Com. v. Heard, J. ( 2017 )

J-A06038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JESUS HEARD
Appellant No. 2119 EDA 2015
Appeal from the Judgment of Sentence June 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012234-2014
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 07, 2017
Heard was seen driving a stolen vehicle one week after it was stolen.
When the owner arrived to reclaim the abandoned vehicle, Heard
approached her and asked if he could retrieve his personal items from inside
the vehicle. The trial court, sitting in a bench trial, found Heard guilty of
receiving stolen property and unauthorized use of a motor vehicle. On
appeal, Heard raises two challenges to his convictions and one challenge to
the restitution imposed. After careful review, we affirm Heard’s convictions,
but conclude that the trial court denied Heard the opportunity to present
evidence on restitution, and therefore vacate the judgment of sentence and
remand for resentencing.
In his first issue on appeal, Heard argues that the evidence presented
at trial was insufficient to support his conviction for receiving stolen
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property. Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). The
Commonwealth may meet this burden of proving every element of the crime
by utilizing only circumstantial evidence. See Commonwealth v. Bruce,
916 A.2d 657, 661 (Pa. Super. 2007).
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder, so
long as the evidence presented is utterly incapable of supporting the
necessary inferences. See id. This Court does not independently assess
credibility or otherwise assign weight to evidence on appeal. See
Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004).
Here, Heard was convicted of receiving stolen property (“RSP”). Thus,
the Commonwealth was required to prove that “he intentionally receive[d],
retain[ed], or dispose[d] movable property of another knowing that it ha[d]
been stolen, or believing that it ha[d] probably been stolen, unless the
property is received, retained, or disposed with intent to restore it to the
owner.” 18 Pa.C.S.A. § 3925(a). The crime has three elements: (1)
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intentionally taking possession of another person’s movable property; (2)
knowing or believing that it has been stolen; and (3) an intent to deprive the
rightful owner of her property permanently. See Commonwealth v.
Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en banc).
Heard specifically challenges the sufficiency of the Commonwealth’s
evidence to prove that he knew or had reason to believe that the car had
been stolen. He correctly argues that evidence of mere possession of stolen
property is insufficient to establish this guilty knowledge under our case law.
See id., at 267-268.
However, we have sanctioned many other forms of circumstantial
evidence to support an inference of guilty knowledge. Evidence that the
property was only recently stolen allows for an inference of guilty
knowledge. See id., at 268. Other acceptable forms of circumstantial
evidence
may include, inter alia, the place or manner of possession,
alterations to the property indicative of theft, the defendant’s
conduct or statements at the time of arrest (including attempts
to flee apprehension), a false explanation for the possession, the
location of the theft in comparison to where the defendant
gained possession, the value of the property compared to the
price paid for it, or any other evidence connecting the defendant
to the crime.
Id. (citations omitted).
Initially, we observe that the Commonwealth presented evidence that
Heard was seen operating the vehicle six days after it was stolen. See N.T.,
Bench Trial, 4/15/15, at 7-8, 18-19. We have previously held that evidence
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of possession within a week of the theft is sufficient to permit an inference of
guilty knowledge. See Commonwealth v. Hogan, 468 A.2d 493, 498 (Pa.
Super. 1983) (en banc) (“We cannot say as a matter of law a period of four
weeks was so great as to render impermissible the inference of guilty
knowledge …”); Commonwealth v. Walters, 378 A.2d 1232, 1236-1237
(Pa. Super. 1977) (finding inference of guilty knowledge permissible based
upon evidence of possession six days after theft).
Heard argues that this Court has vacated a conviction for RSP where
the defendant was in possession of a damaged vehicle that had been stolen
a mere nine days previously. See Commonwealth v. Dunlap, 505 A.2d
255 (Pa. Super. 1985). However, Heard fails to acknowledge that the
Dunlap panel found that the recency evidence in that case was sufficient to
permit an inference of guilty knowledge. See id., at 257. The panel reversed
the conviction due to its conclusion that other circumstantial evidence
rendered the inference of guilty knowledge unreasonable. See id., at 257-
258.
Heard attempts to analogize the circumstances of the present case to
those in Dunlap. There, the defendant returned to the stolen vehicle fifteen
minutes after parking it. See id., at 257. He approached the vehicle, even
though it was surrounded by uniformed police officers. See id. He asked the
police why they were present, and voluntarily admitted that he had driven
the stolen vehicle. See id., at 258.
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The Dunlap panel quoted a previous opinion for the proposition that
“[n]ormally, a person in possession of a stolen vehicle does not stop to ask
the police for directions.” Id. (quoting Commonwealth v. Williams, 425
A.2d 795, 797 (Pa. Super. 1981)). The panel then opined that, “[s]imilarly, a
person in possession of a stolen vehicle does not normally return to the
vehicle when it is surrounded by police and civilians, ask what is the matter,
and admit to having driven the car.” Id.
In contrast, Heard did not return to the stolen vehicle until four days
after he had abandoned it. See N.T., Bench Trial, 4/15/15, at 26. He
approached an owner of the vehicle, not uniformed police officers. See id.
This distinction is important, as the owner was not likely to attempt to arrest
or otherwise detain Heard when he admitted to having driven the vehicle.
Thus, his admission was not nearly as contrary to guilty knowledge as the
defendant’s in Dunlap.
The evidence presented by the Commonwealth at trial was sufficient to
allow the factfinder to infer that Heard knew or had reason to believe that
the vehicle was stolen. Heard does not identify any innocent explanation for
his possession of the stolen vehicle. And none of the other circumstantial
evidence precluded a finding of guilty knowledge. Heard is due no relief on
this issue.
In his second issue, Heard argues that the trial court erred in failing to
grant a new trial when Commonwealth failed to disclose exculpatory
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evidence until after trial. Specifically, he argues that the Commonwealth
failed to produce an insurance claim form that would have undercut the
owner’s testimony regarding damage to the vehicle. Appellant argues that
this evidence would have impeached the Commonwealth’s contention that
damage to the vehicle supported an inference of guilty knowledge.
In Brady v. Maryland, 373 U.S. 83 (1963), the United States
Supreme Court declared that due process is offended when the prosecution
withholds evidence favorable to the accused. Heard claims that the
Commonwealth’s failure to produce the insurance form until after trial
constitutes a Brady violation. As there is simply no evidence in the record
establishing when the Commonwealth procured the insurance form prior to
turning it over, we cannot conclude that Appellant is entitled to relief. The
Commonwealth has no duty to produce a document that it or its associated
agencies do not possess. See Commonwealth v. Ovalles, 144 A.3d 957,
965 (Pa. Super. 2016) (“The duty to disclose is limited to information in the
possession of the government bringing the prosecution …”).
In his third and final argument, Heard contends that the trial court
erred in preventing him from contesting restitution. The Commonwealth
argues that this claim is a challenge to the discretionary aspects of Heard’s
sentence. See Appellee’s Brief, at 25-26. We disagree. Heard asserted his
desire to challenge the amount of restitution sought by the Commonwealth.
See N.T., Sentencing Hearing, 6/17/15, at 10-11. After indicating that it
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would address restitution later in the hearing, the trial court ultimately did
not allow Appellant to present evidence on the issue. See id., at 14-15.
Heard’s challenge is not to the weight or sufficiency of the evidence
supporting the restitution award. Rather, Heard’s claim is that he was
improperly denied the right to present evidence on the issue. And he is
correct. See Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super.
2004) (en banc) (“Although [restitution] is mandatory … it is still necessary
that the amount of the ‘full restitution’ be determined under the adversarial
system with considerations of due process.”) Sentencing courts are vested
with discretion regarding admission of evidence, but there is no indication in
the transcript that the court considered Heard’s proffer. As a result, we
vacate the award of restitution and remand for a full hearing on the issue.
Convictions affirmed, judgment of sentence vacated. Case remanded
for proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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