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HomeMy WebLinkAbout01-0943 CRIMINALCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CHARGE: DEFRAUDING SECURED CREDITORS RODNEY SHANE OTN: H315784-0 · No. 01-0943 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., June 11, 2002· This criminal case arises out of an incident where items of personal property, which had been levied upon by the Sheriff of Cumberland County, were found missing at the time scheduled for sale by the sheriff. Defendant Rodney Shane, who was in possession of the items at the time of the levy, was charged with defrauding secured creditors. Following a bench trial, Defendant was found guilty as charged of defrauding secured creditors, a misdemeanor of the second degree.~ He was sentenced to pay the costs of prosecution, make restitution to the judgment creditor, and undergo a period of intermediate punishment (without supervision except for purposes of collection) of 23 months] Defendant has appealed to the Pennsylvania Superior Court from the judgment of sentence.3 His sole basis for the appeal is sufficiency of the evidence.4 Specifically, Defendant contends on appeal that [t]he evidence presented, by the Commonwealth, at trial was not sufficient to sustain a conviction for the offense of Defrauding Secured Creditors. Testimony was presented that [Defendant] was evicted from his residence. The Commonwealth did not present any evidence that [Defendant] Order of Ct., Mar. 27, 2002; Act of Dec. 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §4110. Order of Ct., Apr. 16, 2002. Def.'s Notice of Appeal, filed May 15, 2002. Def.'s Concise Statement of Matters Complained of on Appeal, filed May 28, 2002. destroyed, removed, concealed, encumbered, transferred or otherwise dealt with the property in the residence upon his eviction.5 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The Pennsylvania Superior Court has set forth the following test for an evaluation of the sufficiency of the evidence in a criminal case: The test for the sufficiency of the evidence is whether the evidence, viewed in the light most favorable to the Commonwealth and accepting as true all reasonable inferences therefrom upon which, if believed, the finder of fact could have properly based its verdict, is sufficient to prove every element of the crime charged beyond a reasonable doubt. Commonrvealth v. Quigley, 344 Pa. Super. 607, 609, 497 A.2d 257, 258 (1985) (quoting Comrnonrvealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 181 (1980)). In this regard, it is within the province of the trier of fact to believe all, part or none of the evidence presented. Commonrvealth v. Galindes, 786 A.2d 1004, 1013 (Pa. Super. Ct. 2001). Viewed in the light most favorable to the Commonwealth, the evidence in this case may be summarized as follows: On October 16, 2000, an individual named Dana Steffy obtained a judgment by confession against Defendant for $2,365.00 in the Court of Common Pleas of Cumberland County.6 Pursuant to a praecipe,7 a writ of execution was issued by the prothonotary on the same day, 5 Id., paragraph 1. 6 N.T. 5, 7, Trial, Mar. 27, 2002 (hereinafter N.T. ~; see Commonwealth's Exs. 1-2, Trial, Mar. 27, 2002 (hereinafter Commonwealth's Ex. ~. The judgment resulted from rent due on a certain apartment in Mount Holly Springs, Cumberland County, Pennsylvania, leased to Defendant by Ms. Steffy. N.T. 3-6. 7 Commonwealth's Ex. 2. 2 A A to explain to him, was it all right if we came explained the paper to him directing the Sheriff of Cumberland County to levy upon the personal property of Defendant.8 Two deputies of the Cumberland County Sheriff's Office served Defendant with the writ of execution on November 30, 2000, at his residence at Lot 11, 76 Betty Nelson Court, Carlisle, Cumberland County, Pennsylvania.9 With Defendant following him around, one of the deputies proceeded to levy upon numerous items of personal property in the mobile home in which Defendant was residing,l° The import of the levy was explained to Defendant by the other deputy, as indicated by her testimony: ·.. Mr. Shane came to the door. What did you do then? ! told him that we had a civil paper that we needed inside and Q Did you go inside? A Yes, we did. Q You say we, who were you working with? A I was working with Deputy Weary that day. Q What happened once you and the other deputies (sic) went in the residence? A I proceeded to explain to Mr. Shane the process of a Writ of Execution and what would occur and what we needed to do. Q If you could tell us exactly what you told him? A Okay. Normally, ! follow the same protocol, we have a list on our inventory sheet that everybody pretty much tries to follow. One of the things that I normally tell him, first off, I explain to him what we had which is a Writ of Execution which is a money judgement filed against them. 8 Commonwealth's Ex. 3. 9 N.T. 12-14, 22-23; Commonwealth's Ex. 3. l0 N.T. 23-25. 3 I usually show them who the person is that filed the money judgment against them and how much roughly the judgment is for because there is all kind of added court costs that we don't know. Then after that point I explained to him that we have to do a levy, which is an inventory of all the household property inside the house. Then I proceed to explain to him that after we do the levy, he has approximately 20 days to contact the person and make some type of payment arrangement or to pay it in full; however, if he does not do that within the 20-day time frame, we will be back and post it for sheriff's sale. After he sees the posting on the door, he has approximately another 20 days. If he doesn't do anything within that time frame, there is a possibility of a sheriff's sale, which there always will be a sheriff' s sale, it is just not always within the 20 days. Then after that I explained to him anything that we levy on the inside of the house that does not belong to him, that person needs to come up to the office and file what they call a property claim. After that I explain to him that he cannot take anything out of the house that we have levied on, sell it, trade it, barter it, anything. If he moves under sheriff's levy, he must notify our office; however, if he does not notify our office, he can be charged criminally. ~ The items of personal property levied upon included a sofa, love seat, coffee table, two lamps, two televisions, two video cassette recorders, scanner, stereo player, table with four chairs, two beds, three dressers, nightstand, armoire, microwave oven, refrigerator, stove, washing machine, lawn mower, and vacuum cleaner.~2 The levy took about half an hour.~3 ~ N.T. 13-15. ~2 N.T. 23-24; Commonwealth's Ex. 4. A car which was parked at the residence was also levied upon, but was discovered through a registration check to belong to a sister of Defendant. N.T. 26-27; Commonwealth's Ex. 4. ~3 N.T. 17. 4 After the levy, in late November or in early December, 2000, according to testimony of Defendant, a girlfriend who had been living with him and his two children moved out of the residence.~4 Two weeks later, Defendant testified, he vacated the premises at the request of the owner of the mobile home park, Betty Nelson.~s Immediately before his departure, all of the property levied upon was still in the mobile home.~6 At least some of this property, Defendant conceded, was his,l? and there was no evidence that any third party claim to the property levied upon was filed. ~8 On January 25, 2001, another Cumberland County deputy sheriff posted a notice of sale in accordance with the levy upon the premises.~9 At that time, the mobile home did not appear to be occupied.2° The notice indicated that the sale would occur on February 7, 2001.2~ On February 7, 2001, at the time scheduled for the sheriff' s sale, the mobile home was examined, the personal property levied upon was found to have been removed, and Defendant had disappeared.22 Defendant was subsequently located and charged with defrauding secured creditors.23 ~4 N.T. 43-44. ~s N.T. 38-39, 41, 43-44. 16 N.T. 42-43. ~7 N.T. 42. ~8 At trial, Defendant, who had a crimen falsi record, claimed that he left all of the property which had been levied upon at the time that he vacated the premises. N.T. 39, 44-45. As indicated by the verdict, the court did not find this testimony credible. 19 N.T. 29; Commonwealth's Ex. 5. :ONT. 31. :~ Commonwealth's Ex. 5. :: N.T. 19-20. Defendant had not provided the sheriff's office with his new address, as he had been directed to do if he vacated the premises by one of the deputies at the time of levy. N.T. 33- 34. :3 Complaint, filed February 26, 2001. 5 Following a non-jury trial held on March 27, 2002, the court found Defendant guilty as charged.24 He received the probation-type sentence related above on April 16, 2002.25 On May 15, 2002, Defendant filed a notice of appeal from the judgment of sentence to the Pennsylvania Superior Court.26 DISCUSSION Statement of Law Offense ofdefi'auding secured creditors. Section 4110 of the Pennsylvania Crimes Code defines the act of defrauding secured creditors as follows: A person commits a misdemeanor of the second degree if he destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subjected to a security interest or after levy has been made thereon with intent to hinder enforcement of such interest. Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §4110. Guilt with respect to this offense is dependent upon the establishment of the following elements beyond a reasonable doubt: 1. That the defendant destroyed, removed, concealed, encumbered, transferred, or dealt with certain property; 2. That a levy had been made upon the property; and 3. That the defendant acted with the intent to hinder enforcement of the levy. See Pa. SSJI (Crim) §15.4110 Defrauding Secured Creditors. A person acts intentionally when it is his conscious object to cause a particular result. See id Circumstantial evidence. "The Commonwealth may sustain its burden of proving every element of [a] crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. George, 705 A.2d 916, 918 (Pa. Super. Ct.), appeal denied, 555 Pa. 740, 725 A.2d 1218 (1998). Order of Ct., Mar. 27, 2002. Order of Ct., Apr. 16, 2002. Notice of Appeal, May 15, 2002. 6 Application of Law to Facts In the present case, a number of factors militated in favor of finding that the evidence, when viewed in the light most favorable to the Commonwealth and with the benefit of all reasonable inferences therefrom being given to the Commonwealth, established beyond a reasonable doubt that Defendant had removed items levied upon from the premises--thereby satisfying the first element of the offense of defrauding secured creditors, as set forth above.27 These included (a) Defendant's prior use of the items as part of his household, (b) his awareness of the levy when it occurred and of its future consequences if the items remained upon the premises, (c) his admitted ownership of at least some of the items levied upon, (d) his motive to retain use and ownership of the items by removing them from the premises before the sale, (e) his admitted possession of the items at the time he vacated the premises, (f) the absence of another adult in residency at the time of his vacation of the premises, (g) his failure to report his vacation of the premises to the sheriff as directed at the time of the levy, (h) the absence of plausible evidence that someone else, unbeknownst to Defendant, took the items, and (i) the relatively short period of time that elapsed between Defendant's admitted possession of the items and the discovery by others that they had been removed. For the foregoing reasons, it is believed that the evidence was sufficient to support the verdict with respect to the element challenged by Defendant on appeal, and that the judgment of sentence was therefore properly entered. BY THE COURT, J. Wesley Oler, Jr., J. 27 This is the element as to which Defendant's appeal, based on sufficiency of the evidence, is directed. See Def.'s Concise Statement of Matters Complained of on Appeal, filed May 28, 2002. 7 Jaime M. Keating, Esq. Chief Deputy District Attorney Arla M. Waller, Esq. Assistant Public Defender