HomeMy WebLinkAboutCP-21-CR-0401-2007COMMONWEALTH : IN THE COURT OF COMMON P1EAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. : CHARGE: THEFT OF PROPERTY LOST,
MISLAID OR DELIVERED BY
MISTAKE
CHRISTOPHER JOHN
BLATNIK
OTN: K2888126 : CP -21 -CR -0000401-2007
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 14, 2008.
In this interesting criminal case, which might be captioned "What Goes
Around Comes Around," the perpetrator of a theft was identified when he sold the
item stolen to the victim over the Internet. From a sentence of probation,'
Defendant has filed an appeal to the Pennsylvania Superior Court.
The sole basis for the appeal has been expressed in a statement of matters
complained of on appeal as follows:
Did the court err in how it answered the question presented by the
jury during deliberations [as to the elements of the crime]?'
STATEMENT OF FACTS
As the result of an incident of theft shortly before midnight on Friday,
August 18, 2006, Defendant was charged with theft of property lost, mislaid or
delivered by mistake .4 A jury trial was held on January 29, 2008.
Evidence at trial in support of the prosecution tended to show that
sometime between 9:30 p.m. and 11:00 p.m.5 on that Friday6 a motorcycle helmet
' Order of Court, January 29, 2008. The Commonwealth recommended a sentence of probation
in Defendant's case based upon the sentencing guidelines. N.T. 113, Trial, January 29, 2008
(hereinafter N.T. —).
2 Defendant's Notice of Appeal, filed February 28, 2008.
s Defendant's Concise Statement of Matters Complained of on Appeal, filed March 28, 2008.
4 Criminal Complaint, filed November 20, 2006.
s N.T. 11.
6 N.T. 10.
owned by the victim, Adam M. Grove,7 was stolen from the victim's motorcycle
to which it was chained.$ The theft occurred outside a restaurant/bar9 known as
the Gingerbread Man on West Main Street10 in the Borough of Mechanicsburg,
Cumberland County, Pennsylvania," while the victim was dining in the
establishment12 and the motorcycle was parked on the street in front of it. 13 The
helmet at the time of its theft was worth $389.00,14 and contained stickers on the
back including a US Navy decal indicating a ship on which the victim had served,
an American flag, and a reflective strip. 15
At 1:48 p.m. the following day, 16 Defendant, who lived in Mechanicsburg
within one mile of the locus of the theft, 17 placed the item on an Internet auction
site known as eBay. 18 The victim, seeking a replacement helmet, initiated a search
on eBay for a helmet of the type stolen from him,19 and came upon Defendant's
advertisement, complete with photograph 20 and an indication that the item was
located in Camp Hill, Cumberland County, Pennsylvania .21 Defendant's
advertisement represented, inter alia, that he had used the helmet, that he had been
7 N.T. 4, 16.
'N.T. 11-13.
9 N.T. 23.
10 N.T. 49.
" N.T. 10.
12 N.T. 24.
13 N.T. 11.
14 N.T. 8.
15 N.T. 29.
16 N.T. 81.
17 N.T. 45.
18 N.T. 69.
19 N.T. 15.
20 N.T. 18; Commonwealth's Ex. 2, Trial, January 29, 2008 (hereinafter Common-
wealth's/Defendant's Ex. �.
2' N.T. 18.
2
"surprised on how well it stays in place and doesn't move up your face when
exposed to speed," and that he was selling it because he "was planning on having
it airbrushed ... but decided not to."22
Having experienced an "ah -ha" moment when he saw the local venue and
picture of the helmet,23 the victim bid on it and won. 24 He then contacted the
Mechanicsburg Borough Police Department ,25 was told to follow up with
Defendant to acquire possession of the helmet pursuant to his winning bid, 26 and
attempted without success to do so for a period of three days .27 On August 26,
2006, Police Officers Keith Anthony and Brian Curtis of the Mechanicsburg
Borough Police Department went to Defendant's residence '28
and retrieved the
stolen helmet from him.29
Defendant told the officers, according to Officer Anthony, that he had
found the helmet along the curb in front of the Ginger Man establishment on
Friday of the previous week ,30 that he had not turned it in to police because he had
checked the newspaper and found no report of it in the lost-and-found,31 and that
he had regarded himself as the owner on a theory of "finders -keepers .„32 He told
the officers to take it with them if it was stolen.33
22 Commonwealth's Ex. 2.
2s N.T. 22.
24 N.T. 18; Commonwealth's Ex. 2.
2s N.T. 20.
26 N.T. 21, 44.
27 N.T. 21.
2s N.T. 46. The officers had a search warrant but apparently did not execute it. N.T. 44-57.
29 N.T. 47.
so N.T. 48-49.
31 N.T. 49.
12 N.T. 49.
” N.T. 49.
3
Defendant's testimony at trial was to the effect that on Saturday, August 19,
2006, at around 1:00 a.m. he was out jogging in downtown Mechanicsburg.34
Along Route 114, he noticed the helmet in question on a curb near some trash
cans, in a "nasty" state, covered with mud and dirt and wet inside, according to his
testimony. 35 During the next several hours, Defendant testified, he worked to
restore the helmet to presentable condition '36 called a friend, at 3:00 a.m., to see if
the helmet might have been one which the friend or an acquaintance of the friend
had lost,37 and photographed the item for the auction .38 He described the work he
did on the helmet as follows:
I took the dirt off. I scrubbed the bugs off, which took
approximately 45 minutes. I sprayed the entire helmet with Goo Gone,
you know, it's a tar remover. I put several coats of that on because it was
so hard to get off. And then after the bugs were off, I washed it again to
get all of the debris off.
Then I started to wet sand it because there were many surface
imperfections in the helmet, and it was—it was pitted, and that is when I
proceeded to wet sand it, and wet sanding it is—you take sandpaper and
you go through different grades, the same thing as an auto shop. If you get
in a car wreck, and whoever would paint your car, they would wet sand the
area so that they could get all of the surface imperfections off, but the
helmet doesn't have that layer of clear coat. It's just the top shell layer,
and it's actually—that is what it is molded into the paint—or into the layer
on the top where you see the yellow at, and it's actually on a layer. So I
could take more than, you know, a couple millimeters of an inch off it and
not worry about it going down to bare which—where you would with a
39
car.
Defendant replied "absolutely not" to a question as to whether he had told
the police that he had found the helmet in front of the Gingerbread Man
establishment .40 Contrary to Officer Anthony's testimony as to what the police
34 N.T.
61-62.
3s N.T.
63-64, 85.
36 N.T.
64-66, 82.
37 N.T.
89.
3s N.T.
78.
39 N.T.
66.
40
N.T.
63.
11
had been told, Defendant said he told them that the helmet had been found "in the
trash. ,41 However, he conceded that trash collection on the street where he
claimed he found the item early Saturday morning was on Fridays.42 He admitted
that information he placed on eBay about the history of the item was false.43
In response to a question from his counsel as to whether he had stolen the
helmet, Defendant replied "absolutely not. ,44 Given the condition of the item and
its location near trash cans when he found it, according to Defendant's testimony,
he believed that it could have been discarded.41
In their closing arguments to the jury, both counsel seemed to view the
issue for resolution by the jury to be whether the Commonwealth had proven
beyond a reasonable doubt that Defendant's story about finding the helmet in trash
on Route 114 was a fabrication and that he had in fact taken it from the motorcycle
on Main Street. In this regard, Defendant's counsel argued as follows:
... We heard a lot of testimony concerning the possibility of how the
helmet was stolen.
We have Chris. Stand up for a second. He is about 6' 8", 6' 9",
alleged to have taken—even though it wasn't explicit in this case, to have
taken this giant yellow helmet from a motorcycle in front of the G-man,
the Gingerbread Man....
Now, you heard testimony that it was locked onto the motorcycle.
Now, in order for Chris—even though he's a large man, he can't break a
lock with his bare hands. He would have to probably carry bolt cutters.
Now, you would have to believe that he walked up in front of the G-man
knowing that there was a helmet there that was chained, with a pair of bolt
cutters, and to cut the chain and take it with him, along with the helmet
and the gloves that were alleged to have been there.
Now, imagine that Friday night in front of a bar, 9:00, it's prime time.
Don't you believe somebody there could have seen a large man with bolt
41 N.T. 78.
42 N.T. 83-84.
43 N.T. 79-80.
44 N.T. 61.
4s N.T. 77-78.
E
cutters taking off a helmet? There's a lot here that is left to, I guess the
imagination .. 46
Now, it is easy to fall into the idea that he had it, he must have taken
it, that's it. You need to hold the Commonwealth to its burden.47
He did not take this helmet. He did not intend to keep this helmet. It
was not his. He thought it was trash.48
The argument of Jonathan R. Birbeck, Esq., for the prosecution included
the following:
... [L]adies and gentlemen, Christopher Blatnik is probably the most
unlucky lad in Central Pennsylvania in August of 2006. He steals Mr.
Grove's helmet right off his motorcycle. He makes it home with the
helmet. He posts it on E -bay. Two people bid on the helmet. One of them
happens to be the guy he stole it from.49
Good grief, Christopher Blatnik must have said to himself, how
unlucky am I? I got this thing posted, and all of a sudden the owner's
bidding on it. I'm in trouble now. I better come up with a story. I can't
deny that I've got it because all over the planet is posted the E -bay listing
with ... my address in Mechanicsburg and my name Christopher Blatnik.
What am I going to do now?
I'll say I found it.so
"[T]here's a caveat in the statute that talks about if you come into
possession of something that you believe—now, if you stole it you
certainly believe it ain't yours—is lost, mislaid or delivered to you by
mistake, you are not allowed to keep it. 51
He stole it. He got caught with it. He listed it on E -bay 12 hours after
he came into possession of it. Unlucky for him the owner's bidding on it,
and now we have his name and address so we can take the helmet into our
46 N.T. 2-3, Closing arguments, January 29, 2008.
47 N.T. 4, Closing arguments, January 29, 2008.
48 N.T. 5, Closing arguments, January 29, 2008.
49 N.T. 5, Closing arguments, January 29, 2008.
so N.T. 6, Closing arguments, January 29, 2008.
" N.T. 7, Closing arguments, January 29, 2008.
0
possession and bring it to court to you. He is guilty of the theft offense.
Find him guilty....SZ
In its charge to the jury, the court instructed on the elements of the offense
of theft of property lost, mislaid or delivered by mistake in accordance with the
Pennsylvania Suggested Standard Criminal Jury Instructions as follows:
The defendant in this case has been charged with Theft of Property
Lost or Mislaid. In order to find the defendant guilty of this offense, you
must find that each of the following five elements has been proven beyond
a reasonable doubt.
First, that the defendant came into control of the property in question.
In this case the property in question is the helmet with the visor. Second,
that the property was the property of another person, and in this case that
the other person was Mr. Grove. Under the law property of another
includes property in which any person other than the defendant has an
interest on which the defendant is not privileged to infringe. Third, that
the defendant knew the property was lost or mislaid, and fourth, that the
defendant intended to deprive the owner of the property. To intentionally
deprive someone of the property means the defendant consciously acted to
either permanently keep the property or the defendant acted to keep the
property for a long enough period of time so that most of the value of the
property is kept by the defendant.
Another way the defendant could consciously deprive the owner of
the value of the property is if the defendant's intention is to only give the
property back on payment of a reward or compensation or if the defendant
gets rid of the property so as to make it unlikely the owner will ever get it
back.
And a fifth element is that the defendant failed to take reasonable
measures to restore the property to the owner of it. If after considering all
of the evidence you find that the Commonwealth has established beyond a
reasonable doubt all of the elements I have stated, you should find the
defendant guilty of theft. Otherwise you must find the defendant not
guilty.53
Shortly after commencing deliberations, and not surprisingly in view of the
instruction as to the third element of the offense—that the defendant knew the
property was lost or mislaid when he came upon it—the jury submitted the
following request to the court:
52 N.T. 8, Closing arguments, January 29, 2008.
53 N.T. 99-100; see Pennsylvania Suggested Standard Criminal Jury Instructions 15.3924 (rev.
April 2005).
7
We need the list of the five things the Commonwealth must prove.14
Given the evidentiary posture of the case, it seemed probable to the court
that at least some members of the jury were having difficulty reconciling the
elements of the offense as instructed with the dispute between the parties as to
whether Defendant had in fact found the item as opposed to having stolen it
himself. Defendant's counsel was of the view that the court "should respond by
giving a strict reading of what the elements [of theft of property lost, mislaid or
delivered by mistake] are with no additions. ,55
The position of the Commonwealth on the issue of a response to the
question was as follows:
I'd like the Court to explain the term of theft to the jury. There's a
variety of different types of thefts. There could be a theft by deception, by
extortion, services, receiving stolen property or theft of mislaid property,
and the standard variety theft. I believe they're all cognate in one form or
another, but the Court should explain that a theft is a theft is a theft, to
quote Gertrude Stein. 16
Ultimately, the court reiterated the instruction previously given and
amplified upon it as follows:
There is one further provision of the Crimes Code that your question
may or may not implicate, and to the extent that it may implicate it, I want
to give you the statement of law on that point. Conduct denominated theft
under Pennsylvania Law constitutes a single offense. An [accusation] of
theft may be supported by evidence that it was committed in any manner
that would be theft under the law. Notwithstanding the specification of [a]
different manner in the information.
Now, to the extent that your question may relate to that provision and
you have any further questions for more clarification on the point, I would
be more than happy to answer them in response to a written request. 57
No further questions were asked by the jury, which returned a verdict of
guilty a few minutes later .58
54 N.T. 107.
55 N.T. 107.
56 N.T. 107-08.
57 N.T. 110.
58 N.T. 111-12.
'3
STATEMENT OF LAW
Under Section 3902 of the Crimes Code, the legislature has provided as
follows:
Conduct denominated theft in this chapter constitutes a single offense.
An accusation of theft may be supported by evidence that it was
committed in any manner that would be theft under this chapter,
notwithstanding the specification of a different manner in the complaint or
indictment, subject only to the power of the court to ensure fair trial by
granting a continuance or other appropriate relief where the conduct of the
defense would be prejudiced by lack of fair notice or by surprise.s9
This section of the Crimes Code was, in the court's view, intended to
address cases of the present type, where the form of theft charged varied slightly
from the form supported by the evidence. The factual issue pursued at trial, and in
closing arguments, by both sides was whether Defendant had found the helmet as
he had claimed discarded along Route 114 among trash cans or had stolen it from
its secured location on a motorcycle parked on West Main Street. In this sense, no
surprise to either the prosecution or the defense was involved in an instruction that
clarified the unified nature of theft offenses under Pennsylvania law and permitted
a finding of guilt if the jury found beyond a reasonable doubt that, contrary to
Defendant's version of the events, he had stolen the helmet himself.
For the foregoing reasons, it is believed that the judgment of sentence
entered in this case was proper.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Michael Halkias, Esq.
Assistant Public Defender
BY THE COURT,
J. Wesley Oler, Jr., J.
s9 Act of December 6, 1072, P.L. 1482, § 1, 18 Pa. C. S. §3092.
0