The opinion
J-A11033-19
2019 PA Super 361
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
JOSEPH MANUEL MALDONADO- :
VALLESPIL : No. 1430 MDA 2018
:
Appellant :
:
Appeal from the Judgment of Sentence imposed July 19, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0006157-2017
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
DISSENTING OPINION BY BOWES, J.: FILED DECEMBER 20, 2019
I respectfully dissent. In my view, the certified record adequately
established that the locus of Appellant Joseph Manuel Maldonado-Vallespil’s
crime of theft by receiving stolen property was in Berks County under
Pennsylvania law.1 Therefore, I believe that the trial court properly exercised
subject matter jurisdiction and that Appellant’s judgment of sentence should
be affirmed.
The factual history of this case is central to my analysis and despite the
learned Majority’s apt summary, I believe that the legal significance of a
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1 I would affirm on an alternative basis than the one explicitly relied upon by
the trial court. See Commonwealth v. Toanone, 553 A.2d 998, 1001
(Pa.Super. 1989) (“An appellate court may affirm a trial court order on a basis
other than that relied upon by the trial court.”).
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number of key facts has been overlooked. On October 31, 2017, the victim
in this case, Jose Munoz, discovered that numerous tools and equipment were
missing from his truck. He suspected that Appellant had stolen these items
based upon Appellant’s abrupt departure from Mr. Munoz’s employ earlier that
same day. Mr. Munoz contacted the Reading Police Department, and officers
responded to Mr. Munoz’s residence at 507 N. 14th Street, Reading,
Pennsylvania, which is located within Berks County. With the officers present,
Mr. Munoz called Appellant on a cellular telephone that he had given to
Appellant during the course of his employment. Appellant answered the call
and admitted that he had stolen the tools from Mr. Munoz’s truck and sold
them to an undisclosed third party. See N.T. Trial, 7/18/18, at 23. During
this phone call, Appellant also stated that he remained in contact with this
individual and could retrieve the tools from him. Id. at 23-24. Appellant also
spoke directly with Officer Steve Valdez, who recounted the telephone
conversation as follows:
Q: And what do you say to the individual on the other end of the
phone?
A: I told him if he had the tools, that he had until the next day to
return them. If not, he would be charged.
Q: And what did that individual say to you?
A: He said he was going to return them.
Q: Did he say anything else?
A: He told me that he took them and that he was going to return
them. That’s what he had said.
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Id. at 43. Thus, Appellant represented that: (1) he had continued access to
the tools such that he could retrieve them; and (2) that he was able and willing
to restore the tools to Mr. Munoz. Id. at 24, 42-43.
Appellant was given a deadline of 8:00 a.m. on the following day to
return the stolen tools, and had agreed that he would return the tools by that
time. Id. at 23-25, 42-43. Appellant did not follow through on his promise.
On November 9, 2017, a criminal complaint and affidavit of probable cause
was filed by the Reading Police Department based on the above-recited facts.
That same day, a magisterial district judge issued an arrest warrant for
Appellant. On November 14, 2017, the arrest warrant was served and
Appellant was taken into custody at the Berks County Sheriff’s Office Central
Booking Center at 633 Court Street, Reading, Pennsylvania, which is situated
within the borders of Berks County. See Berks County Sheriff Fee Bill,
11/14/17, at 1.
As the Majority has correctly noted, our standard of review in this
context is de novo, and our scope of review is plenary. See Commonwealth
v. Bethea, 828 A.2d 1066, 1071 n.5 (Pa. 2003). Furthermore, this Court
may affirm a judgment or verdict for any reason appearing of record. See
Commonwealth v. Melvin, 103 A.3d 1, 19 (Pa.Super. 2014).
In assessing subject matter jurisdiction, the learned Majority focuses
upon the evidence adduced by the Commonwealth at trial. However, that
approach fails to consider the fundamental nature of the crime of which
Appellant was convicted: theft by receiving stolen property. See 18 Pa.C.S.
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§ 3925(a). In relevant part, this crime is defined as follows: “A person is
guilty of theft if he intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or believing that it has
probably been stolen, . . . .” Id. (emphasis added). Based upon the aforecited
language, this Court has concluded that “the legislature’s inclusion of a
prohibition against retaining and disposing of stolen property makes this
offense ‘ongoing.’” Commonwealth v. Farrar, 413 A.2d 1094, 1098
(Pa.Super. 1979); see also Commonwealth v. Kuykendall, 465 A.2d 29,
31 (Pa.Super. 1983) (same). Specifically, this Court has previously held that
“the retention of stolen property is a ‘continuing’ offense which does not
terminate until the stolen property is taken from the accused.”
Commonwealth v. Kelly, 446 A.2d 941, 943-44 (Pa.Super. 1982). Because
theft by receiving stolen property is an “ongoing” offense, “prosecution may
be maintained in a county in which an accused is found to be in possession of
the stolen property.” Commonwealth v. Downs, 483 A.2d 884, 889-90
(Pa.Super. 1984).
In the instant case, Appellant was never observed in possession of Mr.
Munoz’s stolen tools, and those items were never recovered. Even though
Appellant freely confessed his theft, Appellant apparently fenced his ill-gotten
goods to the unknown buyer discussed above. I submit that Appellant’s own
statements via telephone to Mr. Munoz and Officer Valdez establish that
Appellant maintained continuous “constructive possession” of the stolen
items. See Commonwealth’s brief at 10 (“Under such circumstances,
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[Appellant] would have constructively possessed the victim’s property in
[Berks County].”). In this context, constructive possession means that
Appellant had “the power to control the contraband and the intent to exercise
that control.” Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super.
1996). Furthermore, constructive possession may be established via
circumstantial evidence and “[t]he requisite knowledge and intent may be
inferred from examination of the totality of the circumstances.” Id. Here,
Appellant’s statements during the phone call clearly evinced both his
continuing ability to exercise control over the stolen tools, and also his intent
to exercise that control. See N.T. Trial, 7/18/18, at 23-25, 41-44
(unchallenged representations that Appellant stated that he had ongoing
access to the stolen tools and intended to exercise that control).
It is also well-established under Pennsylvania precedent that “[t]he fact
that another person may also have control and access does not eliminate the
defendant’s constructive possession; two actors may have joint control and
equal access and thus both may constructively possess the contraband.”
Haskins, supra at 330. Accordingly, that Appellant may have sold the stolen
items to an unnamed third-party is not dispositive regarding Appellant’s
constructive possession. See Commonwealth v. Grekis, 601 A.2d 1275,
1282 (Pa.Super. 1992) (“[T]here is no requirement that appellant actually
physically have handled the stolen goods in order to have possessed them for
purposes of this offense.”). Moreover, Appellant’s statements also indicate
that Appellant was exercising control over these items via the unnamed third
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party. Id. (“[A]ppellant’s dominion and control over the goods may be
exercised through another, . . . .”). Either way, Appellant was exercising
“constructive possession” over the at-issue contraband, e.g., the stolen tools.
Based upon Appellant’s above-referenced statements promising to
return these items, his constructive possession of the stolen tools continued
unabated until he was located and arrested within the physical borders of
Berks County.2 Thus, at the moment that Appellant was taken into custody
in Berks County, he was still in constructive possession of the stolen tools,
which is sufficient to satisfy the territoriality requirements set forth at 18
Pa.C.S. § 102(a)(1) as they relate to subject matter jurisdiction. See
Commonwealth v. Ellis, 335 A.2d 512, 515 n.3 (Pa.Super. 1975) (“Thus,
the offense is an ongoing one, still occurring in the instant case at the time
the officer [arrested] the appellant.”).3 Moreover, a demonstration of
constructive possession is sufficient on its own to support a conviction for theft
by receiving stolen property at § 3925. See Commonwealth v. Brady, 560
A.2d 802, 806 (Pa.Super. 1989) (“To establish that appellant received or
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2 There is also no indication in the certified record that some definitive event
terminated Appellant’s constructive possession. See Commonwealth v.
Hawkins, 439 A.2d 748, 752 (Pa.Super. 1982) (“[T]he offense was a
‘continuing’ one which did not terminate until the stolen property was taken
from [defendant] . . . .”).
3 The holding in Commonwealth v. Ellis, 335 A.2d 512 (Pa.Super. 1975)
did not address jurisdiction, but adjudicated whether a police officer had
probable cause to arrest a defendant observed in possession of stolen
property. However, this Court explicitly cited and relied upon Ellis in
Commonwealth v. Farrar, 413 A.2d 1094 (Pa.Super. 1979). Thus, its
inclusion here as persuasive authority is appropriate.
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possessed the stolen property, it was sufficient to show that appellant had
joint or constructive possession of it.”). I would conclude that constructive
possession similarly qualifies as an overt act for the purposes of § 102(a)(1).
Overall, I find this case to be analogous to the holdings in Farrar and
Kuykendall. In those cases, the defendants were found in possession of
stolen property that was initially misappropriated outside of Pennsylvania’s
territorial borders. They challenged subject matter jurisdiction upon the basis
that the underlying overt acts of criminality did not occur within the
Commonwealth. See Farrar, supra at 1098; Kuykendall, supra at 31. This
Court ultimately concluded that ongoing possession of the stolen property
while within the Commonwealth was sufficient to establish subject matter
jurisdiction. Id. Assuming, arguendo, that Appellant’s receipt of stolen
property did not occur within Berks County, I would affirm based upon
Appellant’s ongoing constructive possession of the stolen property when,
having failed to return the stolen property, he was taken into custody within
the borders of Berks County.4
I respectfully dissent.
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4 Such a holding has the additional virtue of comporting with the U.S.
Supreme Court’s seminal precedent in Strassheim v. Daily, 221 U.S. 280,
284-85 (1911) (Holmes, J.), stating that “[a]cts done outside a jurisdiction,
but intended to produce and producing detrimental effects within it, justify a
state in punishing the cause of the harm as if he had been present at the
effect, if the state should succeed in getting him within its power.” Even if the
precise situs of Appellant’s misappropriation is unknown, it was undeniably
directed at, and created a detrimental effect upon, a resident of Berks County.
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