Com. v. Harris, L.

J-A33039-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEE A. HARRIS, :
:
Appellant : No. 683 WDA 2016
Appeal from the Judgment of Sentence December 4, 2015
in the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000038-2014
BEFORE: LAZARUS, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 27, 2017
Lee A. Harris (Appellant) appeals from the judgment of sentence of six
to 18 months of imprisonment, plus restitution in the amount of $20,120.79,
following her convictions for various theft offenses. We affirm.
The trial court summarized the facts underlying Appellant’s convictions
as follows.
[Appellant] was hired in 2004 to manage Penn Ohio
Storage. Penn Ohio Storage is located in Sharon, Pennsylvania,
and is a self-storage facility containing 240 units. [Appellant’s]
job duties included collecting all of the rents, recording the rents
and depositing the rents.
The occupancy rate for the business remained consistent
at 80% throughout all times material to this case. The rents
collected stayed consistent from the date of [Appellant’s] hire
until December of 2011.
The rents deposited in December of 2011 fell from $11,000
in November of 2011, to $5,000.
*Retired Senior Judge assigned to the Superior Court.
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The months that followed also showed substantial
reductions in the rents reported collected even though the
occupancy rate remained the same. It bottomed out in March of
2012 when they dropped to $4,500.
[Appellant] was fired at the beginning of June 2012.
Since [Appellant’s] firing, the rents collected returned to
the level prior to December of 2011 and there have been no
major fluctuations in the monthly collections.
A forensic accounting of the business was conducted by
Thomas Davis, Jr., at the Owner’s expense. The accounting
showed that the average monthly collection rate when
[Appellant] was handling the receipts was $6,657. After
[Appellant] was fired, the average monthly collections rose to
$12,649. Davis’s opinion was that $20,120 was missing from
the rents collected.
[Appellant’s] expert, Tyler Hankins, also concluded that
$20,122 in cash was missing. Hankins admitted on cross
examination that where only one person receives the cash, as
here, that that person would be the possible person to blame if
cash went missing.
At the time of [Appellant’s] arrest on September 12, 2014,
she told her paramour to call an attorney. When he asked why,
[Appellant] responded “I stole.”
Trial Court Opinion, 6/3/2016, at 3-4 (citations omitted; format of dollar
amounts modified).
On October 16, 2015, a jury convicted Appellant of theft by unlawful
taking-movable property, theft by failure to make required disposition of
funds, and theft by deception.1 Following the denial of her timely-filed post-
1
Appellant was acquitted of an additional charge of forgery at the close of
the Commonwealth’s case.
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sentence motion, Appellant timely filed a notice of appeal. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant contends that there was insufficient evidence to
sustain her convictions, and that the verdicts were against the weight of the
evidence. Appellant’s Brief at 4.
We begin with her sufficiency challenges.
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
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“A defendant may be convicted of theft by deception if he [or she]
intentionally obtains property from another person by deception. The
Commonwealth must demonstrate not only the presence of a false
impression but that the victim relied upon that impression.”
Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa. Super. 1994)
(citations omitted). “To be guilty of theft by unlawful taking or disposition, a
criminal defendant must unlawfully take, or exercise control over, the
movable property of another with intent to deprive him thereof.”
Commonwealth v. Crawford, 427 A.2d 166, 170 (Pa. Super. 1981).
Finally,
the crime of theft by failure to make required disposition of
funds received is composed of four elements: 1) the obtaining of
the property of another; 2) subject to an agreement or known
legal obligation upon the receipt to make specified payments or
other disposition thereof; 3) intentional dealing with the property
obtained as the defendant’s own; and 4) failure of the defendant
to make the required disposition of the property.
Commonwealth v. Morrissey, 654 A.2d 1049, 1052 (Pa. 1995).
In the instant case, Appellant’s argument is that the evidence was
insufficient to sustain her convictions because the Commonwealth failed to
establish that she ever actually received the customers’ rent payments.
Appellant’s Brief at 20-21. We disagree.
Becky Miniea testified that her husband owned Penn-Ohio Self
Storage, and that she took over the day-to-day operations of the business
after they married. N.T., 10/14/2015, at 21. When another of his
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businesses required their full attention in Ohio, Appellant was hired to take
over running the operation. Id. at 23, 27. They relied upon Appellant to be
there every day to take the deposits. Id. at 29. The business used a
computer with accounting software to track customers’ accounts; only Ms.
Miniea and Appellant had full access to all security levels within it, including
being able to credit accounts. Id. at 37-39. James Fitzgerald, who rented
office space from the Minieas, testified that Appellant “ran the window. She
took in customers, took their money, took the money to the bank, ran all of
the storage units, 100 percent.” N.T., 10/15/2015, at 5.
In 2010, after Appellant had run the facility for years, monthly
deposits suddenly dropped from $11,000 in November to $5,000 in
December. N.T., 10/14/2015, at 28. When Ms. Miniea questioned Appellant
about it, Appellant told her that a lot of people did not pay that month, but
they probably would pay after Christmas. Id. at 28-29. Deposits continued
to be low, and to “jump all over the place” despite the fact that the number
of tenants remained steady. Id. at 30. When the monthly deposit fell to
$4,500 in March 2012, Ms. Miniea again questioned Appellant, who opined
that it was just a bad month and the following month would be better.
“Miraculously, the next month we had $9,000[] in deposits.” Id. at 42.
However, the deposits did not return to their former, steady levels until after
Appellant stopped managing the business. Id. at 30, 43-44.
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Thomas Davis, whose expertise in accounting was acknowledged by
Appellant, reviewed the cash transactions in the business’s records. N.T.,
10/15/2015, at 28-30. He determined that the business’s accounting
software was used 183 times between May 2011 and October 2012 to add a
payment into the ledger then reverse that amount back out. Id. at 31-34.
Coupled with each of those reversed cash transactions was a reverse in the
monthly rent charge. Id. This coupling of cash-payment and rent-due
reversals balanced the books, such that “it would appear that everyone was
current, even though there was no deposit. Id. at 47. These reversals were
not random occurrences; the entries had to have been done manually. Id.
at 34-35. “It wasn’t every single transaction. It wasn’t every single month.
It was just periodic through the accounts and through the months.” Id. at
34. However, after Appellant stopped working at the business, the “cash
deletion transactions” ceased; thereafter, all of the cash payments entered
were subsequently deposited. Id. at 39. The amounts of cash transactions
reversed out during Appellant’s tenure totaled $20,120. Id. at 41.
Finally, then-patrolman Edward Stabile of the Sharon Police
Department testified that he went to Appellant’s home to serve an arrest
warrant on her on September 17, 2013. Id. at 22. When she came to the
door and was informed of the arrest warrant, Appellant yelled back into the
house and asked him to call someone. When a man replied “why?”
Appellant said “I stole.” Id. at 23-24.
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From this circumstantial evidence and its reasonable inferences, it was
well within the jury’s province to conclude that Appellant took cash that
belonged to Penn-Ohio Self Storage and which she was supposed to deposit
in the company’s account, but kept it for herself, covering her tracks by
altering the transaction records. See, e.g., Commonwealth v. Quel, 27
A.3d 1033, 1041 (Pa. Super. 2011) (rejecting, following convictions for the
same crimes at issue in the instant case, the claim that evidence was
insufficient to establish that the appellant was the one who took the funds
where “through an abundance of uncontradicted circumstantial evidence, the
Commonwealth established [that the a]ppellant intentionally and deceptively
withheld currency that belonged to the school district by removing cash from
deposit envelopes after verifying their contents in [accounting software]
which created the false impression that the various student groups’ finances
were in order”). No relief is due.
Appellant next claims that the verdict was against the weight of the
evidence.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the
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evidence and that a new trial should be granted in the interest of
justice.
However, the exercise of discretion by the trial court in
granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is not unfettered. The
propriety of the exercise of discretion in such an instance may be
assessed by the appellate process when it is apparent that there
was an abuse of that discretion.
Commonwealth v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 753 (Pa.
2000) (internal citations omitted).
The trial court offered the following analysis of Appellant’s weight
claim:
There was nothing in the evidence to suggest it was so
unreliable or contrary as to make any verdict based thereon to
shock one’s sense of justice. It was undisputed that [Appellant]
was the sole person collecting the rents for the time in question.
Both sides experts agreed over $21,000.00 in cash was missing.
The officer was positive that [Appellant] said “I stole” when
asked why she was being arrested.[2]
Trial Court Opinion, 6/3/2016, at 5-6.
After a thorough examination of the record, we conclude that there
was no abuse of discretion in the trial court’s determination that the verdict
was not against the weight of the evidence.
Judgment of sentence affirmed.
2
Appellant’s counsel, in cross-examining Sergeant Stabile, asked whether
he was aware that Appellant had consulted with an Attorney Isoldi and if he
was “a hundred percent sure that she said ‘I stole.’” N.T., 10/15/2015, at
25. He indicated that he was sure she said “I stole.” Id.-8-
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
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