J-S45039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    ALBERTO CLARK                                   :
                                                    :
                       Appellant                    :   No. 3471 EDA 2018

        Appeal from the Judgment of Sentence Entered October 18, 2018
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0004808-2017


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED AUGUST 16, 2019

        The Appellant, Alberto Clark (Clark), appeals the judgment of sentence

entered in the Court of Common Pleas of Lehigh County (trial court) following

his conviction after a jury trial of theft by deception and receiving stolen

property. Clark argues on direct appeal that the evidence was insufficient to

sustain his convictions, and that regardless of sufficiency, the verdict was

against the weight of the evidence. We affirm.

                                               I.

        The relevant case facts were thoroughly recounted in the trial court’s

opinion:

        [T]he evidence established that Barbara Leiby was the President
        and Secretary of the Morgenland Cemetery Association [the
        Association] . . . in January of 2017. At that time, Kirk Hittinger,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     a bookkeeper, was named as Treasurer of the Association. Mrs.
     Leiby was familiar with Kirk Hittinger because he was a member
     of the Jerusalem Evangelical Lutheran Church, the church
     affiliated with the cemetery. . . . As the Treasurer, Kirk
     Hittinger was added as an authorized user to the bank
     account of [the Association].

     In March or April of 2017, Mrs. Leiby was approached by some
     vendors/creditors of the Morgenland Cemetery Association
     requesting payment of their outstanding bills. Surprised that the
     bills had not been timely paid, Mrs. Leiby [obtained Kirk Hittinger’s
     checkbook.] Upon receipt of the checkbook, Mrs. Leiby was able
     to settle the outstanding debts that were owed to the creditors.
     In addition, in the summer of 2017, Mrs. Leiby went to the Wells
     Fargo Bank . . . to request statements for that year pertaining to
     the [the Association’s] account. Upon reviewing the statements,
     Mrs. Leiby noted that there were several online transfers of
     money from [the Association’s] account to the bank
     account of “A. Clark.” Only being familiar with “A. Clark” as a
     member of the Jerusalem Evangelical Lutheran Church, Mrs. Leiby
     returned to Wells Fargo Bank and asked them to investigate the
     online transactions that totaled $4,700.00.

     Jessica Neal, the Wells Fargo branch manager . . . reviewed the
     financial transactions involving [the Association’s] account. She
     noted that on June 21, 2017, there was an online transfer of
     $1,000.00 from [the Association’s] to the account of [Clark].
     Then, on July 3, 2017, another transfer was made in the amount
     of $500.00. On July 6, 2017, a $1,000.00 was transferred from
     the [the Association’s account] to [Clark’s] account. Later that
     month, on July 24, 2017, another $1,000.00 online transfer was
     made.

     Finally, on August 2, 2017, $1,200.00 was transferred from the
     [the Association] to [Clark’s] account.         Shortly after that
     transaction, [the Association’s] bank account was closed and a
     new one was opened with a different account number associated
     with it. Ms. Neal indicated that, in her experience, she has never
     seen such transactions [result from] a bank error.

     It was revealed that “A. Clark” was [Clark]. When [Clark]
     was approximately [12] years old, Kirk Hittinger had adopted him.
     At that time, Kirk Hittinger . . . became [Clark’s] foster father, and
     later he sought permanent legal custody of him. Kirk Hittinger

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       resided at 2401 Braebum Terrace, Lansdale, Montgomery County,
       Pennsylvania with [Clark]. Kirk Hittinger was employed as a
       window cleaner in Jenkintown and did not have a bank account of
       his own. On May 15, 2017, Kirk Hittinger underwent a medical
       procedure at Abington Memorial Hospital that resulted in further
       medical complications which necessitated his hospitalization. Kirk
       Hittinger was hospitalized from May 15, 2017 through June 20,
       2017, and subsequently he went to a rehabilitation facility from
       June 20, 2017 through July 6, 2017. Prior to being discharged
       from the hospital, Kirk Hittinger established a joint
       checking account with [Clark] on June 2, 2017, to facilitate
       paying his expenses. While Kirk Hittinger was hospitalized and
       in rehabilitation, [Clark] visited him daily and handled all of
       Kirk Hittinger’s personal finances.

       After learning of the online transactions, Mrs. Leiby called [Clark]
       to speak with him about the five online transfers of money from
       [the Association’s] bank account to [Clark’s] bank account.
       [Clark] stated that it must have been a bank error and that
       he would pay back the money. However, [Clark] refused to
       put this verbal agreement in writing. Ultimately, charges were
       filed against [Clark] on August 31, 2017.

Trial Court Opinion, 11/2/2018, at 3-6 (emphases added, some citations and

footnotes excluded).1

       After the jury found Clark guilty, the trial court sentenced him to a jail

term of up to 23 months as to the count of theft by deception. He did not

receive a sentence on the count of receiving stolen property because it merged

for sentencing purposes. Clark argued in his post-sentence motion that the

evidence was insufficient to sustain both of his convictions and that verdict

was against the weight of the evidence. The motion was denied. He timely



____________________________________________


1These case facts were incorporated by reference into the trial court’s 1925(a)
opinion. See Trial Court 1925(a) Opinion, 1/2/2019, at 2.

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appealed and both Clark and the trial court complied with Pa.R.A.P. 1925. In

his brief, Clark reiterates the grounds he had set forth in his post-sentence

motion.   See Appellant’s Brief, at 7.

                                         II.

      A claim challenging the sufficiency of the evidence is a question of law

regarding whether there is insufficient evidence to establish a material

element of a crime beyond a reasonable doubt.        See Commonwealth v.

Lyons, 833 A.2d 245, 258 (Pa. Super. 2003).         On review of a sufficiency

challenge, we must consider all the evidence admitted at trial in the light most

favorable to the verdict winner. Commonwealth v. Taylor, 831 A.2d 661,

663 (Pa. Super. 2003).

      To carry its burden, the Commonwealth does not have to disprove every

possibility of a defendant’s innocence. See Commonwealth v. Hunzer, 868

A.2d 498, 505 (Pa. Super. 2005). If there is conflicting evidence that raises

doubt as to a defendant’s guilt, the finder of fact resolves the conflict. See

id. The exception is when the evidence is so weak and inconclusive as to an

element of an offense that, as a matter of law, the finder of fact is foreclosed

from concluding that the Commonwealth has carried its burden of proof. See

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005). However,

the finder of fact has free rein on whether to accept or reject the evidence

before it, and the evidence is legally sufficient if it reasonably supports the

verdict. Id.


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      Importantly here, all elements of a crime, including the intent to defraud

and receive stolen property, may be proven circumstantially through

reasonable inferences from the evidence.              See Commonwealth v.

Biesecker, 161 A.3d 321, 328-29 (Pa. Super. 2001).                “As intent is a

subjective frame of mind, it is of necessity difficult of direct proof. Accordingly,

we recognize that ‘[i]ntent can be proven by direct or circumstantial evidence;

it may be inferred from acts or conduct or from the attendant circumstances.’”

Id. (quoting Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super.

2005)) (citations omitted).

                                        A.

      Clark was charged with receiving stolen property and theft by deception.

The crime of receiving stolen property is:

      (a) Offense defined.--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(a). The crime of theft by deception is:

      (a) Offense defined.--A person is guilty of theft if he
      intentionally obtains or withholds property of another by
      deception. A person deceives if he intentionally:

            (1) creates or reinforces a false impression, including false
      impressions as to law, value, intention or other state of mind; but
      deception as to a person’s intention to perform a promise shall not
      be inferred from the fact alone that he did not subsequently
      perform the promise;

           (2) prevents another from acquiring information which
      would affect his judgment of a transaction; or

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            (3) fails to correct a false impression which the deceiver
      previously created or reinforced, or which the deceiver knows to
      be influencing another to whom he stands in a fiduciary or
      confidential relationship.

18 Pa.C.S. § 3922(a)(1).

      The following facts establish that the evidence was sufficient to convict

Clark of both of the subject offenses. It is undisputed that Clark obtained or

withheld funds belonging to the Morgenland Cemetery Association. Clark’s

stepfather was the treasurer of the Association and had access to its bank

account. Almost immediately after his stepfather became incapacitated in

the summer of 2017, Clark linked him to his own personal bank account,

enabling him to transfer the Association’s funds under the guise of his

stepfather. Throughout that summer, several electronic transactions netted

Clark almost $5,000.00 dollars at the Association’s expense.

      The timing and manner of these transfers are strong circumstantial

evidence that Clark knew he was spending money that did not belong to him.

Clark’s bank account had been overdrawn only two days before the first

transaction occurred.      Bank statements showed that Clark’s spending

increased significantly between that point and the time of the transfers’

discovery.   This tended to prove not only Clark’s awareness of what had

happened, but also the opportunity and financial motive to take advantage of

his stepfather’s access to the Association’s funds.

      Further, the physical incapacity of Clark’s stepfather lends credence to

the allegation that no one other than Clark spent the subject funds or caused

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them to be transferred to his account.       See Biesecker, 161 A.3d at 329

(“The jury could properly infer Appellant was involved in this scheme given

the timing, familial relationship, and transfer of money.”); Commonwealth

v. Nypaver, 69 A.3d 708, 715 (Pa. Super. 2013) (circumstantial evidence of

theft was sufficient based on defendant’s relationship with perpetrator and

conduct suggesting knowledge of the theft); Commonwealth v. Quel, 27

A.3d 1033, 1041 (Pa. Super. 2011)             ([“T]hrough an abundance        of

uncontradicted circumstantial evidence, the Commonwealth established

Appellant intentionally and deceptively withheld currency that belonged to

the school district by removing cash from deposit envelopes after verifying

their contents in Quicken which created the false impression that the various

student groups’ finances were in order.”).

      Accordingly, we find that the evidence was sufficient to sustain both of

Clark’s convictions.

                                      III.

      Clark’s final claim regarding the weight of the evidence likewise has no

merit. He contends that even if the evidence is legally sufficient, the absence

of direct evidence linking him to the transfer of the Association’s funds should

have compelled the trial court to acquit him. We have recently explained that

under our standard of review for such claims, there is a very high bar for

establishing entitlement to relief:

      We do not review challenges to the weight of the evidence de novo
      on appeal. See Commonwealth v. Rivera, 603 Pa. 340, 983

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      A.2d 1211, 1225 (2009). “[A]ppellate 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.” Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa.
      Super. 2012)(citation omitted).

      In order to grant a new trial on the grounds that the verdict is
      against the weight of the evidence, “the evidence must be so
      tenuous, vague and uncertain that the verdict shocks the
      conscience of the court.” Id., at 1243-1244 (citations omitted).
      A verdict shocks the judicial conscience when “the figure of Justice
      totters on her pedestal,” or when “the jury’s verdict, at the time
      of its rendition, causes the trial judge to lose his breath,
      temporarily, and causes him to almost fall from the bench[.]”
      Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.
      2004) (citation omitted).

Commonwealth v. Akhmedov, 3443 EDA 2015, at p. 26 (Pa. Super. July

29, 2019) (en banc).

      The evidence here, while circumstantial, is not tenuous or vague; nor

does it even raise a hint that the verdict would shock the judicial conscience.

To the contrary, the above-discussed evidence linking Clark to the theft and

deception satisfies us that the trial court acted well within its discretion in

denying his weight of evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19


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