J-S40022-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
JENNIFER A. MARTZ,                       :
                                         :
                 Appellant               : No. 1768 WDA 2014

        Appeal from the Judgment of Sentence September 23, 2014,
                  Court of Common Pleas, Butler County,
             Criminal Division at No. CP-10-CR-0001356-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JULY 8, 2015

     Jennifer A. Martz (“Martz”) appeals from the September 23, 2014

judgment of sentence entered by the Butler County Court of Common Pleas

following her convictions by a jury of theft by unlawful taking and receiving

stolen property and conviction by the trial court of criminal mischief, a

summary offense.1 Upon review, we affirm.

     The trial court provided the following summary of the trial testimony:

              The first witness presented by the Commonwealth
           was Juli Royle. She testified to attending a wedding
           reception at Donegal Grange on June 8, 2013. At
           one point during the reception, Ms. Royal testified,
           she went inside and saw [Martz] standing with her
           arms crossed beside the gift or card box. No others
           were inside except for the D.J. and some children.
           Ms. Royal spoke to [Martz] and asked if she was
           going to come outside with the other guests.


1
  18 Pa.C.S.A. §§ 3921(a), 3925(a), 3304(a)(5). The trial court acquitted
Martz of disorderly conduct, 18 Pa.C.S.A. § 5503(a)(4).

*Retired Senior Judge assigned to the Superior Court.
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          [Martz] stated that she was going to listen to music
          for a little while. Ms. Royal testified that she had
          used the restroom prior to the time [Martz] had
          arrived. The toilets were functioning at that time.
          Later, Ms. Royal observed a confrontation with
          [Martz] that took place outside of the Donegal
          Grange.     During the confrontation, [Martz] “kept
          trying to leave” though others present would not
          permit her to do so until the police arrived or they
          were permitted to check her to make sure she did
          not have stolen money on her person.

              The     next    witness    presented     by    the
          Commonwealth was Trooper Jason Frances[] of the
          Pennsylvania State Police. He testified that on June
          28, 2013, he was dispatched to a disturbance at the
          Donegal Grange. Once he arrived there, Trooper
          Frances observed [Martz] sitting on the ground near
          a dumpster by the rear parking lot. Trooper Frances
          exited his vehicle and placed [Martz] in his police
          cruiser for her safety because there was a “large[,]
          angry crowd” nearby. The crowd was angry, Trooper
          Frances testified, because “they were accusing
          [Martz] of stealing the cards, putting them in the
          toilet, ripping up checks and taking the cash.” A
          member of the crowd handed money to Trooper
          Frances and indicated he retrieved it from [Martz].
          [Martz] denied stealing the money and indicated it
          came from a tax return and [a withdrawal from an]
          ATM. Given the opportunity later to produce a bank
          statement, Trooper Frances testified, [Martz]
          [declined] to do so. The money handed over to
          Trooper Frances consisted of fives, tens, twenties,
          and a fifty[-]dollar bill totaling $475.     After the
          money was counted, it was returned to the victim[,
          the groom].      Trooper Frances indicated that he
          obtained the wedding cards that were found in the
          toilet[, and the victim reported to him that the cards
          contained money].

             Next to testify was Gerald Scherer, the brother of
          the groom. Mr. Scherer testified that [Martz] arrived
          at the wedding reception with George McCray



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          approximately two hours after it had started.
          Shortly after arriving, Mr. Scherer testified, [Martz]
          went inside while most of the guests were outside.
          After it was discovered that the wedding gifts had
          been stolen, Mr. Scherer testified, the group of
          guests did not want anyone to leave because they
          wanted to “[f]igure out what exactly was going on.”
          He testified that it was discovered that [Martz] was
          inside when the cards were stolen. He continued:

              She was the only one in there, and we wanted
              her to, my cousin said to me that if she goes in
              the restroom and reveals herself, everything,
              that she has nothing, she’s free to go because
              she wanted to leave and I said okay. She
              didn’t want to do that. So I said, well, we are
              going to have to call the cops. Somebody
              called the cops, and I followed her around[]
              until the cops came.       I followed her for
              probably it was a while probably half hour,
              forty-five minutes.

          Mr. Scherer testified that [Martz] “[e]nded up at a
          dumpster in the parking lot[,]” and:

              She kind of had her hands on it and was kind
              of saying like [“]I can’t believe you’d think it
              was me[,”] and then just when somebody said
              cops are coming over the hill, coming up the
              hill, going to be here in a minute, I seen her
              reach into her bra and pull out a wad of cash
              just then I was right there two feet away. My
              buddy was standing beside me, [“]there it is
              let’s grab it,[”] we restrained her, got her on
              the ground. I don’t know how many people it
              took. She had a death grip on it. Pulled the
              money from her hand, and they took a wad of
              cash. The only denomination I seen folded on
              top was a fifty.

          Mr. Scherer indicated that [Martz] had been trying to
          put the money in the dumpster.




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                Nicole Scherer, the bride, was the next witness to
            testify. She indicated that [Martz] arrived at the
            reception sometime after everyone had finished
            eating when most people were outside. At one point
            Ms. Scherer went inside and observed [Martz] by the
            gift table.    According to Ms. Scherer, [Martz]
            appeared to be “nervous” and “pacing[.]”          Ms.
            Scherer, at one point, saw [Martz] enter the
            restroom.     After leaving the restroom, [Martz]
            returned to a position near the gift table. [Martz]
            conversed briefly with Ms. Scherer, retrieved a cup
            from the garbage that had been thrown away, and
            went outside. Less than a minute after [Martz] went
            outside, another guest approached Ms. Scherer and
            indicated that the toilet in the bathroom would not
            flush, that she had reached into the tank, and that
            [wedding] cards and checks had been placed in the
            tank. The guest handed the cards and checks to Ms.
            Scherer, who went outside and found her husband.
            …

               The [d]efense called as its first witness George
            McCray[, Martz’ boyfriend]. Mr. McCray testified that
            in the days leading up to the wedding reception, he
            withdrew several hundred dollars from ATM
            machines and gave $400 to [Martz] in order to pay
            [his property] taxes.    According to Mr. McCray,
            [Martz] had that money in her bra during the
            reception.

               [Martz] was the final witness to testify. She
            denied stealing the money from the wedding [cards].
            [She testified that the money in her bra belonged to
            her and to Mr. McCray; that she brought it with her
            to keep it safe; and that she was never given a
            chance to explain to the guests that the money was
            hers before they jumped on her and forcibly
            removed it from her bra, not from her hand.]

Trial Court Opinion, 1/12/15, at 1-4 (record citations omitted).




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        The jury and the trial court, respectively, convicted Martz of the

aforementioned crimes. On September 18, 2014, the trial court sentenced

Martz to time served to twelve months of incarceration with immediate

parole, followed by eighteen months of probation. Martz filed a timely post-

sentence motion challenging the weight and sufficiency of the evidence to

support her convictions. The trial court denied the motion on October 15,

2014.

        Thereafter, Martz filed a timely notice of appeal and complied with the

trial court’s order for the filing of a concise statement of errors complained

of on appeal. She raises the following issue for our review: “Whether the

weight and sufficiency of the evidence presented by the Commonwealth is

enough to sustain the guilty verdict rendered for the offenses of theft by

unlawful taking and receiving stolen property?” Martz’ Brief at 9.

        Although phrased as a single issue, Martz raises two separate

arguments on appeal. We begin by addressing her sufficiency claim. Martz

asserts that there was insufficient evidence to support her convictions of

theft by unlawful taking and receipt of stolen property because there was no

evidence that the destroyed wedding cards contained any money, nothing to

link Martz to the destroyed wedding cards, and nothing to establish that she

stole the money recovered from her person. Id. at 16-17. Rather, relying

on testimony presented in her defense, Martz states that the evidence

showed that the money belonged to her. Id. at 17. The trial court found



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that the evidence was sufficient to convict her of both charges. Trial Court

Opinion, 1/12/15, at 4-5. We agree.

      Appellate review of a challenge to the sufficiency of the evidence is de

novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur

scope of review is limited to considering the evidence of record, and all

reasonable inferences arising therefrom, viewed in the light most favorable

to the Commonwealth as the verdict winner.”                 Id. at 420-21.      “The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence.”     Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)

(citation and quotation omitted).          “Further, we note that the entire trial

record is evaluated and all evidence received against the defendant is

considered, being cognizant that the trier of fact is free to believe all, part,

or none of the evidence.” Id. It is for the finder of fact to pass upon the

credibility   of   the   witnesses   and    weight   of   the   evidence   presented.

Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).

      “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(a).         “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).



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     The jury heard evidence that upon arriving at the wedding reception,

Martz positioned herself near the card and gift table alone. N.T., 8/21/14, at

23, 44, 58.   Martz remained there as individuals came in and out of the

reception hall. Id. at 23, 58, 62, 78. She was observed to be “nervous”

and was “pacing.” Id. at 62. Martz went to the ladies’ room, at which time

both toilets were functioning. Id. at 23, 66-67. Less than a minute after

Martz visited the restroom, one toilet was reportedly broken and a guest

found wedding cards and checks in the toilet tank. Id. at 65-66.

     A wedding guest confronted Martz and she denied that she stole

anything and attempted to leave the reception.       Id. at 24-25, 53.    She

refused a guest’s request to “reveal[] herself” in the restroom to prove that

she did not steal anything. Id. at 44.

     Martz ultimately positioned herself near a dumpster in the parking lot.

Id. at 45. Upon learning that the police were approaching, Martz removed a

large amount of money from her bra and attempted to “stash” the money in

the dumpster in a “sneaky” manner. Id. at 45, 54.

     When the police arrived, a wedding guest gave Trooper Frances the

money obtained from Martz, which consisted of fifty-, twenty-, ten- and five-

dollar bills, totaling $475. Id. at 32. Martz and Mr. McCray testified that

they had obtained the money found on Martz’ person from various trips to

the ATM, id. at 87, 90, 107-09, but Trooper Frances testified that it was

“[v]ery rare” to get a fifty dollar bill from an ATM.    Id. at 39.   Trooper



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Frances testified that he offered for Martz to use a computer at the police

barracks to show him a copy of her bank statement indicating that the

money belonged to her, but she declined to do so. Id. at 122. Because the

cards were destroyed, Trooper Frances testified that he was unable to track

down the givers of the cards to determine how much money was inside of

the cards, but that he was made aware that there had been money inside of

the cards. Id. at 36.

      Viewing the evidence presented in the light most favorable to the

Commonwealth,      we   conclude    that    the   evidence   sufficiently,   albeit

circumstantially, supports a finding that Martz stole the cash inside of the

wedding cards, put it in her bra with the intent of depriving the victims of

the money, and attempted to hide the cards and checks in the toilet tank.

Therefore, we find no error in the jury’s decision to convict Martz of theft by

unlawful taking and receipt of stolen property.

      We now turn to Martz’ challenge to the weight of the evidence, which

we review according to the following standard:

            A claim alleging the verdict was against the weight of
            the evidence is addressed to the discretion of the
            trial court. Accordingly, an appellate court reviews
            the exercise of the trial court’s discretion; it does not
            answer for itself whether the verdict was against the
            weight of the evidence. It is well settled that the
            [jury] is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses, and a new trial based on a weight of the
            evidence claim is only warranted where the [jury’s]
            verdict is so contrary to the evidence that it shocks



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            one’s sense of justice. In determining whether this
            standard has been met, appellate review is limited to
            whether the trial judge’s discretion was properly
            exercised, and relief will only be granted where the
            facts and inferences of record disclose a palpable
            abuse of discretion.

Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015)

(citation omitted).

      Martz premises her weight claim on the Commonwealth’s presentation

of “testimony that was unreliable, tenuous and vague.” Martz’ Brief at 18.

She points to the absence of testimony concerning anyone observing her

take anything, bring anything with her to the bathroom, or any evidence

that money had been removed from the cards found in the toilet tank. Id.

at 18-19.      According to Martz, the testimony presented was “pure

speculation … so lacking in substance, so incredible, and so contradictory

that it is of insufficient weight to support the verdict.” Id. at 19.

      The trial court found that “[t]he jury’s verdict was not so contrary to

the evidence as to shock one’s sense of justice.”           Trial Court Opinion,

1/12/15, at 5.    The jury disbelieved Martz’ version of events and found

credible the Commonwealth’s witnesses’ portrayal of the events of the

evening, which, according to the trial court, support Martz’ convictions of

theft by unlawful taking and receiving stolen property. Id.

      We find no abuse of discretion in the trial court’s conclusion. Although

Martz denied that she stole the money and presented evidence that she and




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her boyfriend had made several trips to the ATM in the days leading up to

the wedding, see N.T., 8/21/14, at 88-90, 105-07, the jury was free to

disregard that evidence and accept the testimony of the Commonwealth’s

witnesses as credible. See Tejada, 107 A.3d at 795-96. As such, no relief

is due.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




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