J-A01030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LYNN KLESO                                 :   No. 1315 EDA 2019

                 Appeal from the Order Entered April 18, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0002202-2018


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 04, 2020

        The Commonwealth appeals from the trial court’s order dismissing with

prejudice all charges filed against Appellee, Lynn Kleso (Kleso). Upon review,

we affirm.

        Kleso1 was the manager of Better Homes & Gardens Real Estate (BHG)

from March 2015 to August 2015.2 In her role as manager, Kleso received

rent payments from tenants at the Bushkill office and transported the

payments to the Stroudsburg office. In May 2016, the Pennsylvania State

Police began investigating Kleso after receiving a report that she had stolen

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1The trial court notes that Kleso was formerly known as Lynn “Wilklow.” Trial
Court Opinion 4/18/19, at 1 n.1.

2 BHG is a real estate office affiliated with NEPA Management (NEPA), based
in Monroe County, Pennsylvania.
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$2,900 from BHG during the course of her employment.               In 2017, the

Commonwealth charged Kleso with five counts of theft by unlawful taking at

docket number 1922 CR 2017. See Trial Court Opinion, 4/18/19, at 1 n.1.

After the trial court conducted a hearing, it dismissed the charges because

“there was an absence of evidence to indicate that the rent payments in

question were ever deposited[,]” and the Commonwealth failed to prove “a

prima facie case that [Kleso] took or exercised unlawful control over the cash

rent payments.” Id.

        On November 20, 2018, the Commonwealth again filed charges, this

time alleging that Kleso had received stolen property, committed theft by

failing to make required disposition of funds, and committed five counts of

theft by unlawful taking of movable property.3 The affidavit of probable cause

states:

               On Monday, May 2, 2016[, Trooper John Lutchko] began a
        theft investigation which occurred at the Better Homes and
        Garden Bushkill Branch, located at 5226 Milford Road, Middle
        Smithfield Township, Monroe County. The victims report that
        between the months of March and August of 2015, it was reported
        that five (5) cash deposits in the amount of $580.00 had been
        received by the victim, NEPA Management. These deposits were
        received and receipts given to the depositor. Reconciliation sheets
        were completed with daily deposits; however, the $580.00 cash
        deposit was missing from each of the five (5) interoffice cash
        receipts log.

               On each interoffice cash receipt log, the manager who is
        identified as [Kleso] signed the interoffice cash receipts log and
        delivered the deposits to the main accounting department in
____________________________________________


3   18 Pa.C.S.A. §§ 3925, 3927, and 3921(a).

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        Stroudsburg, PA, which is part of her duties as a manager. Also,
        as a manager, [Kleso] had direct access to the safe via key. These
        deposits were received and entered into an automated cash flow
        system. It was discovered that multiple people who were assigned
        to sit at the front desk of NEPA Management would receive these
        cash deposits and place them into the safe. It is customary for
        two (2) agents to sign the deposit and receipt, verifying the cash.

               [Kleso] would then open the safe with her management key
        she was issued, and remove all the deposits. She would then list
        all of the deposits on the interoffice cash receipts log. Each time
        the $580.00 deposit was not listed on the reconciliation sheet;
        however, [it] had [Kleso’s] signature on it.            During the
        investigation, interviews were conducted with the victims and the
        office chief financial officer. [Trooper Lutchko] examined copies
        of the interoffice cash receipts and reconciliation sheets.

              A total of five (5) deposits were made, and receipts issued.
        Each of these five (5) deposits were dropped into the safe and
        [Kleso] gathered the deposits and listed each deposit except for
        the $580.00 cash deposit. The total amount of money in which
        was stolen by [Kleso] was $2,900. . . .

Affidavit of Probable Cause, 4/20/16, at 1.

        At the conclusion of the preliminary hearing on October 3, 2018, the

magisterial district judge bound the charges for trial. On December 21, 2018,

Kleso filed an omnibus pretrial motion, which included a motion for writ of

habeas corpus, requesting that the court conduct a hearing for the

Commonwealth “to carry its burden of proving a prima facie case with regard

to all charges placed within the [c]riminal [i]nformation.” Omnibus Pretrial

Motion, 12/21/18, at 2. A hearing on the motion was held on February 4,

2019.

        On April 18, 2019, the trial court issued an opinion and order granting

Kleso’s motion and dismissing the November 20, 2018 criminal information



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with prejudice.     The Commonwealth filed a timely notice of appeal4 and a

concise statement pursuant to Pennsylvania Rule of Appellate Procedure 1925.

The trial court filed a Rule 1925(a) opinion relying on its April 18, 2019 order

and opinion.

       The Commonwealth presents the following issue for review:

       WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
       FAILING TO REVIEW THE EVIDENCE IN A LIGHT MOST
       FAVORABLE TO THE COMMONWEALTH WHEN IT REVIEWED THE
       EVIDENCE PRESENTED FOR THE PRIMA FACIE CASE ON ALL
       CHARGES?

Commonwealth Brief at 6.

       The Commonwealth argues that the trial court viewed the evidence

incorrectly, averring that the court “erred as a matter of law in dismissing the

charges against [Kleso] when it found the evidence presented at the omnibus

hearing on [Kleso]’s motion for habeas relief failed to establish a prima facie

case for all charges.” Id. at 7.

       At the outset, we recognize:

              In reviewing a trial court’s order granting a defendant’s
       petition for writ of habeas corpus, we must generally consider
       whether the record supports the trial court’s findings, and whether
       the inferences and legal conclusions drawn from those findings are
       free from error. A trial court may grant a defendant’s petition for
       writ [of] habeas corpus after a preliminary hearing where the
       Commonwealth has failed to present a prima facie case against
       the defendant.
____________________________________________


4 In compliance with Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth certified “that the preclusion of charges ordered by the [c]ourt
in its Opinion dated April 18, 2019, will terminate or substantially handicap
the prosecution.” Notice of Appeal, 5/2/19, at *3.

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Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (citations

omitted).

     Further:

           The evidentiary sufficiency of the Commonwealth’s case, or
     lack thereof, is a question of law; as such, our scope of review is
     plenary. Commonwealth v. Karetny, [] 880 A.2d 505, 528
     ([Pa.] 2005). We have previously described the well-settled
     principles governing preliminary hearings, as well as the
     Commonwealth’s concomitant burden, as follows:

            The purpose of a preliminary hearing is to determine
            whether the Commonwealth has made out a prima
            facie case for the offenses charged. A prima facie case
            consists of evidence, read in the light most favorable
            to the Commonwealth, that sufficiently establishes
            both the commission of a crime and that the accused
            is probably the perpetrator of that crime.

            The Commonwealth establishes a prima facie case
            when it produces evidence that, if accepted as true,
            would warrant the trial judge to allow the case to go
            to a jury. The Commonwealth need not prove the
            elements of the crime beyond a reasonable doubt;
            rather, the prima facie standard requires evidence of
            the existence of each and every element of the crime
            charged. Moreover, the weight and credibility of the
            evidence are not factors at this stage, and the
            Commonwealth need only demonstrate sufficient
            probable cause to believe that the person charged has
            committed the offense.

            Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa.
            Super. 2018) [].

Commonwealth v. Perez, --- A.3d ----, 2019 WL 4926192, *5 (Pa. Super.

2019) (en banc) (emphasis and footnote omitted).




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      The Commonwealth claims the trial court incorrectly determined that it

failed to prove a prima facie case of receiving stolen property for Kleso’s

alleged actions during her employment at BHG. Commonwealth Brief at 12.

“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. In

Section 3925, “the word ‘receiving’ means acquiring possession, control or

title, or lending on the security of the property.”        Id.   Therefore, three

elements need to be proven to establish the crime of receiving stolen

property: “(1) intentionally acquiring possession of the movable property of

another; (2) with knowledge or belief that it was probably stolen; and (3) the

intent to deprive permanently.”     Commonwealth v. Robinson, 128 A.3d

261, 265 (Pa. Super. 2015) (citations omitted).

      The Commonwealth also contends that the trial court incorrectly

determined that it failed to establish a prima facie case of theft by failure to

make required disposition of funds received. Commonwealth Brief at 9-11.

The Crimes Code provides:

      (a) Offense defined.--A person who obtains property upon
      agreement, or subject to a known legal obligation, to make
      specified payments or other disposition, whether from such
      property or its proceeds or from his own property to be reserved
      in equivalent amount, is guilty of theft if he intentionally deals with
      the property obtained as his own and fails to make the required
      payment or disposition. The foregoing applies notwithstanding
      that it may be impossible to identify particular property as


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      belonging to the victim at the time of the failure of the actor to
      make the required payment or disposition.

      (b) Presumptions.--An officer or employee of the government
      or of a financial institution is presumed:

            (1) to know any legal obligation relevant to his
            criminal liability under this section; and

            (2) to have dealt with the property as his own if he
            fails to pay or account upon lawful demand, or if an
            audit reveals a shortage or falsification of accounts.

18 Pa.C.S.A. § 3927.

      To secure a conviction under Section 3927, the Commonwealth must

prove that the defendant: (1) obtained the property of another; (2) subject

to an agreement or known legal obligation upon the receipt to make specific

payments or other disposition thereof; (3) intentionally dealt with the property

obtained as if it were the defendant’s own; and (4) failed to make the required

disposition of property. Commonwealth v. Wood, 637 A.2d 1335, 1343 (Pa.

Super. 1994) (citations omitted).

      Finally, the Commonwealth claims the trial court incorrectly determined

that it failed to establish prima facie cases of theft by unlawful taking.

Commonwealth Brief at 12-13. “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.A. § 3921.    “Proof of theft by

unlawful taking requires three elements:      (1) unlawful taking or unlawful

control over movable property; (2) movable property belongs to another; and




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(3) intent to deprive (permanently).” Commonwealth v. Young, 35 A.3d

54, 62 (Pa. Super. 2011) (citations and unnecessary capitalization omitted).

      In response, Kleso submits that the trial court correctly dismissed the

charges because the Commonwealth failed to establish a prima facie case for

the three theft crimes. Kleso asserts that the Commonwealth did not provide

any evidence that she ever took possession of the cash payments, and “the

evidence shows someone other than Ms. Kleso accepted and handled the cash

payments.” See Kleso’s Brief at 7-9. She argues that the “record is devoid

of any evidence that the payments were deposited in the safe and by whom,”

and the “Commonwealth presented no evidence that she ever handled or

transported the funds,” or that she “exercised control over the alleged cash

payments in question.” Id. Upon review, we agree.

      We reiterate, “[t]o demonstrate that a prima facie case exists, the

Commonwealth must produce evidence of every material element of the

charged   offense(s)    as    well   as   the   defendant’s   complicity   therein.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016)

(citation omitted).    The Commonwealth may sustain its burden of proving

every element of the crime(s) by means of wholly circumstantial evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011). However,

“we have also noted that suspicion and conjecture are not evidence and are

unacceptable as such.”       Commonwealth v. Holston, 211 A.3d 1264, 1269

(Pa. Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s

case relies solely upon a tenuous inference to establish a material element

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of the charge, it has failed to meet its burden of showing that the crime

charged was committed.” Id. (citation omitted, emphasis in original). “To

meet its burden, the Commonwealth may utilize the evidence presented at

the preliminary hearing and also may submit additional proof.” Dantzler, 135

A.3d at 1112 (citation omitted).

     The trial court accurately summarized the evidence presented by the

Commonwealth as follows:

                                    *         *   *

            At the [p]reliminary [h]earing, Rosemarie Lobe Waller
     testified. Ms. Waller is the [chief financial officer] of NEPA, and in
     2016, she conducted an audit of BH&G after being contacted by
     an owner. That owner claimed that he was owed money. Through
     an audit of the records, she discovered discrepancies in the cash
     envelopes received at BH&G and those transmitted to NEPA. Ms.
     Waller explained that when a tenant pays in cash, the employee
     of BH&G places the money into an envelope and prepares a receipt
     for the payment on a receipt log. The receipt is carbonized, one
     copy is given to the tenant and another transmitted to NEPA for
     payment to the owner. The cash envelope is then placed into a
     safe which is under the front desk and bolted to the floor. The
     manager retrieves the money from the safe and prepares a
     transmittal sheet of each envelope (Interoffice Cash Receipt Log).
     The procedure is completed by the manager who writes down
     everything taken out of the safe. The envelopes and transmittal
     sheet are then delivered to Ms. Waller in the Stroudsburg office.

            Mr. Shah is an owner who was contracted with NEPA. Mr.
     Shah or his son contacted NEPA about money missing from their
     tenant, Mr. Tobias Diaz. The dates of the missing money were
     3/2, 4/2, 6/1, 7/1, and 8/3 of 2015. After being advised of the
     discrepancy, Ms. Waller then conducted an audit of the Bushkill
     office specific to this owner and tenant. The payments were
     allegedly made in cash generating a cash receipt. Ms. Waller
     noted a discrepancy between the receipt log and transmittal
     sheet. The dates of 3/2, 4/2, 6/1, 7/1, and 8/3 of 2015 were the


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      dates of the missing cash payments. Each of the missing
      payments was in the amount of $580 for a total of $2,900.

                                    *     *     *

            The evidence presented by the Commonwealth include the
      cash receipt journals, interoffice cash receipts logs, and a
      summary of the rent analysis of 5245 Milford Road, LLC, owned
      by the Shahs. The deposit envelope for March 2, 2015, was
      written by Matt Jacobson containing the buyer/lessee as Tobias
      Diaz but containing an incorrect address and payment amount.
      The amount was listed as $175 for the address Tour Maple Lane,
      Unit 4, Bldg. 1. The receipt number on the envelope was listed as
      receipt #35924; however, the cash receipt was listed as receipt
      number #35928. That receipt (#35928) also contained the
      additional signature of Donna DiBernard. . . .

             At [the] hearing held on February 4, 2019, Trooper Lutchko
      testified that he never interviewed Matt Jacobson about the theft
      and his handling of the money. He also stated that he was unable
      to speak to [Kleso] about the thefts.

            Ms. Waller testified that whoever was at the front desk
      would accept the cash payment brought in by tenants. Therefore,
      multiple employees may receive payments, place it in an envelope
      and secure it in the safe. After secured in the safe, it was the
      responsibility of the manager to transport the cash envelopes to
      NEPA in Stroudsburg. The cash receipts contain signatures of the
      employee accepting the payment; however, the specific payments
      missing in this case are not listed on the Interoffice Cash Receipts
      Log. [Kleso] signed the Interoffice Cash Receipts Log for transport
      of the envelopes to the Stroudsburg office.

Trial Court Opinion, 4/18/19, at 1-5 (citations to notes of testimony omitted).

      The trial court addressed the dearth of evidence in attempting to

establish a prima facie case for the three theft crimes:

            Although criminal intent may be inferred from circumstantial
      evidence, the circumstantial evidence in this case is not strong.
      The specific payments were received by employees at the front
      desk who generated the receipts. These payments were placed in
      envelopes and deposited into the safe. [Kleso], as the manager

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     in the Bushkill office, was responsible for transporting the
     envelopes deposited in the safe to the Stroudsburg office. She
     did not receive these payments nor did she sign the Interoffice
     Cash Receipts Log reflecting that these envelopes were being
     transported. The record is devoid of any evidence that these
     payments were ever deposited into the safe and by whom. The
     Commonwealth introduced cash receipts into evidence; however,
     there was no evidence that these payments were actually
     deposited into the safe. Although Ms. Waller testified that this
     was the office procedure, there was no evidence that the
     envelopes were actually placed in the safe.

            The receipts entered into evidence demonstrate that
     individuals other than [Kleso] handled the cash payments. There
     is a dearth of evidence to demonstrate that [Kleso] ever
     handled the cash or envelopes. The cash receipts indicate that
     several other employees actually received the cash payments in
     question. The exhibits do not reflect the payments for transport
     in the Interoffice Cash Receipts Log.

           In regard to access to the safe, Ms. Waller testified that
     [Kleso] had a key to the safe but she was unaware if Christine
     Wilkins and Tom Wilkins had keys. In addition, Ms. Waller stated
     that Denis Mooney, vice president, functioned as manager on
     occasion at the Bushkill branch, consequently, he would also have
     a key to the safe. On cross-examination at the preliminary
     hearing on October 3, 2018, Ms. Waller stated that she may have
     stated that Christine Wilkins and Tom Wilkins, owners of the
     company (NEPA) had keys to the safe. It is possible that more
     than one person had keys to the safe at BH&G.

                                 *      *    *
     As we have stated above, there is an absence of evidence
     demonstrating that [Kleso] obtained the property. There was no
     evidence that [she] ever handled or transported the funds in
     question from BH&G. The Interoffice Cash Receipts Log, which
     contained the dates of the cash receipts, does not indicate that
     those envelopes, with the correct amount, were ever handled by
     [Kleso].

                                 *     *     *

     As set forth above and viewing all the evidence in a light most
     favorable to the Commonwealth, we have determined that the

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      Commonwealth has failed to establish [Kleso’s] exercise or control
      over the property.

Trial Court Opinion, 4/18/19, at 5-8 (emphasis added) (footnotes and citations

to notes of testimony omitted).

      Our review of the record reflects comports with the trial court’s

conclusion that the Commonwealth failed to establish Kleso took possession

of the cash payments received from Mr. Diaz at the front desk of BHG, an

element of all three crimes charged. See 18 Pa.C.S.A. § 3925; 18 Pa.C.S.A.

§ 3927; 18 Pa.C.S.A. § 3921(a).        The Commonwealth’s claim that Kleso

withdrew the payments from the safe and kept them, instead of delivering the

money to Ms. Waller, is “suspicion and conjecture” because there is no

evidence Kleso ever possessed or controlled the cash payments. Id.; see

also Holston, 211 A.3d at 1269. The Commonwealth thus relies on “tenuous

inference” to establish the possession element of all three crimes, and as such,

fails to make a prima facie case for receiving stolen property, theft by unlawful

taking, or theft by failure to make required disposition of funds. Accordingly,

we affirm the trial court’s order dismissing with prejudice the charges filed

against Kleso.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/20

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