J-S60044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSEPH DANIEL MILLER

                            Appellant                No. 684 MDA 2014


            Appeal from the Judgment of Sentence March 18, 2014
               In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000594-2013


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 02, 2014

        In this direct appeal, Joseph Miller argues that the evidence was

insufficient to sustain his conviction for defrauding a secured creditor1,

because there was no evidence that he acted intentionally, the mens rea for

this offense. After careful review, we affirm.

        The trial court accurately summarized the evidence adduced during

Miller’s bench trial as follows:

              [Miller]'s conviction stems from a civil judgment
              entered against him which was referred to the
              Adams County Sheriff’s Office for collection. On
              November 15, 2012, Deputy Angel Garcia and
              Deputy Eddie Minor went to [Miller]'s residence at
              1865 Hilltown Road, Biglerville, Pennsylvania in
              Adams County to serve [Miller] with paperwork
              notifying him of the writ of execution on judgment
____________________________________________


1
    18 Pa.C.S. § 4110.
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          and to levy [Miller]'s personal property. N.T. 6:7-17.
          When the deputies arrived, they saw a vehicle in the
          driveway, but were unable to contact any individuals
          at the residence. N.T. 7:3-16. One of the deputies
          then called County Control to verify ownership of the
          vehicle parked in the driveway. N.T. 8:5-9. The
          search revealed that the vehicle, a Ford Bronco, was
          registered to [Miller]. N.T. 8:14. Deputy Minor filled
          out a document which listed the property on which
          the levy had been placed—the Ford Bronco—along
          with other information notifying [Miller] of the levy
          and the sheriff’s sale of the property. N.T. 8:19-25;
          9:1-7; 10:10-15. The document also specifically
          states that all items will be sold subject to any liens
          and encumbrances. N.T. 10:7-8; Com. Ex. 1. At the
          bottom, the document includes the text of section
          4110 of the Pennsylvania Crimes Code, which sets
          forth the elements and penalties associated with the
          crime of defrauding secured creditors. Com. Ex. 1.
          Before leaving the residence, the deputies left the
          document and a note stating that [Miller] should
          contact the sheriff’s office. N.T. 10:16-19.

          On December 15, 2014, Deputies Garcia and Minor
          returned to [Miller]'s residence for the purpose of
          serving the writ of execution on [Miller]. N.T. 11:10-
          22. When the deputies knocked on the door to
          [Miller]'s home, [Miller]’s son answered and agreed
          to accept the paperwork on behalf of his father. N.T.
          11:23-25; 12:1-11. Subsequently, Sergeant Jason
          Kirkner of the Adams County Sheriff’s Office sent
          formal notice of the time, date, and place of the
          sheriff’s sale to [Miller] via mail approximately thirty
          (30) days prior to the sale date. N.T. 21:5. On March
          8, 2013, the date set for the sheriff’s sale, Deputy
          Garcia and Sergeant Kirkner arrived at [Miller]'s
          residence around 8:45 a.m. for the sale scheduled to
          occur at 9 a.m. N.T. 14:5. Upon arriving, Deputy
          Garcia and Sergeant Kirkner noticed that there were
          no vehicles in [Miller]'s driveway. N.T. 13-15. After
          searching the property for the Ford Bronco and
          knocking on the front door of [Miller]'s residence,
          Deputy Garcia and Sergeant Kirkner found neither
          the vehicle nor any individuals on the property. N.T.

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            14:23-25; 15:1-11, Deputy Garcia and Sergeant
            Kirkner    stayed    at   [Miller]'s   property     until
            approximately 9:10 or 9:15 a.m., at which point
            they left to go back to the sheriff’s office. N.T. 24:5-
            17.

            While en route, Sergeant Kirkner received a
            telephone call from [Miller]. N.T. 24:20-21. [Miller]
            asked Sergeant Kirkner why members of the sheriff’s
            office were at his home. N.T. 25:4-5. Sergeant
            Kirkner responded that a sheriff’s sale had been set
            for that date, but because the Ford Bronco was not
            at the residence, [Miller] was going to be charged
            with defrauding secured creditors. N.T. 25:5-6.
            [Miller] stated that he needed the vehicle for work.
            N.T. 25:5-6. Sergeant Kirkner further advised
            [Miller] that he would not charge [Miller] with
            defrauding secured creditors if [Miller] paid the
            judgment amount. N.T. 25:12-13. Despite his
            promise to pay the amount within one (1) to two (2)
            weeks, [Miller] failed to make payment. Sergeant
            Kirkner filed the instant defrauding secured creditors
            charge on May 5, 2013. N.T. 25:17-21.

Trial Court Opinion, pp. 1-3.    The court found Miller guilty under section

4110 and sentenced him to 12 months’ probation. Miller filed a timely notice

of appeal, and both Miller and the trial court complied with Pa.R.A.P. 1925.

      The lone issue in this appeal is Miller’s challenge to the sufficiency of

the evidence. Our standard of review for such challenges is well-settled:


            [W]hether[,] viewing all the evidence admitted at
            trial   in    the  light most     favorable   to  the
            [Commonwealth as the] verdict winner, there is
            sufficient evidence 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
            the fact-finder. In addition, we note that the facts
            and       circumstances     established     by    the

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            Commonwealth need 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.


Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

      18 Pa.C.S. § 4110, entitled “Defrauding Secured Creditors,” provides:

“A person commits a misdemeanor of the second degree if he destroys,

removes, conceals, encumbers, transfers or otherwise deals with property

subject to a security interest or after levy has been made thereon with intent

to hinder enforcement of such interest.” Miller contends that the evidence

was insufficient to establish the element of intent. We disagree.

      “A person acts intentionally with respect to a material element of an

offense when. . .if the element involves the nature of his conduct or a result

thereof, it is his conscious object to engage in conduct of that nature or to

cause such a result.” 18 Pa.C.S. § 302(b)(1)(i). In this case, the evidence,

construed in the light most favorable to the Commonwealth, establishes that

Miller’s “conscious object[ive]” was to conceal or transfer his Ford Bronco in

a manner that hindered enforcement of the judgment creditor’s secured

interest. Id. As the trial court explained:




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            The       Commonwealth         presented        evidence
            demonstrating that the sheriff’s office had placed a
            levy on [Miller]'s Ford Bronco. Trial testimony also
            showed that [Miller] received notice of the levy and
            the date, time, and place set for the sheriff’s sale.
            Deputy Garcia testified that he traveled to [Miller]'s
            residence on November 15, 2012 and left paperwork
            notifying [Miller] of the property which was to be
            exposed to public sale due to the levy placed on it.
            Deputy Garcia later went to [Miller]'s residence and
            left the writ of execution with [Miller]'s son. Sergeant
            Kirkner testified that, approximately thirty (30) days
            prior to the scheduled date of the sheriff’s sale, he
            mailed notice of the sale to [Miller]. He also stated
            that notice of the sheriff’s sale of [Miller]'s vehicle
            was posted publicly in the sheriff’s office.

            [Miller] admitted that he received notice of the sale
            and was aware of the consequences which would
            result if he interfered with the property on which a
            levy had been placed with the intent to hinder
            enforcement of the creditor’s interest. [Miller] also
            admitted that he authorized his wife to take the Ford
            Bronco to work on the date scheduled for the
            sheriff’s sale. Based on [Miller]'s admissions and the
            testimony of Deputy Garcia and Sergeant Kirkner,
            [Miller]'s intent to hinder enforcement of the security
            interest can be inferred.

Trial Court Opinion, p. 5.

      Miller provides several arguments in support of his claim that he

lacked the intent to hinder enforcement of the security interest. We agree

with the trial court’s analysis of these arguments:


            [Miller] argues that, despite receiving notice of the
            sale to occur on that date, he did not believe that a
            sheriff’s sale would take place because he did not
            see notice of the sale in the newspaper. Despite
            [Miller]'s belief that the sale could not go forward
            because the sheriff’s office had not advertised the

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            sale in a newspaper, the sheriff’s office fulfilled all
            the requirements required by law for the sale of
            levied property. Pennsylvania Rule of Civil Procedure
            Rule 3128 requires, inter alia, that the sheriff give
            notice of sale of personal property "at least six (6)
            days prior to sale by handbills posted at the sheriff’s
            office, the place of sale and the place of levy, if
            different from the place of sale." Pa.R.C.P. 3128.
            Noticeably absent from the rules governing the sale
            of personal property is any requirement that the sale
            be advertised in a newspaper. Consequently,
            [Miller]'s contention that he did not believe that a
            sheriff’s sale of his Ford Bronco was going to take
            place lacks merit.

            [Miller] also claims that he did not believe that a sale
            of the Ford Bronco could go forward because it was
            owned by 30 West Auto. However, both the notice of
            the lien that [Miller] received on November 15, 2012
            and the notice of the sheriff’s sale that was sent to
            [Miller] approximately thirty (30) days prior to the
            date set for the sale explicitly stated: "All items are
            sold subject to any liens and encumbrances."
            Consequently, [Miller], who admitted receiving notice
            of the sheriff’s sale, cannot argue that his subjective
            belief that a levy could not be placed on the Ford
            Bronco would prevent the sale from taking place.
            The lien on the Ford Bronco by 30 West Auto is not
            material to the issue of whether [Miller] acted to
            hinder the sheriff’s sale by facilitating the removal of
            the vehicle with the knowledge that a sheriff’s sale
            was to take place on the date in question, especially
            given the explicit language on the notices he
            received.

      For these reasons, we hold that Miller’s challenge to the sufficiency of

the evidence is devoid of merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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