Com. v. McKissick, D.

J-S46039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEBORAH McKISSICK, :
:
Appellant : No. 131 MDA 2014
Appeal from the Judgment of Sentence entered on October 24, 2012
in the Court of Common Pleas of Lycoming County,
Criminal Division, No(s): CP-41-CR-0000081-2011;
CP-41-CR-0001344-2010
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014
sentence imposed following her convictions of theft by unlawful taking,
receiving stolen property, and unauthorized use of a motor vehicle. 18
Pa.C.S.A. §§ 3921(a), 3925(a), 3928(a). We affirm.
McKissick was convicted of various crimes in two concurrent cases
involving her job as a paralegal at a law firm. In CR-1344-2010, McKissick
used her position to have an elderly widow unknowingly sign a document
granting McKissick Power of Attorney for the purpose of stealing from the
widow. Following a non-jury trial, McKissick was found guilty of two counts
each of theft by unlawful taking or disposition, identity theft, forgery, and
theft by deception and one count of criminal attempt.
J-S46039-14
In CR-81-2011, two clients of the firm that employed McKissick were
instructed to surrender their vehicle to Santander Bank, as part of their
bankruptcy proceedings. The clients turned the vehicle over to McKissick, on
January 11, 2010, believing she would properly deliver it to the bank.
Instead, McKissick assumed the vehicle as her own for more than eight
began paying for insurance for the vehicle, and made payments to the bank
for the vehicle until it was seized by the Pennsylvania State Police, on
September 21, 2010. Following a non-jury trial, McKissick was found guilty
of theft by unlawful taking, receiving stolen property, and unauthorized use
of a motor vehicle.
For sentencing purposes, the trial court merged CR-1344-2010 and
CR-81-2011. On October 24, 2012,1 the trial court sentenced McKissick to a
term of 16 to 32 months in prison for her convictions at CR-81-2011, and a
term of 35 to 70 months in prison for her convictions at CR-1344-2010, for
an aggregate term of 51 to 102 months in prison.
McKissick filed a timely Notice of Appeal. The trial court ordered
McKissick to file a Pa.R.A.P. 1925(b) concise statement. McKissick filed a
timely Concise Statement and the trial court issued an Opinion.
1
McKissick was initially sentenced on June 18, 2012; however, both parties
agreed that the sentence was based on incorrect calculations. The trial court
resentenced McKissick on October 24, 2012.
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J-S46039-14
On appeal, McKissick raises the following question for our review:
guilty verdict under []CR-81-2011 for count 1, theft by unlawful taking[,]
llant at 6
(capitalization omitted).
Our standard of review in sufficiency of the evidence cases is well-
settled:
[W]e consider the evidence in the light most favorable to the
Commonwealth as verdict winner. In that light, we decide if the
evidence and all reasonable inferences from that evidence are
sufficient to establish the elements of the offense beyond a
reasonable doubt. We keep in mind that it was for the trier of
fact to determine the weight of the evidence and the credibility
of witnesses. The [fact-finder] was free to believe all, part or
none of the evidence. This Court may not weigh the evidence or
substitute its judgment [f]or that of the fact[-]finder.
Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007) (citation
omitted).
McKissick first contends that the evidence at trial was insufficient to
sustain her conviction of theft by unlawful taking. Brief for Appellant 11-12.
McKissick argues that, because the victims voluntarily turned the vehicle
over to her with no expectation of its return, she did not withhold the vehicle
from them, nor did she dispose of the vehicle so that they could never
recover it. Id. at 11. McKissick concedes that the vehicle was
misappropriated and that she did not have permission to use the vehicle.
Id. at 12. McKissick argues, however, that the evidence is not sufficient to
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J-S46039-14
show a permanence of her possession of the vehicle, despite her renewing
the registration, insuring the vehicle, making payments on the vehicle, and
possessing the vehicle for more than eight months months until it was
seized. Id. McKissick further argues that her unlawful possession may have
benefitted the victims because she made payments on the vehicle while it
was in her posssession. Id.
In its Opinion, the trial court addresse
concluded that it is without merit. See Trial Court Opinion, 3/18/14, at 2-3.
affirm on this basis. See id.
McKissick next contends that the evidence at trial was insufficient to
sustain her conviction of theft by receiving stolen property. 2 Brief for
Appellant at 12-13.
and concluded that it is without merit. See Trial Court Opinion, 3/18/14, at
3-4. We adopt the sound reasoning of the trial court for the purpose of this
appeal and affirm on this basis. See id.
2
We note that McKissick purports to support her second claim by
incorporating her prior arguments regarding the sufficiency of the evidence
with regard to her conviction for theft by unlawful taking. See Brief for
Appellant supra, the
evidence was insufficient to establish that the vehicle was stolen from the
Incorporation by reference is an unacceptable manner of
appellate advocacy for the proper presentation of a claim for relief to the
Commonwealth v. Dodge, 77 A.3d
argument, we have addressed the merits of the claim.
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J-S46039-14
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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