J-A33039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                    v.                    :
                                          :
LEE A. HARRIS,                            :
                                          :
                  Appellant               :      No. 683 WDA 2016

          Appeal from the Judgment of Sentence December 4, 2015
               in the Court of Common Pleas of Mercer County
             Criminal Division at No(s): CP-43-CR-0000038-2014

BEFORE:       LAZARUS, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JANUARY 27, 2017

      Lee A. Harris (Appellant) appeals from the judgment of sentence of six

to 18 months of imprisonment, plus restitution in the amount of $20,120.79,

following her convictions for various theft offenses. We affirm.

      The trial court summarized the facts underlying Appellant’s convictions

as follows.

            [Appellant] was hired in 2004 to manage Penn Ohio
      Storage. Penn Ohio Storage is located in Sharon, Pennsylvania,
      and is a self-storage facility containing 240 units. [Appellant’s]
      job duties included collecting all of the rents, recording the rents
      and depositing the rents.

             The occupancy rate for the business remained consistent
      at 80% throughout all times material to this case. The rents
      collected stayed consistent from the date of [Appellant’s] hire
      until December of 2011.

            The rents deposited in December of 2011 fell from $11,000
      in November of 2011, to $5,000.


*Retired Senior Judge assigned to the Superior Court.
J-A33039-16


           The months that followed also showed substantial
     reductions in the rents reported collected even though the
     occupancy rate remained the same. It bottomed out in March of
     2012 when they dropped to $4,500.

           [Appellant] was fired at the beginning of June 2012.

           Since [Appellant’s] firing, the rents collected returned to
     the level prior to December of 2011 and there have been no
     major fluctuations in the monthly collections.

           A forensic accounting of the business was conducted by
     Thomas Davis, Jr., at the Owner’s expense. The accounting
     showed that the average monthly collection rate when
     [Appellant] was handling the receipts was $6,657. After
     [Appellant] was fired, the average monthly collections rose to
     $12,649. Davis’s opinion was that $20,120 was missing from
     the rents collected.

           [Appellant’s] expert, Tyler Hankins, also concluded that
     $20,122 in cash was missing.       Hankins admitted on cross
     examination that where only one person receives the cash, as
     here, that that person would be the possible person to blame if
     cash went missing.

           At the time of [Appellant’s] arrest on September 12, 2014,
     she told her paramour to call an attorney. When he asked why,
     [Appellant] responded “I stole.”

Trial Court Opinion, 6/3/2016, at 3-4 (citations omitted; format of dollar

amounts modified).

     On October 16, 2015, a jury convicted Appellant of theft by unlawful

taking-movable property, theft by failure to make required disposition of

funds, and theft by deception.1 Following the denial of her timely-filed post-




1
  Appellant was acquitted of an additional charge of forgery at the close of
the Commonwealth’s case.

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sentence motion, Appellant timely filed a notice of appeal. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant contends that there was insufficient evidence to

sustain her convictions, and that the verdicts were against the weight of the

evidence. Appellant’s Brief at 4.

      We begin with her sufficiency challenges.

            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.
      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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. 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.

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. 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. 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 appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal citations and quotation marks omitted).




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      “A defendant may be convicted of theft by deception if he [or she]

intentionally obtains property from another person by deception.                   The

Commonwealth must demonstrate not only the presence of a false

impression    but     that     the   victim    relied    upon    that    impression.”

Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa. Super. 1994)

(citations omitted). “To be guilty of theft by unlawful taking or disposition, a

criminal defendant must unlawfully take, or exercise control over, the

movable    property    of     another   with   intent   to   deprive    him   thereof.”

Commonwealth v. Crawford, 427 A.2d 166, 170 (Pa. Super. 1981).

Finally,

      the crime of theft by failure to make required disposition of
      funds received is composed of four elements: 1) the obtaining of
      the property of another; 2) subject to an agreement or known
      legal obligation upon the receipt to make specified payments or
      other disposition thereof; 3) intentional dealing with the property
      obtained as the defendant’s own; and 4) failure of the defendant
      to make the required disposition of the property.

Commonwealth v. Morrissey, 654 A.2d 1049, 1052 (Pa. 1995).

      In the instant case, Appellant’s argument is that the evidence was

insufficient to sustain her convictions because the Commonwealth failed to

establish that she ever actually received the customers’ rent payments.

Appellant’s Brief at 20-21. We disagree.

      Becky Miniea testified that her husband owned Penn-Ohio Self

Storage, and that she took over the day-to-day operations of the business

after they married.          N.T., 10/14/2015, at 21.         When another of his


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businesses required their full attention in Ohio, Appellant was hired to take

over running the operation. Id. at 23, 27. They relied upon Appellant to be

there every day to take the deposits.      Id. at 29.    The business used a

computer with accounting software to track customers’ accounts; only Ms.

Miniea and Appellant had full access to all security levels within it, including

being able to credit accounts. Id. at 37-39. James Fitzgerald, who rented

office space from the Minieas, testified that Appellant “ran the window. She

took in customers, took their money, took the money to the bank, ran all of

the storage units, 100 percent.” N.T., 10/15/2015, at 5.

      In 2010, after Appellant had run the facility for years, monthly

deposits suddenly dropped from $11,000 in November to $5,000 in

December. N.T., 10/14/2015, at 28. When Ms. Miniea questioned Appellant

about it, Appellant told her that a lot of people did not pay that month, but

they probably would pay after Christmas. Id. at 28-29. Deposits continued

to be low, and to “jump all over the place” despite the fact that the number

of tenants remained steady. Id. at 30. When the monthly deposit fell to

$4,500 in March 2012, Ms. Miniea again questioned Appellant, who opined

that it was just a bad month and the following month would be better.

“Miraculously, the next month we had $9,000[] in deposits.”         Id. at 42.

However, the deposits did not return to their former, steady levels until after

Appellant stopped managing the business. Id. at 30, 43-44.




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      Thomas Davis, whose expertise in accounting was acknowledged by

Appellant, reviewed the cash transactions in the business’s records.     N.T.,

10/15/2015, at 28-30.       He determined that the business’s accounting

software was used 183 times between May 2011 and October 2012 to add a

payment into the ledger then reverse that amount back out. Id. at 31-34.

Coupled with each of those reversed cash transactions was a reverse in the

monthly rent charge.     Id.   This coupling of cash-payment and rent-due

reversals balanced the books, such that “it would appear that everyone was

current, even though there was no deposit. Id. at 47. These reversals were

not random occurrences; the entries had to have been done manually. Id.

at 34-35. “It wasn’t every single transaction. It wasn’t every single month.

It was just periodic through the accounts and through the months.” Id. at

34.   However, after Appellant stopped working at the business, the “cash

deletion transactions” ceased; thereafter, all of the cash payments entered

were subsequently deposited. Id. at 39. The amounts of cash transactions

reversed out during Appellant’s tenure totaled $20,120. Id. at 41.

      Finally,   then-patrolman   Edward   Stabile   of   the   Sharon   Police

Department testified that he went to Appellant’s home to serve an arrest

warrant on her on September 17, 2013. Id. at 22. When she came to the

door and was informed of the arrest warrant, Appellant yelled back into the

house and asked him to call someone.          When a man replied “why?”

Appellant said “I stole.” Id. at 23-24.


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      From this circumstantial evidence and its reasonable inferences, it was

well within the jury’s province to conclude that Appellant took cash that

belonged to Penn-Ohio Self Storage and which she was supposed to deposit

in the company’s account, but kept it for herself, covering her tracks by

altering the transaction records.    See, e.g., Commonwealth v. Quel, 27

A.3d 1033, 1041 (Pa. Super. 2011) (rejecting, following convictions for the

same crimes at issue in the instant case, the claim that evidence was

insufficient to establish that the appellant was the one who took the funds

where “through an abundance of uncontradicted circumstantial evidence, the

Commonwealth established [that the a]ppellant intentionally and deceptively

withheld currency that belonged to the school district by removing cash from

deposit envelopes after verifying their contents in [accounting software]

which created the false impression that the various student groups’ finances

were in order”). No relief is due.

      Appellant next claims that the verdict was against the weight of the

evidence.

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the



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J-A33039-16


      evidence and that a new trial should be granted in the interest of
      justice.

            However, the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is not unfettered. The
      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion.

Commonwealth v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 753 (Pa.

2000) (internal citations omitted).

      The trial court offered the following analysis of Appellant’s weight

claim:

            There was nothing in the evidence to suggest it was so
      unreliable or contrary as to make any verdict based thereon to
      shock one’s sense of justice. It was undisputed that [Appellant]
      was the sole person collecting the rents for the time in question.
      Both sides experts agreed over $21,000.00 in cash was missing.
      The officer was positive that [Appellant] said “I stole” when
      asked why she was being arrested.[2]

Trial Court Opinion, 6/3/2016, at 5-6.

      After a thorough examination of the record, we conclude that there

was no abuse of discretion in the trial court’s determination that the verdict

was not against the weight of the evidence.

      Judgment of sentence affirmed.




2
  Appellant’s counsel, in cross-examining Sergeant Stabile, asked whether
he was aware that Appellant had consulted with an Attorney Isoldi and if he
was “a hundred percent sure that she said ‘I stole.’” N.T., 10/15/2015, at
25. He indicated that he was sure she said “I stole.” Id.

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J-A33039-16


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/27/2017




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