Com. v. Sachs, C. ( 2015 )

J-A10029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CRISTAL A. SACHS
Appellant No. 1531 MDA 2014
Appeal from the Judgment of Sentence July 31, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003673-2012
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2015
Appellant, Cristal A. Sachs, appeals from the July 31, 2014 judgment
of sentence of two years’ probation imposed following her conviction for
unauthorized use of automobiles and other vehicles.1 After careful review,
we affirm.
We summarize the relevant factual and procedural background of this
case as follows. Appellant became acquainted and developed a friendship
with Gerald Mikus through their workplace. N.T., 6/10/14, at 21-22. In May
or June of 2012, Appellant informed Mikus that she was facing eviction from
her residence, and Mikus offered to have Appellant and her daughter stay at
his home until Appellant “got back on her feet.” Id. at 24, 33. Mikus’ home
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1
18 Pa.C.S.A. § 3928.
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was located in Plymouth, Pennsylvania, in Luzerne County. Id. at 20. Mikus
owned a pick-up truck, his primary-use vehicle, and a 2001 white Saturn
(the car). Id. at 26. Mikus gave Appellant permission to use the car for
taking her daughter to and from school, to go grocery shopping, and to run
errands, locally. Id. at 26-27.
In August 2012, Mikus returned home after work and found that the
room Appellant shared with her daughter was empty. Id. at 28. Mikus
described the home as looking “almost ransacked;” however, nothing of
Mikus’ from inside the home was missing. Id. All of Appellant and her
daughter’s possessions were gone, along with the car. Id. Mikus called
Appellant every few days in an attempt to reach her, but she never
answered any of his calls. Id. at 29. At one point, Appellant left a message
on Mikus’ answering machine while he was at work, but she did not mention
the car or its whereabouts. Id. After approximately two weeks of trying to
contact Appellant, Mikus called the police to report the car missing. Id.
Approximately one to two weeks after Mikus reported his car stolen,
he began receiving citations from the Philadelphia Parking Authority. Id. at
30, 46. Mikus traveled to Philadelphia and recovered his car from the
Parking Authority garage where it was being held. Id. At no point did
Appellant contact Mikus about his car, nor had Mikus had any further contact
from Appellant as of the time of trial. Id. at 30.
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On September 7, 2012, the Commonwealth charged Appellant with the
aforementioned offense.2 Appellant proceeded to a two-day jury trial on
June 9, 2014. At the conclusion of the trial, the jury found Appellant guilty
of unauthorized use of automobiles and other vehicles. The trial court
sentenced Appellant on July 31, 2014. Appellant filed a post-trial motion on
August 5, 2014, and the trial court denied said motion on August 11, 2014.
Appellant filed the instant, timely appeal on September 4, 2014.3
On appeal, Appellant raises the following issues for our review.
[I.] Whether the Commonwealth failed to
present evidence sufficient to establish beyond a
reasonable doubt, pursuant to 18 Pa.C.S.[A.]
§ 3928(a), the mens rea element of the offense or
that [Appellant] operated the vehicle without the
consent of the owner?
[II.] Whether the Commonwealth failed to
present sufficient evidence to establish beyond a
reasonable doubt that [Appellant] violated 18
Pa.C.S.[A.] § 3928(a) where [Appellant]
demonstrated, pursuant to 18 Pa.C.S.[A.] § 3928(b),
that she reasonably believed that the owner of the
vehicle would have consented to her use of it had he
known?
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2
We note that the docket reflects the criminal complaint was filed on
September 10, 2012, while the criminal complaint was file-stamped on
September 7, 2012. However, “[a]lthough the trial court docket is part of
the official record, when it is at variance with the certified record it
references, the certified record controls.” Shelly Enters., Inc. v.
Guadagnini, 20 A.3d 491, 494 (Pa. Super. 2011). As such, we deem
September 7, 2012 the date the criminal complaint was filed.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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[III.] Whether the trial court erred by failing
to deliver to the jury the Pennsylvania Standard
Criminal Jury Instruction 15.3928B (Unauthorized
Use of Automobiles and Other Vehicles – Defense)
where [Appellant] presented evidence that she
believed the owner of the vehicle would have
consented to her operation of the vehicle?
Appellant’s Brief at 2.4
Appellant’s first and second issues challenge the sufficiency of the
Commonwealth’s evidence, so we begin by outlining our well established
standard of review. “In reviewing the sufficiency of the evidence, we
consider whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to the
Commonwealth as the verdict winner, support the jury’s verdict beyond a
reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.
Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
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4
For ease of our review, we have elected to review Appellant’s issues in a
slightly different order than they appear in her brief.
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appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.(internal quotation marks and citation omitted). “[T]he 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. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation
omitted), appeal denied, 99 A.3d 925 (Pa. 2014). “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
Appellant challenges her conviction for unauthorized use of an
automobile, which is codified as follows.
§ 3928. Unauthorized use of automobiles and
other vehicles
(a) Offense defined.—A person is guilty of a
misdemeanor of the second degree if he operates
the automobile, airplane, motorcycle, motorboat, or
other motor-propelled vehicle of another without
consent of the owner.
(b) Defense.—It is a defense to prosecution under
this section that the actor reasonably believed that
the owner would have consented to the operation
had he known it.
18 Pa.C.S.A. § 3928. Further, “A conviction for unauthorized use of a
vehicle must be predicated on proof that the defendant operated the vehicle
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without the owner’s consent and that the defendant knew or had reason to
know that he lacked the owner’s permission to operate the vehicle.”
Commonwealth v. Carson, 592 A.2d 1318, 1321 (Pa. Super. 1991)
(citation omitted), appeal denied, 600 A.2d 533 (Pa. 1991).
In Appellant’s first sufficiency challenge, she argues, “the
Commonwealth failed to present evidence to establish beyond a reasonable
doubt that [Appellant] operated the vehicle without the permission of
Mikus.” Appellant’s Brief at 9. Specifically, Appellant argues the evidence is
insufficient to support the conviction because Appellant “had permission to
use the vehicle, and the only real distinction is whether she had permission
to take the car to Philadelphia.” Id. at 9.5 She argues, alternatively, “the
Commonwealth failed to present evidence sufficient to establish beyond a
reasonable doubt that [Appellant] knew or had reason to know that she
lacked such permission.” Id. at 11. We disagree.
At trial, Mikus testified as follows regarding Appellant’s use of his car.
[The Commonwealth]:
Q. And you tell [Appellant] she could use [the
car]?
[Mikus]:
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5
We note the only authority Appellant cites in this portion of her argument
is Commonwealth v. Crooks, 36 Pa.D.&C. 3d 209 (C.P. York 1984), which
is not binding authority on this Court. See Barren v. Com., 74 A.3d 250,
254 n. 2 (Pa. Super. 2013) (observing that decisions from the courts of
common pleas are not binding on the Superior Court).
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A. Yes.
Q. How did he tell her she could use it?
A. Basically[,] to take her daughter to school and
grocery shopping or whatever else she needed it
during the day.
Q. Did you say, [“]You know what, [Appellant],
you’re living with me, your car now, take it[”]?
A. No. I never said that. It was always in my
name.
Q. When you came home at night, would the car
always be there?
A. Yes, most of the time. Yes.
…
Q. So you give her permission to take the car to
school, to the grocery store, around town?
A. Uh-hum.
…
Q. In around August of 2012, did there come a
point where your car went missing?
A. Yes.
Q. Why don’t you tell the jury how that
happened?
A. Well, I came home one night from my second
job. I came home, car wasn’t on the street and
nobody was in the house. The little girl or
[Appellant] were not in the house. And then I went
up to their room and the room was basically empty,
everything that they had they took with them.
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N.T., 6/10/14, at 26-29. Mikus further testified he tried to call Appellant
every few days, and she did not answer his calls. Id. at 29. Appellant
eventually called Mikus while he was at work and left a message, but she did
not mention his car. Id. Two weeks after finding his car missing, Appellant
contacted the police and reported that his car was missing. Id. The
Commonwealth further questioned Mikus as follows.
[The Commonwealth]:
Q. … Why did you eventually contact the police?
[Mikus]:
A. Because I was getting no response to the calls
[made to Appellant]. I was getting no response in
the mail until I started getting those parking things[,
i.e., the Philadelphia Parking Authority citations].
Q. You said that you assume that she went down
to Philly to see a sick aunt. Did she ever say to you,
[ ]
“ you know, I really need the car, I’ve got to go
down to Philly, my aunt’s sick[”]?
A. No.
Q. Did she ever ask permission to go to Philly with
the car?
A. No.
Q. Did she ever ask permission to take the car
overnight?
A. No.
---
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Q. Did she ever ask to take the car in a way
differently than the way she normally used it?
A. No.
Id. at 37.
Viewing the evidence and all reasonable inferences in the light most
favorable to the Commonwealth, we conclude sufficient evidence was
presented to prove beyond a reasonable doubt that Appellant operated the
car without Mikus’ consent and that Appellant knew his consent was lacking.
See Patterson, supra. Mikus gave unequivocal testimony that Appellant
did not have permission to take his car, drive to Philadelphia, and keep it
from him for weeks. See N.T., 6/10/14, at 37. Further, the jury was free to
infer that when Appellant left Mikus’ home with her daughter, their
possessions, and Mikus’ car, and did not seek permission or respond to
Mikus’ repeated phone calls, she knew such permission was lacking. See
Watley, supra. Accordingly, Appellant is not entitled to relief on this issue.
In Appellant’s third claim of error, she argues the trial court erred by
failing to deliver a requested jury instruction. Appellant’s Brief at 13. We
initially observe, “[o]ur standard of review when considering the denial of
jury instructions is one of deference-an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation
omitted). “Where a defendant requests a jury instruction on a defense, the
trial court may not refuse to instruct the jury regarding the defense if it is
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supported by evidence in the record.” Commonwealth v. Clouser, 998
A.2d 656, 658 (Pa. Super. 2010) (citation omitted), appeal denied, 26 A.3d
1100 (Pa. 2011). Further, “[w]hen there is evidence to support the defense,
it is for the trier of fact to pass upon that evidence and improper for the trial
judge to exclude such consideration by refusing the charge.” Id. (citation
omitted). Moreover, “[t]he relevant inquiry for this Court when reviewing a
trial court’s failure to give a jury instruction is whether such charge was
warranted by the evidence in the case.” Commonwealth v. Baker, 963
A.2d 495, 506 (Pa. Super. 2008) (citation omitted), appeal denied, 992 A.2d
885 (Pa. 2010).
Appellant’s specific claim of error is that the trial court failed to deliver
Pennsylvania Standard Criminal Jury Instruction 15.3928B, which follows.
Evidence has been presented in this case that the
defendant believed that the owner would have
consented to the operation of the vehicle if [he]
[she] had known about it. The effect of this
evidence is to provide the defendant with a defense
to the crime of unauthorized use of [an automobile]
[a vehicle] provided that the defendant’s belief was
reasonable. Therefore, you should find the
defendant not guilty unless you find beyond a
reasonable doubt that the defendant did not believe
that the owner would have consented to the
operation of the vehicle if [he] [she] had known
about it, or that such belief was unreasonable in the
circumstances.
Pa.S.S.J.I (Crim.) 15.3928B (brackets in original). Appellant reasons, “the
record reflects that the relationship between [Appellant] and Mikus was that
of close friends who helped each other in times of need.” Appellant’s Brief at
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14. She summarizes the evidence presented that would support the defense
as follows.
It was Mikus’[] own testimony that, at the time
of the incident, he was aware that [Appellant]
had a sick relative in Philadelphia, and that
when she left his home, he assumed that was
where she went. Additionally, according to both
[Appellant] and Mikus, [Appellant] used the vehicle
every day with Mikus’ consent. The record reflects it
was not unreasonable for [Appellant] to believe that
Mikus would have given his permission for her
to drive to Philadelphia had she asked;
therefore[,] it was an abuse of discretion by the trial
court to refuse to give Pennsylvania Standard
Criminal Jury Instruction 15.3928B and permit the
trier of fact to properly pass upon the evidence.
Id. at 14-15 (citations omitted, emphasis added).
As noted, it is a defense to the crime of unauthorized use of
automobiles and other vehicles if Appellant “reasonably believed that the
owner would have consented to the operation had he known it.” 18
Pa.C.S.A. § 3928(b) (emphasis added). However, Appellant’s entire
argument is not that Mikus did not know of her operation of his vehicle, but
that he would have consented to her use of it had she sought such
permission. See Appellant’s Brief 13-15. Therefore, by Appellant’s own
argument, she is not entitled to the jury instruction, as the evidence does
not support, nor does Appellant argue, that Mikus did not know Appellant
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was operating his vehicle.6 See Clouser, supra. Any attempt by Appellant
to distinguish Mikus’ knowledge of her operation of the vehicle, which the
evidence amply establishes, and his consent to the operation had she sought
permission is disingenuous, and no such distinction is implicated in the
defense to the crime charged. See 18 Pa.C.S.A. § 3928(b). Accordingly,
we discern no abuse of discretion by the trial court in its decision to not
instruct on the defense to unauthorized use of automobiles and other
vehicles. See Baker, supra.
Lastly, we review Appellant’s sufficiency challenge regarding her belief
of Appellant’s consent. Appellant argues she “reasonably believed that the
owner of the vehicle would have consented to her use of [the car] had he
known.” Appellant’s Brief at 11. Therefore, she argues she has a defense to
her conviction pursuant to Section 3928(b). Id. at 12.
In the instant case, as demonstrated above, viewing the evidence in a
light most favorable to the Commonwealth, the Commonwealth proved that
Appellant operated Mikus’ vehicle without his consent and that she knew or
had reason to know such consent was lacking. See Paterson, supra. As
such, the Commonwealth has met their evidentiary burden to convict
Appellant of unauthorized use of automobiles and other vehicles. Although
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6
Additionally we note, Officer Gina Kotowski of the Plymouth Borough Police
Department testified that when Mikus reported the car missing, he advised
her “[t]hat [Appellant] was sharing a home with [Mikus] and that [Appellant]
took off with his car.” N.T., 6/10/14, at 42.
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Appellant attempts to argue she proved the statutory defense to the crime,
as discussed, the trial court properly denied Appellant’s request to have the
jury instructed on the defense. Therefore, she is not entitled to relief on this
basis.
Based on the foregoing, we conclude Appellant’s arguments on appeal
do not entitle her to relief, and we affirm the July 31, 2014 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2015
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