J-A26003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RACHEL LYNN EDDY,

                        Appellant                  No. 1813 WDA 2015


       Appeal from the Judgment of Sentence Entered May 18, 2015
             In the Court of Common Pleas of Greene County
          Criminal Division at No(s): CP-30-CR-0000184-2014


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 7, 2016

     Rachel Lynn Eddy appeals from the judgment of sentence of an

aggregate term of 12 months’ probation, plus $163.20 in restitution,

imposed after she was convicted of theft by unlawful taking, 18 Pa.C.S. §

3921(a), conspiracy to commit theft, 18 Pa.C.S. § 903(a)(1), and tampering

with evidence, 18 Pa.C.S. § 4910(1).       After careful review, we reverse

Eddy’s convictions for theft and conspiracy, but affirm her conviction for

tampering with evidence.

     This Court previously summarized the evidence presented at the joint

trial of Eddy and her co-defendant, Jesse James Tinsley, as follows:

           On April 6, 2014, Brian Yeager (“Yeager”) saw a red truck
     with square headlights, possibly a 1982-era GMC, driving away
     from Levine’s Iron & Metal around 11:00 p.m. See N.T., 3/3/15,
     at 33-34. Yeager testified that the truck did not have its lights
     on, left at a high rate of speed, and appeared to have scrap
     metal in the bed of the truck. Id. at 33-34, 39, 41-42, 45.
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     After Yeager saw the truck head west, he returned inside and
     called the police. Id. at 34. Thereafter, Yeager called Larry
     Levine (“Levine”), owner of Levine’s Iron & Metal, to tell Levine
     what he witnessed. Id. at 34-35, 96-97.

            James Babirad (“Trooper Babirad”), a Pennsylvania State
     Trooper, reported to Yeager’s call. Id. at 52-53. Trooper
     Babirad drove toward West Waynesburg to search for the
     reported truck, but did not locate the vehicle in that area. Id. at
     53. As Trooper Babirad was returning to the police station, he
     noticed a truck that matched Yeager’s description parked in front
     of a house. Id. at 54. Trooper Babirad noted some scrap metal
     in the bed of the truck before knocking on the door of the
     residence. Id. Rachel Eddy (“Eddy”), Tinsley’s co-defendant,2
     answered the door and told Trooper Babirad she was the only
     person to drive the truck that day, and that she returned home
     around 10:00 p.m. Id. However, Trooper Babirad had not
     observed the truck parked at the house on his way into West
     Waynesburg approximately 15 minutes earlier. Id. at 55. After
     seeing several other people in the home, Trooper Babirad asked
     if Tinsley was home. Id. at 55, 84-85. Tinsley came to the door
     and confirmed that Eddy was the only person who drove the
     truck that day. Id. at 55-56. Trooper Babirad asked Tinsley and
     Eddy about the scrap metal in the truck and advised them of
     why he was asking about the scrap metal. Id. at 58.
        2
         Tinsley and Eddy live together with Eddy’s family. See
        N.T., 3/3/15, at 162.

        Thereafter, Trooper Babirad told Tinsley and Eddy not to do
     anything with the scrap metal, and he returned to the police
     barracks to get a camera in order to photograph the metal in the
     bed of the truck. Id. at 60. The police contacted Levine and
     asked him to come to Eddy and Tinsley’s residence in order to
     view the scrap metal in person. Id. at 60, 97, 104-05. Trooper
     Babirad returned to the residence around 15 minutes later, but
     noticed that some of the scrap metal had been moved out of the
     bed of the truck, and a silver grate that had previously been in
     the truck was missing. Id. at 61, 87. After Tinsley showed
     Trooper Babirad where the missing silver grate was located in
     the basement, Trooper Babirad photographed all of the scrap
     metal, as well as the truck. Id. at 61-62, 77-78. Subsequently,
     Levine arrived at the residence to inspect the scrap metal. Id.
     at 69, 97-98. Although he does not keep an inventory of his
     scrap yard, Levine reported that the material in question

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      appeared to be similar to scrap metal that was dropped off at his
      facility two days prior. Id. at 106, 112-13. Trooper Babirad told
      Tinsley and Eddy not to do anything with the scrap metal until it
      could be investigated further, and left for the night. Id. at 70.

          After beginning his usual 4:00 p.m. shift the following day,
      Trooper Babirad noticed Tinsley driving the truck, with Eddy as a
      passenger, around 4:30 p.m. Id. at 70-71, 94. Trooper Babirad
      observed that none of the scrap metal was in the bed of the
      truck, so he turned around and met Tinsley and Eddy at their
      residence to speak with them. Id. at 71. Eddy notified Trooper
      Babirad that she took the scrap metal to a different scrap yard,
      Jack’s Recycling, early that morning to get money. Id. at 72,
      94.    Trooper Babirad called Jack’s Recycling and confirmed
      Eddy’s statement. Id. at 123. Trooper Babirad then met Levine
      at Levine’s Iron & Metal, and Trooper Babirad took photos of a
      pile of scrap metal with pieces similar to those found at the
      Tinsley and Eddy residence. Id. at 73-76. Trooper Babirad also
      took photos of tire impressions in the mud located at Levine’s
      Iron & Metal. Id. at 77.

Commonwealth         v.   Tinlsey,      No.   1776   WDA   2015,   unpublished

memorandum at 1-4 (Pa. Super. filed Aug. 31, 2016).

      Based on this evidence, a jury convicted both Eddy and Tinsley of the

above-stated offenses. On May 18, 2015, Eddy was sentenced to concurrent

terms of 12 months’ probation for each of her three offenses. The court also

imposed restitution in the amount of $246 to be paid to Levine’s Iron and

Metal. Eddy filed a timely post-sentence motion challenging the amount of

restitution imposed by the court, and also seeking an arrest of judgment

and/or a new trial. On October 13, 2015, the court denied Eddy’s request

for an arrest of judgment and/or new trial, but granted her claim regarding

restitution, amending the original sentencing order to impose $163.20 in

restitution for Eddy’s theft offense.



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      Eddy filed a timely notice of appeal with this Court, and also timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.      Herein, she presents three

questions for our review, which we have reordered for ease of disposition:

      1. Was there insufficient evidence beyond a reasonable doubt to
      prove that Appellant Rachel Eddy committed the crimes of Theft
      and Conspiracy to Commit Theft? Was the verdict against the
      weight of the evidence?

      2. Was there insufficient evidence beyond a reasonable doubt to
      convict Appellant Rachel Eddy of the crime of Tampering with
      Evidence as there was no evidence of a specific intent to hinder
      a police investigation? Was the verdict against the weight of the
      evidence?

      3. Where [Eddy] was convicted of a[] [misdemeanor] 3 theft of
      property not greater than $50 in value instead of $203.00
      alleged in the information, where no evidence of value was
      submitted to the jury, did the [c]ourt err and abuse its discretion
      by (a) sentencing [Eddy] to pay [restitution] in the amount of
      $246.00 upon considering a hearsay estimate over objection at
      the sentencing hearing and (b) by modifying the award to
      $163.20?

Eddy’s Brief at 7.

      We begin by addressing Eddy’s sufficiency-of-the-evidence claims.

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.



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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Eddy first challenges the sufficiency of the evidence to sustain her

convictions of theft by unlawful taking and conspiracy to commit theft by

unlawful taking. Theft by unlawful taking is defined as follows: “A person is

guilty of theft if he unlawfully takes, or exercises unlawful control over,

movable property of another with the intent to deprive him thereof.”        18

Pa.C.S. § 3921(a).    Additionally, “[a] person is guilty of conspiracy with

another person or persons to commit a crime if with the intent of promoting

or facilitating its commission he … [] agrees with such other person or

persons that they or one or more of them will engage in conduct which

constitutes such crime or an attempt or solicitation to commit such crime….”

18 Pa.C.S. § 903(a)(1).    This Court has declared that “[t]he essence of a

criminal conspiracy is the common understanding that a particular criminal

objective is to be accomplished.” Commonwealth v. Lambert, 795 A.2d

1010, 1016 (Pa. Super. 2002) (citation omitted). “Mere association with the

perpetrators, mere presence at the scene, or mere knowledge of the crime is

insufficient” to demonstrate criminal conspiracy. Id. (citation omitted).

      Initially, we must address the fact that Eddy’s co-defendant, Tinsley,

also appealed to this Court from his judgment of sentence, and we filed a

decision in Tinsley’s case in August of 2016. As in Eddy’s present appeal,

Tinsley also challenged the sufficiency of the evidence to support his

convictions for theft, conspiracy, and tampering with evidence. Ultimately,

this Court concluded that the evidence failed to prove that Tinsley

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committed any of those crimes.       Specifically, we first concluded that the

evidence was insufficient to convict Tinsley of theft, stating:

             The uncontroverted evidence suggests that Eddy was the
      only person who drove the truck on April 6, 2014. See N.T.,
      3/3/15, at 54, 56. There was no evidence placing Tinsley at the
      scrapyard or handling the scrap metal.          Further, the
      Commonwealth did not demonstrate that the scrap metal
      stolen was the same as the scrap metal found in the truck.
      Finally, there was also no evidence that Tinsley was an
      accomplice. Thus, the evidence was insufficient to support a
      conviction of theft by unlawful taking.

Tinsley, No. 177 WDA 2015, at 6-7 (emphasis added).

      Here, even though the evidence was sufficient to show that Eddy

possessed the scrap metal in the truck she was driving on April 6, 2014, we

cannot ignore this Court’s conclusion in Tinsley that the Commonwealth

failed to prove that the scrap metal in her truck was same metal taken from

Levine’s business.    Because this panel is bound by the Tinsley panel’s

decision on this issue, we must also conclude that the evidence failed to

prove that Eddy committed theft by unlawful taking.

      Likewise, we are also required to reverse Eddy’s conviction for

conspiracy to commit theft.       In reversing Tinsley’s conviction for that

offense, the Tinsley panel found that,

      there [was] no evidence of any agreement between Tinsley and
      Eddy. The fact that Tinsley and Eddy live together, and were
      seen in the truck together the following day, merely evidences
      their association. See [Lambert, 795 A.2d at 1016.] Thus, the
      evidence is insufficient to support a conviction of criminal
      conspiracy to commit theft.




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Tinsley, No. 177 WDA 2015, at 7-8. Again, we are bound by the Tinsley

panel’s decision; thus, we conclude that the evidence was insufficient to

establish that Eddy agreed with Tinsley to commit theft by unlawful taking.

Therefore, we reverse Eddy’s conspiracy conviction.

     However, we are not bound to reverse Eddy’s conviction for tampering

with evidence.   While we reversed Tinsley’s conviction for that offense, in

doing so, we stated:

           A person is guilty of tampering with physical evidence “if,
     believing that an official proceeding or investigation is pending or
     about to be instituted, he … alters, destroys, conceals or
     removes any record, document or things with intent to impair its
     verity or availability in such proceeding or investigation.” 18
     Pa.C.S.A. § 4910(1).

            Here, Trooper Babirad testified that he “just said sit tight”
     when he left to retrieve the camera. N.T., 3/3/15, at 60.
     Subsequently, Trooper Babirad testified that he “advised [Tinsley
     and Eddy] not to do anything with the scrap until [he had
     conducted] further investigation” before leaving the house at the
     end of the night. Id. at 70. Although Trooper Babirad [was]
     uncertain of his “exact words” at certain points, he [knew] he
     “told [Tinsley and Eddy] there was an investigation.” Id. at 86.

            Assuming Tinsley knew that the items were under
     investigation, the Commonwealth failed to prove that Tinsley
     participated in the alteration, destruction, concealment or
     removal of the scrap metal in [an] attempt to impair its
     availability. See 18 Pa.C.S.A. § 4910[(1)]. In point of fact,
     Eddy told Trooper Babirad that she took the metal to
     Jack’s Recycling on the morning of April 7, 2014. N.T.,
     3/3/15, at 94, 122. There is no evidence that Tinsley assisted or
     knew about Eddy’s actions. As such, the evidence of record is
     insufficient to support a conviction of tampering with physical
     evidence.

Tinsley, No. 177 WDA 2015, at 8-9.



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       Clearly, the Tinsley panel reversed Tinsley’s conviction for tampering

with evidence because the Commonwealth failed to prove that Tinsley had

any involvement in selling the scrap metal. The same is not true for Eddy,

who admitted to Trooper Babirad that she sold the metal to Jack’s Recycling.

Additionally, Trooper Babirad’s testimony that on April 6, 2014, he told Eddy

that an investigation regarding the scrap metal was underway was sufficient

to demonstrate that Eddy knew about the pending investigation when she

sold the metal on April 7, 2014.          Finally, Eddy’s decision to sell the scrap

metal, despite the trooper’s direction not to do anything with the metal until

he conducted further investigation, was sufficient to infer that Eddy sold the

metal “with intent to impair its … availability” in that investigation.          18

Pa.C.S. § 4910(1).        Accordingly, the evidence was sufficient to support

Eddy’s conviction for tampering with evidence.1




____________________________________________


1
  While Eddy’s “Statement of the Questions Involved” indicates that she is
also challenging the weight of the evidence to support her conviction of
tampering with evidence, she does not provide any argument on this issue.
Accordingly, her weight-of-the-evidence claim is waived.                   See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When
briefing the various issues that have been preserved, it is an appellant’s duty
to present arguments that are sufficiently developed for our review. …
[W]hen defects in a brief impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived.”).




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      In Eddy’s final issue, she challenges the legality of her sentence of

restitution.    However, it is apparent that the restitution sentence was

imposed for Eddy’s theft conviction.     See 18 Pa.C.S. § 1106(a) (“Upon

conviction for any crime wherein property has been stolen, converted or

otherwise unlawfully obtained, or its value substantially decreased as a

direct result of the crime, or wherein the victim suffered personal injury

directly resulting from the crime, the offender shall be sentenced to make

restitution in addition to the punishment prescribed therefor.”). Because we

have reversed Eddy’s theft conviction, her sentence of restitution must be

vacated, and her claims pertaining to the legality of that sentence are moot.

      In sum, because the evidence was insufficient to support Eddy’s

convictions of theft by unlawful taking and conspiracy to commit theft by

unlawful taking, we reverse those convictions and vacate her sentences for

those offenses, including her sentence of restitution.   However, we affirm

Eddy’s conviction for tampering with evidence.       Because Eddy received

concurrent terms of 12 months’ probation for each of her three offenses, our

vacating two of those terms of probation does not upset the overall

sentencing scheme of the trial court. Consequently, we need not remand for

resentencing.

      Judgment of sentence reversed in part, affirmed in part. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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