Com. v. Graffigna, J. ( 2017 )

J-A31033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN MICHAEL GRAFFIGNA
Appellant No. 2714 EDA 2015
Appeal from the Judgment of Sentence September 4, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0013727-2014
BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 11, 2017
Appellant, John Graffigna, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas. Appellant
challenges (1) the sufficiency of the evidence, (2) the weight of the
evidence, and (3) the legality of his sentence. We affirm the judgment of
sentence on the charge of attempted theft by unlawful taking and vacate the
judgment of sentence on the charge of conspiracy to commit theft.
The trial court summarized the facts of this case as follows:
Rochelle Ross owned a 2005 Dark Grey Mercury
Mariner. Ms. Ross had given her daughter, Adrianna
Brown, permission to use the vehicle. Ms. Brown testified
that the last time she had seen the vehicle was at the
corner of Van Kirk and Ditman [S]treets on Saturday,
October 4, 2014. Ms. Brown testified that on October 4,
2014, the car was in good condition with the exception of a
*
Former Justice specially assigned to the Superior Court.
J-A31033-16
faulty ignition, a crack in the front windshield, and a dent
on the passenger’s side. She further testified that the
vehicle was going to be towed to New Jersey, where her
mother resides, for repairs. Adrianna Brown stated that
the last time she was able to operate the vehicle was a
week or two prior to the date it went missing. Neither Ms.
Ross nor Ms. Brown knew the Appellant, nor had they
given him permission to operate the vehicle.
On October 8, 2014 at approximately 3:00 A.M.,
Detective John Logan (#9047) of the Major Crimes Auto
Squad observed the 2005 Dark Grey Mercury Mariner in
the area of 4100 Salmon Street. The vehicle had a broken
window, its license plates had been removed, the
inspection sticker had been scraped off, and that the
steering column had been ripped open. Det. Logan
testified that he ran the VIN number of the vehicle and
learned that it had been reported as stolen two days prior.
Det. Logan remained in the area in his unmarked vehicle
for approximately one hour. At approximately 4:00 A.M.,
Det. Logan observed the Appellant and another individual
pull up behind the stolen vehicle in a green tow truck.
Appellant exited the passenger side of the tow truck and
entered the driver’s side of the Mercury Mariner. Det.
Logan approached the Appellant and observed him seated
in the driver’s seat sticking a piece of metal into the shifter
release1 mechanism located in the center console. Det.
Logan testified that based on his nineteen years in the
Auto Squad, he considered the vehicle to be stolen.
____________
1
A “shift release” is a mechanism put into vehicles in the
case the vehicle is disabled and needs to be removed. By
using the shift release, the vehicle can be placed into
neutral and subsequently towed.
Trial Ct. Op., 12/16/15, at 1-2 (record citations omitted).
At trial, Det. Logan testified as follows:
[Counsel for Appellant]: Now detective, you said that you
work in Auto Squad, correct?
A: Yes.
-2-
J-A31033-16
Q: So, you’re familiar with the requirements with what an
abandoned vehicle is, correct?
A: Yes.
* * *
If a Neighborhood Services Unit would have rolled up on
the vehicle it could have been declared as abandoned
because of the fact there were no license plates. It had a
broken window which makes it a hazard. And I believe
there was some other damage on the vehicle and the
inspection stickers were removed.
So by Neighborhood Service standards and PennDot
standards it is an abandoned vehicle. However─
Q: Thank you.
The Court: Well he can finish.
The Witness: However, being in the Auto Squad for
nineteen years it also falls under─
[Counsel for Appellant]: Your Honor, this is actually not
responsive to my question.
The Court: But I will allow him to finish.
The Witness: It also falls under the standards of a stolen
vehicle abandoned on the highway with a broken ignition
and a broken window.
Q: Detective, you had no knowledge that the car was
stolen however it would appear to be abandoned; is that
fair to say?
A: When I saw the vehicle it looked stolen to me. When I
ran it if it came back not stolen I would have notified
Neighborhood Services to come and write it as an
abandoned vehicle.
N.T., 4/9/15, at 18-20.
-3-
J-A31033-16
Following a non-jury trial, Appellant was convicted of criminal attempt-
theft by unlawful taking-movable property,1 conspiracy-theft by unlawful
taking-movable property,2 and possession of instruments of crime (“PIC”).3
He was sentenced to twenty-one to forty-two months’ incarceration, followed
by three years’ reporting probation, on both attempted theft and conspiracy.
N.T. Sentencing, 9/4/15, at 29. For PIC, Appellant was sentenced to a
concurrent twenty-one to forty-two months’ incarceration. Id. This timely
appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, and the trial court filed a
responsive opinion.
Appellant raises the following issues for our review:
1. Was not the evidence insufficient for conviction on all
offenses charged, insofar as the automobile at issue
appeared to be abandoned, and therefore there is
insufficient evidence of [Appellant’s] intent to deprive
another person of their property, or to conspire to do the
same, or to use any item for criminal purposes?
2. In the alternative, was not the verdict against the
weight of the evidence, such that the trial court erred in
denying the post-verdict motion for a new trial on those
grounds?
3. Did not the trial court impose an illegal sentence on
[Appellant], by sentencing him on two separate inchoate
1
18 Pa.C.S. § 901(a).
2
18 Pa.C.S. § 903(c).
3
18 Pa.C.S. § 907(a).
-4-
J-A31033-16
offenses relating to the same crime, in violation of 18
Pa.C.S. § 906?
Appellant’s Brief at 4.
First, Appellant argues that the evidence was insufficient to convict
him of all of the charges because “property that has been abandoned cannot
be the subject of a theft-charge . . . .” Id. at 10. He contends that
the defense of mistake of fact (regarding the abandonment
of the car) was clearly raised by the evidence at trial . . . .
* * *
While that was not in fact the case, [Appellant’s] apparent
belief to that effect was clearly reasonable under the
circumstances.
* * *
Under these circumstances, the other charges also must
fall with the attempted theft. The conspiracy charge was
for a conspiracy to commit the theft, therefore since the
taking of the car would not have been a theft, it cannot
support a conspiracy to commit theft. Similarly, when a
[PIC] offense is predicated upon using the item to commit
a purported crime to which there is a defense, the PIC
charge cannot stand.
Anyone seeing the car at issue here would have
assumed it was abandoned. As it is not theft to take an
abandoned car, and as the Commonwealth did not prove
that [Appellant], in fact knew, that the car was not
abandoned, and as any reasonable observer would have
assumed that car was abandoned, the Commonwealth did
not prove the requisite intent. [Appellant’s] convictions
must be vacated.
Id. at 12-13 (citations omitted).
-5-
J-A31033-16
Our review is governed by the following principles: “A claim
challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt. . . .
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)
(citations and quotation marks omitted).
The Pennsylvania Crimes Code defines criminal attempt as follows:
(a) Definition of attempt.─A person commits an attempt
when, with intent to commit a specific crime, he does any
act which constitutes a substantial step toward the
commission of that crime.
18 Pa.C.S. § 901(a). Conspiracy is defined as
(a) Definition of conspiracy.─A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
-6-
J-A31033-16
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
* * *
(c) Conspiracy with multiple criminal objectives.─If a
person conspires to commit a number of crimes, he is
guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S. § 903(a)(1)-(2), (c). Circumstantial evidence may provide proof
of the conspiracy. Commonwealth v. Bricker, 882 A.2d 1008, 1018 (Pa.
Super. 2005).
The Crimes Code defines theft by unlawful taking-movable property as
(a) Movable property.─A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive him
thereof.
18 Pa.C.S. § 3921(a).
PIC is defined as follows:
(a) Criminal instruments generally.─ A person commits
a misdemeanor of the first degree if he possesses any
instrument of crime with intent to employ it criminally.
18 Pa.C.S. § 907(a).
In In re J.D., 798 A.2d 210 (Pa. Super. 2002), this Court found the
evidence was sufficient to support a conviction for attempted theft of an
automobile. This Court opined that
-7-
J-A31033-16
by entering the van and his co-conspirator’s tampering
with the steering wheel once inside, these acts clearly
constitute “substantial steps” toward the commission of
automobile theft. The fact that [the a]ppellant and his co-
conspirator never actually stole the car is of no import here
as [the a]ppellant was convicted of attempted theft.
Clearly, here the Commonwealth proved certain elements
of the crime by circumstantial evidence. Our review of the
evidence reveals that the Commonwealth sustained its
burden of proving each element of the offense beyond a
reasonable doubt. Therefore, [the a]ppellant’s argument
must fail.
Id. at 213.
In Commonwealth v. Meinhart, 98 A.2d 392 (Pa. Super. 1953), this
Court opined:
One of the elements of larceny[4] is a specific intent to
steal (animus furandi)—an intent to convert the goods
wrongfully to the taker’s own use or permanently deprive
the owner of their possession. Moreover, since larceny is a
crime against possession, in order to sustain a conviction
of larceny it must appear not only that there was a
wrongful caption and asportation of the goods by the
defendant, with specific criminal intent, but that the
property itself was the subject of larceny.
Id. at 394. In Meinhart, we held that abandoned property “belongs to no
one, nor is it regarded as being in the possession of any one. Because there
is no property right in it in any one it cannot be the subject of larceny.” Id.
at 395.
Abandoned property is defined as property
4
We note that larceny was a common law crime in existence prior to the
enactment of the Crimes Code.
-8-
J-A31033-16
to which an owner has voluntarily relinquished all
right, title, claim and possession with the intention of
terminating his ownership, but without vesting it in
any other person and with the intention of not
reclaiming further possession or resuming
ownership, possession or enjoyment.
Abandonment involves an intention to abandon,
together with an act or omission to act by which such
intention is apparently carried into effect. In determining
whether one has abandoned his property or rights, the
intention is the first and paramount object of inquiry, for
there can be no abandonment without the intention to
abandon. The intent to abandon is to be determined from
all of the facts and circumstances of the case. The
question of whether a particular act amounts to an
abandonment is generally one of intention. When deciding
whether an object has been abandoned, we must consider
the nature of the property, the acts and conduct of the
parties in relation thereto and the other surrounding
circumstances.
Commonwealth v. Wetmore, 447 A.2d 1012, 1014 (Pa. Super. 1982)
(citations omitted).
In the case sub judice, the trial court opined:
Based on the evidence before it, this [c]ourt was
convinced beyond a reasonable doubt that the Appellant
intended to deprive another of the 2005 Mercury Mariner.
While [Appellant] offered evidence that the vehicle could
potentially have been categorized as abandoned by
PennDOT or the Neighborhood Services Unit, [Appellant]
neglected to offer evidence pertaining to the Appellant’s
state of mind. Conversely, the Commonwealth presented
evidence that the Appellant intended to take a vehicle
which he knew did not belong to him. First, Det. Logan
noted that the vehicle had only been reported stolen two
days prior. Second, Adrianna Brown testified that besides
a faulty ignition, the car was in good condition on the day
it went missing. Third, Det. Logan explained that the
vehicle was found in a residential area where vehicles were
unlikely to be abandoned. Fourth, Det. Logan testified that
-9-
J-A31033-16
in his sixteen years of experience as a member of the Auto
Squad that the vehicle appeared to be stolen. Fifth, Ms.
Ross and Ms. Brown each testified that they did not know
the Appellant, and that the Appellant did not have their
permission to use the vehicle. Finally, Det. Logan noted
that the Appellant jammed a metal object into the shift
release mechanism in an attempt to exercise control over
the vehicle.
Based on the totality of this evidence, this [c]ourt was
convinced that the Appellant did not believe the vehicle to
be abandoned, but instead intended to take a vehicle
which did not belong to him and which he did not have
permission to use.
* * *
The evidence proffered by the Commonwealth, although
circumstantial, is sufficient to prove the existence of a
conspiracy. Specifically, Det. Logan testified that he
observed the Appellant and the other individual arrive
together, pulling up behind the stolen vehicle in a green
tow truck. Furthermore, the Appellant exited the truck
and entered into the driver’s side of the stolen vehicle.
Finally, the Appellant was discovered by Det. Logan
“jamming” a metal object into the shift release
mechanism. This [c]ourt determined that the
circumstances and conduct surrounding the criminal
episode was proof positive of an agreement between the
two individuals, shared criminal intent, and an overt act in
furtherance of the crime.
* * *
Appellant was in possession of the metal object with the
intent to use it criminally. Det. Logan testified that he
discovered the Appellant “jamming” a metal instrument
into the shift release. Based on all of the evidence before
it, the [c]ourt found that the Appellant was in possession
of the metal object with the intent to use it criminally . . . .
Trial Ct. Op. at 4-6 (record citations omitted). We agree no relief is due.
- 10 -
J-A31033-16
Instantly, Appellant was observed with another individual in the 2005
Dark Grey Mercury Mariner, which belonged to Rochelle Ross. Appellant
was in the driver’s seat attempting to place a piece of metal into the shifter
release mechanism. These acts constituted substantial steps towards the
commission of automobile theft. See 18 Pa.C.S. § 901(a); In re J.D., 798
A.2d at 213. We find the evidence was sufficient to convict him of criminal
attempt, theft by unlawful taking. See 18 Pa.C.S. § 901(a); Wetmore, 447
A.2d at 1014; Meinhart, 98 A.2d 392. Furthermore, the circumstantial
evidence was sufficient to prove the existence of a conspiracy. See 18
Pa.C.S. § 903; Bricker, 882 A.2d 1008, 1017. Viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we find the
evidence was sufficient to convict Appellant of criminal attempt, theft by
unlawful taking-movable property, conspiracy and PIC. See 18 Pa.C.S. §
901(a); 903(a); 907(a); Ratsamy, 934 A.2d at 1235-37. We discern no
error of law. See Widmer, 744 A.2d at 751.
Next, Appellant argues that the verdict was against the weight of the
evidence and the trial court erred in denying his motion for a new trial. 5
Appellant contends that
5
We note that prior to sentencing, pursuant to Pa.R.Crim.P. 607, Appellant
made an oral motion for a new trial contending the verdict was against the
weight of the evidence. See N.T. Sentencing, 9/4/15, at 3-6. The trial
court denied the motion. Id. at 5.
- 11 -
J-A31033-16
the verdict of guilt overlooks the preponderance of
evidence that the car appeared abandoned to any
reasonable observer. Therefore, as the Commonwealth
presented no evidence to the contrary, the weight of the
evidence was in favor of the conclusion that [Appellant]
would have believed it to be abandoned.
Appellant’s Brief at 15-16.
Our Supreme Court has held that
[a] motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the
discretion of the trial court. An appellate court, therefore,
reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the
evidence. The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of
the witnesses. The trial court will award a new trial only
when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of
discretion. Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the
least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations
omitted).
Appellant asks this Court to reweigh the evidence. This we cannot do.
See Ramtahal, 33 A.3d at 609. Instantly, the verdict was “not so contrary
to the evidence as to shock one’s sense of justice.” See id. We discern no
abuse of discretion by the trial court. See id.
- 12 -
J-A31033-16
Lastly, Appellant argues, and the Commonwealth agrees, that the trial
court imposed an illegal sentence6 by sentencing him on two separate
inchoate offenses relating to the same crime, in violation of 18 Pa.C.S. §
906.7 Appellant’s Brief at 16; Commonwealth’s Brief at 17. We agree relief
is due.
In Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super. 1983), this
Court opined:
[The a]ppellant was improperly convicted and sentenced
for two inchoate crimes, possession of an instrument of
crime (18 Pa.C.S.A. § 907(a)) and possession of a
prohibited offensive weapon (18 Pa.C.S.A. § 908(a)).
Conviction and imposition of sentence on both of these
charges is clearly prohibited by 18 Pa.C.S.A. § 906. . . . In
light of the error committed by the trial court, we have the
option either to remand for resentencing or to amend the
sentence directly. Since the trial court imposed identical
sentences on the two charges, both of which are
misdemeanors of the first degree, and directed that the
sentences be served concurrently, it is clear that a remand
for resentencing would not result in any change in the
sentence. Therefore, we will vacate the judgment of
sentence on the charge of possession of a prohibited
offensive weapon, and affirm the judgment of sentence on
the charge of possession of an instrument of crime.
Id. at 1269.
6
Although Appellant did not object to the sentence until his appeal, we have
previously held that a sentence which is illegal is not subject to waiver. See
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001).
7
Section 906 provides that “[a] person may not be convicted of more than
one of the inchoate crimes of criminal attempt, criminal solicitation or
criminal conspiracy for conduct designed to commit or to culminate in the
commission of the same crime.” 18 Pa.C.S. § 906.
- 13 -
J-A31033-16
In the case sub judice, the court erred in sentencing Appellant on the
charge of attempted theft by unlawful taking and on the charge of
conspiracy to commit theft. See id. Because vacating one of the concurrent
sentences will not result in any change in the sentence, we vacate the
sentence on the charge of conspiracy to commit theft. See id.
We affirm the judgment of sentence on the charge of attempted theft
by unlawful taking and vacate the judgment of sentence on the charge of
conspiracy to commit theft.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2017
- 14 -