J-A02027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

NICOLE S. ST. AUDE

                            Appellant                   No. 1058 EDA 2014


           Appeal from the Judgment of Sentence of March 6, 2014
              In the Court of Common Pleas of Chester County
              Criminal Division at No: CP-15-CR-0000499-2012


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                               FILED MARCH 04, 2015

       Nicole S. St. Aude challenges her March 6, 2014 judgment of

sentence. Herein, St. Aude contends that the evidence was insufficient to

support her jury conviction of theft by unlawful taking and receiving stolen

property.1 We affirm.

       The trial court set forth the factual history of this case as follows:

       On November 8, 2011, Kurt Linneman (“victim”), the owner of
       Crocodile Café, reported a theft to Tredyffrin Township Police
       Department. Crocodile Café is located in Wayne, Tredyffrin
       Township, Chester County, Pennsylvania. The victim stated that
       [St. Aude], who was one of his employees and [his] executive
       assistant, stole money from his company.

       As the victim’s executive assistant, [St. Aude] was responsible
       for calling in the company’s payroll every two weeks to
       Automatic Data Processing (“ADP”) who handled the
____________________________________________


1
       18 Pa.C.S. §§ 3921(a) and 3925(a), respectively.
J-A02027-15


     establishment’s payroll account. [St. Aude’s] other job duties
     included managing the company’s finances, paying the
     company’s bills, maintaining the payroll account statements and
     credit card statements[,] and other administrative duties.

     The victim was alerted to the thefts when he wanted to obtain
     salary information on his general manager, Erin Szylek. The
     victim asked [St. Aude] to provide him with a copy of the payroll
     account statement for October 2011, but she never did. In
     response to the victim’s repeated requests for the payroll
     information, [St. Aude] provided excuses as to why she could
     not locate it. Based on [St. Aude’s] evasiveness, the victim
     decided to examine some of the most recent payroll statements
     that were in the office.

     Upon examining these statements, the victim suspected that [St.
     Aude] was being overpaid. The victim informed [St. Aude] that
     he thought she was being overpaid in response to which, [St.
     Aude] volunteered to bring him a copy of her TD [B]ank
     statement for the past year to show that she was not being
     overpaid.   [St. Aude’s] authorized salary when she started
     working at Crocodile Café was $40,000 and when she finished
     her salary was $45,000. [St. Aude’s] pay check is directly
     deposited into her TD Bank Account. The purported TD Bank
     statement provided by [St. Aude] to the victim appeared to be
     an account statement generated on TD Bank Letterhead and
     contained [St. Aude’s] hand written notes.     The statement
     showed that [St. Aude] was receiving her authorized salary and
     was not being overpaid.

     However[,] not completely satisfied by the purported bank
     statement, the victim called ADP to verify the direct deposit
     amount reflected in the purported bank statement.            ADP
     instructed the victim to remain on the phone while it faxed him
     the unmasked master payroll report. The victim agreed and
     informed all staff members to leave the office so that he could
     be certain that no one else received the incoming fax. The
     unmasked master payroll report revealed that [St. Aude] was
     being substantially overpaid.      The victim discovered that
     between August 27, 2010 and November 4, 2011 [St. Aude] had
     received eighteen paychecks where she was overpaid. The
     report indicated that the overpayments were the result of salary
     overrides. A salary override can only occur when an employee
     with the company payroll code calls ADP and specifically
     authorizes an increase. It is ADP’s policy that the employee who

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J-A02027-15


     calls in payroll and has the company code may authorize a salary
     increase for any employee besides himself. The victim, [St.
     Aude], and Erin Szylek, have access to the company code. The
     total amount of unauthorized overpayments to [St. Aude] was
     $34,961.83. The victim never called in the company payroll
     during [St. Aude’s] tenure with the company. Ms. Szylek only
     called in payroll once or twice when [St. Aude] was on vacation.
     No other employee was overpaid during [St. Aude’s] tenure with
     Crocodile Café.

     A short time after receiving the unmasked master payroll report,
     the victim received an email purportedly from ADP. The Email
     was allegedly sent to replace the incorrect information reflected
     in the unmasked master report. The Email contained different
     payroll numbers from the unmasked master and showed that
     [St. Aude] was only receiving her authorized salary. Confused
     by the conflicting documents, the victim called ADP to inquire
     about these discrepancies. ADP informed the victim that the
     Email was not sent from ADP, and therefore it was fraudulent.

     At this point, the victim confronted [St. Aude] about the
     overpayments and asked her to go with him to TD Bank. The
     victim wanted to personally accompany [St. Aude] to the bank
     so that they could obtain her bank statements and compare
     them to the purported TD Bank statement previously provided
     by [St. Aude] and the unmasked master report sent by ADP.
     [St. Aude] agreed to go with the victim to TD Bank and she
     obtained her account statements from December of 2010 to
     January of 2011. These statements were consistent with the
     unmasked master payroll report and reflected that [St. Aude]
     was being overpaid.      Additionally, the authentic TD bank
     statements contained different amounts than the purported TD
     Bank Statement previously supplied by [St. Aude].         Now,
     suspecting that [St. Aude] provided him with fraudulent
     documents, the victim decided to call the police and report the
     theft.

     After discovering the payroll thefts, the victim decided to review
     the company’s American Express credit card statements. Upon
     reviewing the statements from August 2010 to October 2011,
     obtained directly from American Express, the victim discovered
     numerous unauthorized credit card purchases. The unauthorized
     purchases were not remotely related to business expenses. The
     victim only allowed the company credit cards to be used for


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J-A02027-15


       legitimate business expenses. The total amount of unauthorized
       purchases made with the company card was $29,591.55.

       The actual American Express statements reviewed by the victim
       after finding out that [St. Aude] was receiving salary
       overpayments were different from the purported credit card
       statements previously provided to him by [St. Aude].
       Specifically, the statements that the victim previously reviewed
       with [St. Aude] only reflected authorized business related
       purchases. All unauthorized purchases were omitted from the
       statements. The victim, Sarah Bushner and Erin Szylek had
       company credit cards. Although [St. Aude] was not directly
       issued a company card, she occasionally borrowed a card from
       one of the three cardholders. Specifically, [St. Aude] would
       inform one of the cardholders that she needed to use their card
       to make a legitimate business purchase. The jury ultimately
       found [St. Aude] not guilty on the related American Express
       charges.

Trial Court Opinion (“T.C.O.”), 9/2/2014, at 2-4.      (citations to notes of

testimony and exhibits omitted).

       On January 9, 2014, a jury convicted St. Aude of one count each of

theft by unlawful taking in violation of 18 Pa.C.S. § 3921(a), and receiving

stolen property in violation of 18 Pa.C.S. § 3925(a). The jury found the total

amount of money taken from the victim and received by St. Aude was

$34,961.83. On March 6, 2014, following a pre-sentence investigation, St.

Aude was sentenced to eleven and one half to twenty-three months’

incarceration plus five years’ probation for theft by unlawful taking. 2   On

March 14, 2014, St. Aude timely filed a motion for reconsideration of


____________________________________________


2
      No further sentence was imposed for the receiving stolen property
conviction.



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sentence and a motion for reconsideration of verdict, both of which the trial

court denied without a hearing.

       On April 3, 2014, St. Aude timely filed a notice of appeal.     The trial

court ordered, and St. Aude timely submitted, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 2,

2014, the trial court issued a Pa.R.A.P. 1925(a) opinion.

       St. Aude raises three3 issues for this Court’s consideration:

        I.    Did the Commonwealth present sufficient evidence to
              support [St. Aude’s] convictions for theft-unlawful taking
              and theft-receiving stolen property where: (1) the
              Commonwealth introduced no evidence to show that [St.
              Aude] was the individual who caused a third-party
              company to deposit excessive funds in her bank account;
              (2) there was no evidence presented to show that [St.
              Aude] knew she had received unauthorized funds; (3) the
              evidence showed that [St. Aude] in fact returned funds in
              the amount of $4,400 to her employer when she realized
              she had been overpaid; and (4) the Commonwealth’s
              evidence established that multiple individuals had access
              to a company code to authorize the payment of funds into
              [St. Aude’s] bank account?

       II.    Was the evidence proffered to support [St. Aude’s]
              convictions for theft-unlawful taking and theft-receiving
              stolen property so unreliable that it rendered the evidence
              insufficient as a matter of law where the jury was required
              to base its verdict largely on the receipt of inadmissible
              hearsay evidence?

      III.    Did the trial court err when it instructed the jury that it
              could consider [St. Aude’s] statement to the police as
____________________________________________


3
     St. Aude raised a fourth issue in her Pa.R.A.P. 1925(b) statement.
However, because she failed to pursue this issue in her brief, it has been
waived. Pa.R.A.P. 2119(a).



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J-A02027-15


            substantive evidence of her guilt where the statement was
            not introduced into evidence and the prosecutor clearly
            explained that he was using the statement only for
            impeachment purposes?

Brief for St. Aude at 4 (minor spelling errors corrected).

      St. Aude first contests the sufficiency of the evidence to support her

convictions for theft by unlawful taking and receiving stolen property. She

argues, inter alia, that the Commonwealth failed to prove that she caused

the unauthorized overpayments to be deposited into her bank account, and

that there was no evidence indicating that she knew that she had received

the overpayments. Brief for St. Aude at 10-13. We disagree.

      Our standard of review for a sufficiency of the evidence claim is well

established:

      The standard we apply . . . 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.




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

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

      In addressing the merits of St. Aude’s claim, we first examine the

sufficiency of the evidence supporting her conviction of theft by unlawful

taking.   A person is guilty of theft by unlawful taking “if [she] unlawfully

takes, or exercises unlawful control over, moveable property of another with

intent to deprive him thereof.” 18 Pa.C.S. § 3921(a).

      First, St. Aude, as the victim’s executive assistant, was the employee

responsible for calling in the company’s payroll to ADP. Notes of Testimony

(“N.T.”), 1/7/2014, at 42-43. The evidence demonstrates that St. Aude, Ms.

Szylek, and the victim were the only individuals with access to the company

code to authorize salary payments. Id. at 45. In addition, trial testimony

revealed that Ms. Szylek called payroll only once or twice during St. Aude’s

tenure, and only when St. Aude was on vacation.         Id.   Furthermore, St.

Aude was the only employee who received excessive overpayments, which

transpired over eighteen paychecks between August 27, 2010 and November

4, 2011. Id. at 62. In order for these overpayments to occur, an employee

of Crocodile Café needed to call ADP and request that the employee’s salary

be adjusted. Id. at 45-46. From this evidence, it was reasonable for the

jury to infer that St. Aude was responsible for the overpayments.

      St. Aude also claims that there was no evidence establishing her

knowledge of receipt of the unauthorized funds. Brief for St. Aude at 18-19.

In support of her claim, St. Aude testified that she first noticed a substantial

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increase of funds in her bank account around February 2011.                   N.T.,

1/8/2014, at 103-06. St. Aude claimed that she was careless in monitoring

her bank account, and believed that the victim or her father provided the

excess money that she discovered in her bank account. Id. However, the

jury found that St. Aude was responsible for the overpayments and did not

find her testimony about lack of knowledge credible.

      In addition, the fact that St. Aude attempted to conceal her thefts

further supports the jury’s finding. St. Aude repeatedly failed to supply the

victim with a statement of the company’s payroll account, and offered him a

fraudulent statement of her TD Bank account when he suspected she had

been overpaid.    N.T., 1/7/2014, at 48-51.        The victim also requested a

payroll statement directly from ADP, which indicated that St. Aude was

overpaid, and then received an email, allegedly from ADP, stating that St.

Aude had not been overpaid. Finding this suspicious, the victim then called

ADP and was informed that the email was fraudulent. Id. at 56-59.

      Because St. Aude was responsible for payroll and had the company

code to authorize salary payments, was the only employee to receive

continuous overpayments, and was the only employee with reason to

authorize the overpayments, we conclude that the evidence was sufficient to

prove that St. Aude caused ADP to deposit excessive funds into her bank

account.    Therefore,   we   find   that   the   evidence   presented   by    the

Commonwealth allowed the jury to conclude beyond a reasonable doubt that

St. Aude was guilty of theft by unlawful taking.

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J-A02027-15



      Next, we examine the sufficiency of the evidence supporting St. Aude’s

conviction of receiving stolen property. A person is guilty of receiving stolen

property “if [she] 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. § 3925(a). Once again,

St. Aude alleges that the evidence presented by the Commonwealth was

insufficient to establish her guilt beyond a reasonable doubt.       Brief for St.

Aude at 18. Again, we disagree.

      To   obtain   a   conviction    for   receiving    stolen   property,   “the

Commonwealth has the burden of proving three distinct elements of the

crime of receiving stolen goods: (a) that the goods are stolen; (b) that the

defendant received such goods; and (c) that he received them knowing, or

having reasonable cause to know that they were stolen.” Commonwealth

v.   Stafford,   623    A.2d   838,     840    (Pa.     Super.    1993)   (quoting

Commonwealth v. Davis, 280 A.2d 119, 121 (Pa. 1971)). However, “the

mere possession of stolen property is insufficient to prove guilty knowledge,

and the Commonwealth must introduce other evidence, which can be either

circumstantial or direct, that demonstrates that the defendant knew or had

reason to believe that the property was stolen.”            Commonwealth v.

Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002) (citing Commonwealth

v. Matthews, 632 A.2d 570, 571 (Pa. Super. 1993)).




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      Having determined that the Commonwealth presented sufficient

evidence to allow the jury to conclude that St. Aude was guilty of theft by

unlawful taking, the first two elements of receiving stolen property are

established through sufficient evidence: (a) that the goods are stolen, and

(b) that St. Aude received such goods.       Therefore, we need only consider

whether the Commonwealth presented sufficient evidence for the jury to

determine that St. Aude knew, or had reasonable cause to know, that she

was in possession of stolen funds. Because St. Aude personally caused the

unauthorized overpayments to be deposited directly into her account, St.

Aude was clearly aware that she was in possession of “stolen goods.”

Moreover, the evidence indicating that St. Aude attempted to conceal the

overpayments only supports the conclusion that she knew that she was in

possession of stolen goods.

      Because the evidence provided by the Commonwealth was sufficient to

prove that St. Aude caused the unauthorized salary overpayments at issue

to be deposited into her bank account, she undoubtedly was aware that she

was in possession of the stolen funds. Therefore, in reviewing the record in

the light most favorable to the Commonwealth, we conclude that the

Commonwealth provided sufficient evidence to sustain the receiving stolen

property and theft by unlawful taking convictions. St. Aude’s first issue does

not merit relief.

      In St. Aude’s second issue, she argues that the trial court erred by

allowing the jury to consider inadmissible hearsay evidence.     Brief for St.

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J-A02027-15



Aude at 21-24. This issue is waived. In making its decision, the trial court

found that St. Aude’s Rule 1925(b) statement was vague with regard to this

issue.      Specifically, the trial court stated that “[St. Aude’s] failure to

adequately identify the issue pursued on appeal, prevents us from providing

meaningful review regarding this issue.”         T.C.O. at 9.   Consequently, the

trial court did not address this claim and deemed it waived.                   Id.;

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014).

         In her brief to this Court, St. Aude identifies five instances in which

she claims that the trial court erroneously permitted the Commonwealth to

offer inadmissible hearsay evidence. Brief for St. Aude at 23-24. Despite

this contention, our review of the record reveals that St. Aude failed to

object to any of the alleged hearsay testimony at trial. N.T., 1/7/2014, at

50, 53, 56-57, 58, 59-60. Therefore, she has waived any objection to that

testimony on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

         In her final issue, St. Aude alleges that the trial court erred in its jury

instruction by allowing the jury to consider St. Aude’s statement to the

police as substantive evidence. Brief for St. Aude at 27. We disagree. This

issue also is waived. In her statement to the police, St. Aude admitted to

using the company credit card for personal purchases.           N.T., 1/8/2014, at

136-38. Nonetheless, St. Aude again failed to object to the jury instruction

at trial, therefore waiving the issue on appeal.        See Pa.R.Crim.P. 647(B)

(“No portions of the charge nor omissions from the charge may be assigned

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J-A02027-15



as error, unless specific objections are made thereto before the jury retires

to deliberate. All such objections shall be made beyond the hearing of the

jury.”); Pa.R.A.P. 302(a), supra.

      Moreover, even if St. Aude had preserved her issue for appeal, and if

the instruction was erroneous, the evidence offered in her statement

amounted to no more than harmless error. Error is harmless where:

      1) the error did not prejudice the defendant or the prejudice was
      de minimis; or 2) the erroneously admitted evidence was merely
      cumulative of other, untainted evidence which was substantially
      similar to the erroneously admitted evidence; or 3) the properly
      admitted and uncontradicted evidence of guilt was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Williams, 573 A.2d 536, 538-39 (Pa. 1990).                The

statement at issue is irrelevant to St. Aude’s convictions, because the

statement concerns only whether the victim authorized St. Aude to use the

company credit card for personal expenses.      N.T., 1/8/2014, at 136-38;

T.C.O. at 10. However, the jury acquitted St. Aude on the charges related

to credit card use. N.T., 1/9/2014, at 36; T.C.O. at 10. Therefore, even if

she had not waived this issue, St. Aude was not prejudiced by the trial

court’s instruction that her statement to police could be considered as

substantive evidence of her guilt.

      Judgment of sentence affirmed.




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J-A02027-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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