J-S13004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM NEAL WILLARD, JR.,

                        Appellant                  No. 1820 WDA 2013


       Appeal from the Judgment of Sentence Entered June 12, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0013647-2012


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 05, 2015

     Appellant, William Neal Willard, appeals from the judgment of

sentence of six months’ probation, imposed following his conviction for theft

of property delivered by mistake and conspiracy. Appellant challenges the

sufficiency of the evidence supporting these offenses. After careful review,

we affirm.

     The trial court summarized the facts adduced at trial as follows:

            On August 17, 2012, Gary Campbell arrived in
     Albuquerque, New Mexico[,] to attend a six-week business trip
     touring military bases with a group of students from the
     Architectural  Association.     Employed     in   the    concert
     entertainment business, Mr. Campbell testified that he regularly
     went on tour for work and often times would ship back to his
     residence personal belongings that he did not want to take on
     his trips.

           On the evening of August 17, 2012, Mr. Campbell visited a
     Fed-Ex store in Albuquerque, New Mexico and shipped3 to his
     residence a package containing various personal belongings that
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     he did not want to bring on his tour.4 The package contained:
     (i) a black duffel bag secured by black zip ties with a tag on the
     outside containing identifying information; (ii) a metal briefcase
     inside of the duffel bag that housed an iPad purchased in
     November of 2011, as well as paperwork containing identifying
     information; (iii) a "spare Samsung Galaxy phone"; (iv) a pair of
     new Nike shoes; (v) shirts that were considered to be rare
     memorabilia collector items; and (vi) "standard basic clothes"
     like sweatpants. Mr. Campbell testified that the value of these
     items totaled $4,315.5
                                    ___
       3
         Mr. Campbell testified that he did not retain the original
       shipping receipt for his records.
       4
         Mr. Campbell testified that he did not want to take these
       items with him on tour because he learned that one of the
       stops was in Black Rock Desert in Nevada, which was an
       area that he described as having "very harsh conditions"
       that could cause his possessions to be damaged by the
       "gray film of dust and crud" that he said was present in the
       area.
       5
         Mr. Campbell testified that he paid $1,100 for the iPad,
       $575 for the Galaxy phone, and $140-150 for the Nike
       shoes. He claimed that he was offered over $2500 for one
       of his memorabilia shirts alone.
                                    ___

            Mr. Campbell addressed the package to his residence at
     133 Meadowbrook Drive, Bethel Park, Pennsylvania 15102, and
     he requested signature confirmation upon delivery. He was told
     that the package would arrive at his home within three (3) days.
     A few days passed, and Mr. Campbell's wife informed him that
     his package never arrived at the residence. He contacted Fed-Ex
     to inquire as to the whereabouts of his shipment and was told
     that it had been delivered to a different address. Mr. Campbell
     did not know the individuals who resided at that location so he
     called the authorities sometime around August 20, 2012 to
     report the matter.

           Detective Frederick Paganico, who has been employed with
     the Bethel Park Police Department for twenty-three (23) years,
     became involved in the investigation to locate the misdelivered
     package. He reviewed the original incident investigation report
     and learned that the package accidentally had been delivered to

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     a residence located at 137 Meadowbrook Drive, Bethel Park,
     Pennsylvania, 15102, one house down from Mr. Campbell's
     residence. The report also indicated that other officers from the
     department already had gone to 137 Meadowbrook Drive and
     spoken with the residents, William and Christy Willard, who
     confirmed their receipt of the package.6
                                     ___
       6
        Detective Paganico testified that he was familiar with the
       Willards because of their prior domestic violence disputes.
                                    ___

           On September 1, 2012, Detective Paganico called the
     Willards to follow up on the package and first spoke with Christy,
     who stated that they had received the package, but had
     disposed of its contents because it contained only a duffel bag
     with "dirty clothing and tennis shoes." She told him that they
     took the duffel bag and clothes to the "Red White and Blue" thrift
     store "on 51." Detective Paganico then spoke with [Appellant]
     who provided the same account. The Willards stated that there
     was an illegible name on the package and that the package was
     addressed to their home; they told Detective Paganico that they
     receive many packages because Christy Willard has an eBay
     business. Detective Paganico informed the Willards that "they
     were responsible for either returning the items or paying for the
     items that were misdelivered to their home." The Willards told
     the detective that he should blame Fed-Ex and further stated
     that they should not be held responsible for the package since it
     was misdelivered. Detective Paganico told them to contact him
     in one (1) week to let him know how they wanted to proceed.

            Following his phone conversation with the Willards,
     Detective Paganico gathered from Mr. Campbell a more detailed
     list7 of the items that were in his duffel bag and attempted to
     locate the items on pawn shop lists, to no avail. On September
     18, 2012, he filed an application for a warrant to search the
     Willards' residence because he believed that some of the items
     were still at their home. The search warrant was executed on
     September 25, 2012, and Detective Paganico testified that the
     Bethel Park police retrieved from inside of a closet in the master
     bedroom a metal briefcase with a "Rolling Stones" logo sticker
     containing Mr. Campbell's identifying paperwork.8         No other
     items were discovered in the home.9
                                     ___


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       7
          Detective Paganico testified that he received the list from
       Mr. Campbell on September 5, 2012 and that items were
       listed in the police report as follows: (1) "Item 3 — iPad"
       valued at $400; (2) "Item 4 — Nokia" cell phone valued at
       $300; "Item 5 — Grateful Dead crew shirt" — valued at
       $2,500. He also testified that he did not attempt to
       contact the service providers or manufacturers to see if
       they could locate the products.
       8
         Detective Paganico testified that the papers were logged
       into evidence, but were not present with him in court that
       day.
       9
        Aside from their two children, [Appellant] and Christy
       Willard were the only individuals who resided in the home.
                                    ___

           After being found competent to testify, thirteen (13) year-
     old Brandon Furniss testified on behalf of the defense. Brandon,
     the son of Christy Willard, said that he came home from school
     one day in September10 and saw the package sitting on his
     porch.    His neighbor told him that he had signed for the
     package, so Brandon took it inside and waited approximately one
     (1) hour to open it because he was waiting for his mother to get
     home. Upon her arrival, Brandon testified that his mother
     thought it was one of her packages from eBay that was being
     returned and told him to open it.11
                                    ___
       10
          Brandon testified that he started school in September,
       after Labor Day.
       11
          He later stated that his mother believed that the
       package was a racetrack.
                                ___

     After opening the package and seeing "raggy clothes, a pair of
     sneakers, and a silver case," Brandon called his mother upstairs;
     she opened the briefcase that was inside of the duffel bag and
     then called his grandmother.12 Brandon testified that, although
     he saw papers inside of the briefcase that looked like they had
     been "ripped up and scribbled all over," he did not actually read
     the content of the papers. He initially stated that there were
     black zip ties securing the duffel bag, but then changed his mind
     and said that he thought they were "clear" zip ties instead; he
     testified that he did not see a phone or an iPad in the bag.

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     Brandon relayed that after opening the package, his mother put
     the duffel bag inside of her bedroom closet and waited to see if
     anyone would claim it.
                                    ___
        12
           [Appellant] was not home at the time the package was
        initially opened.
                                  ___

             Christy Willard (also known as Christy "Furniss") is in the
     eBay business and as part of her job she sends and receives
     many packages. She testified that the package first came to her
     attention when she got home and saw it sitting in the kitchen.
     The individual who cuts her grass informed her that he had to
     sign for the package. She stated that the package did not have
     a shipping label, that it was addressed to her residence and that
     she could not read the name on it. After her son opened the box
     and called her upstairs, she testified that she thought the
     package was a joke because the contents were old clothing and
     a little briefcase that had papers that "were of no importance."
     Ms. Willard testified that she did not see an iPad or a phone in
     the bag and that both [she] and [Appellant] had spoken with
     Detective Paganico about the package and said that they had
     given the bag away.

           According to her timeline, Christy Willard received the
     package in September after Labor Day and kept it in her closet
     for approximately "two to two-and-a-half weeks" to see if
     someone would claim it. Christy testified that, after they kept
     the bag for a couple of weeks, they donated the bag to the
     Goodwill, but kept the briefcase because it was "of some interest
     to them." She later testified that [Appellant] had taken the bag
     to the Red White and Blue store in downtown Pittsburgh at 6:00
     a.m. one morning and had left it behind the building since the
     store had not opened yet. She stated that, if the package had
     contained any indication as to whom it belonged, she would have
     "most definitely” returned it to the owner.

Trial Court Opinion (TCO), 10/28/14, at 3-8.

     The Commonwealth charged Appellant, by criminal information dated

December 26, 2012, with theft of property lost by mistake, 18 Pa.C.S. §

3924, and conspiracy to commit theft of property lost by mistake, 18 Pa.C.S.


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§ 903(c).     Following Appellant’s non-jury trial on June 12, 2013, he was

convicted of both offenses and sentenced to six months’ probation. The trial

court amended the June 12, 2013 sentencing order with a “Corrected Order

of Sentence” on June 13, 2013; however, Appellant’s sentence remained the

same.1

       Appellant     filed   a   post-sentence   motion   on   June   17,   2013.

Subsequently, the trial court held a restitution hearing on August 14, 2013;

however, no restitution was imposed. A post-sentence motion hearing was

held on October 16, 2013, at which time Appellant’s post-sentence motion

was denied.

       Appellant filed a timely notice of appeal on November 15, 2013. On

November 22, 2013, the trial court directed Appellant to file his Pa.R.A.P.

1925(b) statement of errors complained of on appeal by December 12,

2013. On that date, Appellant requested an extension of time to file his Rule

1925(b) statement because appellate counsel had yet to receive all of the

trial transcripts. On December 19, 2013, the trial court granted Appellant’s

request and ordered him to file his Rule 1925(b) statement within 30 days of

receiving all of the transcripts.




____________________________________________


1
  The original sentencing order had incorrectly graded Appellant’s conviction
for conspiracy as a third degree felony. The corrected sentencing order
graded that offense as a first degree misdemeanor.



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      The transcripts were not filed until September 19, 2014. However, the

trial court issued its Rule 1925(a) opinion on September 17, 2014.          The

certified record was transmitted to this Court on September 19, 2014. That

same day, Appellant filed with this Court a petition to vacate the briefing

schedule and remand for the filing of his Rule 1925(b) statement in

accordance with the trial court’s December 19, 2013 order.       That petition

was later amended to reflect that the trial court had issued an amended Rule

1925(a) opinion on September 23, 2014.

      On September 25, 2014, this Court granted Appellant’s petition and

remanded this case to the trial court so that Appellant could file his Rule

1925(b) statement.    Appellant filed his Rule 1925(b) statement, nunc pro

tunc, on October 9, 2014. The trial court then issued a revised Rule 1925(a)

opinion on October 28, 2014.

      Appellant now presents the following questions for our review:

       I.   Was the evidence insufficient to convict [Appellant] of theft
            of property delivered by mistake when 1) there was no
            indication that he knew the bag was misdelivered until
            after the bag was already taken to the thrift store or that
            his wife kept some of the items in the bag, and 2) there
            was no indication that he intended to deprive the owner of
            the property when he had no knowledge of the
            misdelivery?

      II.   Was the evidence insufficient to convict [Appellant] of
            conspiracy to commit theft of property delivered by
            mistake when there was no indication that [Appellant]
            knew the bag was misdelivered, that he entered into an
            agreement to commit theft of the misdelivered bag, or that
            he took an overt act in furtherance of the conspiracy?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

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      Both of Appellant’s claims concern the sufficiency of the evidence

supporting his convictions for theft and conspiracy. Our standard of review

of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. 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. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence 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) (internal

citations omitted).

      Appellant argues that the evidence was insufficient to convict him of

theft of property delivered by mistake. That offense is defined in 18 Pa.C.S.

§ 3924, which reads as follows:

      A person who comes into control of property of another that he
      knows to have been lost, mislaid, or delivered under a mistake
      as to the nature or amount of the property or the identity of the
      recipient is guilty of theft if, with intent to deprive the owner
      thereof, he fails to take reasonable measures to restore the
      property to a person entitled to have it.

18 Pa.C.S. § 3924.

      Thus, to prove a violation of Section 3924, the Commonwealth must

prove the following elements:       1) that a defendant came into control of

property of another; 2) that he or she knew that the property had been lost,



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mislaid, or misdelivered; 3) that he or she intended to deprive the owner of

the property, and; 4) that he or she failed to take reasonable efforts to

return the property.    Appellant directs his first sufficiency claim at the

Commonwealth’s evidence regarding the second and third of these elements.

     Appellant argues that he did not know that the property in question

was misdelivered. Specifically, he asserts that there is no evidence of record

demonstrating that he was present at the time his wife and stepson received

the Fed Ex package, opened it, and placed the contents in the couple’s

bedroom closet.    He also contends that he had no knowledge “about the

existence of this bag of items until his wife had him deliver the bag to the

thrift store, or that his wife kept some items from the bag.”     Appellant’s

Brief, at 16.     Furthermore, Appellant argues that “the Commonwealth

presented no evidence that [Appellant] knew this bag of items belonged to

someone else until police talked to his wife about the missing bag and then

spoke with him on September 1, 2012.” Id. Because he did not know about

the misdelivery, Appellant contends he also could not have formed the intent

to deprive the owner of his property.

     The record belies Appellant’s claim when viewed in light most

favorable to the Commonwealth. According to the testimony of Appellant’s

wife and stepson, the Willards received the misdelivered package on or

about Labor Day in 2012, which fell on September 3rd of that year.

Appellant’s wife also testified that the contents of the package were placed

in their closet, with Appellant’s knowledge, and remained there for more

                                    -9-
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than two weeks while they waited to see if anyone would claim the package.

After that period of time elapsed, Appellant purportedly donated the duffel

bag and the clothing from the misdelivered package to a thrift store.

However, Detective Paganico testified that he spoke with Appellant by phone

on September 1, 2012, and Appellant acknowledged at that time that the

package in question had been misdelivered to his address. Thus, there was

sufficient evidence for the trial court to conclude that Appellant was aware

that the property in question had been misdelivered to his home several

weeks before he gave that property to a thrift store, regardless of whether

he was present when the package was initially opened by his wife and

stepson.

      Furthermore, there was also sufficient evidence to enable the trial

court to conclude that Appellant acted with the requisite intent to satisfy the

third element of Section 3924. Such intent could be logically inferred from

the fact that Appellant donated the misdelivered property more than two

weeks   after   his   conversation   with   Detective   Paganico   in   which   he

acknowledged, or at least became aware, that the property had been

misdelivered. Accordingly, Appellant’s first sufficiency claim lacks merit.

      Next, Appellant contends that the evidence was not sufficient to

convict him of having conspired with his wife to commit theft of the

misdelivered property.

            To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish that the defendant (1) entered
      into an agreement to commit or aid in an unlawful act with

                                      - 10 -
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      another person or persons, (2) with a shared criminal intent and
      (3) an overt act was done in furtherance of the conspiracy. This
      overt act need not be committed by the defendant; it need only
      be committed by a co-conspirator.

      Proof of a conspiracy is almost always extracted from
      circumstantial evidence. The Commonwealth may present a web
      of evidence linking the defendant to the conspiracy beyond a
      reasonable doubt. The evidence must, however, rise above
      mere suspicion or possibility of guilty collusion.         Mere
      association, presence at the scene, or knowledge of the crime is
      insufficient; the Commonwealth must prove that the defendant
      became an active participant in the criminal enterprise and that
      he had knowledge of the conspiratorial agreement.

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)

(internal citations, footnotes, and quotation marks omitted).

      In furtherance of this claim, Appellant essentially reargues the same

assertions set forth in his first claim regarding when Appellant became aware

that the property had been misdelivered.     However, as we discuss above,

the evidence was sufficient to demonstrate that Appellant was aware that

the property in question had been misdelivered long before he went to the

thrift shop to donate it.   To the extent that Appellant’s conspiracy-related

sufficiency claim relies on those same arguments, we conclude that it is

meritless.

      Appellant also contends that there was insufficient evidence to

establish that he had formed an agreement with his wife to commit the theft

offense.     We disagree.   The Commonwealth presented sufficient facts to

establish such an agreement. Both Appellant and his wife knew the package

intended for Mr. Campbell’s residence had been misdelivered. After learning

that fact from Detective Paganico, neither Appellant nor his wife took any

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action to return that property for several weeks.        Then, with Appellant’s

wife’s knowledge, Appellant donated the duffel bag and other items to a

thrift store. Finally, when the police executed a search warrant to search for

the misdelivered property, Mr. Campbell’s briefcase was found in the

Willard’s shared bedroom.     Given this web of facts, the trial court had

sufficient evidence to conclude that Appellant and his wife had agreed to

appropriate the misdelivered property.       Accordingly, we conclude that

Appellant’s second sufficiency claim also lacks merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2015




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