J-S17026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DERRICK SMITH                              :
                                               :   No. 500 EDA 2017
                       Appellant               :

            Appeal from the Judgment of Sentence February 2, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009467-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 13, 2018

        Derrick Smith appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he was convicted, in a

nonjury trial, of theft by unlawful taking,1 theft by deception,2 and receiving

stolen property.3 Upon careful review, we affirm.

        The trial court set forth the facts of this matter as follows:

        On September 25, 2016, at about 4:00 p.m., Ms. Swainetta
        Bowens, her son, a friend of her son’s, and her sister went to
        Lincoln Financial Field in Philadelphia where [the] Philadelphia
        Eagles [were] scheduled to play a football game that day. Ms.
        Bowens and the others did not have tickets to the game and just
        planned to walk around the stadium area. As they were doing so,
        [Smith] asked Ms. Bowens if she and the others were looking for
____________________________________________


1   18 Pa.C.S.A. § 3921.

2   18 Pa.C.S.A. § 3922.

3   18 Pa.C.S.A. § 3925.
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       tickets and Ms. Brown answered affirmatively[,] at which time
       [Smith] said he had tickets for sale. Ms. Bowens then purchased
       two tickets from [Smith] for $300.00, which Ms. Bowens gave to
       her son and his friend.

       Subsequent thereto, [Ms. Bowens’] son and his friend returned to
       Ms. Bowens and she immediately flagged down a police officer to
       whom she pointed out [Smith] because her son and his friend
       were denied admission into the stadium after the tickets were
       scanned.[4] According to Ms. Bowens’ son[,] he and his friend
       were denied entry into the stadium because the tickets were
       deemed either to have been scanned already or were duplicate
       tickets. Ms. Bowen indicated that when she purchased the tickets,
       [Smith] told her that he would be in the same location and would
       reimburse her if there were any problems with the tickets.2
          2Ms.  Bowen’s son testified that when the tickets were
          purchased[,] [Smith] did say that he would remain in the
          same location but disagreed with his mother’s testimony
          that [Smith] stated that he would reimburse his mother if
          the tickets were rejected.

       [Smith] testified in his own defense and stated that he sold tickets
       at the stadium for a living. He further stated that he bought five
       tickets for $575.00 (two of which he sold to Ms. Bowens) and that
       he told Ms. Bowens that he did not know if they were genuine and
       that he would reimburse Ms. Bowens if they were unusable. He
       also testified that he gave Ms. Bowens a business card that
       contained his name, phone number, and email address.

Trial Court Opinion, 5/18/17, at 2-3.

       After a waiver trial, Smith was convicted of the above charges, plus one

count of forgery.      The trial court sentenced Smith to 11½ to 23 months’

incarceration, with immediate parole, for forgery, followed by 3 years’

probation for theft by deception. The court imposed no further penalty on the
____________________________________________


4 Ms. Bowen testified that, while she was waiting to find out from her son if
the tickets were valid, she noticed that the police had apprehended Smith for
selling other tickets. She then approached the officers and advised them that
she, too, had purchased tickets from Smith.

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remaining charges. Smith filed post-sentence motions, after which the trial

court arrested judgment as to the forgery charge.        Upon resentencing on

February 2, 2017, the court imposed a sentence of 11 ½ to 23 months’

incarceration, followed by 3 years’ probation, on the theft by deception

charge, with no further penalty on the remaining counts. Smith filed a timely

notice of appeal on February 6, 2017, followed by a court-ordered statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Smith raises the following issue for our review:

      Was not the evidence insufficient to prove that [Smith] had the
      requisite criminal intent to sustain his convictions for theft, theft
      by deception and receiving stolen property where [Smith] resold
      football tickets to the complainant just prior to the game in front
      of the stadium, [Smith] assured the complainant that if there were
      any problems with the tickets she should return to him for a full
      refund, [Smith] provided the complainant with his business card,
      which included his email address and telephone number, and
      [Smith] remained in place seeking to sell other tickets?

Brief of Appellant, at 3.

      We begin by noting our well-settled standard of review of sufficiency

claims:

      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.”
      Commonwealth v. Widmer, [] 744 A.2d 745, 751 ([Pa.] 2000).
      “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. Brewer, 876 A.2d 1029, 1032 (Pa. Super.
      2005). Nevertheless, “the Commonwealth need not establish guilt
      to a mathematical certainty.” Id.; see also Commonwealth v.


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      Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts
      and circumstances established by the Commonwealth need not be
      absolutely incompatible with the defendant’s innocence[.]”). 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. See Commonwealth v. DiStefano,
      782 A.2d 574, 582 (Pa. Super. 2001).

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence.       See Brewer, 876 A.2d at 1032.
      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.” Id. (quoting Commonwealth v.
      Murphy, 795 A.2d 1025, 1038–39 (Pa. Super. 2002)).
      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. See Brewer,
      876 A.2d at 1032.

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

quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super.

2013).    The Commonwealth may prove specific intent through purely

circumstantial evidence. Commonwealth v. Haney, 131 A.3d 24, 36 (Pa.

2015). Finally, the fact finder is not bound by an actor’s stated intention, but

may find that he intended the natural and probable consequences of his act.

Commonwealth v. Little, 614 A.2d 1146, 1154 (Pa. Super. 1992).

      Smith was convicted of theft by unlawful taking, theft by deception and

receiving stolen property. A person is guilty of theft by unlawful taking where

“he unlawfully takes, or exercises unlawful control over, movable property of



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

commits theft by deception when “intentionally obtains or withholds property

of another by deception.” 18 Pa.C.S.A. 3922(a). Deception occurs where a

person intentionally “creates or reinforces a false impression.” 18 Pa.C.S.A.

§ 3922(a)(1). Finally, a person is guilty of receiving stolen property where 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.” 18 Pa.C.S.A. § 3925(a).

      Smith argues that he did not possess the requisite intent for any of the

three crimes of which he was convicted because he: (1) told the complainant

he would remain in the area and would refund her money if there were any

problems with the tickets, and (2) gave the complainant his business card,

which contained his telephone number and email address. Smith relies on

this Court’s decision in Commonwealth v. Williams, 425 A.2d 795 (Pa.

Super. 1981), disapproved of on other grounds by Commonwealth v.

Hogan, 468 A.2d 493 (Pa. Super. 1983), to support his argument.              In

Williams, the defendant pulled up alongside a police cruiser and asked the

officers for directions.   After Williams pulled away, one of the officers

discovered that the car he was driving was listed as stolen. At trial, the car’s

owner testified that he did not know Williams and had not given him

permission to use the car.     Williams was convicted in a nonjury trial of

receiving stolen property and unauthorized use of an automobile.          In its

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opinion, the trial court stated that, in rendering a guilty verdict, it had “placed

emphasis on the failure of defendant to explain his possession of a vehicle

stolen only eighteen days earlier.” Williams, 425 A.2d at 796.

          On appeal, this Court reversed Williams’ convictions, reasoning that,

          apart from the fact of possession of the stolen vehicle, which has
          generally been held insufficient in itself to demonstrate guilty
          knowledge, the circumstantial evidence is insufficient to support a
          reasonable inference of guilty knowledge required for a conviction.
          On the contrary, assuming appellant was the driver of the stolen
          car, he stopped and asked the police for directions. Normally, a
          person in possession of a stolen vehicle does not stop to ask the
          police for directions.

Id. at 797 (emphasis added).

          Smith analogizes the circumstances of his case to Williams, asserting

that, if he had known the tickets were fraudulent, he would not have remained

in the area, offered a refund, or provided his business card to the complainant.

In other words, he did not act like a guilty person. Rather, Smith argues, “an

equally or more reasonable interpretation [of those facts] is that [Smith] sold

the tickets in good faith.” Brief of Appellant, at 13. The matter at hand is

distinguishable from Williams and, as such, this argument garners Smith no

relief.

          In Williams, the sole evidence of defendant’s criminal intent was his

unexplained possession of a stolen car, which the Court held was “insufficient

in itself to demonstrate guilty knowledge.” Williams, 425 A.2d at 797. There

was no additional evidence, circumstantial or otherwise, from which the fact-

finder could have inferred guilt.      Contra Commonwealth v. Phillips, 392

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A.2d 708 (Pa. Super. 1978) (evidence sufficient to prove intent to receive

stolen motorbike where owner neither knew appellant nor gave him

permission; appellant in “recent” possession one week after theft; bike had

been repainted and serial number marred; appellant’s explanation of

possession incredible; and appellant attempted to flee from arresting officer).

      In the case at bar, however, the court considered the attendant

circumstances and concluded that Smith’s explanation was not credible.

Specifically, Smith testified that he had been in the business of reselling tickets

for 38 years. Nevertheless, he claimed to have purchased five tickets, for a

total of $575.00, without first ascertaining their validity.

      [DISTRICT ATTORNEY PESTRAK]: You said that you bought these
      two tickets for a total of $575?

      [SMITH]: No, sir. I bought five tickets.

      Q: You bought five tickets that totaled --

      A: Five seats for $575.

      Q: And you had no way to know if they were going to work or
      not?

      A: No way at all.

      Q: And you do this on a regular basis?

      A: About 38 years now.

            MR. PESTRAK: I have nothing further.

N.T. Trial, 1/3/17, at 22-23.

      The trial court expressed incredulity at Smith’s testimony and, instead,

inferred that Smith knew the tickets were fraudulent and passed them off as



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genuine with the intent to receive and retain Ms. Bowens’ $300.00.         Even

assuming Smith actually did offer to refund Ms. Bowens’ money, such an offer

could be interpreted by the fact finder as Smith believing the tickets to be

fake, yet selling them anyhow. And, as this Court has previously noted, an

intent to repay does not necessarily negate the crime of theft by deception.

Commonwealth v. Grife, 664 A.2d 116, 120 (Pa. Super. 1995) (defendant’s

purposeful intent to give lenders less than what they bargained for in order to

procure their property evidenced guilty-mind requirement of theft by

deception statute, regardless of defendant’s intent to repay). Viewed in the

light most favorable to the Commonwealth as verdict winner, Widmer,

supra, we can discern no error of law or abuse of discretion in the trial court’s

conclusion that the evidence was sufficient to prove that Smith acted with the

requisite criminal intent to support all three guilty verdicts.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/18




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