notably,
the two versions are substantively similar. Indeed, the legislature simply
added the following definition to Section 3932(b)(2): A “written demand to
return the property is delivered” when it is sent simultaneously by first[-]class
mail, evidenced by a certificate of mailing, and by registered or certified mail
to the address provided by the lessee.            18 Pa.C.S.A. § 3932(b)(2).
Accordingly, our reliance on Lebron and its interpretation of the alternate
proofs of intent under the statute is proper.

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destroy[ed], convert[ed] to [her] own use or otherwise dispose[d] of the

property.” 18 Pa.C.S.A. § 3932(b). Second, the Court explained that if there

is no direct evidence available, “the prosecution [can] show intent[] through

circumstantial evidence.” Lebron, 765 A.2d at 295. To do so, it must rely

on the presumptions set forth in Section 3932(c)(1) (explaining that a

presumption of intent arises when an individual signs an agreement with “a

name other than [her] own” and fails to return the property) or Section

3932(c)(2) (explaining that a presumption of intent arises when an individual

fails to return the property within seven days of the owner making a written

demand to return it). Id. at 295-296.

       Notably, the Court in Lebron addressed the requirements of Section

3932(c)(2).     Specifically, the Supreme Court explained that, for the

presumption to apply, there must be strict statutory compliance.          Per the

Court, the statute “mandates” that a demand letter be delivered “by way of

‘certified or registered mail.’” Id. at 296. If this occurs, “a defendant is prima

facie presumed to have the requisite intent.” Id. at 295.      If, however,   the

demand letter is “not delivered in accordance with the statute,” i.e., it is not

sent via “certified or registered mail,” the presumption is inapplicable. Id. at

296.

       After careful review of the certified record, we are unable to determine

whether this appeal is wholly frivolous.      Herein, after Appellant’s counsel

indicated that he planned to file an Anders brief, the trial court provided no

explanation of why it found Appellant guilty of theft of leased property. See

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Trial Court Opinion, 6/21/19, at 1-2. More specifically, it is unclear whether

the court concluded that Appellant possessed the requisite intent because she

“intentionally deal[t] with the property as [her] own” pursuant to Section

3932(a), or because it found that the presumption of intent applied under

Section 3932(c)(2).5 18 Pa.C.S.A § 3932. If, upon hearing the evidence, the

trial court made a credibility determination and found direct evidence of

Appellant’s intent, we would conclude that the current appeal is wholly

frivolous because “the credibility of witnesses, and the weight of the evidence

are for the fact-finder to decide.” Commonwealth v. Forrey, 108 A.3d 895,

897 (Pa. Super. 2015).         If, however, the trial court determined that the

presumption under Section 3932(c)(2) applied, this appeal would be

non-frivolous since the written demand sent by Enterprise did not adhere to

the statutory requirements.6 Accordingly, we remand to allow the trial court
____________________________________________


5 Appellant signed her own name on the Enterprise agreement. N.T. Trial,
3/21/19, at 8. Therefore, Section 3932(c)(1) is inapplicable.

6 As mentioned above, our Supreme Court in Lebron made clear that the
failure to comply with the statutory requirements of Section 3932(c)(2) will
prevent a prima facie presumption of intent from arising. See Lebron, 765
A.2d at 295-296. Pursuant to Section 3932(b)(2), Enterprise was required to
send two demand letters, one “by first[-]class mail, evidenced by a certificate
of mailing” and another “by registered or certified mail to the address provided
by the lessee.” 18 Pa.C.S.A. § 3932(b)(2). Enterprise sent only a single
demand letter via Federal Express. Thus, it did not follow the requirements
set forth in Section 3932(b)(2). Counsel, however, argued in his Anders
brief, that “the legislature intended to get actual notice to a lessee before
criminal action is taken” and, because Appellant admitted to receiving such
notice, “[t]his was accomplished.” Anders Brief at 8. We cannot agree.
Indeed, the legislature amended Section 3932, effective December 8, 2008,



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to prepare a supplemental opinion setting forth its reasons for finding

Appellant guilty of theft of leased property. Said supplemental opinion shall

be filed within 45 days of the date of this memorandum.

       Case remanded. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




____________________________________________


and explicitly defined the requirements for a written demand. 18 Pa.C.S.A.
§ 3932. In doing so, it added that, in addition to registered or certified mail,
a demand letter must be sent “by first[-]class mail, evidenced by a certificate
of mailing.” 18 Pa.C.S.A. § 3932(b)(2). This negates counsel’s contention
that notice was the sole intent of the legislature. Because Enterprise sent only
a single demand letter via Federal Express, it wholly failed to comply with the
requirements of Section 3932(b)(2). Therefore, the presumption of intent
under Section 3932(c)(2) is inapplicable.

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