Com. v. Johnson, B.

J-S30031-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BIANCA LOUISE JOHNSON :
:
Appellant : No. 356 MDA 2021

Appeal from the Judgment of Sentence Entered February 22, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004019-2020

BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JANUARY 14, 2022

Appellant, Bianca Louise Johnson, appeals from the judgment of

sentence imposed following her conviction of theft of leased property. 1 We

affirm.

The trial court set forth the following factual background based upon the

evidence presented at the February 22, 2021 non-jury trial:

On June 23, 2020, [Appellant] rented a 2019 Jeep Sahara
(hereinafter “the vehicle” or “rental vehicle”) from Barbush
Rentals, doing business as Avis, at the Harrisburg International
Airport. [Appellant] signed a rental agreement for the vehicle
from June 23, 2020 to June 30, 2020 and declined additional
coverages. She provided her driver’s license and credit card to
verify her identity and was the only authorized driver on the
agreement. The vehicle was not returned on June 30, 2020. John
Patterson (hereinafter “Mr. Patterson”), the director of operations
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3932(a).
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for Barbush Rentals, testified that when he learned that the
vehicle was not returned, he requested the records office to send
a letter of demand to [Appellant]. The demand letter states when
the rental vehicle was due and the timeframe that the individual
has to return the vehicle before it is reported to the police as
stolen. On or about July 10, 2020, demand letters were sent to
[Appellant] via certified and first-class mail. Neither were
returned to sender. However, Mr. Patterson testified that the
information he had from the post office stated that the certified
letter had been attempted to be delivered twice. Further,
[Appellant] did not call or attempt to extend the rental.

On or about August 19, 2020, Mr. Patterson received a phone call
that notified him that the rental vehicle was abandoned at a
business on Jonestown Road in Harrisburg. Once it was
recovered, the vehicle was turned over to the claims adjuster who
determined that the vehicle was undriveable. There was damage
to the front bumper, hood, fender, wheel, quarter panel, rear
lights, lamps, rear bumper, tires, and needed a transmission
replacement. The estimated cost to repair the damages to the.
vehicle was $11,717.73. The total amount of rental fees from
June 23, 2020 to August 19, 2020 was $4,356.

[Appellant] testified that she rented the vehicle with her boyfriend
to go on a short vacation to Atlantic City, New Jersey. They stayed
in Atlantic City for three (3) nights and four (4) days, arriving back
in the Harrisburg area before the rental period expired. Instead
of returning the vehicle, [Appellant] allowed her boyfriend to take
possession of and drive it as she had her own vehicle. When it
came time to return the vehicle, [Appellant] called her boyfriend
to inform him that the vehicle needed to be returned. During that
phone call, [Appellant] learned that her boyfriend had been in [an]
accident in the rental vehicle.

Instead of having her boyfriend return the damaged vehicle,
[Appellant] testified that she believed her boyfriend was going to
have it repaired before returning it. [Appellant] did not call Avis
to extend the rental period nor to report that the vehicle had been
in an accident. Subsequently, [Appellant] received a phone call
from her boyfriend stating that the rental vehicle was broken down
on the side of road. He explained that he had taken it to get an
oil change and the shop had improperly replaced the oil cap which
caused the vehicle to become undriveable. [Appellant] told him
to leave the keys in the vehicle and that she would take care of it.

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Thereafter, [Appellant] met up with her boyfriend [at] his
residence where he allegedly physically assaulted her. The next
day, [Appellant] flew to South Carolina where she currently
resides. Upon landing in South Carolina, [Appellant] called Avis
and informed them of where the vehicle could be located and that
the key was in the vehicle. Approximately three (3) days later,
[Appellant] saw that Avis had attempted to charge her credit card
in the amount of $4,356 which she assumed was the cost to cover
the damage to the vehicle.

Trial Court Opinion, 5/12/21, at 2-4 (record citations and footnote omitted).

At the conclusion of trial, the trial court found Appellant guilty of theft

of leased property and sentenced her to 12 months of probation, imposed a

$100 fine, and ordered her to pay $16,762.12 in restitution to Barbush

Rentals. The trial court also authorized transfer of her probationary

supervision to Dorchester County, South Carolina where she was then living.

Appellant filed a timely post-sentence motion, which the trial court denied on

March 15, 2021. Appellant thereafter filed a timely appeal.2

Appellant presents the following issues for our review:

1. Whether Commonwealth provided sufficient evidence to
establish the presumption of intent?

2. Whether the Commonwealth provided sufficient evidence of
[Appellant’s] intent to sustain the charge of theft of leased
property?

3. Whether the trial court’s finding that [Appellant] had the
requisite intent to steal the rental vehicle was shocking and an
abuse of discretion, as the testimony of [Appellant], which
negated her intent to steal the rental vehicle, outweighed any
inference of intent[?]

____________________________________________

2Appellant filed her concise statement of errors complained of on appeal on
April 19, 2021, and the trial court filed its opinion on May 12, 2021.

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Appellant’s Brief at 4 (emphasis and suggested answers omitted).

Appellant’s first two issues relate to the sufficiency of the evidence of

her conviction. A challenge to the sufficiency of the evidence presents a

question of law and is subject to plenary review under a de novo standard.

Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing

the sufficiency of the evidence, we must determine whether the evidence

admitted at trial and all reasonable inferences drawn therefrom, viewed in the

light most favorable to the Commonwealth, were sufficient to prove every

element of the offense beyond a reasonable doubt. Id. “[T]he facts and

circumstances established by the Commonwealth need not preclude every

possibility of innocence.” Commonwealth v. Wallace, 244 A.3d 1261, 1274

(Pa. Super. 2021) (citation omitted). “The Commonwealth may sustain its

burden of proving every element of the crime beyond a reasonable doubt by

means of wholly circumstantial evidence.” Id. (citation omitted). Finally, we

note that the trier of fact has the authority to determine the weight of the

evidence and credibility of the witnesses and is free to believe all, part, or

none of the evidence. Id.

The theft of leased property statute, Section 3932 of the Crimes Code,

provides, in relevant part 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:

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(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:

(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.

18 Pa.C.S. § 3932(a)-(c).

Under the statute, the Commonwealth must prove that the defendant

“deals with [leased] property as his own” and that he does so “intentionally.”

18 Pa.C.S. § 3932(a). The statute provides that a defendant “‘deals with the

property as his own’ if he sells, secretes, destroys, converts to his own use or

otherwise disposes of the property.” 18 Pa.C.S. § 3932(b)(1). While the

statute provides that the Commonwealth may prove the defendant’s mens rea

directly, the Commonwealth may also establish the defendant’s intent through

the operation of one of two statutory presumptions. 18 Pa.C.S. § 3932(c);

see also Commonwealth v. Lebron, 765 A.2d 293, 294-95 (Pa. Super.

2000) (providing that the Commonwealth may prove a defendant’s intent

through direct evidence or through the statutory presumptions). Relevant

here, intent may be presumed where it shown that the defendant “fails to

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return the property to its owner within seven days after a written demand to

return the property is delivered.” 18 Pa.C.S. § 3932(c)(2). A written demand

letter is considered as “delivered” under the statute where “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” defendant. 18

Pa.C.S. § 3932(b)(2).

In his first issue, Appellant argues that there was insufficient evidence

to support the trial court’s finding that the Commonwealth was entitled to a

presumption of intent under Section 3932. Appellant contends that the

Commonwealth could not avail itself of the presumption as it only submitted

a copy of the demand letter itself and did not submit evidence to show the

required methods of delivery, including a copy of the certificate of mailing and

a copy of the receipt showing that the letter was also sent by registered or

certified mail. Appellant argues that “the clear and unambiguous language

of” Section 3932 demands that proof of mailing is shown by documentary

evidence before the presumption attaches. Appellant’s Brief at 12.

Second, Appellant argues that, without the benefit of the presumption,

the Commonwealth did not prove that Appellant “intentionally deal[t] with

[the vehicle] as [her] own” by showing that she “s[old], secrete[d],

destroy[ed], convert[ed] to [her] own use or otherwise dispose[d] of the

[vehicle].” 18 Pa.C.S. § 3932(a), (b)(1). Appellant argues that there was no

evidence that she converted the vehicle or otherwise dealt with it as her own.

Appellant relies on our decision in Lebron, the only published decision

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interpreting the theft of leased property statute, wherein this Court held that

the Commonwealth had not met its burden at a preliminary hearing of

demonstrating prima facie evidence of a violation of the statute. Appellant

argues that our analysis in Lebron supports a finding that the evidence here

was insufficient because the vehicle here was recovered by the lessor in similar

circumstances but in shorter of a time period as compared to Lebron.

Addressing Appellant’s sufficiency challenge in its Pa.R.A.P. 1925(a)

opinion, the trial court concluded that the evidence was sufficient to support

Appellant’s conviction whether the presumption of intent was given effect or

not. The court stated that the statutory presumption of intent requires only

that the lessor sent a written demand letter by first class mail and either

registered or certified mail but that proof of actual delivery is not required.

Trial Court Opinion, 5/12/21, at 8-9. The court noted Mr. Patterson’s

testimony that, following Appellant’s failure to return the vehicle on the date

provided in the rental agreement, Barbush Rentals sent a letter to Appellant’s

address provided in the agreement demanding the vehicle’s return. Id. at 9;

N.T., 2/22/21, at 10. This letter was submitted into the evidence, and Mr.

Patterson further testified that the letter was sent via first class mail and

certified mail and the letter was not returned as undeliverable. N.T., 2/22/21,

at 10-11; Commonwealth Exhibit 3. On the basis of this evidence, the trial

court applied the statutory presumption that Appellant acted intentionally in

dealing with the vehicle as her own. Trial Court Opinion, 5/12/21, at 9.

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The trial court further explained that “[n]otwithstanding the

presumption, [] the Commonwealth presented sufficient evidence to prove

Appellant possessed the requisite mens rea beyond a reasonable doubt.” Id.

at 9. The court explained as follows:

Appellant was the only authorized driver on the rental agreement
and admitted that she permitted her boyfriend to take possession
of and drive the vehicle before the rental period expired. She
further admitted that she did not contact [Barbush Rentals, doing
business as] Avis[,] to extend the rental period or notify them of
the damage when she first learned of the accident. Further, when
her boyfriend subsequently called to say the vehicle was
undriveable, Appellant told him to leave the keys in the car and
that she would take care of it.

As this [c]ourt articulated at the conclusion of the bench trial,
“[w]hen you wreck it, change the oil on it, don’t disclose the
accident, don’t tell the owner what’s going on with their car, that’s
not just not returning a leased car on time. That’s treating the
vehicle as their own as opposed to it being a leased vehicle.”
[N.T., 2/22/21, at 53]. Accordingly, we find that the evidence
submitted at the bench trial, together with all reasonable
inferences derived therefrom, was sufficient to sustain the
conviction of theft of leased property.

Id.

Upon review, we agree with the trial court that Appellant’s intent to deal

with the rental vehicle as her own was established beyond a reasonable doubt

at trial and we therefore do not rely on the statutory presumption of intent.

As was made clear at trial, Appellant was the sole party on the vehicle rental

agreement, but she decided to allow her boyfriend to continue using the

vehicle after their trip to Atlantic City even though he was not an authorized

driver on the rental agreement. N.T., 2/22/21, at 6-9, 34-35, 46. Upon the

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expiration of the rental contract term, Appellant asked her boyfriend to return

the car, but he told her that the vehicle had been damaged in an accident;

Appellant then chose not to call Barbush Rentals but instead authorized him

to attempt to repair the vehicle himself. Id. at 37-39, 40-41, 47-48. At some

point later, Appellant’s boyfriend informed her that the vehicle was

undriveable due to a faulty oil change; while Appellant told her boyfriend to

leave the vehicle by the side of the road with the keys inside and that she

would take care of it, she did not immediately call the rental company but

instead waited several days until she had traveled to South Carolina. Id. at

41-43, 48-49. Appellant thus made no effort to contact the rental company

about the vehicle’s condition until well over a month past the date the vehicle

was to be returned. Id. at 48-49.

While Appellant tries to find support from Lebron, we find the

comparison to our earlier decision to be inapt. In Lebron, the defendant

returned to the intersection where he parked his rented car in New York City

and discovered that it had been struck by a drunk driver and towed by

authorities. 765 A.2d at 294. The defendant testified at his preliminary

hearing that he believed that the police would contact the rental company to

report the accident and, in any event, he did not have the company’s

telephone number as his rental paperwork was locked in the vehicle’s glove

box. Id. The trial court dismissed the charges, and this Court affirmed the

dismissal on the basis that the Commonwealth had presented no evidence

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that the defendant had intended to deprive the rental company of their

vehicle. Id. at 294-95.

Here, by contrast, there is ample evidence to show that Appellant took

intentional steps to treat the rental vehicle as her own by deciding to allow

her boyfriend to keep the vehicle for his use after the expiration of the rental

agreement and permitting him to have the vehicle repaired himself when it

was in an accident. Appellant continued to keep Barbush Rentals in the dark

about the status and whereabouts of the vehicle for well over a month

following the expiration of the rental agreement. Moreover, unlike Lebron,

there is no indication that Appellant lacked the contact information for the

rental company as she ultimately reported the location of the vehicle to

roadside assistance after she had moved to South Carolina. Accordingly, we

conclude that Appellant is not entitled to relief on her first two issues

challenging the sufficiency of the evidence of her theft of leased property

conviction.3
____________________________________________

3 In so ruling that the evidence proved Appellant’s guilt of theft of leased
property without the benefit of the statutory presumption of intent following
the lessor’s mailing of a written demand letter, we do not address Appellant’s
first argument that Section 3932 requires the submission of documentary
evidence of the method of delivery before the presumption attaches. We note
that in Lebron, this Court held that the presumption does not apply where
the demand letter is returned to sender as undeliverable. 765 A.2d at 296.
However, after Lebron, the General Assembly amended the statutory
language relating to the demand letter presumption, providing that the letter
is considered as “delivered” when “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. § 3932(b)(2), as amended
(Footnote Continued Next Page)

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In her final issue, Appellant argues that the verdict was against the

weight of the evidence based upon her testimony that her boyfriend was the

individual who caused the damage to the vehicle and promised to fix it, that

it was her first time renting a car and she “freaked out” when she found out

about the damage, and that she always intended to return the vehicle when

it was repaired. N.T., 2/22/21, at 37-41, 45. Appellant also notes her

testimony at trial that when she ultimately confronted her boyfriend after

discovering that the vehicle was undriveable, her boyfriend physically

assaulted her, which led to her decision to immediately fly to South Carolina

to live with her parents. Id. at 42-43.4

____________________________________________

by Act of Oct. 9, 2008, P.L. 1403, No. 111, § 1. Following the amendment,
this Court has not had occasion to interpret the proof necessary to
substantiate this presumption.
4 Within the context of her weight-of-the-evidence claim, Appellant also
asserts that the trial court’s verdict violated Article I, Section 16 of the
Pennsylvania Constitution, which generally prohibits imprisonment based on
an individual’s status as a debtor. See Pa. Const. Art. I, § 16 (“The person of
a debtor, where there is not strong presumption of fraud, shall not be
continued in prison after delivering up his estate for the benefit of his creditors
in such manner as shall be prescribed by law.”); Commonwealth v. Mutnik,
406 A.2d 516, 518-19 (Pa. 1979). This issue was not raised in Appellant’s
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and is
therefore waived. See Commonwealth v. Proctor, 156 A.3d 261, 267 (Pa.
Super. 2017). Moreover, even if not waived, we would not find merit in
Appellant’s constitutional argument as a sentence of incarceration was not
imposed upon her and there appears to be no support for the application of
Article I, Section 16 in the context of a criminal conviction. See Mutnik, 406
A.2d at 519 (holding that Article I, Section 16 related only to civil punishment
for debt and does not bar a defendant’s imprisonment following conviction of
passing a bad check).

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We are guided by the following principles when reviewing a claim that a

verdict is against the weight of the evidence. “The weight of the evidence is

exclusively for the finder of fact, who is free to believe all, none or some of

the evidence and to determine the credibility of witnesses.” Commonwealth

v. Clemens, 242 A.3d 659, 667 (Pa. Super. 2020) (citation omitted). A

verdict will only be reversed as against the weight of the evidence where the

evidence is “so tenuous, vague and uncertain that the verdict shocks the

conscience of the court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326

(Pa. Super. 2019) (en banc) (citation omitted). The fact-finder is charged

with the responsibility to resolve contradictory testimony and questions of

credibility, and we may not substitute our judgment in place of the fact-finder.

Commonwealth v. Cramer, 195 A.3d 594, 600 (Pa. Super. 2018).

A motion for a new trial based on a weight-of-the-evidence claim is

addressed to the discretion of the trial court, and therefore we review only the

lower court’s exercise of discretion and not the underlying question of whether

the verdict is against the weight of the evidence. Wallace, 244 A.3d at 1276.

When reviewing a trial court’s determination on a weight claim, we give the

“gravest consideration to the findings and reasons advanced by the trial

judge” because it is the trial judge, not the appellate court, that had the

opportunity to see and hear the evidence presented. Id. (citation omitted).

The trial court addressed Appellant’s weight-of-the-evidence claim as

follows:

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In the present case, the weight of the evidence supports the
conviction. Appellant rented a vehicle from Avis, did not return
the vehicle when it was due, allowed her boyfriend to take
possession of and drive the vehicle, did not disclose that the
vehicle had been in [an] accident when she was informed by her
boyfriend, permitted her boyfriend to keep the vehicle to fix any
damage caused by the accident, and then when the vehicle
became undriveable, told her boyfriend to leave the keys in the
car and she would take care of it. Appellant’s own testimony
establishes the requisite intent to deal with the rental vehicle as
her own. Therefore, this [c]ourt did not err in denying Appellant’s
post-sentence motion for a new trial based on a challenge to the
weight of the evidence.

Trial Court Opinion, 5/12/21, at 10.

We discern no abuse of discretion in the trial court’s determination that

the verdict was not so tenuous, vague, and uncertain to shock the court’s

conscience. As the trial court explained, Appellant’s conviction was based in

large part on her own testimony regarding her actions and omissions

concerning the vehicle. Therefore, the court did not disregard Appellant’s

testimony but rather considered it in full in arriving at its verdict. While

Appellant appears to have had no role in damaging the vehicle, that does not

alter the fact that she signed the rental contract and then permitted her

boyfriend to use it for approximately a month and a half after the rental period

ended, failing to inform the rental company that the vehicle was damaged

during this entire period.

Appellant’s final appellate issue merits no relief. Accordingly, we affirm

the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2022

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