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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

LAKEIA K. WINSTON,                                  No. 1691 EDA 2018

                        Appellant


           Appeal from the Judgment of Sentence, May 21, 2018,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0006697-2017


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 15, 2019

      Lakeia K. Winston appeals from the May 21, 2018 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following her

conviction of theft by unlawful taking and receiving stolen property.' After

careful review, we affirm in part and vacate in part.

     The trial court provided the following synopsis of the relevant factual

and procedural history:

            In April of 2017, Sharonda Adams, the complaining
            witness, kept $10,000.00 in cash inside a lock box,
            which she kept hidden inside her bedroom closet.
            Ms. Adams managed to save this amount of money
            from the two (2) positions of employment she
            maintained and also from a financial refund she had
            received [from] Walden University. Ms. Adams' bank
            statement and an email correspondence from Walden
            University corroborate her testimony. In April of

' 18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
J. S17043/19

          2017, Ms. Adams had two (2) keys to her lock box.
          She kept both keys to her lock box on the same
          keychain which she used for the key to her vehicle.

          Approximately one (1) week before April 6, 2017,
          Ms. Adams allowed [a]ppellant, [appellant's] mother,
          and [a]ppellant's two (2) minor children to move in to
          Ms. Adams' residence. The only persons residing with
          Ms. Adams prior to the move -in were Ms. Adams'
          three (3) minor children. On April 6, 2017, Ms. Adams
          visually confirmed that the $10,000.00 in cash was
          inside her lock box. On April 7, 2017, Ms. Adams lent
          the use of her vehicle to [a]ppellant and provided her
          with access to the keychain which contained both keys
          to the lock box. On April 8, 2017, Ms. Adams left the
          house for a social outing. The only people present in
          Ms.   Adams' home during her absence were
          [a]ppellant, [appellant's] mother, [a]ppellant's
          children and Ms. Adams' children. On April 9, 2017,
          Ms. Adams noticed that the contents of her closet had
          been rummaged through. She opened her lock box
          and discovered that the $10,000.00 in cash was
          missing. Ms. Adams also discovered that one (1) of
          the keys to her lock box was missing from her keyring
          as well. Ms. Adams suspected [a]ppellant as the
          person responsible and called her on the phone.
          Appellant's mother, Rhonda Winston, answered
          [a]ppellant's cell phone, and Ms. Adams informed her
          that she discovered that her $10,000.00 was missing.

          On April 10, [2017], Ms. Adams went to the police
          station to file a report regarding the stolen money.
          Ms. Adams indicated to the detective that although
          she had not seen who stole the money from her lock
          box, the only other person who had access to the keys
          to the lock box was [a]ppellant. Prior to the theft of
          the $10,000.00, Ms. Adams had informed [a]ppellant
          that Ms. Adams was saving the money to purchase a
          new vehicle. Text messages between [a]ppellant and
          Ms. Adams corroborate that [a]ppellant was aware
          Ms. Adams was saving money to purchase a new
          vehicle.
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          After filing the report with the police, Ms. Adams
          returned home to find that [a]ppellant, [appellant's]
          mother and children had abruptly vacated Ms. Adams'
          residence, leaving behind their furniture and other
          personal items. Appellant never provided any prior
          notice that she was planning to move out from
          Ms. Adams' residence.

          On April 11, 2017, Ms. Adams observed [a]ppellant
          operating a 2011 [Chevrolet] Equinox. Ms. Adams
          knew [a]ppellant had not owned the vehicle prior to
          the $10,000.00 in cash being stolen. After Ms. Adams
          confronted her about the missing money, [a]ppellant
          responded "If you think I ruined your life now, I'm
          really going to ruin your life because you can't prove
          it."
          Ms. Adams never gave permission to [a]ppellant to
          remove, take, borrow or spend the $10,000.00 in
          cash.

          Appellant   and       her       mother         purchased              a   2011
          [Chevrolet] Equinox on April 10, 2017. Appellant
          placed a down payment of $3,500.00 in cash and
          financed the balance of the purchase price, which was
          $14,073.00.     In the application to purchase the
          vehicle, [a]ppellant knowingly produced a false
          address to the finance company.

          Although [a]ppellant has not been employed since
          December 2016, she and her mother                      .   .   .   claimed that
          they were able to save the down payment of
          $3,500.00 by withdrawing cash from [a]ppellant's
          mother's SSI benefits account, which receives a                            .   .   .


          $1,400.00 monthly payment.        The SSI benefits
          account was the only source of income for [a]ppellant,
          her mother and [a]ppellant's two (2) children.
          Appellant introduced account statements from her
          mother's SSI benefits account in [an] effort to
          corroborate her   .   .   .   testimony.   .   .   .
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            At the conclusion of the trial, [the trial court] entered
             a verdict of guilty against [a]ppellant as to the
            offenses of Theft [by unlawful taking] and Receiving
            Stolen Property, both graded as a felony in the third
            degree. On May 21, 2018, [the trial court] sentenced
            [a]ppellant to four (4) years['] reporting probation on
            each offense to run concurrent and ordered
            [a]ppellant to remit $10,000.00 in restitution to the
            complaining witness. Appellant filed a Motion to
            Reconsider the verdict. On June 6, 2018, [the trial
            court] denied [a]ppellant's Motion and specified that
            the verdict was based on the credibility of the
            witnesses. Subsequently, [a]ppellant filed timely this
             instant appeal.

Trial court opinion, 8/1/18 at 2-5.

      On June 18, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal. Appellant timely complied on

July 9, 2018. On August 1, 2018, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

             [I.]   Was the evidence insufficient to sustain a
                    conviction for theft and receiving stolen
                    property?

             [II.] Did the [trial] court illegally sentence appellant
                    on theft and receiving stolen property where the
                    charges merged for sentencing purposes?

Appellant's brief at 3 (full capitalization omitted).

      In her first issue, appellant contends that the Commonwealth failed to

introduce sufficient evidence to justify her convictions of theft by unlawful
taking and receiving stolen property. Specifically, appellant argues that the

Commonwealth failed to meet its burden because no one saw appellant take


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the $10,000 at issue and "there was ample time and opportunity for other

people to have taken the money." (Id. at 10.)

           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."
           Commonwealth v. Widmer, [], 744 A.2d 745, 751
           ([Pa.] 2000). "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."
           Commonwealth v. Brewer, 876 A.2d 1029, 1032
           (Pa.Super. 2005). Nevertheless, "the Commonwealth
           need not establish guilt to a mathematical certainty."
           Id.; see also Commonwealth v. Aguado, 760 A.2d
           1181, 1185 (Pa.Super. 2000) ("[T]he facts and
           circumstances established by the Commonwealth
           need  not be absolutely             incompatible    with     the
           defendant's innocence").            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.            See
           Commonwealth v. DiStefano, 782 A.2d 574, 582
           (Pa.Super. 2001).

           The Commonwealth may sustain its burden by means
           of wholly circumstantial evidence. See Brewer, 876
           A.2d at 1032.         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."                 Id. (quoting
           Commonwealth v. Murphy, 795 A.2d 1025, 1038-
           1039 (Pa.Super. 2002)). 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

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            appellant's convictions will be upheld. See Brewer,
            876 A.2d at 1032.

Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa.Super. 2013), citing

Commonwealth v. Pettyjohn, 64 A.3d 1072, (Pa.Super. 2013) (citations
omitted).

      In order for a conviction of theft by unlawful taking to be upheld, the

Commonwealth is required to prove beyond a reasonable doubt that the
defendant unlawfully took or exercised unlawful control over another person's

movable property with the intent to deprive the person of the movable
property. 18 Pa.C.S.A. § 3921(a), see, e.g., Commonwealth v. Robinson,

33 A.3d 89, 94-95 (Pa.Super. 2011), appeal denied, 42 A.3d 292 (Pa. 2012).

To obtain a conviction of receiving stolen property, the Commonwealth must

prove beyond a reasonable doubt that the defendant "intentionally receives,

retains, or disposes of movable property of another knowing that it has been

stolen, or believing that is has probably been stolen, unless the property is

received, retained, or disposed of with intent to restore it to the owner."
Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super. 2010), appeal

denied, 8 A.3d 898 (Pa. 2010), citing 18 Pa.C.S.A. § 3925(a); quoting
Commonwealth v. Galvin, 985 A.2d 783, 792 (Pa. 2009).

      Here, after viewing the evidence presented at trial in a light most
favorable to the Commonwealth, as verdict winner, we find that the
Commonwealth presented sufficient evidence to justify convictions of both

theft by unlawful taking and receiving stolen property.         Indeed, the

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Commonwealth's evidence established that Ms. Adams kept the two keys to

her lock box on her keyring, along with keys to her residence, car, and other

keys. (Notes of testimony, 3/5/18 at 14, 23.) On April 7, 2016, Ms. Adams

gave the keyring to appellant so appellant could use Ms. Adams' car. (Id. at

22-23.)   As noted by the trial court, appellant "subsequently had the
opportunity to locate and remove the cash from the lock box on April 8, 2017

when Ms. Adams left [a]ppellant and her mother alone in the house with their

minor children."    (Trial court opinion, 8/1/18 at 6; see also notes of
testimony, 3/5/18 at 23.)       The evidence further reflects that appellant
implicitly admitted to Ms. Adams that she stole the $10,000 when confronted

by Ms. Adams.2      (Notes of testimony, 3/5/18 at 33-34.)        Finally, when

confronted by Ms. Adams, we find that the Commonwealth established that

appellant implicitly expressed an intent to permanently deprive Ms. Adams of

her property when appellant stated to Ms. Adams: "If you think I ruined your

life now, I'm really going to ruin your life because you can't prove it." (Id. at

33-34.)

      Accordingly, we find that the Commonwealth has produced sufficient

evidence to justify convictions for theft by unlawful taking and receiving stolen

property. Appellant's first issue is without merit.




2 The record reflects that when Ms. Adams asked appellant why she took her
money, appellant said, "Bitch, you can't prove it." (Id. at 33-34.)

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         In her second issue, appellant argues that the trial court imposed an

illegal sentence because her convictions merge for sentencing purposes.

(Appellant's brief at 16.) The Commonwealth agrees, stating that both of

appellant's convictions "arose from the single criminal act of taking Ms. Adams

$10,000 out of her lock box." (Commonwealth's brief at 14.)

         We preliminarily note that appellant failed to include this issue in her

Rule 1925(b) statement. Our supreme court has held that cases involving

merger of convictions for sentencing purposes implicate the legality of the

sentence. Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011), citing

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).                    Issues

implicating the legality of sentence are nonwaivable on appellate review;

therefore, we will consider appellant's second issue on its merits.          See

Commonwealth v. Eisenberg, 98 A.3d 1268, 1278 n.11 (Pa. 2014), citing

Foster, 17 A.3d at 345.

         Our cases have consistently held that convictions for theft by unlawful

taking     and   receiving stolen   property merge for sentencing purposes.
Commonwealth v. Young, 35 A.3d 54, 63 (Pa.Super. 2011), appeal
denied, 48 A.3d 1249 (Pa. 2012); Commonwealth v. Wilson, 458 A.2d
244, 245-246 (Pa.Super. 1983). Here, the trial court imposed two concurrent

sentences of four years' probation.       (Notes of testimony, 5/21/18 at 22.)
Because the two convictions merge for sentencing purposes, we vacate the




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judgment of sentence for receiving stolen property, while affirming the
conviction.

      Because the two sentences were concurrent, we need not remand for

re -sentencing, as our conclusion does not upset the trial court's overall
sentencing scheme of four years' probation.       See Commonwealth v.
Martinez, 153 A.3d 1025, 1033 (Pa.Super. 2016); Commonwealth v. Thur,

906 A.2d 552, 570 (Pa.Super. 2006), appeal denied, 946 A.2d 687 (Pa.
2008). We affirm all other aspects of appellant's judgment of sentence.

      Judgment of sentence for theft by unlawful taking affirmed. Judgment

of sentence for receiving stolen property vacated.    Convictions affirmed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 7/15/19




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