Commonwealth Of Pa. v. Newton

• Decision Date: 30 April 2010
• Citation: 994 A.2d 1127
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Joyce Lillian NEWTON, Appellant.
• Court: Pennsylvania Superior Court

994 A.2d 1127

COMMONWEALTH of Pennsylvania, Appelleev.Joyce Lillian NEWTON, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 22, 2010.

Filed April 30, 2010.

John D. Broda, Sunbury, for appellant.

John P. Muncer, Assistant District Attorney, Sunbury, for Com., appellee.

BEFORE: ALLEN, LAZARUS and OLSON, JJ.

OPINION BY OLSON, J.:

¶ 1 Appellant, Joyce Lillian Newton, appeals from the judgment of sentence entered on April 13, 2009. We affirm in part and vacate in part.

¶ 2 The Commonwealth charged Appellant with criminal use of a computer, conspiracy to commit criminal use of a computer, conspiracy to commit access device fraud, conspiracy to commit theft by deception, receiving stolen property, conspiracy to commit receiving stolen property, identity theft, and conspiracy to commit identity theft. The charges arose out of Appellant's participation in a scheme in early 2004 to ship laptop computers, purchased with a stolen credit card, to South Africa.

¶ 3 A jury trial took place on January 16, 2009.¹ The first witness to testify was Edmund Rice, vice president of sales for Advantec Computer Systems, a computer wholesaler based in Marlborough, Massachusetts. In early 2004, an individual using the name “Benny Roberts” filed an online application to become a customer of Advantec. N.T., 1/16/09, at 14. “Benny Roberts” indicated that he was a reseller. Id. at 15. The individual provided the name and credit card number of both Benny Roberts and his wife, Linda Roberts. Id. at 26. All contacts between Advantec and “Benny Roberts” were by email, not in person. Id. at 16.

¶ 4 Initially, “Benny Roberts” purchased computers and had them shipped to an address in New Jersey. Id. at 15. Eventually, however, “Benny Roberts” indicated to Advantec that he wanted the computers shipped to a “branch location” in Sunbury, Pennsylvania. Id. at 15, 32. Specifically, Advantec was told to ship them to “Bruton Cole” at 209 Ridge Avenue, Sunbury. Id. at 22; Commonwealth's Exhibit 5.² Advantec shipped five computers to the Sunbury location. Id. at 18-19, 31.

¶ 5 Eventually, Advantec began receiving “charge back” notices, indicating that the credit card holder did not authorize the transaction. Id. At that point, Mr. Rice contacted Detective Christopher Blase of the Sunbury Police Department. Detective Blase learned that “Benny Roberts” had ordered a sixth computer to be shipped to the Sunbury address. Detective Blase directed Advantec to ship that computer to Sunbury, where it would be tracked and intercepted. Id. at 19-20.

¶ 6 On cross-examination, Mr. Rice indicated that he did not know who opened the “Benny Roberts” account, who directed the shipments, or who initiated the email contact. Id. at 25-27, 37. He further testified that Appellant did not set up the account with Advantec. Id. at 27. Mr. Rice did not know who used Mr. Roberts' name and credit card numbers to complete the transactions. Id. at 32.

¶ 7 Detective Blase testified that he executed a search warrant at the Sunbury address at 11:30 a.m. on March 5, 2004. When he arrived at the premises, he saw two packages on the porch that were set to be shipped to “Wanda Delpu” in South Africa. Id. at 41. Appellant answered the door, waived her Miranda rights, and spoke to the detective. She told him “that she was the only one who lived there, that nobody by the name of Bruton Cole, whose name was on the package, lived at that residence.” Id. at 44. According to Detective Blase, Appellant used the name “Bruton Cole” as the shipper for outbound packages to South Africa; she also signed that name on the “sender's signature” line. Id. at 45.³

¶ 8 When Detective Blase asked Appellant about the shipments, she told him that her boyfriend, Omega, from South Africa had shipped the computers to her, along with gifts such as jewelry, shoes, and small appliances (again, all under fake names). Id. at 49. Appellant said that she was “instructed” to re-ship those items to South Africa. Id. at 49, 53. Occasionally, Appellant could keep some of the packages such as the small appliances. According to Detective Blase, Omega had also used a fraudulent credit card to pay for Appellant's internet access. Id. at 49. Appellant did not have an explanation for why she was shipping the packages in a name that was not hers. Id. at 49-50, 55. The police searched Appellant's house, and they confiscated various papers and magazines mailed to Appellant's address with the recipient names of Bruton Cole or Jepson Hughes. Id. at 45. Appellant stated that she did not know anyone by the name of Bruton Cole or Jepson Hughes, and that neither person lived at her residence. Id. at 50. Upon police questioning, Appellant could not explain why she was getting catalogs and items in the mail under the names of Bruton Cole and Jepson Hughes. Id. at 50. She also stated that she was expecting to receive 30 more computers from Omega within the next few days to be reshipped. Id. at 50.

¶ 9 On cross-examination, Appellant's counsel asked Detective Blase if he attempted to determine if Bruton Cole was a real individual. He responded that he checked Department of Motor Vehicle records, and found no one in Pennsylvania with a driver's license under that name. Id. at 52.

¶ 10 Appellant testified in her own defense. She stated that she met Omega through an internet dating service, and that eventually she hoped to marry him. Id. at 58-59.⁴ After months of contact, he started sending laptops to her house, and asked her to re-ship them. Id. at 60. She did so because he told her that he had a computer company; she did not know that anything fraudulent was going on. Id. at 60-61. He told her that the items could not be shipped directly to South Africa from the computer company because “a lot of companies don't ship internationally, and I believed him.” Id. at 63. She did not know Benny Roberts or have anything to do with using his credit card information; in fact, she does not have a credit card herself. Id. at 61. Omega never told her how the computers were purchased. Id. at 62.

¶ 11 Appellant was acquitted of most of the charges, but was convicted of receiving stolen property, identity theft, and conspiracy to commit identity theft. On April 13, 2009, Appellant was sentenced to an aggregate probation term of six years, plus restitution, fines, and costs.⁵ On April 16, 2009, Appellant filed timely post-sentence motions; they were denied on June 30, 2009. This timely appeal followed.

¶ 12 Appellant raises two issues on appeal:

1. Was the evidence and testimony introduced at trial insufficient to support the defendant's conviction for receiving stolen property, identity theft and criminal conspiracy identity theft?

2. Did the trial court err when it included the name of Bruton Cole in the jury instructions that it read to the jury for the charges of identity theft and criminal conspiracy identity theft because there was insufficient evidence offered at trial that the name was that of an actual person?

Appellant's Brief at 6.⁶

¶ 13 First, Appellant argues that the evidence was insufficient to support the conviction for receiving stolen property.

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, 597 Pa. 307, 951 A.2d 307, 313 (2008) (citations omitted) cert. denied, --- U.S. ----, 129 S.Ct. 1614, 173 L.Ed.2d 1001 (2009).

¶ 14 “Receiving stolen property is established by proving that the accused ‘intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner.’ 18 Pa.C.S.A. § 3925(a).” Commonwealth v. Galvin, 985 A.2d 783, 792 (Pa.2009).

¶ 15 Importantly, the Legislature expressly defined the required mental state as “knowing” or “believing.” Because the Legislature excluded mental states such as recklessness, negligence, or naïveté about the stolen status of the property, those mental states are insufficient. Commonwealth v. Dunlap, 351 Pa.Super. 43, 505 A.2d 255, 257 (1985); see also Commonwealth v. Ostrosky, 589 Pa. 437, 909 A.2d 1224, 1230 n. 7 (2006) (express inclusion of certain statutory terms implies the exclusion of those that are not mentioned); compare 18 Pa.C.S.A. § 302(c) (where the Legislature does not define the relevant mental state, a finding of recklessness is sufficient). This reasoning is consistent with the common recognition that penal statutes are to be strictly construed. Commonwealth v. Jarowecki, 985 A.2d 955, 959 (Pa.2009) citing 1 Pa.C.S.A. § 1928(b)(1). Thus, courts may not hold that a less-culpable mental state satisfies a criminal statute where the statute demands proof of the more culpable mental state. See Dunlap; compare 18 Pa.C.S.A. 302(d) (generally, if the Commonwealth proves a more culpable mental state, then the less culpable mental state is satisfied).

¶ 16 Indeed, we note that when the Legislature adopted the current version of § 3925 in 1972, it changed the requisite mental state from “knowing, or having reasonable cause to know the same to have been stolen” to the current definition. 18 Pa.C.S.A. § 3925, official comment. We interpret this change as eliminating any suggestion that a person can be found guilty of receiving stolen property simply by retaining property that a reasonable person would conclude is probably stolen. Under the new formulation, the defendant must, at a minimum, harbor the...