Commonwealth v. Henry

875 A.2d 302, 2005 Pa. Super. 149, 2005 Pa. Super. LEXIS 914
CourtSuperior Court of Pennsylvania
DecidedApril 25, 2005
StatusPublished
Cited by13 cases

This text of 875 A.2d 302 (Commonwealth v. Henry) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Henry, 875 A.2d 302, 2005 Pa. Super. 149, 2005 Pa. Super. LEXIS 914 (Pa. Ct. App. 2005).

Opinions

BENDER, J.:

¶ 1 Michael Henry (Appellant) appeals from the August 20, 2003 judgment of sentence imposed following his conviction for unauthorized use of an automobile. 18 Pa.C.S. § 3928(a). Appellant challenges the sufficiency of the evidence presented to sustain his conviction. We reverse.

¶ 2 Appellant was arrested and charged with theft, unlawful taking and disposition, receiving stolen property, and the unauthorized use of an automobile. He waived his right to a jury trial and was found guilty at a bench trial of the unauthorized use of an automobile. Appellant was acquitted of the other remaining counts. Appellant was sentenced to two years’ reporting probation.

¶ 3 In its opinion, the trial court summarized the testimony provided by the witnesses upon which the court based its guilty verdict:

By way of stipulation, counsel agreed that had he been called to testify, Alcohol, Tobacco and Firearms Agent Joseph Ruta would have stated that on October 26, 2002 he was in possession of a gold 2002 Dodge Intrepid, Pennsylvania license tag ELSA209. In addition, Agent Ruta would have testified that he last saw the Dodge Intrepid on Saturday, October 26, 2002 at 5:00 a.m. when he parked it in the 6900 block of Crispin Street (incorrectly noted as Christian Street). The next day, Sunday, October 27th, Officer Ruta noticed that the car was not where he had parked it on Crispin Street. Further, Agent Ruta would have stated that when the car was returned to him, his ATF identification card and bullet-proof vest were missing, the steering column and a door lock on the driver’s side were broken and that the original license tag was still intact. Finally, Officer Ruta would have confirmed that he did not know Appellant, that Appellant has had no affiliation with the ATF as a suspect or otherwise, and that he did not give Appellant permission to use the car or move it from its location.
Officer Ronald Rosati, Major Auto Crimes Unit, testified that he checks the missing automobile lists daily and upgrades any “interesting” or “suspicious” stolen car alerts to “guard for prints.” Once located, Officer Rosati has the stolen car towed to his location where he confirms the vehicle identification number and “dusts” the car for fingerprints.
The abandoned Dodge Intrepid was recovered from its location on the side of the highway on October 28th, two days after it was reported stolen. The car [304]*304was then taken to Officer Rosati’s location where it was dusted for fingerprints. Officer Rosati took nine sets of latent fingerprints of which one set was returned positive. The positive fingerprint was lifted from the ATF placard that is normally situated in the window of an ATF vehicle to avoid ticketing by local authorities while on official business. Based upon the positive match, Officer Rosati obtained an arrest warrant for Appellant.
Scott Copeland, an expert in evaluating and identifying fingerprints for the Federal Police Department Latent Fingerprint Section, testified that he was given nine fingerprint cards to analyze. After processing the cards through the automated fingerprint identification system, the results produced a match to appellant Michael Henry indicating eleven points of identification. Accepting as true that no two persons have the same fingerprint, the FBI does not have a standard regarding the number of points of identification considered sufficient to make a positive match but refrains from producing as evidence in court those analyses where the points of identification are less than nine.

Trial Court Opinion (T.C.O.), 4/28/04, at 1-8 (citations to the notes of testimony omitted).

¶ 4 Appellant filed the instant, timely appeal to this Court, raising the following single issue for our review:

Was not the evidence insufficient to convict [AJppellant for unauthorized use of an automobile where the only evidence of “operation” was the fact that [Appellant’s fingerprint was found on a placard found inside the car, and [Appellant's fingerprint was one of nine lifted from the car?

Appellant’s brief at 3.

¶ 5 As noted above, Appellant challenges the sufficiency of the evidence to sustain his conviction for the unauthorized use of an automobile. We therefore note our applicable, well-settled standard of review:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Hunzer, 2005 PA Super 13, ¶ 4, 868 A.2d 498 (2005) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001) (citations and quotations omitted)).

¶ 6 The unauthorized use statute in pertinent part provides:

§ 3928. Unauthorized use of automobiles and other vehicles
[305]*305(a) Offense defined. — A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.

18 Pa.C.S. § 8928 (emphasis added).

¶ 7 Appellant’s argument centers on the word “operates.” He contends that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that he “operated” the vehicle. Citing Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980), Appellant states that “Mperation can be proven through direct testimony that a person was seen driving a vehicle or circumstantial evidence showing that he or she exercised conscious control or dominion over the vehicle.” Appellant’s brief at 9. Appellant also relies on Commonwealth v. Wolen, 546 Pa. 448, 685 A.2d 1384, 1385 (1996), a driving under the influence case, wherein our Supreme Court stated that:

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Bluebook (online)
875 A.2d 302, 2005 Pa. Super. 149, 2005 Pa. Super. LEXIS 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-henry-pasuperct-2005.