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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
TERESA GATTO,                              :         No. 841 WDA 2015
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, March 4, 2015,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0013535-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 02, 2016

        Teresa Gatto appeals the judgment of sentence in which the Court of

Common Pleas of Allegheny County, in a waiver trial, sentenced her to serve

a term of six months of restrictive intermediate punishment with permission

for work release followed by two years of probation for theft by unlawful

taking, a first degree misdemeanor.1        Appellant was also ordered to pay

restitution of $972.54.

        The facts as recounted by the trial court are as follows:

                     From 2006-2011, Appellant was in charge of
              planning All Camp, a weekend camping event for all
              girl scout troops in the West Perry Service Area of
              the Girl Scouts of Southwestern Pennsylvania.
              All Camp was held between June and August every

* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
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          year. . . . As part of her planning duties, Appellant
          managed the All Camp PNC bank account, which was
          created in 2004. Every girl attending All Camp paid
          a $40 fee. The girls’ troop leader retained $15 of the
          fee in the individual troop bank account to pay for
          the girl’s [sic] meals while at camp, and the
          remaining $25 was deposited into the All Camp bank
          account by Appellant. Appellant was then tasked
          with using those funds solely to finance the camp.
          Specifically, those funds were to be used to rent the
          campsite, pay the archery and canoeing instructors,
          the lifeguard, rent the canoes and archery equipment
          from the Girl Scouts of Southwestern Pennsylvania,
          and to pay for any additional unit or camp-wide
          activities to be conducted at camp. Typically, the
          items for camp activities were purchased in the
          months leading up to the camping session. Troop
          leaders, who were persons other than Appellant,
          purchased all of the food for their individual troop at
          camp the week before. . . .

                During her time as the manager of the
          All Camp bank account, Appellant submitted only one
          expense report (in 2012) to West Perry Girl Scouts
          financial manager, Peggy Huwe, though Appellant
          was required to turn in an expense report annually.
          Likewise, Appellant did not submit any receipts for
          purchases made from the All Camp account, except
          for one receipt with the 2012 expense report.
          Administrators from the Girl Scouts organization
          never examined any bank statements, as those were
          mailed to Appellant’s home, and she never provided
          them to the administrators. . . .

                 When Appellant resigned after the 2011
          All Camp, there was $38 remaining in the All Camp
          account. Huwe and other Girl Scout leaders then
          assumed both the planning and finances for All Camp
          for the next year. They collected $2500 from the
          girls attending the camp, and only had to spend
          $415 from the All Camp account to meet expenses
          for the camp. Though camp costs varied slightly
          from year to year, the number of girls remained
          relatively constant. The Girl Scout leaders became


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          concerned that the account managed by Appellant
          only had $38 remaining after five years, whereas
          they had over $2000 remaining after a single year of
          planning for the camp. With that concern, they
          requested statements from the bank for previous
          years. Upon review of the bank statements they
          contacted the West View Police Department to
          investigate    their preliminary  conclusion    that
          Appellant had misappropriated a significant amount
          of money. . . .

                Allegheny County District Attorney’s detective
          Jackie Weibel investigated the All Camp account from
          2006-2011. Detective Weibel interviewed girl scout
          representatives, obtained the expense report from
          the Girl Scouts, and additional expense reports from
          Appellant not turned over to the Girl Scouts, and
          interviewed Appellant regarding specific line item
          purchases from the All Camp account. Detective
          Weibel cross-referenced camp expenditures with
          Appellant’s bank account, Appellant’s Giant Eagle
          Advantage Card purchases, and the expense reports
          submitted by Appellant. At the conclusion of this
          investigation, Detective Weibel concluded that
          Appellant misappropriated $4818.41 from the
          All Camp account for personal purposes. . . .

                After   reviewing   the   testimony   of  the
          Commonwealth and defense witnesses, including
          that of Appellant, and an independent review of the
          bank records, the Trial Court found fourteen
          instances of misappropriation proven beyond a
          reasonable doubt, totaling $972.54. Those instances
          are detailed hereinbelow.

                On November 10, 2006, Appellant wrote a
          check from the All Camp account to cash for $84.75.
          The camping session for 2006 had already been
          held, and it would have been too early to buy items
          for next year’s camp as planning had not begun yet.
          This   check    did  not    correspond   with   any
          reimbursements or expenses for the camp. . . .




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                On January 17, 2007 (mislabeled January 17,
          2017 by Appellant), Appellant wrote a check from
          the All Camp account to cash for $140. Again, this
          check was written after the 2006 camping session,
          and before planning began for the 2007 All Camp.
          This    check  did  not    correspond    with any
          reimbursements or expenses for camp. . . .

                On June 6, 2008, Appellant wrote a check from
          the All Camp account to cash for $134. This check
          did not correspond with any reimbursements or
          expenses for camp. . . .

               On May 20, 2009, Appellant wrote a check
          from the All Camp account to herself for $239.40.
          This amount did not correspond with any
          reimbursement for camp expenses from her personal
          account. . . .

                On May 27, 2009, Appellant wrote a check
          from the All Camp account to cash for $300 as a
          “deposit reimbursement.” Bank records show that
          appellant paid $251.45 from her personal account as
          a deposit for Rent & Event on May 28, 2009.
          Appellant over-reimbursed herself $48.55. . . .

                On June 18, 2011, Appellant paid for camp
          items with the All Camp account at Giant Eagle, but
          withdrew an additional $30 in cash from the
          All Camp account through the cashback option at the
          register. After examining the 2011 expense report,
          there is no evidence that she used that money for
          camp items. . . . Given the regularity and
          consistency with which Appellant used this cashback
          option in subsequent trips in 2011, it is clear that
          she was taking extra money with each transaction
          for personal uses. In total, she withdrew cashback
          amounts from the All Camp account eight times from
          June 18, 2011, to August 13, 2011. . . .

                On June 25, 2011, appellant paid for camp
          items with the All Camp account at Giant Eagle, but
          again withdrew an additional $30 in cash from the



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            All Camp account through the cashback option at the
            register. . . .

                   On July 10, 2011, Appellant paid for
            Kennywood tickets for her personal use from the
            All Camp account at Giant Eagle. She also withdrew
            cash using the cashback function at the register, for
            a total personal expenditure of $81.98 from the
            All Camp account. . . . Appellant stated that she
            accidentally used the wrong account, and simply did
            not reimburse herself for items purchased for camp
            from her personal account. . . . However, contrary to
            Appellant’s   self-serving    statement,  Appellant’s
            personal bank        account did not have any
            unreimbursed camp expenditures, and Appellant
            continued to withdraw cash from Giant Eagle (using
            cashback), allegedly for camp expenditures, the next
            five trips she made to Giant Eagle, for a total of
            $115.11.      On July 16, 2011, she withdrew
            $30 cashback.     On July 24, 2011, she withdrew
            $12.58 cashback. On July 28, 2011, she withdrew
            $12.53 cashback. On August 5, 2011, she withdrew
            $30 cashback. On August 13, 2011, she withdrew
            $30 cashback. Notably, she only used this cashback
            function in 2011, which was her last year controlling
            the finances for All Camp. . . .

                  On August 2, 2011, Appellant wrote a check
            from the All Camp account to cash for $200 for
            “Snappy Logo Reimbursement.” Appellant’s personal
            bank account record shows that Appellant paid
            Snappy Logos $131.25 on August 17, 2011 from her
            personal account for the patches from Snappy Logo,
            and did not reimburse the All Camp account for the
            over-reimbursement.      Appellant overreimbursed
            herself $68.75. . . .

Trial court opinion, 12/9/15 at 4-9 (citations omitted).

      Appellant filed a post-sentence motion challenging the weight of the

evidence and also moved for modification of sentence and sought probation.

The trial court denied the motions by order dated April 27, 2015.


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      Appellant raises the following issue before this court:

            WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
            CONVICTION OF THEFT BY UNLAWFUL TAKING (M1)
            BECAUSE THE COMMONWEALTH FAILED TO PROVE,
            BEYOND A REASONABLE DOUBT, THAT [APPELLANT]
            INTENTIONALLY DEPRIVED THE GIRL SCOUTS OF
            THE FUNDS AT ISSUE?

Appellant’s brief at 4.

                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                   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.
                   Commonwealth v. Karkaria, 533 Pa.
                   412, 625 A.2d 1167 (1993). 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.
                   Commonwealth v. Santana, 460 Pa.
                   482, 333 A.2d 876 (1975).           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.
                   Chambers, 528 Pa. 558, 599 A.2d 630
                   (1991).

            Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).



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      Appellant argues that the Commonwealth failed to establish that she

intentionally deprived the Girl Scouts of $972.54.

      A person is guilty of theft by unlawful taking of movable property,

18 Pa.C.S.A. § 3921(a), 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). The Commonwealth may establish the elements of

theft by unlawful taking by circumstantial evidence.    Commonwealth v.

Haines, 442 A.2d 757, 759 (Pa.Super. 1982).

      Appellant argues that the evidence presented by the Commonwealth

established that she assigned money from the All Camp account to herself

but did not establish that she was misappropriating funds rather than simply

repaying herself for the purchases that she made as director of All Camp.

According to appellant, no Commonwealth witness had direct knowledge of

the exact costs associated with running the camp during the years in

question because none of them were directly involved with making

purchases for the entire camp.      In contrast, appellant argues that she

testified in great detail about the purchases she made. At most, she argues

that she was guilty of bad bookkeeping, and bad bookkeeping is not a

crime.2


2
  At times, appellant attempts to argue that she was more credible than the
Commonwealth witnesses.        In determining whether the evidence was
sufficient, this court may not review the evidence and substitute its
judgment for that of the fact-finder. Commonwealth v. Hansley, 24 A.3d
410, 416 (Pa.Super. 2011).


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      In order to determine the sufficiency of the evidence, this court must

examine    the   evidence   presented   to   the   trial    court.     Detective

Jackelyn Weibel (“Detective Weibel”) of the Allegheny County District

Attorney’s Office and a certified fraud examiner was assigned to investigate

the matter after Girl Scout representatives had contacted the West View

Police.   Here, Detective Weibel analyzed the PNC Bank account that was

used for the All Camp funds.     Based on her analysis, Detective Weibel

testified that there were many checks payable to Giant Eagle and many

checks payable to cash which were negotiated by appellant.            (Notes of

testimony, 2/11/15 at 5.)     The Commonwealth introduced these bank

records into evidence. (Id. at 6.) Detective Weibel also obtained a search

warrant for appellant’s personal bank account as well as a search warrant to

get the Giant Eagle records for appellant’s Advantage Card. These records

were introduced into evidence.    (Id. at 7-8.)     The Commonwealth also

introduced into evidence spreadsheets prepared by Detective Weibel which

indicated checks payable to Giant Eagle from the PNC account, checks

payable to cash from the PNC account, and checks payable to appellant from

the PNC account.   (Id. at 12-14.)   Detective Weibel initially found checks

totaling $539.75 payable to Giant Eagle from the All Camp account that she

believed did not correspond to All Camp expenses after her investigation

which included questioning appellant.   (Id. at 15.)       Appellant admitted to

Detective Weibel that tickets purchased for Kennywood Park were for her



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personal benefit. (Id. at 18.) Through her analysis, Detective Weibel found

checks payable to cash that were more than the reimbursable amount that

appellant used to pay for camp expenses with her own funds. (Id. at 20.)

Detective Weibel also noted the purchase of gift cards which other Girl Scout

officials said were not used for Girl Scout events. Detective Weibel testified

that the total amount misappropriated was $4,818.41. (Id. at 25.)

      Lisa Vogler (“Vogler”), a troop leader who was involved in planning for

the All Camp from 2004 until approximately 2013, testified that the amount

spent on “patches” was approximately $100 after appellant left and that

when she attended planning meetings that appellant organized no food was

provided. (Id. at 40-41.) Essentially, Vogler testified to refute appellant’s

testimony about how the camp was conducted including what was

purchased, when purchases were made, and the amount of purchases.

      The trial court reviewed this evidence and reduced the total amount

misappropriated by appellant from $4,818.34 to $972.34. The bank records

for the All Camp account, the Advantage Card records, and appellant’s own

personal   bank   records,   as   well    as   the   spreadsheets   prepared   by

Detective Weibel, supported the conclusion that appellant purchased items

for her own personal use with funds from the All Camp account, directed

funds from the All Camp account to herself using the cashback option at

Giant Eagle, bought tickets for Kennywood Park for herself, and reimbursed

herself for a greater amount than the original outlay for legitimate purchases



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she made for All Camp. In taking that evidence in the light most favorable

to the Commonwealth, the trial court could infer that appellant’s actions

satisfied the elements of theft by unlawful taking.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/2/2016




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