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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                         :
ANTHONY J. LOVETT,                       :          No. 1177 EDA 2015
                                         :
                       Appellant         :


        Appeal from the Judgment of Sentence, February 13, 2015,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0006004-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 06, 2016

     The trial court, sitting as finder-of-fact in this matter following a waiver

trial, has summarized the testimony as follows:

                 On May 1, 2014, Ms. Daniella Matthews, the
           manager and sous chef at a Bon Appetit
           restaurant[1] located at 3417 Spruce Street in
           Philadelphia was leaving work at about 11:00 or
           11:15 p.m., when she observed a cart outside the
           door to the kitchen that had trash bags, two cases of
           cheese steaks, two ten pound bags of hot dogs, and
           a ten pound bag of turkey sausage. (N.T. 7-8,
           10).[Footnote 2]     The cart caught her attention
           because it was odd that it was located in its location
           at that time of night. (N.T. 8). Upon observing the
           cart, Ms. Matthews looked into the kitchen and saw
           someone in the kitchen, which prompted her to
           enter. (N.T. 9).


1
 Bon Appétit is a management company that provides food services for the
University of Pennsylvania (“UPenn”). (Notes of testimony, 12/9/14 at 7.)
The kitchen is located in Houston Hall on UPenn’s campus. (Id. at 8.)
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                 [Footnote 2] All references to the record,
                 unless otherwise noted, pertain to the
                 transcript  of    Appellant’s    trial on
                 December 9, 2014.

                  Once inside, Ms. Matthews encountered
           Appellant, who, when asked what he was doing in
           the kitchen, responded, “Well, if I had known you
           were still here, then I would have waited until you
           left.”    (N.T. 10).    Although Appellant was an
           employee at that Bon Appetit location, Ms. Matthews
           testified he was not supposed to be there at that
           time of night.[2]      Id.    Ms. Matthews ordered
           Appellant to leave the kitchen after telling him that
           he did not belong there. (N.T. 11). Appellant did as
           instructed at which time Ms. Matthews checked the
           kitchen before exiting it. Id. As she left the kitchen,
           she     noticed  that    the   cart  containing     the
           aforementioned items was no longer outside the
           door to the kitchen. Id.

                 The next day, Ms. Matthews received a
           telephone call from Appellant who asked her if she
           had taken a photograph of him.             (N.T. 12).
           Ms. Matthews told [Appellant] that she had not and
           directed him not to call her again.[3] Id. A couple of
           days later, while Ms. Matthews was speaking to
           police, Appellant texted her and chastised her for
           lying to police about what she had observed the
           night he was caught inside the Bon Appetit




2
  Appellant worked for Bon Appétit during the daytime hours, and for the
facilities department of UPenn at night. (Notes of testimony, 12/9/14 at
9-10, 25-26.) Appellant worked for Bon Appétit from 8:00 a.m. until
4:00 p.m. (Id. at 25.)
3
  Specifically, Ms. Matthews testified, “He asked if I took a picture and I
explained to him I didn’t and did he see me take a picture of him? And he
said, No, I didn’t think you would do something like that. Then I said, don’t
call my phone.” (Notes of testimony, 12/9/14 at 12.)


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             kitchen.[4] Id. Ms. Matthews estimated the value of
             items she saw on the cart to be $150.00 and further
             indicated that the kitchen was not open to the
             general public. (N.T. 13, 17).

                   Mr. Matthew Morett, executive chef at the time
             the incident herein occurred, was notified by
             Ms. Matthews that Appellant was observed in the
             kitchen, a restricted area after hours, and that there
             had been a cart loaded with product outside the door
             to the kitchen. (N.T. 18-19). Mr. Morett testified
             that Appellant was a member of his staff. However,
             on the date in question, Appellant clocked out at
             4:00 p.m., and he was not permitted in the kitchen
             at the time Ms. Matthews observed him. (N.T. 19).
             Morett further testified that he conducted an
             inventory of the kitchen and ascertained that cases
             of steaks and hot dogs were missing. (N.T. 20).

                   After completing the inventory, Mr. Morett
             contacted the police department of the University of
             Pennsylvania. Subsequent thereto, Mr. Morett was
             asked by authorities to review certain kitchen items,
             including pots, food items, and kitchen utensils that
             had been recovered from Appellant’s residence.
             (N.T. 21-22, 30). Morett indicated that those items
             were used by Bon Appetit and that Appellant did not
             have permission to have those items inside his
             residence. (N.T. 21-23). Morett further testified
             that police did not find the missing food items inside
             Appellant’s residence. (N.T. 28).[Footnote 3]


4
    Ms. Matthews explained,

             I received a text message from the defendant on
             Monday, the following Monday, when I was in the
             office being interviewed by the detectives and he
             said in a text message, I can’t believe you’re in there
             telling all those lies to the detective. I imagine
             someone told him that [I] was in there and then he
             texted me.

Notes of testimony, 12/9/14 at 12.


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                  [Footnote 3] At the time of the incident,
                  Appellant was also employed by the
                  University of Pennsylvania and had
                  worked from 4:00 p.m. to 11:00 p.m.,
                  on the day of the incident. (N.T. 25-26).
                  Mr. [Morett] testified that employees of
                  the University were not permitted inside
                  the kitchen of the restaurant. (N.T. 28-
                  29, 30).[5]

Trial court opinion, 6/24/15 at 2-3.

      At docket number CP-51-CR-0006004-2014, relating to the May 1,

2014 incident, appellant was charged with criminal trespass, burglary, theft

by unlawful taking, and receiving stolen property (“RSP”). At docket number

CP-51-CR-0006003-2014, relating to the items recovered from appellant’s

residence pursuant to the search warrant, appellant was charged with theft

by unlawful taking and RSP.     On December 9, 2014, following a non-jury

trial, appellant was found guilty of all charges at CP-51-CR-0006004-2014,

and found not guilty of the charges at CP-51-CR-0006003-2014.            On

February 13, 2015, the trial court imposed an aggregate sentence of 11½ to

23 months, plus 5 years of reporting probation.      Appellant was granted

immediate parole to house arrest so that he could continue to work at his

job at a restaurant on Germantown Avenue. (Notes of testimony, 2/13/15




5
  In addition, Wister Tilghman (“Tilghman”) testified that he is a cook for
Bon Appétit. (Notes of testimony, 12/9/14 at 31.) In February or March
2014, appellant admitted to Tilghman that he had stolen approximately
$50,000 worth of items from Bon Appétit. (Id. at 32-33.)


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at 7, 10.) Appellant’s sentence was a below-guidelines sentence. (Id. at 6.)

The victim, Bon Appétit, did not seek restitution. (Id. at 11.)

      On February 21, 2015, appellant filed a timely post-sentence motion,

challenging the weight and sufficiency of the evidence to sustain the charges

of burglary, RSP, and theft. Appellant’s post-sentence motion was denied on

April 16, 2015, following oral argument on the record.         A timely notice of

appeal was filed on April 28, 2015.        On April 29, 2015, appellant was

ordered to file a concise statement of errors complained of on appeal within

21 days pursuant to Pa.R.A.P. 1925(b). Appellant timely complied by filing a

Rule 1925(b) statement on May 19, 2015, challenging the sufficiency of the

evidence to sustain the convictions of burglary, theft by unlawful taking, and

RSP. Appellant did not challenge the sufficiency of the evidence to sustain

the trial court’s guilty verdict as to the charge of criminal trespass.       On

June 24, 2015, the trial court filed a Rule 1925(a) opinion.

      Appellant has raised the following issue for this court’s review:

                  Was not the evidence insufficient to convict
            appellant of burglary, theft by unlawful taking and
            [RSP] as the Commonwealth failed to prove beyond
            a reasonable doubt that appellant, a long-term
            employee in the dining services and facilities
            departments at [UPenn], stole food where no one
            saw appellant take the items and they were stored in
            a University kitchen accessible to many others?

Appellant’s brief at 3.

      When considering a challenge to the sufficiency of the evidence, this

court must view the evidence presented in a light most favorable to the


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Commonwealth, the verdict winner, and draw all reasonable inferences

therefrom.    Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super.

1999).   We must then determine whether the evidence was sufficient to

permit the fact-finder to conclude that all of the elements of the crimes

charged were proven beyond a reasonable doubt.          Id.     Any question of

doubt is for 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. Id. at 804.

             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 trial 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.

Commonwealth v. George, 705 A.2d 916, 918 (Pa.Super. 1998), appeal

denied, 725 A.2d 1218 (Pa. 1998), quoting Commonwealth v. Valette,

613 A.2d 548, 549 (Pa. 1992) (citations and quotation marks omitted).

     Appellant was found guilty of burglary, graded as a felony of the

second degree:

             (a)   Offense defined.--A person commits the
                   offense of burglary if, with the intent to
                   commit a crime therein, the person:

                   (4)   enters a building or occupied
                         structure, or separately secured or
                         occupied portion thereof that is not
                         adapted         for       overnight


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                        accommodations in which at the
                        time of the offense no person is
                        present.

18 Pa.C.S.A. § 3502(a)(4).     “The Commonwealth may prove its case by

circumstantial evidence, and the specific intent to commit a crime necessary

to establish the second element of burglary may thus be found in the

defendant’s words or conduct, or from the attendant circumstances together

with all reasonable inferences therefrom.”    Commonwealth v. Franklin,

452 A.2d 797, 799-800 (Pa.Super. 1982) (citations omitted).

      Appellant was also found guilty of theft by unlawful taking and RSP.

The Crimes Code defines theft by unlawful taking, in relevant part, as

follows:

            § 3921. Theft by unlawful taking or disposition

            (a)   Movable property.--A person is guilty of theft
                  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).

      RSP is defined as follows:

            § 3925. Receiving stolen property

            (a)   Offense defined.--A person is guilty of theft if
                  he 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.




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            (b)   Definition.--As used in this section the word
                  ‘receiving’ means acquiring possession, control
                  or title, or lending on the security of the
                  property.

18 Pa.C.S.A. § 3925.

            To establish the offense of receiving stolen property,
            the Commonwealth was required to present evidence
            sufficient to prove beyond a reasonable doubt that
            (1) the property had been stolen, (2) the accused
            received the property and (3) the accused knew or
            had reasonable cause to know that it had been
            stolen. The Commonwealth may sustain its burden
            of proof by means of circumstantial evidence.

Commonwealth v. Worrell, 419 A.2d 1199, 1201 (Pa.Super. 1980)

(citations omitted).

      Appellant argues that the trial court’s verdict was based on pure

speculation and conjecture where no one actually saw him take the food

from the Bon Appétit kitchen the night of May 1, 2014. Ms. Matthews saw

appellant standing in the kitchen after hours, when he was not authorized to

be there; however, she did not see him remove anything from the kitchen or

place anything on the utility cart. (Appellant’s brief at 11.) Ms. Matthews

did not see appellant wheel away the utility cart with the missing food items.

(Id.) Appellant also argues that his subsequent statements to Ms. Matthews

only prove that he knew he was not supposed to be in the kitchen after it

was closed for the day; it was not evidence that he stole anything from the

kitchen. (Id.)




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        According to appellant, it was just as likely that someone else took the

food from the kitchen. (Id. at 12.) Appellant contends this is so because

the kitchen was accessible to many other people on a daily basis besides

appellant.    (Id.)   Appellant explains his subsequent phone call and text

message to Ms. Matthews as demonstrating his concern that she would

disclose his unauthorized presence in the kitchen. (Id. at 12-13.) Appellant

points out that none of the missing food items from May 1, 2014, were

found in his apartment.       (Id. at 13.)     Appellant also argues that his

admission to Tilghman that he had stolen $50,000 worth of goods from

Bon Appétit related to prior alleged thefts, not the May 1, 2014 incident.

(Id.)    Appellant argues that the circumstantial evidence adduced by the

Commonwealth at trial was insufficient to prove beyond a reasonable doubt

that he took the missing items from the kitchen on the night of May 1, 2014.

(Id. at 13.) We disagree.

        The trial court relied on Commonwealth v. Haines, 442 A.2d 757

(Pa.Super. 1982), which we agree is instructive. In that case, the defendant

asked the clerk to get a hardware item for him, and the clerk walked to the

rear of the store and up some stairs to find the item. Id. at 759. He was

absent from the main store area for between three and five minutes during

which time the defendant was alone in that part of the store. Id. The clerk

testified that when he returned, he told the defendant that he did not have

the part in stock, and the defendant left the store.           Id.   When the



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storeowner returned from lunch a short time later, he noticed that two chain

saws were missing. Id. As in this case, no one actually saw the defendant

take the items.    Id.   During the course of their investigation, police

discovered that a chain saw was being repaired at a garage and that the

serial number of that saw was the same as that of one of the missing saws.

Id. The saw was traced to a Richard Seawood, who testified that he bought

the chain saw from an unidentified man sent by the defendant.         Id.   The

defendant testified and corroborated the fact that he did not know the man’s

name. Id. (citations to the transcript omitted). The trial judge did not find

the testimony of either the defendant or Seawood to be credible, and found

the defendant guilty of theft by unlawful taking and RSP. Id.

     On appeal, this court affirmed, stating,

           While it is true as the trial court noted that there was
           no evidence unquivocally placing the chain saws in
           the hands of defendant, we hold that the
           Commonwealth, albeit circumstantially, sustained its
           burden to prove beyond a reasonable doubt that
           defendant was guilty of theft. A defendant is guilty
           of 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.” We hold
           that the trial court’s verdict was premised upon a
           reasonable inference from the evidence that the
           saws were taken during the hour defendant was in
           the store and from the evidence connecting
           defendant to the recovered saw. Since there was
           sufficient evidence to convict defendant of theft by
           unlawful taking or disposition, it necessarily follows
           that the evidence was also sufficient to convict him
           of receiving stolen property.

Id. at 759-760.


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       Similarly, here, although no one actually saw appellant take anything,

he was alone in the kitchen, after hours, when Ms. Matthews observed the

cart laden with food outside the kitchen door. (Notes of testimony, 12/9/14

at 8-9.) Ms. Matthews told appellant he was not supposed to be there and

he should leave. (Id. at 11.) After appellant left, Ms. Matthews inspected

the kitchen to make sure it was empty, then clocked out and left. (Id.) At

that time, the cart was gone. (Id.)

       In addition, appellant’s subsequent contacts with Ms. Matthews could

fairly be construed as consciousness of guilt.       While appellant chooses to

characterize the phone call and text message to Ms. Matthews as relating to

his fear of being turned in for being in the kitchen after hours, the trial court,

as finder-of-fact, could make a reasonable inference that appellant was

afraid of being reported to police for stealing food. In fact, the trial court did

find   that   appellant’s   comments    to   Ms.   Matthews   were   evidence   of

consciousness of guilt. (Trial court opinion, 6/24/15 at 6.)

       Appellant argues that the food that was reported stolen was not found

in his apartment when police executed the search warrant.            However, the

search warrant was not executed until May 7, 2014, nearly one week later.

(Notes of testimony, 12/9/14 at 30.) This was ample time to dispose of the

items. In addition, the stolen items included perishable foodstuffs such as

cheesesteaks, hot dogs, and sausage. (Id. at 8.) The fact that these items




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were not recovered from appellant’s apartment nearly one week later is not

persuasive of appellant’s innocence.

      Furthermore, although he was found not guilty of the charges at

CP-51-CR-0006003-2014, the trial court was free to consider the testimony

that additional items, including commercial kitchen utensils matching the

brand used by Bon Appétit, were recovered from appellant’s apartment.

(Notes of testimony, 12/9/14 at 21-22.)           Appellant also admitted to

Tilghman in February or March 2014 that he had stolen things from

Bon Appétit. (Id. at 32-33.) While this evidence did not relate specifically

to the May 1, 2014 theft, it was admissible under Pa.R.E. 404(b) as evidence

of a common plan, scheme, or design.         In addition, on sufficiency review,

this court reviews all evidence actually received, without regard to

admissibility.   Examining the totality of the evidence, in the light most

favorable to the Commonwealth, together with all reasonable inferences, it

was clearly sufficient to meet all the elements of the crimes charged.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




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