Com. v. Kleso, L. ( 2020 )

J-A01030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LYNN KLESO : No. 1315 EDA 2019
Appeal from the Order Entered April 18, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002202-2018
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 04, 2020
The Commonwealth appeals from the trial court’s order dismissing with
prejudice all charges filed against Appellee, Lynn Kleso (Kleso). Upon review,
we affirm.
Kleso1 was the manager of Better Homes & Gardens Real Estate (BHG)
from March 2015 to August 2015.2 In her role as manager, Kleso received
rent payments from tenants at the Bushkill office and transported the
payments to the Stroudsburg office. In May 2016, the Pennsylvania State
Police began investigating Kleso after receiving a report that she had stolen
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1The trial court notes that Kleso was formerly known as Lynn “Wilklow.” Trial
Court Opinion 4/18/19, at 1 n.1.
2 BHG is a real estate office affiliated with NEPA Management (NEPA), based
in Monroe County, Pennsylvania.
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$2,900 from BHG during the course of her employment. In 2017, the
Commonwealth charged Kleso with five counts of theft by unlawful taking at
docket number 1922 CR 2017. See Trial Court Opinion, 4/18/19, at 1 n.1.
After the trial court conducted a hearing, it dismissed the charges because
“there was an absence of evidence to indicate that the rent payments in
question were ever deposited[,]” and the Commonwealth failed to prove “a
prima facie case that [Kleso] took or exercised unlawful control over the cash
rent payments.” Id.
On November 20, 2018, the Commonwealth again filed charges, this
time alleging that Kleso had received stolen property, committed theft by
failing to make required disposition of funds, and committed five counts of
theft by unlawful taking of movable property.3 The affidavit of probable cause
states:
On Monday, May 2, 2016[, Trooper John Lutchko] began a
theft investigation which occurred at the Better Homes and
Garden Bushkill Branch, located at 5226 Milford Road, Middle
Smithfield Township, Monroe County. The victims report that
between the months of March and August of 2015, it was reported
that five (5) cash deposits in the amount of $580.00 had been
received by the victim, NEPA Management. These deposits were
received and receipts given to the depositor. Reconciliation sheets
were completed with daily deposits; however, the $580.00 cash
deposit was missing from each of the five (5) interoffice cash
receipts log.
On each interoffice cash receipt log, the manager who is
identified as [Kleso] signed the interoffice cash receipts log and
delivered the deposits to the main accounting department in
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3 18 Pa.C.S.A. §§ 3925, 3927, and 3921(a).
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Stroudsburg, PA, which is part of her duties as a manager. Also,
as a manager, [Kleso] had direct access to the safe via key. These
deposits were received and entered into an automated cash flow
system. It was discovered that multiple people who were assigned
to sit at the front desk of NEPA Management would receive these
cash deposits and place them into the safe. It is customary for
two (2) agents to sign the deposit and receipt, verifying the cash.
[Kleso] would then open the safe with her management key
she was issued, and remove all the deposits. She would then list
all of the deposits on the interoffice cash receipts log. Each time
the $580.00 deposit was not listed on the reconciliation sheet;
however, [it] had [Kleso’s] signature on it. During the
investigation, interviews were conducted with the victims and the
office chief financial officer. [Trooper Lutchko] examined copies
of the interoffice cash receipts and reconciliation sheets.
A total of five (5) deposits were made, and receipts issued.
Each of these five (5) deposits were dropped into the safe and
[Kleso] gathered the deposits and listed each deposit except for
the $580.00 cash deposit. The total amount of money in which
was stolen by [Kleso] was $2,900. . . .
Affidavit of Probable Cause, 4/20/16, at 1.
At the conclusion of the preliminary hearing on October 3, 2018, the
magisterial district judge bound the charges for trial. On December 21, 2018,
Kleso filed an omnibus pretrial motion, which included a motion for writ of
habeas corpus, requesting that the court conduct a hearing for the
Commonwealth “to carry its burden of proving a prima facie case with regard
to all charges placed within the [c]riminal [i]nformation.” Omnibus Pretrial
Motion, 12/21/18, at 2. A hearing on the motion was held on February 4,
2019.
On April 18, 2019, the trial court issued an opinion and order granting
Kleso’s motion and dismissing the November 20, 2018 criminal information
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with prejudice. The Commonwealth filed a timely notice of appeal4 and a
concise statement pursuant to Pennsylvania Rule of Appellate Procedure 1925.
The trial court filed a Rule 1925(a) opinion relying on its April 18, 2019 order
and opinion.
The Commonwealth presents the following issue for review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FAILING TO REVIEW THE EVIDENCE IN A LIGHT MOST
FAVORABLE TO THE COMMONWEALTH WHEN IT REVIEWED THE
EVIDENCE PRESENTED FOR THE PRIMA FACIE CASE ON ALL
CHARGES?
Commonwealth Brief at 6.
The Commonwealth argues that the trial court viewed the evidence
incorrectly, averring that the court “erred as a matter of law in dismissing the
charges against [Kleso] when it found the evidence presented at the omnibus
hearing on [Kleso]’s motion for habeas relief failed to establish a prima facie
case for all charges.” Id. at 7.
At the outset, we recognize:
In reviewing a trial court’s order granting a defendant’s
petition for writ of habeas corpus, we must generally consider
whether the record supports the trial court’s findings, and whether
the inferences and legal conclusions drawn from those findings are
free from error. A trial court may grant a defendant’s petition for
writ [of] habeas corpus after a preliminary hearing where the
Commonwealth has failed to present a prima facie case against
the defendant.
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4 In compliance with Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth certified “that the preclusion of charges ordered by the [c]ourt
in its Opinion dated April 18, 2019, will terminate or substantially handicap
the prosecution.” Notice of Appeal, 5/2/19, at *3.
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Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (citations
omitted).
Further:
The evidentiary sufficiency of the Commonwealth’s case, or
lack thereof, is a question of law; as such, our scope of review is
plenary. Commonwealth v. Karetny, [] 880 A.2d 505, 528
([Pa.] 2005). We have previously described the well-settled
principles governing preliminary hearings, as well as the
Commonwealth’s concomitant burden, as follows:
The purpose of a preliminary hearing is to determine
whether the Commonwealth has made out a prima
facie case for the offenses charged. A prima facie case
consists of evidence, read in the light most favorable
to the Commonwealth, that sufficiently establishes
both the commission of a crime and that the accused
is probably the perpetrator of that crime.
The Commonwealth establishes a prima facie case
when it produces evidence that, if accepted as true,
would warrant the trial judge to allow the case to go
to a jury. The Commonwealth need not prove the
elements of the crime beyond a reasonable doubt;
rather, the prima facie standard requires evidence of
the existence of each and every element of the crime
charged. Moreover, the weight and credibility of the
evidence are not factors at this stage, and the
Commonwealth need only demonstrate sufficient
probable cause to believe that the person charged has
committed the offense.
Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa.
Super. 2018) [].
Commonwealth v. Perez, --- A.3d ----, 2019 WL 4926192, *5 (Pa. Super.
2019) (en banc) (emphasis and footnote omitted).
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The Commonwealth claims the trial court incorrectly determined that it
failed to prove a prima facie case of receiving stolen property for Kleso’s
alleged actions during her employment at BHG. Commonwealth Brief at 12.
“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 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. In
Section 3925, “the word ‘receiving’ means acquiring possession, control or
title, or lending on the security of the property.” Id. Therefore, three
elements need to be proven to establish the crime of receiving stolen
property: “(1) intentionally acquiring possession of the movable property of
another; (2) with knowledge or belief that it was probably stolen; and (3) the
intent to deprive permanently.” Commonwealth v. Robinson, 128 A.3d
261, 265 (Pa. Super. 2015) (citations omitted).
The Commonwealth also contends that the trial court incorrectly
determined that it failed to establish a prima facie case of theft by failure to
make required disposition of funds received. Commonwealth Brief at 9-11.
The Crimes Code provides:
(a) Offense defined.--A person who obtains property upon
agreement, or subject to a known legal obligation, to make
specified payments or other disposition, whether from such
property or its proceeds or from his own property to be reserved
in equivalent amount, is guilty of theft if he intentionally deals with
the property obtained as his own and fails to make the required
payment or disposition. The foregoing applies notwithstanding
that it may be impossible to identify particular property as
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belonging to the victim at the time of the failure of the actor to
make the required payment or disposition.
(b) Presumptions.--An officer or employee of the government
or of a financial institution is presumed:
(1) to know any legal obligation relevant to his
criminal liability under this section; and
(2) to have dealt with the property as his own if he
fails to pay or account upon lawful demand, or if an
audit reveals a shortage or falsification of accounts.
18 Pa.C.S.A. § 3927.
To secure a conviction under Section 3927, the Commonwealth must
prove that the defendant: (1) obtained the property of another; (2) subject
to an agreement or known legal obligation upon the receipt to make specific
payments or other disposition thereof; (3) intentionally dealt with the property
obtained as if it were the defendant’s own; and (4) failed to make the required
disposition of property. Commonwealth v. Wood, 637 A.2d 1335, 1343 (Pa.
Super. 1994) (citations omitted).
Finally, the Commonwealth claims the trial court incorrectly determined
that it failed to establish prima facie cases of theft by unlawful taking.
Commonwealth Brief at 12-13. “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. “Proof of theft by
unlawful taking requires three elements: (1) unlawful taking or unlawful
control over movable property; (2) movable property belongs to another; and
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(3) intent to deprive (permanently).” Commonwealth v. Young, 35 A.3d
54, 62 (Pa. Super. 2011) (citations and unnecessary capitalization omitted).
In response, Kleso submits that the trial court correctly dismissed the
charges because the Commonwealth failed to establish a prima facie case for
the three theft crimes. Kleso asserts that the Commonwealth did not provide
any evidence that she ever took possession of the cash payments, and “the
evidence shows someone other than Ms. Kleso accepted and handled the cash
payments.” See Kleso’s Brief at 7-9. She argues that the “record is devoid
of any evidence that the payments were deposited in the safe and by whom,”
and the “Commonwealth presented no evidence that she ever handled or
transported the funds,” or that she “exercised control over the alleged cash
payments in question.” Id. Upon review, we agree.
We reiterate, “[t]o demonstrate that a prima facie case exists, the
Commonwealth must produce evidence of every material element of the
charged offense(s) as well as the defendant’s complicity therein.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016)
(citation omitted). The Commonwealth may sustain its burden of proving
every element of the crime(s) by means of wholly circumstantial evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011). However,
“we have also noted that suspicion and conjecture are not evidence and are
unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269
(Pa. Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s
case relies solely upon a tenuous inference to establish a material element
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of the charge, it has failed to meet its burden of showing that the crime
charged was committed.” Id. (citation omitted, emphasis in original). “To
meet its burden, the Commonwealth may utilize the evidence presented at
the preliminary hearing and also may submit additional proof.” Dantzler, 135
A.3d at 1112 (citation omitted).
The trial court accurately summarized the evidence presented by the
Commonwealth as follows:
* * *
At the [p]reliminary [h]earing, Rosemarie Lobe Waller
testified. Ms. Waller is the [chief financial officer] of NEPA, and in
2016, she conducted an audit of BH&G after being contacted by
an owner. That owner claimed that he was owed money. Through
an audit of the records, she discovered discrepancies in the cash
envelopes received at BH&G and those transmitted to NEPA. Ms.
Waller explained that when a tenant pays in cash, the employee
of BH&G places the money into an envelope and prepares a receipt
for the payment on a receipt log. The receipt is carbonized, one
copy is given to the tenant and another transmitted to NEPA for
payment to the owner. The cash envelope is then placed into a
safe which is under the front desk and bolted to the floor. The
manager retrieves the money from the safe and prepares a
transmittal sheet of each envelope (Interoffice Cash Receipt Log).
The procedure is completed by the manager who writes down
everything taken out of the safe. The envelopes and transmittal
sheet are then delivered to Ms. Waller in the Stroudsburg office.
Mr. Shah is an owner who was contracted with NEPA. Mr.
Shah or his son contacted NEPA about money missing from their
tenant, Mr. Tobias Diaz. The dates of the missing money were
3/2, 4/2, 6/1, 7/1, and 8/3 of 2015. After being advised of the
discrepancy, Ms. Waller then conducted an audit of the Bushkill
office specific to this owner and tenant. The payments were
allegedly made in cash generating a cash receipt. Ms. Waller
noted a discrepancy between the receipt log and transmittal
sheet. The dates of 3/2, 4/2, 6/1, 7/1, and 8/3 of 2015 were the
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dates of the missing cash payments. Each of the missing
payments was in the amount of $580 for a total of $2,900.
* * *
The evidence presented by the Commonwealth include the
cash receipt journals, interoffice cash receipts logs, and a
summary of the rent analysis of 5245 Milford Road, LLC, owned
by the Shahs. The deposit envelope for March 2, 2015, was
written by Matt Jacobson containing the buyer/lessee as Tobias
Diaz but containing an incorrect address and payment amount.
The amount was listed as $175 for the address Tour Maple Lane,
Unit 4, Bldg. 1. The receipt number on the envelope was listed as
receipt #35924; however, the cash receipt was listed as receipt
number #35928. That receipt (#35928) also contained the
additional signature of Donna DiBernard. . . .
At [the] hearing held on February 4, 2019, Trooper Lutchko
testified that he never interviewed Matt Jacobson about the theft
and his handling of the money. He also stated that he was unable
to speak to [Kleso] about the thefts.
Ms. Waller testified that whoever was at the front desk
would accept the cash payment brought in by tenants. Therefore,
multiple employees may receive payments, place it in an envelope
and secure it in the safe. After secured in the safe, it was the
responsibility of the manager to transport the cash envelopes to
NEPA in Stroudsburg. The cash receipts contain signatures of the
employee accepting the payment; however, the specific payments
missing in this case are not listed on the Interoffice Cash Receipts
Log. [Kleso] signed the Interoffice Cash Receipts Log for transport
of the envelopes to the Stroudsburg office.
Trial Court Opinion, 4/18/19, at 1-5 (citations to notes of testimony omitted).
The trial court addressed the dearth of evidence in attempting to
establish a prima facie case for the three theft crimes:
Although criminal intent may be inferred from circumstantial
evidence, the circumstantial evidence in this case is not strong.
The specific payments were received by employees at the front
desk who generated the receipts. These payments were placed in
envelopes and deposited into the safe. [Kleso], as the manager
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in the Bushkill office, was responsible for transporting the
envelopes deposited in the safe to the Stroudsburg office. She
did not receive these payments nor did she sign the Interoffice
Cash Receipts Log reflecting that these envelopes were being
transported. The record is devoid of any evidence that these
payments were ever deposited into the safe and by whom. The
Commonwealth introduced cash receipts into evidence; however,
there was no evidence that these payments were actually
deposited into the safe. Although Ms. Waller testified that this
was the office procedure, there was no evidence that the
envelopes were actually placed in the safe.
The receipts entered into evidence demonstrate that
individuals other than [Kleso] handled the cash payments. There
is a dearth of evidence to demonstrate that [Kleso] ever
handled the cash or envelopes. The cash receipts indicate that
several other employees actually received the cash payments in
question. The exhibits do not reflect the payments for transport
in the Interoffice Cash Receipts Log.
In regard to access to the safe, Ms. Waller testified that
[Kleso] had a key to the safe but she was unaware if Christine
Wilkins and Tom Wilkins had keys. In addition, Ms. Waller stated
that Denis Mooney, vice president, functioned as manager on
occasion at the Bushkill branch, consequently, he would also have
a key to the safe. On cross-examination at the preliminary
hearing on October 3, 2018, Ms. Waller stated that she may have
stated that Christine Wilkins and Tom Wilkins, owners of the
company (NEPA) had keys to the safe. It is possible that more
than one person had keys to the safe at BH&G.
* * *
As we have stated above, there is an absence of evidence
demonstrating that [Kleso] obtained the property. There was no
evidence that [she] ever handled or transported the funds in
question from BH&G. The Interoffice Cash Receipts Log, which
contained the dates of the cash receipts, does not indicate that
those envelopes, with the correct amount, were ever handled by
[Kleso].
* * *
As set forth above and viewing all the evidence in a light most
favorable to the Commonwealth, we have determined that the
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Commonwealth has failed to establish [Kleso’s] exercise or control
over the property.
Trial Court Opinion, 4/18/19, at 5-8 (emphasis added) (footnotes and citations
to notes of testimony omitted).
Our review of the record reflects comports with the trial court’s
conclusion that the Commonwealth failed to establish Kleso took possession
of the cash payments received from Mr. Diaz at the front desk of BHG, an
element of all three crimes charged. See 18 Pa.C.S.A. § 3925; 18 Pa.C.S.A.
§ 3927; 18 Pa.C.S.A. § 3921(a). The Commonwealth’s claim that Kleso
withdrew the payments from the safe and kept them, instead of delivering the
money to Ms. Waller, is “suspicion and conjecture” because there is no
evidence Kleso ever possessed or controlled the cash payments. Id.; see
also Holston, 211 A.3d at 1269. The Commonwealth thus relies on “tenuous
inference” to establish the possession element of all three crimes, and as such,
fails to make a prima facie case for receiving stolen property, theft by unlawful
taking, or theft by failure to make required disposition of funds. Accordingly,
we affirm the trial court’s order dismissing with prejudice the charges filed
against Kleso.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/20
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