Com. v. Madison, E. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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