J-S54014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.J.C., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA



                                                    No. 414 MDA 2014


            Appeal from the Dispositional Order February 25, 2014
               In the Court of Common Pleas of Centre County
             Juvenile Division at No(s): CP-14-JV-0000131-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                        FILED OCTOBER 08, 2014

        T.J.C. appeals from a dispositional order entered following his

adjudication of delinquency for theft by failure to make required disposition

of funds1 (M1) and receiving stolen property (RSP) (M1).2 T.J.C. was placed

on probation under the supervision of the Centre County Juvenile Court,

ordered to participate in all treatment programs deemed necessary and

appropriate, and directed to complete 25 hours of community service.3 After

careful review, we affirm in part, vacate in part and remand.

        In November 2013, while volunteering at his middle school library,

T.J.C. removed the bright orange protective case of a school-owned 7”
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1
    18 Pa.C.S. § 3927(a).
2
    18 Pa.C.S. § 3925(a).
3
  The Commonwealth withdrew its original charge of theft by unlawful
taking.
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Amazon Kindle,4 took the device out of the library, and used it in his study

hall. While using the device, T.J.C. registered his own personal account on

the device and downloaded applications5 onto it, both of which alerted school

authorities of his unauthorized use. Approximately 45 minutes after using

the device, the school librarian traced the Kindle to T.J.C. who was in study

hall. T.J.C. had placed the device inside of his three-ring binder. Although

T.J.C. initially denied possessing the device, he ultimately admitted to

having taken it from the school library.

       On appeal, T.J.C. presents the following issue for our review:

       Was the juvenile properly adjudicated delinquent on the offenses
       of Theft by Failure to Make Required Disposition of Funds
       Received and Receiving Stolen Property where the theft statute
       under which he was prosecuted was inapplicable to the de
       minim[i]s nature of the conduct by the juvenile?

       T.J.C. argues that the crimes for which he was adjudicated delinquent

were not meant to apply to his conduct in the instant case.        Specifically,

T.J.C. classifies his conduct, violating school policy, as a “de minimis”

infraction.




____________________________________________


4
 A Kindle is an e-book reader designed and marketed by Amazon.com. The
device allows users to “shop for, download, browse, and read e-books,
newspapers, magazines, blogs and other digital media via wireless
networking.” http://en.wikipedia.org/wiki/Amazon_Kindle.
5
  T.J.C. downloaded applications such as Candy Crush, Facebook and
YouTube onto the Kindle.



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       When reviewing a claim that the trial court erred by not dismissing an

infraction as de minimis, an appellate court evaluates the ruling for an abuse

of discretion; Pennsylvania courts have the discretion to remove culpable

conduct from criminal liability in certain situations.         Commonwealth v.

Beck, 810 A.2d 736 (Pa. Commw. Ct. 2002).

       At the adjudication hearing, the middle school librarian testified that,

according to school policy, two specific Kindles6 were not allowed to be

removed from the library.         Those Kindles were used for reading purposes

only and no applications were to be loaded on them.               N.T. Adjudication

Hearing, 1/16/14, at 12-13. The devices were valued between $300-$500.

Id. at 30-31. The bright orange case on the Kindle removed by T.J.C. was

marked with “Property of Bald Eagle Area High/Middle School Library” and a

library property code.      Id. at 17.     The librarian testified that the students

received library orientation in the beginning of the year, which included

information regarding the school’s policies on removing Kindles from the

library. Id. at 13.

       Approximately 45 minutes after T.J.C. left the library with the device,

the librarian tracked him down in study hall.             She testified that T.J.C.




____________________________________________


6
  The school also had two general-use e-readers that were loaned out with a
permission slip to students for use outside the library. Neither of these was
the device taken by T.J.C. in this case.



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ultimately7 admitted to her that he had removed one of these Kindles from

the library, knowing that it was against school policy and without an

authorized person’s permission. Id. at 21, 26. T.J.C., on the other hand,

testified at the hearing that he was given permission by one of the librarians

to take the Kindle out of the library and stated that he intended to return the

device at the end of the period.           Id. at 36, 37.   T.J.C. also admitted to

Pennsylvania State Police Trooper Beron F. Steager, during an interview

following the incident, that he took the Kindle from the school’s library, but

that he intended to return it. Id. at 41.

       The Crimes Code defines de minimis infractions as follows:

          (a) General rule. --The court shall dismiss a prosecution if,
       having regard to the nature of the conduct charged to constitute
       an offense and the nature of the attendant circumstances, it
       finds that the conduct of the defendant:

            (1) was within a customary license or tolerance, neither
          expressly negatived by the person whose interest was
          infringed nor inconsistent with the purpose of the law
          defining the offense;

            (2) did not actually cause or threaten the harm or evil
          sought to be prevented by the law defining the offense or
          did so only to an extent too trivial to warrant the
          condemnation of conviction; or

            (3) presents such other extenuations that it cannot
          reasonably be regarded as envisaged by the General
          Assembly or other authority in forbidding the offense.
____________________________________________


7
  Initially T.J.C. told the librarian he didn’t have the Kindle, then he changed
his story and told her he took the Kindle out of the library by mistake and
that it might be in his locker, before finally admitting he had taken it. Id. at
20.



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18 Pa.C.S. § 312. The purpose of section 312 is “to remove petty infractions

from the reach of the criminal law.” In re R.W., 855 A.2d 107, 109 (Pa.

Super. 2004) (citing Commonwealth v. Moll, 543 A.2d 1221, 1226 (Pa.

Super. 1998)).

      While recognizing the intent behind section 312, we must also balance

the purpose of that statute with the purpose of the Juvenile Act which,

consistent with the protection of the public interest, is to “provide children

committing delinquent acts programs of supervision, care and rehabilitation

which provide balanced attention to the protection of the community, the

imposition of accountability for offenses committed and the development of

competencies to enable children to become responsible and productive

members of the community.” 42 Pa.C.S. § 6301(b)(2).

      Instantly,       the   majority of        juvenile    cases involving      de    minimis

infractions    concern       the    routine      dismissal     of    marijuana     possession

adjudications, where the trial judge’s decision was based purely on the

minimal amount of drugs possessed.                 On appeal, our Court vacated those

decisions     as   a    result     of   the    judge’s     failure   to   comply      with   our

Commonwealth’s indeterminate,                 individualized sentencing policy which

requires sentencing judges to consider the crime and specific defendant in

light of the total circumstances. See In re R.W., supra; In re M.M., 855

A.2d 112 (Pa. Super. 2004).              Therefore, these cases are not relevant to

disposing of the issue at hand.               Instead, we look to a case involving the




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criminal conviction of an adult defendant to provide guidance on when

dismissal under section 312 is appropriate based on an individual’s conduct.

      In Moll, supra, our Court vacated and discharged a defendant after

he was convicted of criminal mischief for cutting a hole in a fifteen-inch

storm drain pipe, installed by the Borough of Wormleysburg, on an

easement adjacent to his property. On appeal, the defendant argued that

while he admitted he intentionally cut the hole in the pipe, he did not have

the requisite malice or criminal intent to commit criminal mischief as defined

in section 3304(a) of the Crimes Code, 18 Pa.C.S. § 3304.         Rather, he

contended that his actions were necessary to protect his property from

flooding which caused damage to the understructure of his property.        In

vacating defendant’s conviction, our Court found that the defendant’s actions

were neither reckless nor intended to place another person’s property in

danger. Finding the underlying action more akin to a civil lawsuit brought by

the borough against a local resident, our Court also noted that the

prosecution was not of the type that would effectuate the general purposes

of the Crimes Code.

      Similar to the crime in Moll, the two crimes for which T.J.C. was

adjudicated delinquent also contain an element of intent. The crime of RSP

is defined as:

      (a)   Offense defined. --A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable
      property of another knowing that it has been stolen, or
      believing that it has probably been stolen, unless the


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

18 Pa.C.S. § 3925(a) (emphasis added).

        With regard to T.J.C.’s intent to commit RSP, the librarian testified that

T.J.C. admitted he removed the Kindle from the school’s library “and that he

was not supposed to.”          N.T. Adjudication Hearing, 1/16/14, at 26.              She

could not recall if he told her that he intended to return the device to the

library when he was finished with it. Id. at 27. Although T.J.C. may have

testified that he had permission to remove the Kindle from the library and

that he planned to return it, it was up to the trial judge, as the trier or fact,

to assess the witnesses’ credibility.          See Commonwealth v. Pirela, 580

A.2d 848, 852 (Pa. Super. 1990) (issues of credibility are left to trier of fact

who is free to accept all, part, or none of witnesses' testimony).

        Based on the fact that T.J.C. removed the Kindle from its protective

case,    placed   the    device   in    his    own   three-ring   binder,    downloaded

unauthorized applications, and registered the device with his own personal

information,      we    find   that    the    evidence   supports   the     trial   court’s

determination that T.J.C. committed the crime of RSP.                       T.J.C. acted

intentionally and as a result deprived the library of its property without the

intent to return it. Compare In the Interest of B.S., 831 A.2d 151 (Pa.

Super. 2003) (no criminal intent for RSP adjudication of delinquency where

juvenile’s presence at scene was insufficient to prove that he was ever in

possession of victim's property). Accordingly, we do not find that the trial

court abused its discretion by failing to dismiss the RSP charge against T.J.C.

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J-S54014-14



as a de minimis infraction; the adjudication serves the purpose of the

Juvenile Act. Beck, supra.

        Our review of T.J.C.’s adjudication for the second charge, however,

compels a different result.    T.J.C. was also adjudicated delinquent for the

crime, theft by failure to make required disposition of funds. That offense is

defined as:

        (a) Offense defined. --A person who obtains property upon
        agreement, or subject to a known legal obligation, to make
        specified payments or other disposition, whether from such
        property or its proceeds or from his own property to be reserved
        in equivalent amount, is guilty of theft if he intentionally deals
        with the property obtained as his own and fails to make the
        required payment or disposition. The foregoing applies
        notwithstanding that it may be impossible to identify particular
        property as belonging to the victim at the time of the failure of
        the actor to make the required payment or disposition.

18 Pa.C.S § 3927(a).

        Section 3927 has historically been applied to persons who, through

virtue of their profession or position, have been legally entrusted with or

have agreed to oversee the monies or funds of third parties. As a result of

improperly dealing with those monies or failing to deposit the funds as

agreed upon by the parties, defendants are charged with violating section

3927.      Those situations often include schemes to defraud investors,

embezzlement of proceeds by government officials, conversion of payments

under a contract, and misappropriation of client funds by an attorney.

        A 14-year-old middle-school student who takes a Kindle out of his

school library without permission and uses it in study hall is not the type of


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criminal conduct intended to be proscribed in section 3927. Therefore, we

vacate T.J.C.’s adjudication for theft by failure to make required disposition

of funds received.

       Order affirmed in part and vacated in part.       Case remanded for

resentencing.8 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




____________________________________________


8
  Because our disposition may have upset the trial court’s sentencing
scheme, we remand for resentencing.



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