Com. v. Carter, L.

2025 Pa. Super. 49

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2025
• Docket: 964 EDA 2024
• Status: Published

Opinion

J-S40042-24

2025 PA Super 49

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : LEROY CARTER : No. 964 EDA 2024

Appeal from the Order Entered March 25, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0004767-2022

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

OPINION BY LANE, J.: FILED FEBRUARY 28, 2025

The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the order denying its motion to refile charges against Leroy Carter (“Carter”).

The Commonwealth claims that mere possession of stolen goods was sufficient

to support a prima facie case for the crimes charged of theft by unlawful taking

and receiving stolen property. We hold: (1) the crime of receiving stolen

property is a lesser included offense of theft by unlawful taking, and thus

where evidence supports a prima facie case of receiving stolen property, the

same evidence also supports a prima facie case of theft by unlawful taking;

and (2) here, Carter’s conduct, in addition to his recent possession of the

victim’s stolen property, provided sufficient circumstantial evidence to link him

to the underlying offense. After review, we affirm in part, reverse in part, and

remand. J-S40042-24

The relevant factual and procedural history underlying this appeal is as

follows. The charges against Carter arose from an incident that occurred on

March 24, 2022, when Matthew Bekes (“Bekes”) was the victim of a

carjacking. The case proceeded to a preliminary hearing in the municipal court

at which Bekes testified that he was driving his truck on G Street in

Philadelphia. See N.T. (Preliminary Hearing), 11/2/23, at 12-13. Bekes had

his window open and was stopped at a traffic light or stop sign when someone

struck him very hard in the head and dragged him from the vehicle. See id.

at 13. The assailants “stole” his belongings, including his shoes, cell phone,

wallet, and money. Id. at 16. Bekes saw three individuals driving away in

his truck before losing consciousness. See id. at 19-20. Bekes woke up in

the hospital as doctors treated the “broken bones in [his] face.” Id. at 13-

14.

On the morning of March 25, 2022, Bekes reported the incident and

spoke with detectives. See id. at 16. Bekes was unable to describe or identify

his attackers because he “vaguely remembered seeing one person drive off in

[his] truck and two other people.” Id. at 20. While speaking with detectives,

a friend of Bekes suggested that he call his missing phone. See id. at 16-17.

Bekes called his phone, and a man answered and asked, “[H]ow much will you

give me for the phone and wallet[?]” Id. at 17. During the call, the man

provided his physical description, and he and Bekes agreed to meet at a

specified location to exchange $200 for the items. See id. at 17, 25. The

police proceeded to the meeting location at the designated time and

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apprehended Carter, who matched the description provided by the man during

the phone call. See id. at 24-25. The police also recovered Bekes’ phone and

wallet (containing his credit cards and identification) from Carter’s person.

See id.

The Commonwealth charged Carter with theft by unlawful taking and

receiving stolen property, both graded as first-degree misdemeanors. 1 The

Commonwealth then withdrew the case because necessary witnesses were

unavailable. In October 2023, the Commonwealth filed a motion seeking to

refile the two withdrawn theft charges, and later amended its complaint to

include the charges of conspiracy, robbery, and robbery of a motor vehicle. 2

On the morning of the preliminary hearing, the Commonwealth amended its

complaint to include the charges of possession of an instrument of crime

(“PIC”), simple assault, aggravated assault, theft by unlawful taking (graded

as a third-degree felony), and receiving stolen property (graded as a third-

degree felony).3 See N.T., 11/2/23, at 5-11. Following the preliminary

hearing, the Municipal Court dismissed all charges for lack of evidence except

for receiving stolen property (graded as a first-degree misdemeanor).

On November 6, 2023, the Commonwealth filed a motion seeking to

refile the dismissed charges in the Court of Common Pleas. At the refile ____________________________________________

1 See 18 Pa.C.S.A. §§ 3921, 3925; see also 18 Pa.C.S.A. § 3903(b).

2 See 18 Pa.C.S.A. §§ 903, 3701(a)(1), 3702(a).

3 See 18 Pa.C.S.A. §§ 907(a), 2701(a)(1), 2702(a)(1), 3921, 3925; see also

18 Pa.C.S.A. 3903(a.1).

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hearing on March 25, 2024, the Commonwealth introduced the notes of

testimony from the preliminary hearing, but did not introduce any additional

evidence. See N.T. (Re-File Hearing), 3/25/24, at 6-7. The Commonwealth

argued that Carter’s mere possession of Bekes’ cell phone and wallet was

sufficient to infer that he committed the additional crimes charged, including

conspiracy, PIC, simple assault, aggravated assault, robbery, robbery of a

motor vehicle, theft by unlawful taking (graded as a third-degree felony), theft

by unlawful taking (graded as a first-degree misdemeanor), and receiving

stolen property (graded as a third-degree felony). See id. at 9-12. The trial

court rejected the Commonwealth’s argument and denied the motion to refile

the additional charges on the basis that the Commonwealth failed to establish

a prima facie case for those charges due to lack of evidence. See id. at 14-

15. The trial court held Carter only on the charge of receiving stolen property

(graded as a first-degree misdemeanor). See id. This timely appeal followed.

Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.

The Commonwealth raises the following issue for our review: “Did the

[trial] court err by precluding [Carter’s] prosecution on charges including

conspiracy, robbery, assault, and theft by unlawful taking?” Commonwealth’s

Brief at 3.

The Commonwealth’s sole issue concerns the trial court’s finding that it

failed to establish a prima facie case for the additional charges. Whether the

Commonwealth met its burden of presenting a prima facie case is a question

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of law for which our standard of review is de novo, and our scope plenary.

See Commonwealth v. Wroten, 257 A.3d 734, 742 (Pa. Super. 2021).

“At the preliminary hearing stage of a criminal prosecution, the

Commonwealth’s burden is not to prove a defendant’s guilt beyond a

reasonable doubt; rather, it is merely to put forth a prima facie case of the

defendant’s guilt.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa.

2003). The Commonwealth carries its burden of showing a prima facie case

when it “produces evidence of each of the material elements of the crime

charged and establishes sufficient probable cause to warrant the belief that

the accused committed the offense.” Id. (citation omitted). “The purpose of

a preliminary hearing is to avoid the incarceration or trial of a defendant unless

there is sufficient evidence to establish a crime was committed and the

probability the defendant could be connected with the crime.”

Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004)

(citation omitted); see also Pa.R.Crim.P. 542(D) (stating issuing authority

shall determine from evidence presented at preliminary hearing whether there

is prima facie case that: (1) offense has been committed; and (2) defendant

has committed it). In making this determination, the court must consider the

evidence in the light most favorable to the Commonwealth’s case and make

all inferences reasonably drawn from the evidence of record in the

Commonwealth’s favor. See Commonwealth v. Perez, 249 A.3d 1092,

1102 (Pa. 2021).

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Preliminarily we note that, although the Commonwealth acknowledges

that “a prima facie case consists of evidence showing the existence of each

material element of the charged offense,” Commonwealth’s Brief at 7, the

Commonwealth fails to identify, let alone discuss, any of the elements of the

crimes of conspiracy, PIC, simple assault, aggravated assault, robbery, or

robbery of a motor vehicle. See Huggins, 836 A.2d at 866. Nor has the

Commonwealth provided any discussion of, or pointed to, the evidence it

produced at the preliminary hearing for each material element of these crimes

to carry its burden of showing a prima facie case. See id.; see also Pa.R.A.P.

2119(a) (providing that the argument section of the appellant’s brief must

contain pertinent discussion and citation of relevant authorities), (c)

(providing that, if reference is made to evidence in the record, the argument

must refer to the place in the record where such evidence appears). The

Commonwealth’s conclusory assertion, that Carter’s mere possession of

Beke’s cell phone and wallet are sufficient to establish a prima facie case for

each of these crimes is simply unavailing. 4 Given the Commonwealth’s failure ____________________________________________

4 The Commonwealth relies on Commonwealth v. Shaffer, 288 A.2d 727,

736 (Pa. 1972) (plurality), wherein a plurality of our Supreme Court rejected a challenge to the trial court’s charge to the jury that it could infer from the defendant’s unexplained possession of the stolen goods within twenty-four hours of the two jewelry thefts, along with other circumstantial evidence (i.e., the jewelry was clearly marked with other individuals names, the defendant gave a false name to police, and one of his co-felons tried to hide the jewelry from investigating officers by throwing it out the window of a vehicle in a sock) that the defendant was in “guilty possession” of the jewelry. As we explain infra, guilty possession is but one element of certain theft charges. The (Footnote Continued Next Page)

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to provide any discussion of the material elements of these crimes or the

evidence, if any, it produced at the relevant hearings to support them, we

conclude that the Commonwealth has waived its claim on appeal as to these

charges. See Commonwealth v. Armolt, 294 A.3d 364, 377 (Pa. 2023)

(holding that, where an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived, as it is not

the obligation of an appellate court to formulate an appellant’s arguments for

them).

With respect to the charge of theft by unlawful taking, the

Commonwealth contends that the trial court erred in denying its motion to

refile this charge because “[t]heft by unlawful taking is a lesser included

offense of receiving stolen property,” which the trial court permitted to be

refiled as a first-degree misdemeanor. Carter’s Brief at 10. 5

The Pennsylvania Crimes Code defines the offense of receiving stolen

property as follows:

(a) Offense defined. — 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 ____________________________________________

Commonwealth has not explained how Shaffer supports a claim that mere possession of stolen goods supports an inference that the defendant committed the crimes of conspiracy, PIC, simple assault, aggravated assault, robbery, or robbery of a motor vehicle.

5 As we explain infra, the crime of receiving stolen property is a lesser included offense of theft by unlawful taking, but not vice versa. Nonetheless, this misstatement by the Commonwealth does not impede our review.

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probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

18 Pa.C.S.A. § 3925(a). Accordingly, to convict a defendant of receiving

stolen property, the Commonwealth must establish three elements: (1)

intentionally acquiring possession of movable property of another; (2) with

knowledge or belief that it was probably stolen; and (3) intent to deprive

permanently. See id.; see also Commonwealth v. Gomez, 224 A.3d 1095,

1099 (Pa. Super. 2019).

The second element of receiving stolen property is sometimes referred

to as “guilty knowledge.” Id. “Mere possession is insufficient to establish or

permit an inference of guilty knowledge, something more than mere

possession is generally involved and requires consideration.”

Commonwealth v. Williams, 362 A.2d 244, 248 n.7 (Pa. 1976). For

instance, the Commonwealth may introduce evidence regarding the nature of

the goods, the quantity of the goods involved, the lapse of time between

possession and theft, and the ease with which the goods can be assimilated

into trade channels. Id. “Such evidence will permit a fact-finder to infer guilty

knowledge, particularly where there is no satisfactory explanation for a

defendant’s possession of recently stolen goods.” Gomez, 224 A.3d at 1100;

see also Shaffer, 288 A.2d at 736 (holding that a jury cannot presume a

guilty knowledge based upon “recency plus lack of explanation,” but a jury

could infer guilt under such circumstances).

In Commonwealth v. Robinson, 128 A.3d 261 (Pa. Super. 2015) (en

banc), an en banc panel of this Court listed various cases from this Court in

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which we considered receiving stolen property cases after Williams. The

Robinson Court divided the cases into three broad categories: (1) cases in

which we held that mere possession of a stolen item, without more, was

insufficient to prove guilty knowledge; (2) cases in which the brevity of the

duration between the theft of the item and the person being found in

possession of that item was deemed sufficient to infer a guilty knowledge, and

(3) cases in which circumstances other than recency was the predominant

factor in proving a guilty knowledge, such as where serial numbers on items

were altered, where the person attempted to sell the stolen item, where VIN

numbers on vehicles were obliterated, and where the person attempted to flee

from the police with the stolen item. See id. at 268-69 (listing cases).

The Crimes Code defines the offense of theft by unlawful taking or

disposition as follows:

(a) Movable property. — A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

18 Pa.C.S.A. § 3921(a). Thus, to convict a defendant of theft by unlawful

taking, the Commonwealth must establish three elements: (1) unlawful taking

or unlawful control over movable property; (2) ownership by another person

of the movable property; and (3) intent to deprive permanently. See id.; see

also Commonwealth v. Goins, 867 A.2d 526, 530 (Pa. Super. 2004).

Although theft by receiving stolen property does not expressly prohibit

“unlawful taking or unlawful control over movable property,” the statute’s

requirement that a person intentionally acquire possession, control, or title,

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or retain, dispose, or lend on the security of moveable property of another,

knowing or believing that it is stolen, necessitates either theft of the property

or unlawful control over the movable property of another. See

Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011). Similarly, the

second element of theft by unlawful taking, that the movable property belong

to another, is necessary to establish the second element of theft by receiving

stolen property because a person cannot have knowledge or belief that

property was stolen unless it belonged to another. See id. Finally, both

statutes require the intent to deprive permanently. See id. Accordingly, the

crime of receiving stolen property is a lesser included offense of theft by

unlawful taking, and where evidence supports a claim of receiving stolen

property, the same evidence also supports a claim of theft. See id.

In relation to both of these crimes, the value of the stolen property

determines the grading of the charge. See Commonwealth v. Figueroa,

859 A.2d 793, 797 (Pa. Super. 2004). The burden to establish the value of

the stolen property rests upon the Commonwealth. See Commonwealth v.

Hanes, 522 A.2d 622, 623 (Pa. Super. 1987). Accordingly, “theft constitutes

a felony of the third degree if the amount involved exceeds $2,000, or if the

property stolen is an automobile” but, otherwise “[t]heft . . . constitutes a

misdemeanor of the first degree” when the property is taken from the person.

18 Pa.C.S.A. § 3903(a.1), (b); see also Commonwealth v. Williams, 567

A.2d 709, 713 (Pa. Super. 1989) (explaining that “when a theft involves the

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taking of property, which has a value of less than $2,000, from the person of

another, the offense is a misdemeanor of the first degree”).

The Commonwealth contends that even if one were to assume that

Carter had nothing to do with the original act of stealing items from Bekes,

Carter’s subsequent actions were sufficient to establish a prima facie case for

both receiving stolen property and theft by unlawful taking. The

Commonwealth further maintains, without making any specific arguments

about the appropriate grading of the theft charges, that Beke’s “wallet and his

cell phone . . . were items of obvious value that the perpetrators of the

underlying crimes would be expected to misappropriate.” Commonwealth’s

Brief at 11.6

The trial court denied the Commonwealth’s motion to refile the theft

charges as third-degree felonies, finding that the Commonwealth only

submitted enough evidence to establish a prima facie case for the receiving

stolen property charge classified as a first-degree misdemeanor.

Regarding the elements of the theft offenses, we conclude that Carter’s

mere possession of stolen property — Bekes’ wallet, credit cards, cell phone,

and identification — alone, is insufficient evidence to permit an inference of

Carter’s guilty knowledge that the items were stolen. See Williams, 362

A.2d at 248 n.7. However, when Bekes called his own cell phone the morning

____________________________________________

6 The Commonwealth did not argue before the trial court or on appeal that the

value of Bekes’ stolen truck should factor into any value assessment for purposes of grading the theft charges.

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after the carjacking, Carter answered and struck a $200 deal to return Bekes’

stolen cell phone, wallet, and identification, supporting the inference of

Carter’s guilty knowledge and linking him to the theft of the items. See

Robinson, 128 A.3d at 268. Carter’s conduct provided circumstantial

evidence of his guilty knowledge, supporting a finding that: (1) combined with

his recent possession of Bekes’ wallet and cell phone; (2) Carter knew these

items were stolen from Bekes; and (2) Carter intended to permanently deprive

Bekes of them. See Shaffer, 288 A.2d at 109-110; see also 18 Pa.C.S.A. §

3925. As a result of this additional circumstantial evidence, we conclude that

the Commonwealth established a prima facie case against Carter for receiving

stolen property. See id. Therefore, since the evidence was sufficient to

support each element of receiving stolen property, the Commonwealth also

established a prima facie case against Carter for theft by unlawful taking. See

Young, 35 A.3d at 63; see also 18 Pa.C.S.A. §§ 3921, 3903(b).

Concerning the grading of the theft offenses, the Commonwealth failed

to identify or address any evidence presented at the preliminary hearing

regarding the value of the wallet and cell phone to justify classifying the theft

charges as third-degree felonies. The Commonwealth’s vague assertion, that

“the victim’s wallet and his cell phone . . . were items of obvious value,” is

wholly insufficient to establish the monetary value of those items, let alone

that the items carried a value of more than $2,000. Thus, this Court is

compelled to conclude that the wallet and cell phone were worth less than

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$2,000, and thus the theft charges should be properly graded as first-degree

misdemeanors. See Williams, 567 A.2d at 713.

Accordingly, we affirm the portion of the trial court’s order denying the

Commonwealth’s motion to refile charges for conspiracy, PIC, simple assault,

aggravated assault, robbery, robbery of a motor vehicle, theft by unlawful

taking (graded as a third-degree felony), and receiving stolen property

(graded as a third-degree felony). However, we reverse the portion of the

trial court’s order denying the Commonwealth’s motion to refile the charge for

theft by unlawful taking (graded as a first-degree misdemeanor), and remand

for further proceedings.

Order affirmed in part and reversed in part. Case remanded.

Jurisdiction relinquished.

Date: 2/28/2025

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