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Reedy v. Evanson

April 20, 2009

SARA R. REEDY PLAINTIFF,
v.
FRANK S. EVANSON, INDVIDIAULLY AND IN AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE TOWNSHIP OF CRANBERRY; STEVE MANNELL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE PUBLIC SAFETY DIRECTOR OF THE TOWNSHIP OF CRANBERRY; KEVIN MEYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE TOWNSHIP OF CRANBERRY, DEFENDANTS.



The opinion of the court was delivered by: Judge David S. Cercone

Electronic Filing

OPINION

I. INTRODUCTION

Sarah R. Reedy ("Plaintiff" or "Reedy") commenced this civil rights action pursuant to 42 U.S.C. § 1983 seeking redress for claims of unlawful search, unlawful seizure, false imprisonment, and malicious prosecution under the Fourth Amendment and violation of liberty interests under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and false arrest, false imprisonment, abuse of process and intentional infliction of emotional distress under Pennsylvania Law. Detective Frank S. Evanson ("Detective Evanson"), Detective Kevin Meyer ("Detective Meyer"), and Public Safety Director Steve Mannell's (collectively "Defendants") filed a Motion for Summary Judgment. After careful consideration of the parties' submissions and the applicable law, this court issued an order granting defendants' motion on March 31, 2009. This opinion is issued in support of that order.

II. SUMMARY JUDGMENT STANDARDS

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

III. FACTUAL BACKGROUND

Unless otherwise specified, the following facts are undisputed. Defendant Evanson has been a police detective for the Cranberry Township Police Department since 1986. (Defendants' Concise Statement of Material Facts, doc. no. 99 at ¶ 1; Plaintiff's Responsive Concise Statement to Defendant's Concise Statement of Material Facts, doc. no. 104 at ¶ 1). On July 14, 2004, Detective Evanson was notified by Corporal Hartman of the Cranberry Township Police Department of a robbery and sexual assault at the J&G Gulf Station in which Plaintiff was the victim. (doc. no. 99 at ¶ 3). In January, 2005, Detective Evanson prepared and filed a Criminal Complaint and Affidavit of Probable Cause ("Affidavit") with District Justice Steffe for the purpose of charging Plaintiff with the misdemeanor crimes of theft, receiving stolen property, and making false reports to law enforcement authorities. (doc. no. 99 at ¶ 7; doc. no. 104 at ¶ 7). District Justice Steffe issued a warrant for Plaintiff's arrest. (doc. no. 99 at ¶ 7). What follows is a chronological account of the events from the robbery and sexual assault up to the point the charges against Plaintiff were dropped.*fn1

A. The Incident

Immediately following the robbery and assault, Plaintiff made her way to Jordan's Service Center and informed the employee on duty, Robert McGee, that she had been robbed. (doc. 99 at ¶ 10; doc. 104 at ¶ 10). McGee placed a 911 call to report the incident, and while on the phone, Plaintiff stated that she had also been sexually assaulted. (doc. 99 at ¶ 12; doc. no. 104 at ¶ 12). The actor was described as a male, approximately 5'6" to 5'7" tall, wearing a blue baseball cap, blue jeans, and blue boxers. (doc. no. 99 at ¶ 13; doc. no. 104 at ¶ 13). Plaintiff did not know which direction the actor left the scene or have any vehicle description. (doc. no. 99 at ¶ 14; doc. 104 at ¶ 14). Plaintiff's boyfriend, Mark Watt, arrived on the scene after being called by Plaintiff, and Corporal Charles M. Mascellino transported both Plaintiff and Mark Watt to the University of Pittsburgh Medical Center ("UPMC") Cranberry. (doc. 99 at ¶ 14; doc. no. 104 ¶ 14). While at the hospital, Plaintiff reported the details of the robbery and sexual assault to Corporal Mascellino, who then entered into the Police Report a detailed recitation of Plaintiff's description:

At the ER, RO [Mascellino] and Reedy were seated in the triage area while awaiting Det. Evanson. RO asked Reedy about the incident and to say what happened. Reedy stated that she was reading the newspaper when a male walked in. She stated that she didn't pay much attention to him. She stated that he went and picked up a pack of gum, then went over to the register. Reedy then stated that he pulled a black gun from the front of his waistband and ordered her to get on the floor. The male then walked around the counter and asked her how to open the register.

She told him to push the No Sale key. Male couldn't find the key, and she told him she thought it was blue and had a "NS" on it. The male then opened the register and took the money out of the register. RO asked if she knew how much was in the register.

Reedy stated that there was $75.00 in $5's, about $80.00 in $10's, some $20's, and she was unsure how many $1's. Reedy said the male then unzipped his pants and took out his "dick." She stated that he told her to "suck his cock" and that she didn't want to die so she did. He then told her to stick her finger up his "asshole" and she did. The male told her he was going to come, and that she would swallow it or he would shoot her in the head. She stated again that she did not want to die so she did. She also stated that he was playing with her breasts. When RO asked where this happened, Reedy stated that it was in front of the windows so everyone could see. Reedy stated that the male told her to go into the back room, which she did. The male told her to open the safe, which she did. He then told her to take out the money. She stated that she took two envelopes out of the safe. One envelope contained $75.00 in $1.00 bills. The other envelope was a blue envelope marked lottery, and she was not sure how much was in it.

She said the male then told her to rip the phone lines from the wall and she did. He then told her to stay there for 5 minutes or he would shoot her. She stated that she waited there for a while, then ran out the back door over to Jordan's. (doc. no. 104 at ¶¶ 61-63; Defendants' Response to Plaintiff's Additional Material Facts, doc. no. 107 at ¶¶ 61-63).*fn2

Upon Detective Evanson's arrival at UPMC Cranberry, he and Corporal Mascellino entered the room where Plaintiff was being treated and she again advised the officers of the incident. (doc. no. 99 at ¶¶ 16-26; doc. no. 104 at ¶¶ 16-26).*fn3 She further advised the officers that the incident occurred at approximately 10:40 P.M. (doc. no. 99 at ¶ 28; doc. no. 104 at ¶ 28). Prior to being released from UPMC Cranberry, Plaintiff agreed to provide Detective Evanson with a written statement. (doc. no. 99 at ¶ 29; doc. no. 104 at ¶ 29).

Nurse Mary Beth Farah treated Plaintiff on the night of the incident, and provided a written statement to Detective Evanson which included information that Plaintiff conveyed about the incident. (doc. 104 at ¶¶ 80-81; doc. no. 107 at ¶¶ 80-81). Nurse Farah's narrative quoted Plaintiff as saying "[t]hey're calling me a liar." (doc. no. 104 at ¶ 82; doc. no. 107 at ¶ 82). The narrative also included another detailed account from Plaintiff describing the incident. (doc. no. 104 at ¶ 83).*fn4

B. The Panic Alarm and the "No Sale" Key

J&G Gulf manager Carol Hazlett was at the store on July 14, 2004 for a period of time, but went home prior to the incident. (doc. no. 99 at ¶¶ 31-32; doc. no. 104 ¶¶ 31-32). At approximately 11:20 P.M., the station's alarm company, Security Systems of America, contacted Ms. Hazlett to report an interruption to the power source of the alarm and that it failed to restore after a one-hour delay. (doc. no. 99 at ¶ 33; doc. no. 104 at ¶ 33). The alarm company contacted Ms. Hazlett after it attempted to call the J&G Gulf Station and received no answer. (doc. no. 99 at ¶ 34; doc. no. 104 at ¶ 34). Upon arriving at the station, Ms. Hazlett checked the power cord for the alarm, located behind the desk in the rear office, and discovered that it had been unplugged. (doc. no. 99 at ¶ 36; doc. no. 104 at ¶ 36). Plaintiff denies pulling the plug or even knowing where it was located prior to the incident. (Reedy Depo. at 113-14). No other explanation as to how the alarm plug was pulled has been proffered by either party. (Id.; Evanson Depo. at 215-16).

Ms. Hazlett also pulled the register take for the night of July 14, 2004 and found that the NS ("No Sale") key had been pushed at 9:40 P.M. (doc. no. 99 at ¶ 37; doc. no. 104 at ¶ 37). The register's time was one hour behind actual time, meaning that the NS key was pushed at 10:40 P.M. (Id.). Ms. Hazlett confirmed that the clock in the station is not in sync with the register clock. (doc. no. 99 at ¶ 38; doc. no. 104 at ¶ 38).

C. Plaintiff's Meeting with Detective Evanson

At some point following the incident, Plaintiff, accompanied by her parents, met with Detective Evanson at the Cranberry Township Police Station to discuss the incident and provide a written statement.*fn5 At this meeting, Detective Evanson asked Plaintiff about the alarm plug, and she stated that while in the rear office with the actor, she only disabled the telephone and she did not believe the actor disabled any lines for electricity or the alarm. (doc. no. 99 at ¶¶ 41-43; doc. no. 104 at ¶¶ 41-43). Detective Evanson advised Plaintiff that a report from Security Systems of America confirmed that an alarm was signaled at 2314 hours because of a power failure at 2214 hours. (doc. no. 98, exh. F; doc. no. 99 at ¶ 44). He then questioned Plaintiff as to how this power failure could have occurred at 2214 hours when the incident occurred at 2240 hours. (doc. no. 99 at ¶ 47).

In response to this line of questioning, Plaintiff became upset and said she wanted to "drop the whole thing." (Id.). In the Affidavit, Detective Evanson characterized Plaintiff as being "verbally abusive," but Plaintiff claims she was only upset because Detective Evanson grew "hostile" towards her and accused her of lying and taking money from the Gulf Station. (Id. at ¶ 47; doc. no. 104 at ¶ 47, ex. 6, Reedy Depo., at 88:11-20, 93:12-94:19, 111:8-25). Detective Evanson informed Plaintiff that the matter could not be dropped due to the alleged robbery and theft, at which time Plaintiff grew more agitated and stated she just wanted "the whole thing to go away." (doc. no. 99 at ¶ 48). Plaintiff claims that she grew more agitated and indicated a desire to stop the proceedings in response to Detective Evanson's hostility and badgering. (doc. no. 104 at ¶ 48).

D. Plaintiff and Mark Watt's Mobile Home Rental

According to David Kriley, manager of Green Acres Trailer Park located on Route 8 in Penn Township, Plaintiff and Mark Watt inquired about renting a trailer sometime in mid-July. (doc. no. 99 at ¶ 50; doc. no. 104 at ¶ 50). On July 19, 2004, Plaintiff and Mark Watt applied to rent a mobile home, agreeing to a monthly rental fee of $365.00 and to pay a security deposit in the amount of one month's rent prior to moving in. (doc. no. 99 at ¶¶ 51-52; doc. no. 104 at ¶¶ 51-52). It was noted on the application that Catholic Charities agreed to provide $200.00 of the initial security deposit and Plaintiff and Mark Watt agreed to provide the remaining $165.00, which they did, in cash, on July 20, 2004. (doc. no. 99 at ¶¶ 53-54; doc. no. 104 at ¶¶ 53-54). Mark Watt supplied the additional $165.00 in cash.

E. Plaintiff's Arrest and Subsequent Release

On January 10, 2005, Detective Evanson prepared a draft affidavit of probable cause that he later submitted to District Attorney William T. Fullerton, Esquire. (doc. no. 104, exh. 14). Mr. Fullerton emailed Detective Evanson, advising that the affidavit should be trimmed. (doc. no. 112, exh. 28). Detective Evanson made the requested modifications and submitted the final Affidavit of Probable Cause to District Justice Steffe. Upon consideration of the Affidavit of Probable Cause, District Justice Steffe issued a warrant for Plaintiff's arrest for the charges set forth in the criminal complaint. (doc. no. 99 at ¶ 56).

On January 18, 2005, Plaintiff learned that the arrest warrant had been issued for her arrest and turned herself in at the Magisterial District Judge's office the following day. (Plaintiff's Pretrial Statement, doc. no. 89 at 5). A cash bond was set in the amount of $5,000.00. Plaintiff was unable to post bond, taken into custody and transported to the Butler County Jail where she spent five (5) days. (Id. at 6). Plaintiff posted bail on the sixth day and was released, and her trial was scheduled for September 19, 2005. (Id. at 7). In August, 2005, police in Brookville, Pennsylvania, apprehended Wilbur Brown for committing a similar crime whereupon he confessed to the robbery and sexual assault of Plaintiff. (doc. no. 99 at ¶ 57). All charges were withdrawn by the District Attorney's office without opposition by Detective Evanson. (Id. at ¶ 58).

F. The "Landmark Attack"

At least one other rape was reported in Cranberry Township in 2004, and this occurred near the Landmark Building. (doc. no. 104 at ¶¶ 136-37; doc. no. 107 at ¶¶ 136-37). Detective Evanson was the lead investigator on this matter. (doc. no. 104 at ¶ 138; doc. no. 107 at ¶ 138). Plaintiff's situation and the Landmark Attack share a number of similarities, namely proximity in location and time as well as the style of the attack. Both attacks occurred roughly 1.5 miles and 91 days apart. (doc. no. 104 at ¶¶ 142-43). Both the Landmark Attack victim and Plaintiff were robbed of money and forced to perform oral sex on the assailant after having a black, semi-automatic handgun pointed at their head. (doc. no. 104 at ¶¶ 152-55; doc no. 107 at ¶¶ 152-55).

G. Public Safety Director Mannell and Detective Meyer's Role

As Director of Public Safety, Steve Mannell was the head of the Cranberry Township Police Department and was responsible for the day-to-day supervision of the Department. (doc. no. 104 at ¶¶ 170-71). For a case that warranted investigation, Mannell would review the incident report and take it to the Detectives and advise them that they needed to look into the matter further. (Id. at ¶ 176). In the investigation of rapes or robberies, Mannell was kept abreast of what was occurring in the investigation. (Id. at ¶ 178). In investigations deemed "important," Mannell would be kept abreast when a decision was made to take charges to the District Attorney and also kept apprised of the matter after the charges were filed. (Id. at ¶¶ 179-80). Throughout the investigation of Plaintiff's case, Detective Evanson kept Mannell up to date regarding Evanson's efforts on the case. (Id. at ¶ 183). Mannell approved the Detectives' handling of Plaintiff's case. (Id. at ¶ 187). He was also aware of the reason the decision was made to charge Plaintiff with theft and a false police report as he has stated "[i]f she had cooperated, had provided the information that we requested, made herself available for interviews, this wouldn't have happened." (Id. at ¶ 191; Mannell Depo. at 95:4-96:5, 160:3-6).

Detective Meyer assisted Detective Evanson at several points during the investigation, namely at the hospital and when Detective Evanson went to Plaintiff's mobile home to question her.

Defendants raise the defense of qualified immunity to all of Plaintiff's § 1983 claims and assert that the existence of probable cause defeats the remaining additional state law claims. They acted pursuant to a warrant for Plaintiff's arrest which assertedly was supported by the Affidavit. Plaintiff contends that Defendant Evanson made several material misstatements in and omissions from the Affidavit, and a corrected affidavit would not support probable cause for the crimes of filing a false police report, theft of property, and receiving stolen property.

IV. DISCUSSION

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory in the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983. Thus, to establish a claim under § 1983, a plaintiff must establish the following elements: (1) the defendant acted under color of state law; (2) the defendant violated a federal constitutional or statutory right; and (3) the violation caused injury to the plaintiff. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005).

In § 1983 cases, the question of probable cause is generally one for the jury. See Merkle v. Upper Dublin School Dist., 211 F.3d 782, 789 (3d Cir. 2000). It is particularly a jury issue where probable cause rests on a credibility determination. Id. A district court, however, may conclude "that probable cause exists as a matter of law if the evidence, viewed most favorably to plaintiff, reasonably would not support a contrary factual finding." Id. (quoting Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)). It is the responsibility of the court to determine the objective facts available to the officer at the time of the arrest and determine if they were sufficient to justify a reasonable belief that the plaintiff violated the law. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997).

The issue of probable cause will be examined by discussing Detective Evanson's alleged falsehoods in and omissions from the Affidavit in order to determine whether it has to be corrected. If so, the corrected Affidavit will be examined to determine whether it still establishes probable cause.

A. Probable Cause

Plaintiff's Fourth and Fourteenth Amendment claims hinge on whether Defendants had probable cause to charge Plaintiff with the crimes in the warrant. The Fourth Amendment of the United States Constitution provides that people are "to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV.

Articulating an exact definition for probable cause is difficult. In general, probable cause exists when the facts and circumstances within the arresting officer's knowledge give rise to a "fair probability" that the suspect has committed or is committing a crime. Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). It is a commonsense concept that deals with "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Ornelas v. United States, 517 U.S. 690, 695 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). As such, the probable cause standards is "not readily, or even usefully, reduced to a neat set of legal rules." Id. at 695-96 (quoting Gates, 492 U.S. at 232). It is not a "finely-tuned" standard, comparable to the standards of proof beyond a reasonable doubt or proof by a preponderance of the evidence. Id. And it as a fluid concept that take its substantive content from the particular context in which the standard is being assessed. Id. at 696 (citing Gates, 462 U.S. at 232; Brinegar v. U.S., 338 U.S. 160, 175 (1949) ("The standard of proof [for probable cause] is ... correlative to what must be proved").

While "the probable cause standard is incapable of precise definition or quantification," Maryland v. Pringle, 540 U.S. 366, 371, all determinations must be based on specific facts and circumstance that would warrant a prudent individual to believe there is a fair probability that an offense has been or is being committed. See Wright v. City of Philadelphia, 409 F.3d 595, 601-602 (3d Cir. 2005) (citing Hill v. California, 401 U.S. 797, 804 (1971) ("Sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment . . . .")); Gates, 462 U.S. at 246 ("probable cause does not demand the certainty we associate with formal trials."). And while it requires more than "mere suspicion," Orsatti, 71 F.3d at 482-83, it does not "require the same type of evidence of each element of the offense as would be needed to support a conviction." Adams v. Williams, 407 U.S. 143, 149 (1972). Thus, the evidentiary standard for probable cause is "significantly lower than the standard which is required for conviction." Wright, 409 F.3d at 602 (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)).

Probable cause determinations require an analysis of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 233 (1983). A determination of reasonableness under the Fourth Amendment may be based on factors which by themselves are susceptible of innocent explanation. See U.S. v. Sokolow, 490 U.S. 1, 10 (1989) ("We noted in Gates, 462 U.S. at 243-244, n. 13 ... that 'innocent behavior will frequently provide the basis for a showing of probable cause,' and that '[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts.'"); Draper v. United States, 358 U.S. 307 (1959) (upholding probable cause arrest based upon tip from informant containing several innocuous corroborative elements that subsequently were witnessed by arresting officers); Cf. United States v. Arvizu, 534 U.S. 266, 277 (2002) (holding that a determination of reasonable suspicion may be based entirely on factors which by themselves are susceptible of innocent explanation.). And such determinations "need not rule a out a possibility of innocent conduct." Arvizu, 534 U.S. at 277 (citing in support Illinois v. Wardlow, 528 U.S. 119 (2000)).

The principal components of the determination consist of the events which led up to the arrest, and then a decision must be made whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amounted to probable cause. Ornelas, 517 U.S. at 696. "The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: "[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated." Id. at 696-97 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19 (1982)).

Furthermore, the crime with which a suspect is eventually charged does not control the probable cause analysis. Id. Instead, "[p]robable cause need only exist as to any offense that could be charged under the circumstances." Id. (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).

In undertaking a probable cause determination, a district court must examine the elements of the crime or crimes at issue. Wright, 409 F.3d at 602. Plaintiff was charged with theft by unlawful taking, receiving stolen property, and filing a false police report. These defenses are defined as set forth below.

18 Pa. C.S. § 4906(b)(1) provides:

(b) FICTITIOUS REPORTS. -- Except as provided in subsection

(c), a person commits a misdemeanor in the third degree if he:

(1) reports to law enforcement authorities an offense or other incident within their concern knowing it did not occur . . . .

18 Pa. C.S. § 4906(b)(1). Theft by unlawful taking appears at 18 Pa C.S. § 3921, which provides:

§ 3921. Theft by unlawful taking or disposition

(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. § 3921(a). Receiving stolen property appears at 18 Pa. C.S. § 3294 and provides:

§ 3924. Theft of property lost, mislaid, or delivered by mistake

A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with intent to deprive the owner thereof, he fails to take ...


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