PA Superior Court: Failure to Return Lost Cell Phone After Fight May Be Theft

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Griffith, affirming the defendant’s conviction for theft of property lost, mislaid, or delivered where the defendant found the complainant’s cell phone on the ground after a fight and then threw it back on the ground instead of returning it.

The Facts of Griffith

The defendant and the complainant attended a Halloween party in York County. The complainant had a physical altercation with one of the defendant’s friends. The defendant and another person joined in, and they all fought the complainant. The fight ended, but later that night, another fight took place involving the complainant and one of the defendant’s family members at a different location. That fight also involved the defendant. That fight ended when the police came and arrested everyone.

The complainant eventually realized she had lost her iPhone. She called the phone, and the defendant answered. She called the phone again later, and no one answered. She called the defendant the next day through a social media app, and the defendant told her she was not getting the phone back, “it’s gone,” and “to press charges.” She then hung up. The complainant asked again if she could return the phone, and the defendant said, “no, it’s gone.” The Commonwealth played a recording of these calls in court.

The defendant testified in her own defense. She said that after the arrests for the second fight, she and her cousin found the ringing phone on the ground. At first, she thought it was hers because she and the complainant had the same phone. She picked it up, talked to the complainant, realized it was not her own phone, and threw it back on the ground. She had not seen it since. She did not feel responsible for the phone, but she did not think she had stolen it because she did not take it, keep it, or cause it to be on the ground outside.

The trial court convicted her of theft. The court sentenced her to one year of probation and restitution of $1,000 for the phone. The defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that the Commonwealth failed to present sufficient evidence because she did not have an intent to deprive the complainant of the phone. She interacted with the phone when she heard it ringing and thought it might be her phone, but she had no duty to return the phone to the complainant and was permitted to put the phone back where she found it. She argued that leaving the phone where she found it was a reasonable measure to return the phone to its owner and she had no duty to help the complainant find her phone. She also did not do anything to conceal the phone or make it harder for the complainant to find it.

The Superior Court rejected this argument and affirmed the conviction. The theft statute provides:

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 the intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.

18 Pa.C.S.A. § 3924.

The court concluded that the defendant acted with the intent to deprive by putting the phone back on the ground. The court found intent both from the circumstances of the fight, the mean things the defendant said, and the fact that the defendant told the complainant to press charges. Similarly, the defendant’s actions were not reasonable. Instead of putting the phone somewhere safe, the defendant threw it back on the ground. Accordingly, the Court affirmed the conviction. One of the judges dissented, however, making it more likely that the Superior Court or Supreme Court will entertain additional appeals.

This case is concerning because it allows for criminal liability for a defendant who did not actually steal any property. The complainant lost her phone during a fight, the defendant was not responsible for it, and the defendant should not really have had any obligation to help the complainant recover her phone. The complainant also had access to the Find my iPhone application and could have tried to find it herself. Nonetheless, the court found that because the defendant picked up the phone, she had an obligation to return it. This creates a duty to act even for someone who did not cause the property to be lost. Hopefully, the defendant will pursue additional appeals.

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