J-S10023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MALIK BRUNSON

Appellant No. 1456 EDA 2014

Appeal from the Judgment of Sentence entered April 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-0015546-2013

BEFORE: GANTMAN, P.J., STABILE, and PLATT,*JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 15, 2015

A person who “operates the automobile, airplane, motorcycle, 

motorboat, or other motor-propelled vehicle of another without consent of 

the owner” is guilty of unauthorized use of a motor vehicle. 18 Pa.C.S.A. 

§ 3928(a). In this case, we decide whether Appellant, Malik Brunson’s, 

admission to “placing” a stolen motorcycle in a friend’s yard is sufficient to 

support the inference that he “operated” the motorcycle. We hold that 

Appellant’s admission, together with other evidence produced at trial, is 

sufficient to sustain his conviction. 

The trial court stated the background of this case as follows:

On June 6, 2013, complainant, Jonathan Taylor, noticed that his 

motorcycle was missing from his home on North 7th Street [in 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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the City of Philadelphia]. Mr. Taylor testified that a couple 

months later, on August 22, 2013, he saw what appeared to be 

his motorcycle in the backyard of 5883 North 7th Street, down 

the other end of the block from Mr. Taylor’s house. Mr. Taylor 

was able to recognize some of the distinct features of his 

motorcycle, such as the design on the gas tank and gold front 

struts on the handlebars. Mr. Taylor called the police, and let 

them know that he believed that it was his motorcycle in the 

backyard of 5883 North 7th Street. The police confirmed to Mr. 

Taylor that it was his motorcycle in the backyard of 5883 [North 

7th Street].

Mr. Taylor testified that there was substantial damage to his 

motorcycle, in that all the panels were removed, the headlights 

disassembled, the electrical system stripped, the ignition 

popped, and the motorcycle frame bent. The damage to the 

motorcycle was extensive, and unable to be fixed.

The victim further testified that the motorcycle was purchased 

for $2,200, that he owned it for a little over a year, and that its 

value when stolen was $1,500. Mr. Taylor also testified that 

when the motorcycle was on his property, he secured the front 

wheel with a metal bar to keep it from moving or being rolled 

away, and additionally, the front wheel was locked and turned to 

the side. The complainant stated that the motorcycle could not 

just be rolled out of the backyard because of these features, and 

that it would have had to be carried out of the backyard, or that 

“they had to break the locks to make it go straight and they had 

to cut the back.”

Officer Randel Goodson testified that on August 22, 2013, he 

walked to 5883 North 7th Street with the victim and saw the 

motorcycle in the rear of the property. It was determined that 

the motorcycle was Mr. Taylor’s stolen motorcycle. The 

[Appellant], Malik Brunson, arrived at the property shortly 

thereafter and confirmed that it “was his bike and that he 

placed it on the property so his friend could hold it for 

him.”

Trial Court Pa.R.A.P. 1925(a) Opinion, 8/11/14, at 1-3 (citations of notes of 

testimony omitted) (emphasis added).
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Officer Goodson arrested Appellant and charged him with criminal 

conspiracy, receiving stolen property, and unauthorized use of a motor 

vehicle. The conspiracy charge was dismissed at the preliminary hearing, 

and the receiving stolen property charge was dismissed on Appellant’s 

pretrial motion after the case was held for court. Following a non-jury trial, 

the trial court convicted Appellant of unauthorized use of a motor vehicle 

and immediately sentenced him to two years’ probation and $1,500.00 

restitution. This appeal followed.

On appeal, Appellant challenges only the sufficiency of the evidence 

supporting his conviction. A challenge to the sufficiency of the evidence is a 

question of law. Commonwealth v. Orie, 88 A.3d 983, 1013 (Pa. Super. 

2014).

In challenges to the sufficiency of the evidence, “our standard of 

review is de novo, however, our scope of review is limited to 

considering the evidence of record, and all reasonable inferences 

arising therefrom, viewed in the light most favorable to the 

Commonwealth as the verdict winner.” Commonwealth v. 

Rushing, 99 A.3d 416, 420-21 (Pa. 2014). Evidence is 

sufficient if it can support every element of the crime charged 

beyond a reasonable doubt. Commonwealth v. Vogelsong, 

90 A.3d 717, 719 (Pa. Super. 2014). The evidence does not 

need to disprove every possibility of innocence, and doubts as to 

guilt, the credibility of witnesses, and the weight of the evidence 

are for the fact-finder to decide. Id. We will not disturb the 

verdict “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.” Id. (quotation omitted). 

Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015). 
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“A person is guilty of a misdemeanor of the second degree if he 

operates the automobile, airplane, motorcycle, motorboat, or other motorpropelled vehicle of another without consent of the owner.” 18 Pa.C.S.A. 

§ 3928 (emphasis added).

The Crimes Code does not define operate. Therefore, we employ 

principles of statutory construction, under which:

Words and phrases shall be construed according to rules of 

grammar and according to their common and approved usage; 

but technical words and phrases and such others as have 

acquired a peculiar and appropriate meaning or are defined in 

this part, shall be construed according to such peculiar and 

appropriate meaning or definition.

1 Pa.C.S.A. § 1903(a).

Concerning motor vehicles, operating is a broader term than driving. 

Commonwealth v. Brown, 407 A.2d 1318, 1319-20 (Pa. Super. 1979). In 

Brown, we concluded that a former DUI statute,1 which prohibited only 

driving under the influence, was narrower in scope than an even older DUI 

statute,2 which prohibited operating under the influence. Id. Driving 

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1

“A person shall not drive any vehicle while:” under the influence of 

alcohol, a controlled substance, or a combination of the two “to a degree 

that renders the person incapable of safe driving.” Act of June 17, 1976, 

P.L. 162, No. 81 § 1 (amended, repealed, and re-codified at 75 Pa.C.S.A. 

§ 3802) (emphasis added).

2

“It shall be unlawful for any person to operate a motor vehicle, tractor, 

streetcar or trackless trolley omnibus, while under the influence of 

intoxicating liquor or any narcotic drug or habit producing drug . . . .” Act of 

April 29, 1959, P.L. 58, ch. 1037 (formerly found at 75 P.S. § 1037) 

(repealed) (emphasis added).
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required some proof that the vehicle was in motion, while operating did not. 

Id. Operating means exercising “conscious control or dominion” over the 

vehicle. In the Interest of Scott, 566 A.2d 266, 267 (Pa. Super. 1989). 

“Such control or dominion may be established by circumstantial evidence; 

however, mere suspicion or conjecture will not suffice.” Id. Moreover, 

conscious control or dominion is not established merely by showing that a 

suspect has been a passenger in a stolen vehicle. Id.

In Commonwealth v. Henry, 875 A.2d 302, 303-04 (Pa. Super. 

2005), for example, police officers recovered the abandoned vehicle of a 

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agent, who had 

reported his car stolen two days prior. The officers found Henry’s fingerprint 

inside the car, on an ATF windshield placard the agent used to avoid parking 

tickets from local authorities while on government business. Id. On appeal, 

Henry claimed the Commonwealth failed to prove that he operated the 

stolen vehicle. A divided panel of this Court agreed:

[Henry’s] fingerprint on the placard reveals only that at some 

point [Henry] was present in the vehicle and nothing more. 

Since the vehicle was found more than a day after being 

reported stolen with the driver’s side door lock broken, [Henry] 

could have had access to the interior of the vehicle after it was 

abandoned by the perpetrator who stole the car. The fingerprint 

alone is insufficient to establish operation, i.e., conscience 

control or dominion over the vehicle, beyond a reasonable doubt.

Id. at 306.

In contrast, in Commonwealth v. Marrero, 914 A.2d 870, 871 (Pa. 

Super. 2006), police found Marrero’s fingerprints on the inside of the engine 
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compartment. Weiland, the owner, had reported his vehicle stolen. When 

police recovered the car, the custom engine had been removed. We 

rejected Marrero’s claim that the evidence of unauthorized use was 

insufficient:

We find Henry distinguishable from the facts sub judice. Rather 

than having been found in the passenger compartment, which 

would have permitted an inference of being an innocent 

passenger, Marrero’s fingerprints were found under the hood of 

Wieland’s vehicle. It is important to note that one method of 

removing the engine from Wieland’s vehicle would have required 

opening the hood of the car. The engine from Wieland’s vehicle 

was, in fact, removed after the vehicle had been stolen. 

Furthermore, the location under the hood was not susceptible to 

an inference of innocent contact. Wieland testified that he did 

not know Marrero and did not know of any reason why Marrero 

would have legitimately been under the hood of his vehicle.

Id. at 872 (internal citations of notes of testimony omitted).

Henry and Marrero together are instructive. Those cases show that 

the Commonwealth must prove more than a mere connection between the 

defendant and the vehicle. This case falls in between Henry and Marrero. 

Unlike Henry, Appellant is connected to the motorcycle through his 

admission to Officer Goodson. However, unlike Marrero, no direct evidence 

connects Appellant to the disabling damage caused to the motorcycle. 

Here, Taylor’s motorcycle disappeared from his yard. Taylor had 

secured the motorcycle with a lock and metal bar on the front wheel. To 

move the motorcycle, it was necessary to cut the lock and remove the metal 

bar. The motorcycle was found in the yard of Appellant’s friend, damaged 

beyond repair. When asked by Officer Goodson, Appellant claimed to own 
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the motorcycle and said he “placed” it there. We hold that Appellant’s 

admission to “placing” the vehicle in his friend’s yard is sufficient to show 

that Appellant operated the motorcycle without Taylor’s authorization.

We must accept as true Officer Goodson’s testimony regarding 

Appellant’s statement. Appellant’s admission to placing the motorcycle 

where it was found is sufficient to support the inference that he exercised 

conscious dominion or control over the motorcycle. Placing requires 

movement, and movement can be inferred in several ways. Appellant could 

have physically carried the motorcycle. Appellant also could have pushed it. 

Finally, Appellant could have manipulated the ignition so the motorcycle 

would start without a key, and driven it into his friend’s yard. 

We do not find Appellant’s argument to the contrary persuasive. 

Appellant attempts to provide his own inferences from the evidence. We 

must accept as true all inferences that can be derived from the evidence, 

and view those inferences in the light most favorable to the Commonwealth. 

Forrey, supra. The Commonwealth can rely on circumstantial evidence to 

meet its burden. Although it is possible to draw innocent inferences from 

the evidence, the evidence “does not need to disprove every possibility of 

innocence.” Id.

Furthermore, Appellant’s analogies to model airplanes and televisions 

are inapt. It is true that a burglar who carries away a television set or a 

person who holds a model airplane has not “operated” the television or 

airplane, respectively. However, these analogies require applying the 
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common meaning of “operate.” Operating, as applied to unauthorized use 

of a motor vehicle, is a term of art with a peculiar meaning established by 

case law. See 1 Pa.C.S.A. § 1903(a) (providing that technical words or 

words that have acquitted a peculiar meaning “shall be construed according 

to such peculiar and appropriate meaning or definition”). Thus, operating—

in context—means more than merely turning on a television or controlling a 

model airplane. For purposes of 18 Pa.C.S.A. § 3928, it means exercising 

conscious dominion and control over a motor vehicle. Appellant’s admission 

to placing the motorcycle in his friend’s backyard satisfies this peculiar 

definition.

In sum, Appellant’s admission to “placing” in his friend’s backyard the 

victim’s stolen motorcycle, together with the other evidence produced at trial 

is sufficient to sustain his conviction for unauthorized use of a motor vehicle. 

Because there is no merit to Appellant’s argument, we affirm the judgment 

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2015