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HomeMy WebLinkAboutCP-21-CR-1542-2011 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : : JENNIFER JO CHRISTOPHER : CP-21-CR-1542-2011 IN RE: NONJURY TRIAL BEFORE HESS, P.J. MEMORANDUM AND VERDICT Defendant has been charged at Count 1 with Theft of Leased Property, a violation of 18 Pa.C.S.A. § 3932(a). The facts of this case are brief and are largely undisputed. In June 2009, Defendant entered into a lease-to-own contractual agreement with Aaron’s Sales & Lease for the rental of a 65 inch DLP television set. On June 18, 2009, the television was delivered to Defendant whereupon she signed and acknowledged her receipt of the property. Testimony was heard at the nonjury trial from Colleen Russell, a customer accounts manager at Aaron’s Sales & Lease, and she indicated that the property was to be leased by Defendant with payments to be made monthly for a period of approximately two years. Russell testified that Defendant did make regular payments on the lease agreement for approximately one year. At some point, Defendant became delinquent in her payments to Aaron’s, and her lease agreement fell so far behind that the leasing company began the process to either retrieve the television or start collections procedures. In an attempt to assist Defendant with her payments, a representative of the leasing company constructed a “value plan” by which Defendant was to make smaller payments over a longer period of time, and which would allow her to continue to stay in possession of the television. Because the original contract had become so delinquent, and because the collections process had been initiated, the parties entered into a new contract to take the place of the old. The second contract effectually rendered the original contract “null and void,” and the terms of the second contract were orally agreed to by Defendant over the telephone. Because Defendant was ill, she was unable to travel to meet with the Aaron’s representative to sign the new contract. Instead, on September 23, 2010, Defendant sent Kim Johnson, an adult friend, to sign the new contract on her behalf. Despite the fact that there were two contracts, there was, however, only one television ever provided to Defendant by the leasing company. Unfortunately, the Defendant made only one payment on the new contract. When Defendant became delinquent on the second contract, the Aaron’s representative attempted to make contact with Defendant regarding the payments that were due and owing. She placed phone calls, left voice mail messages, and visited the Defendant’s home. Finally, on November 29, 2010, Ms. Russell sent a certified final demand letter, which was returned to Aaron’s as “unclaimed.” Russell testified that she was able to speak with Defendant at one point, and Defendant indicated her remorse for the delinquency of her account and stated her intention to make good on the contract. Russell also testified that at some point Aaron’s representatives visited the Defendant’s home and the television at issue was not found. Russell testified that, at the preliminary hearing, Defendant informed Russell that, while “she had every intention of paying for the T.V.,” she no longer had it in her possession as it had been stolen. Defendant did testify at trial; however, she was not asked why she had stopped making payments on the lease agreement, whether she still had the television, or where the television was. The facts established at trial, therefore, were simply that Defendant entered into a lease agreement, received the leased property, made some payments on the contract, and since then has not made 2 any more payments. Additionally, there exists the possibility that the property was stolen from Defendant. With respect to the charge of Theft of Leased Property, the Pennsylvania Crimes Code provides 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: (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. (d) Exception.-- This section shall not apply to secured transactions as defined in Title 13 (relating to commercial code). 18 Pa.C.S.A. § 3932. The Crimes Code thus sets out two presumptions with which the Commonwealth may attempt to establish the element of “intent,” as required by 18 Pa.C.S.A. § 3932(a). The purpose of subsections (c)(1) and (c)(2) is to “provide a way for the prosecution to go forward with a case, notwithstanding a lack of direct evidence as to the defendant’s intent.” Commonwealth v. Lebron, 765 A.2d 293, 296 (2000). Section 3932(c)(2) provides the Commonwealth with the 3 ability to prove intent by way of circumstantial evidence of a demand by the lessor and inaction by the lessee. The statute requires the demand be made by “certified or registered mail” and “delivered” to the defendant’s “last known address.” 18 Pa.C.S.A. § 3932(c)(2). Our Superior Court has held, however, that with respect to a prima facie case of intent shown through the statutory presumption contained in subsection (c)(2), the presumption is inapplicable when “the demand letter is returned to the sender unclaimed, never having been signed for by the defendant or anyone residing at his/her address, [because] the letter was not delivered in accordance with the statute.” Lebron, 765 A.2d at 296. Because the certified letter sent by Aaron’s Sales & Lease was returned as “unclaimed,” the Commonwealth is, therefore, unable to utilize subsection (c)(2) to establish Defendant’s intent to deal with the property as her own. Additionally, subsection (c)(1) is inapplicable because there was no contention that Defendant obtained possession of the television set by use of any name other than her own. As a result, the Commonwealth has been left to establish Defendant’s intention to deal with the property on her own without the benefit of either statutory presumption. With the foregoing in mind, we find that the Commonwealth has not proven beyond a reasonable doubt that Defendant obtained leased property and thereafter intentionally dealt with it as her own. The statute provides that 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.” In order to sustain a conviction under 18 Pa.C.S.A. § 3932, each of the potential means of dealing with property as one’s own must be accompanied with the requisite mens rea. That is to say there must be some intention on the part of a defendant to deprive the lessor of his property. In this case, no testimony or evidence was heard regarding what Defendant has done with the television, 4 where it is, or what has happened to it. While the Commonwealth is free to establish Defendant’s guilt by wholly circumstantial evidence, no evidence was presented as to what actions Defendant has taken to intentionally deprive the leasing company of its property. Certainly, Defendant may remain liable over to Aaron’s Sales & Lease on a theory of breach of 1 contract, but that is an entirely different issue. Today, we are asked to determine whether the Commonwealth has established, beyond a reasonable doubt, that Defendant obtained leased property and intentionally dealt with it as her own, as defined in the Crimes Code. The facts established at trial show that Defendant entered into a lease agreement, received the leased property, made some payments on the contract, and Commonwealth’s since then has not made any more payments. Additionally, the testimony was that the Defendant had represented that the television was stolen from her. Because we are not prepared to take the leap of finding that mere nonpayment on a lease agreement is a violation of the crime of Theft of Leased Property, and because there is a question as to how it was that the television went missing, we have a reasonable doubt concerning the defendant’s guilt. VERDICT th AND NOW, this 16 day of December, 2011, following trial without a jury, on Count 1 in the information, Theft of Leased Property, the defendant is found NOT GUILTY. BY THE COURT, _______________________________ Kevin A. Hess, P. J. 1 It is noted that State’s Exhibit 1, the “value plan” contract, signed by a representative of Defendant, includes a paragraph entitled “Risk of Loss and Damage.” That contract provision provides, in pertinent part, as follows: “I am responsible for, and must pay the fair market value of, the Leased Property if and as of the time it is lost, stolen, damaged beyond repair or destroyed (“Loss”) from all causes, normal wear and tear expected.” 5 Joshua Yohe, Esquire Assistant District Attorney John Shugars, Esquire Senior Assistant Public Defender :rlm 6 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : : JENNIFER JO CHRISTOPHER : CP-21-CR-1542-2011 IN RE: NONJURY TRIAL BEFORE HESS, P.J. VERDICT th AND NOW, this 16 day of December, 2011, following trial without a jury, on Count 1 in the information, Theft of Leased Property, the defendant is found NOT GUILTY. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Joshua Yohe, Esquire Assistant District Attorney John Shugars, Esquire Senior Assistant Public Defender :rlm