J-A34003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

MICHAEL B. DEPUGH

                         Appellant                   No. 686 MDA 2015


             Appeal from the Judgment of Sentence March 6, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001456-2014


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                       FILED FEBRUARY 17, 2016

      Appellant, Michael B. DePugh, appeals from the judgment of sentence

entered after a jury convicted him of theft by unlawful taking. DePugh

argues that the evidence at trial was insufficient to establish that he stole

any money, and further that the trial court erred in holding his decision to

take this case to trial against him in imposing sentence. After careful review,

we affirm.

      In late 2013, the Commonwealth charged DePugh with stealing money

from change machines at the car wash where he was employed as a

maintenance man. We summarize the evidence presented at the jury trial

that commenced on March 4, 2015, as follows.

      The car wash was operated by Monica Massey. She testified that the

automated car wash ran on quarters, so customers would insert paper
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money into a change machine on site and then proceed to use the dispensed

quarters to operate the car wash. The change machine held $1,400 worth of

quarters and was emptied on Tuesday and Friday every week. In essence,

the quarters simply recycled between the automated car wash machines and

the change machines, with the paper money in the machines being taken as

revenue.

     In the early summer of 2013, Massey noticed that the quarters were

being depleted, requiring her to go to the bank to buy more quarters. Over

the course of the summer, she had to purchase quarters several times,

amounting to over $3,500 in purchases. However, there was no evidence

that anyone had damaged the change machines or broken into them.

     Suspecting theft, Massey installed security cameras around the car

wash. On September 22, 2013, the cameras recorded DePugh at the

carwash almost 40 minutes before his shift began on a Saturday morning.

Massey watched the recordings as DePugh approached a bookshelf in the

office where the keys to the change machines were kept. Nearly 30 minutes

later, the recordings revealed DePugh reaching into the back of the change

machines.

     Armed with the videos, Massey confronted DePugh with her suspicions.

DePugh conceded that he had stolen $120. When Massey explained that

thousands of dollars had gone missing, DePugh replied that he had needed

money to pay rent and support his family. After Massey confronted DePugh,


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the loss of quarters stopped, and the recycling of quarters between the

machines continued unimpaired.

      After hearing the evidence, the jury convicted DePugh of misdemeanor

theft by unlawful taking, and the trial court sentenced him to a period of

incarceration of 6 to 23 months. DePugh filed post-sentence motions that

the trial court denied. This timely appeal followed.

      On appeal, DePugh raises two issues. First, he argues that the

evidence at trial was insufficient to support his conviction.

      The standard we apply when reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced is free to believe all, part or none of the
      evidence. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a


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      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      At trial, the Commonwealth had the burden of proving, beyond a

reasonable doubt, that DePugh had unlawfully taken, or exercised unlawful

control over, the quarters used at the car wash. See 18 Pa.C.S.A. §

3921(a). Furthermore, “[t]he Commonwealth is not required to establish the

precise market value of the stolen property. Rather, the Commonwealth

must present evidence from which a reasonable jury may conclude that the

market value was at least a certain amount.” Commonwealth v. Hanes,

522 A.2d 622, 626 (Pa. Super. 1987).

      DePugh argues that there is no evidence that he stole anything from

the car wash, and further, that there is no evidence of the amount stolen.

However, Massey testified that under normal operations, the quarters only

needed to be transferred from the automated car wash machines back to the

change machines. See N.T., Trial, 6/5/15, at 30-31. The quarters were

essentially recycled internally in the business, and only the bills needed to be

removed for revenue purposes; the number of quarters in the automated

machines stayed constant. See id., at 30-31.

      However, this normal scenario changed in the summer of 2013, when

the number of quarters recovered from the automated machines dipped

precipitously. See id., at 33. Massey estimated that normally, around

$1,500 in quarters would be removed from the machines. See id. That

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summer, it would only be $100 or $200 in quarters. See id. As a result, she

was forced to buy quarters three separate times that summer, totaling

$3,600. See id., at 34.

     Suspecting theft, Massey installed cameras at the business. See id., at

44. After observing DePugh act suspiciously on the recordings, Massey

confronted DePugh, accusing him of theft. See id., at 66-67. Eventually,

DePugh admitted to stealing $120 “this time.” Id., at 67.

     Viewing    this   evidence   in   the   light   most   favorable   to   the

Commonwealth, as the verdict winner, we conclude that it easily supports

the jury’s verdict that DePugh had stolen over $3,000 from the car wash.

DePugh’s first argument merits no relief.

     In his second argument on appeal, DePugh contends that the trial

court erred in penalizing him during sentencing for his decision to take this

case to trial. In determining whether a sentencing court considered

impermissible factors in imposing sentencing, we review the entirety of the

court’s comments. See Commonwealth v. Bethea, 379 A.2d 102, 106-107

(Pa. 1977). If it reasonably appears from the record that the sentencing

court relied upon an impermissible factor, we will remand for resentencing.

See id. DePugh is correct in noting that such an action would be illegal.

See id., at 104. However, we have no difficulty in concluding that this did

not happen here.

     DePugh focuses on one comment during sentencing:




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      Mr. Depugh, again you elected to take a trial by jury, which is
      your right, of course, obviously, but it was a case where the
      evidence    was   rather    substantial  against  you,  rather
      overwhelming. But nevertheless, you exercised your right and
      the jury has found you guilty.

      With the prior thefts, I believe a sentence in Dauphin County
      Prison is appropriate. I will make you eligible for work release.
      I have no problem with that.

N.T., Sentencing, 6/5/15, at 180. While the trial court mentions DePugh’s

election of trial by jury, it did not indicate that this was a factor in

sentencing. It is arguable in extremis that the sentencing court considered

his decision not to plead guilty while sentencing. However, the more

reasonable reading of the proceeding is that the court was concerned with

DePugh’s failure to accept responsibility for his crimes. This is an appropriate

factor to consider during sentencing.    See Commonwealth v. Gonzalez,

109 A.3d 711, 732 (Pa. Super. 2015).

      Furthermore, the only factor the court explicitly noted as impacting its

decision was the fact of DePugh’s prior convictions. Finally, DePugh concedes

that the sentence imposed was in the standard range of the guidelines. See

Appellant’s Brief, at 18. Under these circumstances, we conclude that the

trial court did not consider an impermissible factor in imposing sentence on

DePugh.




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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




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