J-S03033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAKE WILLIAM LAZIER
Appellant No. 1326 EDA 2015
Appeal from the Judgment of Sentence April 9, 2015
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000093-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 14, 2016
Appellant Jake William Lazier appeals from the judgment of sentence
entered in the Pike County Court of Common Pleas following his jury trial
conviction for theft by unlawful taking1 and theft by deception.2 We affirm.
The conviction stems from Appellant’s sale of Gary Page’s motorcycle
to Richard Repa for $500.00. Appellant failed to inform Mr. Repa that he did
not have authority to sell the motorcycle.
The trial court summarized the testimony at trial as follows:
[W]itness Diane Taylor was in a relationship with the
motorcycle’s [] owner, Gary Page, for eight (8) years.
[N.T., 1/21/2015, at 99:18-25]. Ms. Taylor had Mr. Page
removed from her home in 2008 as a result of domestic
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1
18 Pa.C.S. § 3921(a).
2
18 Pa.C.S. § 3922(a).
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problems. Id. at 98:18-19. The motorcycle was among
many personal possessions Mr. Page left behind in the
wake of his removal. Mr. Page also testified at trial:
Well, I felt it was best to begin to get some of my
personal property back a little at a time. I thought
that if we went nice and easy and she calmed down
and she wasn't so upset that I could begin to get my
personal property and take the motorcycle last since
that was the biggest thing.
In the beginning[,] we did meet in public places and
exchange a few personal items that were mine, but it
was getting less and less. Every time I met her, I
would get just a few items. The items that I wanted
such as clothing and things of that sort[,] pictures of
my family, she wouldn’t give me.
I played the guitar for many years I couldn't get that
back I told her she can keep the furniture, because it
was part of the household that she was living in and
I didn’t want to disrupt it, so I said, “It’s furniture,
it’s old, you know, you can have that,” so I never
thought, never thought that eventually I wouldn’t get
my motorcycle back from her. I miss my
motorcycle, I mean, you know, it’s mine.
[N.T., 1/21/2015, at 74:12 - 75:7].
[Ms. Taylor testified to the following:3]
Q. You mention in 2012 you moved from the home in
Dingmans Ferry, you didn’t know where you were
going to be going, did you make arrangements for
the motorcycle to be kept someplace?
A. Yes, I did.
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3
The trial court noted that although Ms. Taylor testified that “the motorcycle
was ‘abandoned’ at her home, she was referring to Mr. Page’s failure to have
it removed therefrom, which has no bearing on whether [] the motorcycle
was ‘abandoned’ under the law when Appellant sold it. In fact, Ms. Taylor
did not abandon the motorcycle at the home when she vacated it in 2012.”
Opinion 8/25/2015, at 5.
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Q. Could you tell me about that?
A. A friend of my son[] offered to help me out and
take it, garage it where he was living.
[N.T., 1/21/2015, at 100:18 – 25].
Mr. Jamie Finnegan,[4] who lived at the home at which the
motorcycle was stored when Ms. Taylor left the Dingman’s
Ferry home[,] testified on direct examination by the
Assistant District Attorney:
Q. What's your understanding of whose motorcycle
that was?
A. I really don’t know his name totally. I know it was
a big controversy with the motorcycle, but it was
Jessie Taylor that I was looking after it for.
Q. Sir, where was that motorcycle kept?
A. In the driveway under a tarp.
Q. Sir, had you ever been spoken to by Jake Lazier
about selling that -- him selling that motorcycle or
taking that motorcycle?
A. Yes.
Q. Tell me about that?
A. On a few different occasions and I told him not to
touch it.
Q. Did you ever give him permission to sell that
motorcycle and say it was okay for him to do that?
A. No, sir.
[N.T., 1/21/2015, at 198:1-19].
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4
Jamie Finnegan was married to Appellant’s mother, Theresa Finnegan, who
also resided at the home where the motorcycle was stored. N.T.,
1/21/2015, at 136, 138.
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Appellant was aware that he had no authority to sell the
motorcycle in question, as illustrated by his mother’s
testimony on cross examination by Appellant’s attorney:
Q. Now, about this Facebook page, is it your
testimony that you had a Facebook conversation with
your son Jake?
A. Yes, sir.
Q. That he asked you if your husband would get mad
if you sold the motorcycle that was lying around?
A. Yes.
[Q. Did he ever say – and you said yes, he would get
mad?
A. Yes.
N.T., 1/21/2015, at 183:2 -17].
The buyer, Mr. Repa, testified on direct examination by the
Assistant District Attorney:
Q. What was the story [Appellant] told you about it;
if you remember?
A. Basically[,] that it belonged to his dad and his
dad’s friend and something to do with his dad’s
friend going through divorce or something like that
and it’s been sitting there for years he says.
Q. So, you offered him $700.00 for it?
A. Correct.
Q. Did he take you up on it at that time?
A. No, he told me he had to speak to his dad and his
dad’s friend or his father or somebody.
[N.T., 1/21/2015, at 220:6-16.5]
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5
Later that evening Appellant texted Mr. Repa and told him he would sell
the motorcycle for $700.00. Mr. Repa informed Appellant he now only had
(Footnote Continued Next Page)
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Opinion, 8/25/2015, at 4-7.
On January 22, 2015, the jury found Appellant guilty of theft by
unlawful taking and theft by deception. On April 9, 2015, the trial court
sentenced Appellant to concurrent sentences of 14 months to 4 years’
imprisonment on the theft convictions.
Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
1. Whether the evidence was insufficient to establish
Appellant’s conviction of [t]heft by [u]nlawful [t]aking
because the Commonwealth did not disprove the properly
raised defense of abandonment.
2. Whether the evidence was insufficient to establish
Appellant’s conviction of [t]heft by [d]eception because the
Commonwealth did not disprove the properly raised
defense of abandonment.
3. Whether the evidence was insufficient to establish that
the motorcycle was not abandoned property as defined by
Pennsylvania Law.
4. Whether the [t]rial [c]ourt erred and abused its
discretion by denying Appellant’s [m]otion for [a]rrest of
[j]udgment also known as [m]otion for [j]udgment of
[a]cquittal because the motorcycle was abandoned
property.
_______________________
(Footnote Continued)
$500.00, and Appellant agreed to sell the motorcycle for $500.00 to Mr.
Repa. N.T., 1/21/2015, at 220-21.
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Appellant’s Brief at 6. All four of Appellant’s issues raise the same question:
Whether the Commonwealth failed to present sufficient evidence of the
crimes because the motorcycle was abandoned.
We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth
v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this
standard, “we may not weigh the evidence and substitute our judgment for
the fact-finder.” Id.
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny 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.” Id. “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id.
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582.
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Further, “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.” Id.
Appellant was convicted of theft by unlawful taking6 and theft by
deception.7 A person is guilty of theft by unlawful taking where he
“unlawfully takes, or exercises unlawful control over, moveable property of
another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). Theft by
deception is defined as:
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
...
(2) prevents another from acquiring information which
would affect his judgment of a transaction . . . .
18 Pa.C.S. § 3922(a).
Abandonment is a defense to the crime of theft. See
Commonwealth v. Meinhart, 98 A.2d 392, 394-95 (Pa.Super.1953)
(finding person cannot be convicted of larceny of abandoned property,
reasoning abandoned property does not qualify as property subject to
larceny because “[i]t belongs to no one, nor is it regarded as being in the
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6
The jury found Appellant guilty of the unlawful taking of Mr. Page’s
motorcycle.
7
The jury found Appellant guilty of theft by deception of Mr. Repa’s
$500.00.
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possession of any one”). This Court has defined abandoned property as
property “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.”
Commonwealth v. Wetmore, 447 A.2d 1012, 1014 (Pa.Super.1982). We
have further noted:
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.
Id. (internal citations omitted).
At trial, the trial court stated the elements of the theft charges and
instructed the jury that the Commonwealth was required to prove all
elements of theft beyond a reasonable doubt. N.T., 1/22/2015, at 119, 121-
22, 116. It also accurately defined abandonment, using the definition
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provided by this Court in Wetmore. Id. at 120-21.8 The trial court then
stated: “It is up to you as jurors to determine whether the property in this
matter, based on the evidence that you have heard, meets the definition of
abandonment.” Id. at 121. The instructions never discussed the burden of
proof for abandonment, and never shifted the Commonwealth’s burden to
prove all elements of the crime beyond a reasonable doubt.9
There was sufficient evidence for a jury to conclude that Mr. Page had
not abandoned the motorcycle and that Appellant knew the motorcycle had
not been abandoned. Mr. Page, the victim, testified he had not abandoned
it. Ms. Taylor testified that the motorcycle belonged to Mr. Page and that it
was being stored in Jamie Finnegan’s garage. Mr. and Mrs. Finnegan
testified that the motorcycle belonged to someone and that they had told
Appellant he could not dispose of it.
Accordingly, sufficient evidence existed for the jury to find all elements
for theft by unlawful taking beyond a reasonable doubt. The Commonwealth
established that Appellant intentionally took, and sold, Mr. Page’s
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8
During deliberations, the jury requested that the court again define
abandonment, and the trial court read the same definition of abandonment
as it read during the initial instructions. N.T., 1/22/2015, at 129-30.
9
Although the trial court’s 1925(a) opinion discussed the burden of proof,
stating Appellant had the burden of persuasion as to the defense of
abandonment, the jury instructions contained no such suggestion. Opinion,
8/25/2015, at 4. The instructions stated the elements of the crimes, defined
abandonment, and stated that the Commonwealth had the burden to prove
each element beyond a reasonable doubt. This was not error.
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motorcycle, which was “property of another.” Further, the Commonwealth,
therefore, established all elements of theft by deception beyond a
reasonable doubt. The testimony established that Mr. Repa paid Appellant
$500.00 for the motorcycle, that the motorcycle was not abandoned, and
that Appellant did not inform Mr. Repa that he did not have the authority to
sell the motorcycle.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2016
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