Com. v. Younger, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TALANA YOUNGER :
:
Appellant : No. 128 EDA 2022
Appeal from the Judgment of Sentence Entered December 1, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005965-2019
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 28, 2023
Talana Younger appeals her November 1, 2021 judgment of sentence
ordering her to pay restitution in the amount of $2,900 after she was found
guilty of theft by unlawful taking with respect to money misappropriated from
Konnah Kamanda (“the victim”). We affirm.
We glean the factual and procedural history of this matter from the
certified record. This appeal centers around the victim’s unfortunate trip to a
Bank of America branch located at 1600 North Broad Street in the City and
County of Philadelphia on June 24, 2019. At approximately 11:30 AM on that
day, the victim withdrew a total of $3,000 in cash from her bank accounts.
See N.T. Trial, 11/01/21, at 14-17. She counted the money, which consisted
exclusively of $100 bills, and placed the cash in her pocket. Id. at 15, 17, 75.
The victim exited the bank and promptly dropped all $3,000 in cash onto the
sidewalk outside of the entrance. Id. at 18. Before she realized her mistake,
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the victim continued walking to her car while Appellant and an individual
named Theodore Bell came across the heap of paper bills as they walked past
the bank mere seconds later. Id. at 74-75. Appellant stopped and began
collecting the bills while Mr. Bell stood watch. Id. at 74-75, 83, 88.
Upon realizing she had misplaced her money, the victim returned to the
scene seconds later and observed Appellant confiscating the money. Id. at
83, 88. By this point, Appellant had claimed possession of the lion’s share of
the cash that was spilled onto the sidewalk such that the victim was only able
to recover a single $100 bill. Id. at 18, 37. The victim pleaded with Appellant
that the rest of the money belonged to her, but her cries fell upon deaf ears
as Appellant “immediately started to leave the scene without giving [the
victim] an opportunity to present any proof” of her ownership. Trial Court
Opinion, 6/30/22, at 3 (citing N.T. Trial, 11/01/21, at 18-26, 76-79, 90).
The victim then initiated a brief struggle with Appellant, which prompted
Mr. Bell to intervene and physically restrain the victim so Appellant could flee
in her own car. See N.T. Trial, 11/01/21, at 18-19, 27-28. Mr. Bell also
temporarily snatched the victim’s cell phone to prevent her from taking any
identifying photographs of Appellant or himself. Id. at 23-25. Thereafter,
“the couple made no effort to determine who the money belonged to, nor did
they contact the bank, police, or any other authority to report the found
money. Instead, [Appellant] spent the money.” Trial Court Opinion, 6/30/22,
at 4 (citing N.T. Trial, 11/01/21, at 80). Despite Mr. Bell’s attempts to thwart
the taking of any photographic evidence, these events were captured by no
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less than seven surveillance cameras installed on the exterior of both the bank
and another building across the street. See id. at 2.
Appellant was arrested on August 4, 2019, and charged with theft by
unlawful taking—movable property and receiving stolen property. She and
her co-defendant, Mr. Bell, both waived their right to a jury and proceeded to
a bench trial that was held on November 1, 2021. During this proceeding, the
trial court also had the benefit of the above-noted surveillance footage. See
N.T. Trial, 11/01/21, at 53. After taking the matter under advisement, the
trial court found Appellant guilty of theft by unlawful taking and not guilty of
receiving stolen property. See N.T. Hearing, 11/12/21, at 5. On December
1, 2021, Appellant was sentenced to pay restitution to the victim in the
amount of $2,900 to the victim with no further penalty imposed. See N.T.
Sentencing, 12/1/21, at 21. No post-sentence motions were filed.
On December 28, 2021, Appellant filed a timely notice of appeal. All
parties have timely complied with the respective requirements of Pa.R.A.P.
1925. Appellant has raised three issues for our consideration:
1) Was the evidence insufficient to sustain the guilty verdict for
theft by unlawful taking, 18 Pa.C.S. § 3921(a), where there
was insufficient evidence to prove that Appellant knew the
money belonged to [the victim] or that Appellant specifically
intended to unlawfully deprive [the victim] or anyone of the
money, and where the events that transpired were a mere
misunderstanding rather than criminal in nature?
2) Was the evidence insufficient to sustain the guilty verdict for
theft by unlawful taking, 18 Pa.C.S. § 3921(a), where the
evidence established that $1,000 was found by Appellant, not
$3,000 or $2,900, therefore the theft by unlawful taking
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graded as [a third-degree felony] was not proven beyond a
reasonable doubt?
3) Did the trial court err in ruling Appellant guilty of theft by
unlawful taking, as Appellant presented substantive evidence
of her reputation for being peaceful, law-abiding and honest,
which by itself, raised a reasonable doubt and warranted a
verdict of not guilty?
Appellant’s brief at 7.
Appellant’s first two issues facially constitute challenges to the
sufficiency of the Commonwealth’s evidence. See Appellant’s brief at 12. In
reviewing these arguments, we bear the following legal principles in mind:
Our standard of review in assessing whether sufficient evidence
was presented to sustain a defendant’s conviction is well-settled.
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying this test, we may not weigh the
evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Boyer, 282 A.3d 1161, 1171 (Pa.Super. 2022) (cleaned
up). A challenge to the sufficiency of the evidence presents a question of law,
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and consequently, is subject to plenary review under a de novo standard. See
Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020).
As noted above, Appellant was convicted of a specific subsection of theft
by unlawful taking pertaining to movable property, which offense is defined
as follows: “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). In pertinent part, Appellant does not dispute
absconding with the victim’s money and spending it without regard to its
provenance. Instead, she asserts that the evidence was insufficient to
establish her intent to deprive the victim of her money. See Appellant’s brief
at 14 (“The evidence did not prove that [Appellant] intended to deprive a
rightful owner of the money.”). Pennsylvania law provides that “to be guilty
of theft under this definition, the actor’s intention or conscious object must be
to take unlawfully the property of another for the purpose of depriving the
other of his or her property.” Commonwealth v. Dombrauskas, 418 A.2d
493, 496-97 (Pa.Super. 1980). However, such intent may be established by
purely circumstantial evidence alone. See Boyer, supra at 1171.
Appellant’s argument is essentially that she had no way of identifying
the rightful owner of the cash that she found on the sidewalk. See Appellant’s
brief at 14 (“[A]ppellant came upon the money on the sidewalk that was not
in any bank envelope, that had no indicia of belonging to any one, and from
whom she did not see it drop.”). In the absence of such knowledge, Appellant
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seems to contend that she was entitled to simply keep the money for her own
purposes. Id. at 15 (arguing that since it was “impossible” to “reasonably
ascertain” the “rightful owner of the money” that Appellant’s actions were
reasonable and not criminal). We must disagree.
While Appellant may not have possessed actual knowledge of the
victim’s ownership rights in the moment, the issue in this matter is her
arguable entitlement to the money and not the victim’s ownership. Overall,
Appellant has proffered no arguable basis upon which she, herself, had some
legitimate claim of entitlement to the money. See, e.g., Hamaker v.
Blanchard, 90 Pa. 377, 377 (Pa. 1879) (“The finder of lost property has a
valid claim to the same against all persons but the true owner[.]”).
There is no reasonable question as to whether the at-issue cash
rightfully belonged to the victim given the overwhelming and definitive
evidence at trial. The victim directly testified regarding her withdrawal of the
money. See N.T. Trial, 11/1/21, at 14-15. In corroboration of her claim, the
Commonwealth entered into evidence withdrawal slips confirming that the
victim had withdrawn a total of $3,000 in cash from her bank accounts on the
day in question. Id. at 16-17. Finally, contemporaneous surveillance footage
depicted the money in the victim’s actual possession until it fell from her
pocket. Id. at 20-22. Moreover, there is no indication that the victim had
abandoned the money in a fashion that would have precluded a larceny
conviction under these circumstances. See, e.g., Commonwealth v.
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Wetmore, 447 A.2d 1012, 1014 (Pa.Super. 1982). To the contrary, the
victim returned to the scene of her monetary mishap mere seconds after it
occurred and openly declared her ownership rights.
Viewed in the light most favorable to the Commonwealth, the evidence
at trial established that Appellant acted with clear contempt as to the rightful
owner of the $2,900 in cash she found on a sidewalk. She made no efforts to
find this person, ignored the victim’s protestations, fled from the scene in a
matter of moments, and spent the money for her own benefit. Thus, here is
no dispute that Appellant took possession of money that she had no rightful
claim to and retained it for her own benefit. These actions are sufficient to
establish the requisite intent for theft by unlawful taking. See Dombrauskas,
supra at 496-97; see also, e.g., Commonwealth v. Holley, 945 A.2d 241,
247 (Pa.Super. 2008) (“[T]he fact-finder is free to conclude the accused
intended the natural and probable consequences of [her] actions[.]”).
We now turn to Appellant’s second claim for relief, which concerns the
grading of her conviction. Specifically, Pennsylvania law provides that a theft
offense “constitutes a felony of the third degree if the amount involved
exceeds $2,000[.]” 18 Pa.C.S. § 3903(a.1). As noted above, both the victim’s
testimony and her withdrawal slips from the bank indicate that she was
carrying a total of $3,000 at the time of the underlying events in this case.
See N.T. Trial, 11/1/21, at 14-17, 20-22. Furthermore, the victim testified
that she dropped all her money and was only able to recover a single $100
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bill. See id. at 37. This information was further corroborated by the
surveillance videos adduced by the Commonwealth at trial, which depicted
Appellant successfully taking all the bills that fell to the ground from the
victim’s pocket, except for the single bill retrieved by the victim. Id.
Viewing this information in the light most deferential to the
Commonwealth, we find that it is sufficient to establish that the amount
involved in this criminal matter exceeded $2,000. See Commonwealth v.
Hanes, 522 A.2d 622, 626 (Pa.Super. 1987) (“The Commonwealth is not
required to establish the precise market value of the stolen property. Rather,
the Commonwealth must present evidence from which a reasonable jury may
conclude that the market value was at least a certain amount.” (emphasis in
original)). We recognize that Appellant testified that she only recovered
$1,000 from the sidewalk. See N.T. Trial, 11/01/21, at 79-80. However, the
fact-finder was fully empowered to disbelieve Appellant’s testimony. See
Boyer, supra at 1171. Thus, no relief is due on this claim.
Finally, in her third claim Appellant submits that evidence of her good
character should have resulted in a judgment of acquittal. See Appellant’s
brief at 20 (“The trial court erred in ruling [Appellant] guilty of the theft
charge, as [Appellant] introduced substantive evidence of having a reputation
in the community for being peaceful, law-abiding and honest.”). Specifically,
there was a stipulation at trial between the parties that Appellant’s brother
spoke in support of her “excellent reputation” for being peaceful, law abiding,
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and honest. See N.T. Trial, 11/01/21, at 72-73. Thus, Appellant argues that
this stipulated testimony, alone, should have overmastered the entirety of the
Commonwealth’s evidence at trial. We disagree.
As a general matter, it is well-established that “[e]vidence of good
character is to be regarded as evidence of substantive fact just as any other
evidence tending to establish innocence and may be considered by the jury in
connection with all the evidence presented in the case on the general issue of
guilt or innocence.” Commonwealth v. Hull, 982 A.2d 1020, 1023
(Pa.Super. 2009) (cleaned up); see also Pa.R.E. 404(a)(1). Indeed,
“[e]vidence of good character is substantive, not mere makeweight evidence,
and may, in and of itself, create a reasonable doubt of guilt and, thus, require
a verdict of not guilty.” Commonwealth v. Harris, 785 A.2d 998, 1000
(Pa.Super. 2001). Like any other piece of testimony entered at trial, however,
the fact-finder has unfettered discretion to reject such attestations in favor of
contrary evidence speaking to a defendant’s guilt. See Boyer, supra at 1171.
However, we discern that Appellant’s argument on this point is not
grounded in sufficiency of the evidence but actually concerns the weight of
the evidence. See Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (“An
argument that the finder of fact should have credited one witness’[s]
testimony over that of another witness goes to the weight of the evidence,
not the sufficiency of the evidence.”). Instantly, Appellant is directly
contending that the trial court should have credited her brother’s stipulated
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testimony over the other evidence at trial. To the extent that Appellant seeks
to challenge the weight of the evidence at trial on such grounds, this claim is
waived due to her failure to preserve it in the trial court. See
Commonwealth v. Cox, 231 A.3d 1011, 1018 (Pa.Super. 2020) (“[A] weight
challenge must be preserved either in a post-sentence motion, a written
motion before sentencing, or orally prior to sentencing. . . . An appellant’s
failure to avail himself of any of the prescribed methods . . . constitutes waiver
of that claim.”); Pa.R.Crim.P. 607(A)(1)-(3).
Furthermore, even if this claim were properly before us in the context
of sufficiency, the factual evidence of Appellant’s guilt in this matter was
overwhelming and consisted of physical evidence, eyewitness testimony, and
exacting video footage of the underlying events. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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