Com. v. Cox, E.

J-A01023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

EDDY L. COX

Appellant No. 2783 EDA 2014

Appeal from the Judgment of Sentence June 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0007568-2014

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.: FILED MAY 19, 2016

Eddy L. Cox appeals from the June 6, 2014, judgment of sentence

entered in the Philadelphia County Municipal Court (“municipal court”), as

confirmed by the Philadelphia County Court of Common Pleas (“certiorari

court”) on September 18, 2014, following the denial of Cox's petition for writ

of certiorari from his municipal court conviction on one count of

unauthorized use of an automobile.1 On June 6, 2014, the municipal court

sentenced Cox to six months’ probation. On appeal, Cox raises sufficiency

and evidentiary issues. For the reasons below, we vacate the judgment of

sentence and remand for new proceedings.
____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3928(a).
J-A01023-16

The certiorari court, in its review of the municipal court’s verdict, set

forth the facts and procedural history as follows:

On March 9, 2014, the defendant, Eddy Cox, was driving a
vehicle on his way to a gas station when he was pulled over by
[Police Officer Michelle Barker]. [Officer Barker] pulled over
[Cox] because there was a “hit” on the license plate of the
vehicle indicating that it was stolen. The vehicle [Cox] was
driving had Virginia license plates on it. [Cox] did not produce
any registration for the car. However, [he stated] that he was
never asked for such documents. [Cox] stated that the car
belonged to his girlfriend but he did not give [Officer Barker] her
name, nor did he provide her contact information or contact her
himself. A defense witness testified that [Cox]’s alleged
girlfriend was located approximately three minutes away at
[Cox]’s sister’s house when these events transpired. [Cox]’s
sister testified at trial that the woman from whom [Cox]
acquired the vehicle was indeed his girlfriend, that she had
recently been to Virginia, and that she returned from Virginia
with the vehicle in question. The owner of the vehicle did not
take the stand to testify that it was his car or that [Cox] lacked
permission to operate the car. Additionally, no affidavit of
ownership and non-admission was made. Detective [Linda]
Carter[, an investigating officer,] testified that after receiving the
hit on the license plate, she called a police station in Virginia
where an officer informed her that the car had been stolen and
that there was a warrant out for a woman in relation to the
vehicle. The car was reported stolen on March 3, 2014.
Detective Carter further stated that she was faxed a copy of the
[National Crime Information Center (“NCIC”)] police report for
the stolen car and, with information from that report, called the
owner of the car. Detective Carter testified that the owner of
the vehicle was a resident of Virginia named James Brown and
that Brown did not know [Cox], nor was [Cox] authorized to use
the car.[2] The police report obtained by Detective Carter was
admitted into evidence.
____________________________________________

2
A review of the notes of testimony reveals Detective Carter did not testify
about the owner’s identity or what he said. See N.T., 6/6/2014, at 22.
However, it appears Cox admitted to these facts in his petition for writ of
certiorari. See Cox’s Petition for Writ of Certiorari, 7/7/2014, at ¶ 3.

-2-
J-A01023-16

…

On March 9, 2014, [Cox] was charged with receiving stolen
property under 18 Pa. Const. Stat. § 3925(a) and the
unauthorized use of an automobile under 18 Pa. Const. Stat. §
3928(a). The charge of receiving stolen property was dismissed
at a preliminary hearing on April 4, 2014. On June 6, 2014, a
trial was held in the Philadelphia Municipal Court and, based on
the evidence, [Cox] was found guilty of the unauthorized use of
an automobile. [Cox] was sentenced to six months of reporting
probation. On July 7, 2014, [Cox] filed a Writ of Certiorari to the
Philadelphia Court of Common Pleas on multiple grounds. First,
[Cox] argued that the trial court erred in allowing hearsay
evidence in regards to the stolen status and ownership of the
vehicle. Second, [Cox] argued that there was insufficient
evidence as a matter of law to find [him] guilty of the
unauthorized use of an automobile because the Commonwealth
did not produce proper, non-hearsay evidence, that [Cox] either
knew the vehicle was stolen or that he did not have the proper
owner’s permission to drive it. Lastly, [Cox] argued that his Due
Process rights were violated via the Confrontation Clause
because the trial court relied on testimonial, hearsay evidence
without the declarant present for cross-examination. On
September 18, 2014, a hearing was held and certiorari was
denied. [Cox] filed a timely appeal of the denial of his Writ of
Certiorari on September 27, 2014 as well as his Statement of
Matters Complained on Appeal on December 22, 2014.

Certiorari Court Opinion, 3/30/2015, at 1-3 (record citations omitted).

Based on the procedural posture of this case, we begin with the

following:

Pennsylvania Rule of Criminal Procedure 1006(1)(a) provides
that a defendant convicted in Philadelphia Municipal Court has
the right to request either a trial de novo or file a petition for a
writ of certiorari with the Philadelphia Court of Common Pleas.
This Court has held that when a defendant files a petition for a
writ of certiorari, the Philadelphia Court of Common Pleas sits as
an appellate court.

-3-
J-A01023-16

Commonwealth v. Coleman, 19 A.3d 1111, 1118-1119 (Pa. Super. 2011)

(citations omitted).3 “[A] defendant is legally required to raise all claims in a

writ of certiorari pertaining to the proceedings in the municipal court, or they

will be considered waived on appeal.” Commonwealth v. Williams, 125

A.3d 425, 431 (Pa. Super. 2015) (citation omitted). Moreover,

[a] lower court’s decision on the issuance of a writ of certiorari
will not be disturbed absent an abuse of discretion. Certiorari
provides a narrow scope of review in a summary criminal matter
and allows review solely for questions of law. Questions of fact,
admissibility, sufficiency or relevancy of evidence questions may
not be entertained by the reviewing court on certiorari. A
petition for a writ of certiorari provides an aggrieved party an
alternative to a trial de novo in the Court of Common Pleas.

Commonwealth v. Elisco, 666 A.2d 739, 740-741 (Pa. Super. 1995)

(citations omitted). When a writ of certiorari is denied, as in the present

____________________________________________

3
A panel of this Court explained the difference between the two options as
follows:

“A trial de novo gives the defendant a new trial without
reference to the Municipal Court record; a petition for writ of
certiorari asks the Common Pleas Court to review the record
made in the Municipal Court.” Commonwealth v. Menezes,
2005 PA Super 90, 871 A.2d 204, 207 n.2 (Pa. Super. 2005).
These options are mutually exclusive. Pa.R.Crim.P. 1008(A)
(“The notice [of appeal from a Municipal Court ruling] shall state
which method of review is being sought in the court of common
pleas by indicating whether it is a notice of appeal or notice of a
petition for a writ of certiorari.").

Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015),
appeal denied, 119 A.3d 349 (Pa. 2015).

-4-
J-A01023-16

case, a defendant may then raise evidentiary and sufficiency issues on

appeal. See Coleman, 19 A.3d at 1118.

Due to the nature of Cox’s claims, we will address the evidentiary

issue first. Cox claims the municipal court erred as a matter of law and

violated his confrontation rights by admitting improper hearsay evidence to

establish that the car was stolen. Cox’s Brief at 17. Specifically, he states:

In the present case, there were two instances of hearsay
introduced at trial over defense counsel’s objection. Both
instances pertained to the same factual issue of ownership of
and non-permission to use the car. Officer Barker testified, over
the defense’s objection, that NCIC listed the car as having been
stolen. The actual NCIC report was not introduced into evidence
and would have also constituted hearsay. Similarly, Detective
Carter testified, over the defense’s objection, that she spoke
with a sheriff in Virginia who confirmed that the car was in stolen
status. The sheriff in Virginia, and the source of his or her
information, were not identified. The unidentified owner of the
car never appeared in court to testify or be cross-examined as to
his ownership of the car or as to whether Mr. Cox had
permission to use it. The circumstances under which the car was
allegedly reported stolen were not disclosed. The out-of-court
statements were offered for the truth of the matter asserted and
were the only evidence of ownership and non-permission.

Id. at 18-19 (record citations omitted).4, 5

____________________________________________

4
It merits mention that a copy of the NCIC report was not included in the
certified record.
5
We note Cox does not argue that the NCIC report did not substantiate the
officer’s ability to stop Cox’s vehicle and arrest him. Commonwealth v.
McRae, 5 A.3d 425, 430 (Pa. Super. 2010) (stating “NCIC entries alone are
of sufficient reliability to provide officers with probable cause to arrest
without the addition of the warrant upon which the NCIC entry was based.”),
appeal denied, 23 A.3d 1055 (Pa. 2011).

-5-
J-A01023-16

To the extent that Cox argues his confrontation rights were violated,

we note he initially preserved this claim by raising it in his petition for writ of

certiorari and arguing it before the certiorari court. See Williams, supra;

see also Cox’s Petition for Writ of Certiorari, 7/7/2014; N.T. 9/18/2014, at

8. However, he subsequently waived the issue by failing to include it in his

concise statement. See Commonwealth v. Oliver, 946 A.2d 1111, 1115

(Pa. Super. 2008) (“In Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d

775 (2005), the Supreme Court affirmed the bright-line rule established in

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), which

requires a finding of waiver whenever an appellant fails to raise an issue in a

court-ordered Pa.R.A.P. 1925(b) statement.”), appeal denied, 960 A.2d 838

(Pa. 2008); see also Cox’s Statement of Errors Complained of on Appeal,

12/22/2014, at 1-2.

Consequently, we will limit our review to whether the municipal court

erred in admitting hearsay evidence in regards to the stolen status and

ownership of the vehicle. Our standard of review regarding the admissibility

of evidence is well-established: “[I]n reviewing a challenge to the

admissibility of evidence, we will only reverse a ruling by the trial court upon

a showing that it abused its discretion or committed an error of law. ... To

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” Commonwealth

-6-
J-A01023-16

v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted), appeal

denied, 62 A.3d 379 (Pa. 2013).

The admissibility of hearsay is addressed in Rules 801, 802, and
803 of the Pennsylvania Rules of Evidence. Rule 801(c) defines
hearsay as “a statement ... offered in evidence to prove the
truth of the matter asserted.” Pa.R.E. 801(c). Hearsay evidence
is inadmissible under Rule 802. Out of court statements are not
inadmissible hearsay, however, if they are offered for some
relevant purpose other than to prove the truth of the matter
asserted. Commonwealth v. Ali, 608 Pa. 71, 126, 10 A.3d
282, 315 (2010); Commonwealth v. Puksar, 559 Pa. 358,
368, 740 A.2d 219, 225 (1999).

Commonwealth v. Wantz, 84 A.3d 324, 336 (Pa. Super. 2014).

With regard to the NCIC records, this Court has held that NCIC records

qualify as a business records exception to the hearsay rule.

Commonwealth v. Corradino, 588 A.2d 936 (Pa. Super. 1991). The

admissibility of business records is governed by the Uniform Business

Records as Evidence Act, 42 Pa.C.S. § 6108, which provides in relevant part:

A record of an act, condition or event shall, insofar as relevant,
be competent evidence if the custodian or other qualified witness
testifies to its identity and the mode of its preparation, and if it
was made in the regular course of business at or near the time
of the act, condition or event, and if, in the opinion of the
tribunal, the sources of information, method and time of
preparation were such as to justify its admission.

Id.

Pennsylvania Rule of Evidence 803(6) is also relevant to this matter

and provides as follows:

(6) Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any
form) of an act, event or condition if,

-7-
J-A01023-16

(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and

(E) neither the source of information nor other circumstances
indicate a lack of trustworthiness.

Pa.R.E. 803 (emphasis added).

In Corradino, supra, a panel of this Court determined the trial court

did not abuse its discretion in admitting NCIC printouts under the business

records exception because a state trooper “testified in detail concerning the

identity of the printouts, when they were made, how they were obtained,

and their mode of preparation,” and therefore concluded the “testimony

provided a sufficient indication of the reliability of the printouts to warrant

their admission.” Corradino, 588 A.2d at 939.

Moreover, in Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995),

the Pennsylvania Supreme Court noted the “trial court refused to admit [an

NCIC] report because [the defendant] did not present anyone who could

testify as to the preparation or maintenance of the records kept by NCIC;

the judge indicated that he was particularly concerned about the accuracy of

-8-
J-A01023-16

the record because in his experience as a jurist, he had encountered

inaccuracies in these types of reports.” Id. at 363. The Supreme Court

stated the “inability to confirm trustworthiness is a proper basis for refusing

to admit a document as a business record.” Id.

Turning to the present matter, the testifying witness, Officer Michelle

Barker, provided no information regarding when the NCIC report at issue

was made, how it was obtained, or its mode of preparation. See

Corradino, supra. Consequently, the municipal court erroneously

overruled defense counsel’s objection to the admission of the evidence,

finding it was not hearsay.6 See N.T., 6/6/2014, at 28. Accordingly, we

conclude the municipal court erred in admitting the NCIC report as

substantive evidence that the vehicle was stolen.

____________________________________________

6
In fact, the municipal court even questioned the need for corroborating
evidence: “You’re saying that every time they want to use evidence from
NCIC, I guess, they have custodian of records from this National Database
would have to? …. But that’s what I’m saying. In every trial where NCIC is
mentioned the custodian of records from that National Organization would
have to come here in order to testify?” N.T., 6/6/2014, at 8-9.

We emphasize that a custodian of records is not required for every
NCIC report to be admitted. Nevertheless, the municipal court did not make
a specific finding that the testifying officer was a qualified witness and she
did not provide any information relating to the preparation and maintenance
of the records. See 42 Pa.C.S. § 6108. Furthermore, the court did not
make a specific finding that the NCIC report was a self-authenticating
document under Pa.R.E. 902.

-9-
J-A01023-16

Next, Cox claims the municipal court erred in allowing Detective Carter

to testify, over the defense’s objection,7 that she spoke with a sheriff in

Virginia who confirmed that the car was in stolen status because the sheriff

and the source of the information were not identified, and the owner of the

car did not appear in court to testify.

Keeping our standard of review in mind regarding the admissibility of

evidence, we find that the officer’s testimony constitutes double hearsay.

“Double hearsay is admissible if each part conforms to a hearsay exception.

Pa.R.E. 805.” Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super.

2007), appeal denied, 940 A.2d 362 (Pa. 2008). A review of Detective

Carter’s testimony reveals that the evidence at issue was in fact hearsay

subject to no recognized exception to the rule excluding such testimony.

N.T., 6/6/2014, at 16-32. Consequently, it was error for the municipal court

to allow the detective to testify to what the Virginia officer told her.

Accordingly, we find the municipal court erred in permitting Officer

Barker to testify regarding the contents of the NCIC report, and Detective

Carter to testify regarding her conversation with the Virginia sheriff.

Furthermore, as will be discussed infra, the municipal court’s erroneous

admission of this evidence was not harmless because the report and the

____________________________________________

7
N.T., 6/6/2014, at 22.

- 10 -
J-A01023-16

statements were critical to establish the stolen status and ownership of the

vehicle. Lopez, 57 A.3d at 81.

In Cox’s final argument, he claims there was insufficient evidence to

convict him of unauthorized use of an automobile because the

Commonwealth failed to demonstrate he knew or should have known that he

did not have the owner’s permission to use the car. Cox’s Brief at 11. Cox

states there are three elements to the crime: (1) the defendant operated

the vehicle; (2) of another person; (3) without the consent or permission of

that true owner. Id. at 12. He also indicates that a fourth requirement has

been recognized by decisional law, in “that the defendant act at least

recklessly with respect to the owner’s lack of consent; that he consciously

disregard a substantial and unjustifiable risk that the owner had not

consented to his use of the vehicle.” Id. at 12-13. Cox argues the

Commonwealth only proved the first element with admissible evidence, that

the second and third elements were only established by inadmissible

hearsay evidence, and the fourth was not established at all. Id. at 13. Cox

states he cooperated with police, he was driving the car with the keys, the

car was in good condition, he did not attempt to flee, and he offered an

unrebutted explanation of his lawful possession; therefore, he argues the

Commonwealth failed to prove he acted with the required mens rea because

the evidence did not establish he disregarded a substantial and unjustifiable

risk that he was operating the car without a rightful owner’s consent. Id. at

- 11 -
J-A01023-16

14-16. Lastly, Cox also asserts the certiorari court, in its Rule 1925(a)

opinion, tried to improperly shift the burden to him because he was not

required to prove that he had the owner’s permission to use the car; rather,

he contends the Commonwealth was required to prove that he did not. Id.

at 16-17.

Our standard of review in a sufficiency of the evidence
challenge is to determine if the Commonwealth established
beyond a reasonable doubt each of the elements of the offense,
considering all the evidence admitted at trial, and drawing all
reasonable inferences therefrom in favor of the Commonwealth
as the verdict-winner. The trier of fact bears the responsibility
of assessing the credibility of the witnesses and weighing the
evidence presented. In doing so, the trier of fact is free to
believe all, part, or none of the evidence.

Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008) (citations

omitted), cert. denied, 556 U.S. 1131 (2009).

The unauthorized use statute provides:

§ 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 of it.

18 Pa.C.S. § 3928. Moreover,

[i]n [Commonwealth v. Hogan, 468 A.2d 493 (Pa. Super.
1983)], we held that in order to convict one for unauthorized use
of a vehicle, it is sufficient to show that the accused acted with

- 12 -
J-A01023-16

recklessness “with respect to the lack of the owner’s consent. A
person acts recklessly with respect to such lack of consent if he
consciously disregards a substantial and unjustifiable risk that
the owner has not consented.” Hogan, 321 Pa.Super. at 313,
468 A.2d at 495-96. (Emphasis Added.) The conscious disregard
of a substantial and unjustifiable risk that one’s use of property
lacks the true owner’s consent suggests that dishonesty is an
element of the offense, and it cannot be disregarded no matter
what gloss of “recklessness” is placed upon it.

Commonwealth v. Johnson, 489 A.2d 821, 824 (Pa. Super. 1985).

Here, the certiorari court found the following:

Although there is no test for recklessness with respect to
ownership for the purposes of establishing the unauthorized use
of an automobile, Philadelphia Courts can, and have, looked at a
variety of factors. One important factor is whether the
defendant was able to produce a driver’s license or other
identifying paperwork for the car. In Commonwealth v. Hogan[,
supra], the defendant was stopped by a police officer for a traffic
violation. The defendant was unable to produce the “owner’s
card or a driver’s license.” 468 A.2d at 494. The following
inquiry conducted by the police officer on the scene revealed
that the car had been stolen four weeks prior. Id. The
Pennsylvania Superior Court held that, based on those facts “it
was not irrational to infer that he knew or should have known
that he did not have the owner’s consent to operate the vehicle.”
Id. at 497. Similarly, in Commonwealth v. Utter, the defendant
was pulled over for speeding and was unable to produce a
license or registration for the car. 421 A.2d 339, 341, (Pa.
Super. Ct. 1980). The Utter Court used that factor in
determining that the defendant did not have the owner’s
permission to operate his vehicle. Id.

…

Here, even without considering any inadmissible evidence, there
was enough admissible evidence to determine that the
defendant was acting at least recklessly with regards to the
owner’s consent to operate the motor vehicle. The defendant
was pulled over while driving a car with Virginia license plates in
Philadelphia. The defendant was then unable to produce a
driver’s license, or registration for the car. He did state that the

- 13 -
J-A01023-16

car belonged to his girlfriend, but did not give her name, nor did
he provide any other information that could have established
that he had the owner’s permission to operate the motor vehicle.
When the previous evidence is combined with the defendant’s
sister’s testimony that the woman who gave him the keys to the
car was his girlfriend, that she had just returned from Virginia,
and that she returned with the car, there was enough evidence
to find [Cox] guilty of the unauthorized use of an automobile.

Certiorari Court Opinion, 3/30/2015, at 4-6.8

We disagree. We note the Hogan Court also stated:

It was not unreasonable to expect that appellant, if an
explanation for his fortuitous possession of the stolen car had
been available, would communicate that explanation when he
was accused of unauthorized use. In the absence of any
explanation, the trier of the facts could reasonably infer that
appellant knew that he did not have the owner’s consent or, at
the very least, that he had recklessly disregarded the probability
that he did not have the owner’s consent. See: State v. Couet,
71 Wash.2d 773, 775-77, 430 P.2d 974, 976 (1967).”

Hogan, 468 A.2d at 497 (emphasis added).

As the certiorari court indicated, without considering the inadmissible

evidence, we are left with a defendant, driving a car with a Virginia license

plate, who stated that the car belonged to his girlfriend. 9 N.T., 6/6/2014, at

____________________________________________

8
We note because of the unique procedural posture of this case, the
certiorari court, in order to conduct its analysis regarding a petition for writ
of certiorari, reviewed the testimony from the municipal court trial and made
some factual determinations in order to address the legal challenges.
9
Contrary to the certiorari court’s statements, it appears Cox did give the
name of his girlfriend to Officer Barker. See N.T., 6/6/2014, at 12
(“[Defense counsel:] And the girlfriend’s name that he gave you, when you
were in that NCIC report, it didn’t come back to her, right? [Officer Barker:]
Correct.”).

- 14 -
J-A01023-16

6-12. Moreover, there was no damage to the vehicle or testimony Cox

attempted to evade the officer. Id. Therefore, the only evidence supporting

the non-permission element is that Cox did not produce a driver’s license or

vehicle registration.10 While these facts are similar to those presented in

Hogan, we still find Hogan distinguishable from the case sub judice

because, without more, it would be irrational to infer that Cox knew or

should have known that he did not have the owner’s consent to operate the

vehicle. See Hogan, supra. In Hogan, there was no question that the

vehicle was stolen, and the defendant offered no explanation as to why he

was operating a stolen vehicle. See Hogan, supra, 468 A.2d at 494

(stating “[a]n official inquiry disclosed that the vehicle had been stolen.”).

Here, however, as explained supra, the Commonwealth failed to establish

the critical element concerning the lack of the owner’s consent, and,

moreover, Cox offered an explanation for his possession of the vehicle.

Accordingly, we are compelled to reverse the judgment of sentence.

Judgment of sentence reversed. Case remanded for further

proceedings. Jurisdiction relinquished.

____________________________________________

10
As noted by the certiorari court, Cox stated that he was never asked for
such documents. Based on the questioning at the trial, it is unclear if Cox
was asked to produce those documents. During direct examination, the
prosecuted asked Officer Barker if Cox was “able to produce registration” or
“give” a driver’s license. See N.T., 6/6/2014, at 7, 11. Officer Barker did
not specifically testify that she asked for these documents.

- 15 -
J-A01023-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2016

- 16 -