J-S70024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JENNIFER CLARK

                            Appellant                 No. 1074 EDA 2014


              Appeal from the Judgment of Sentence March 6, 2014
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0005312-2012


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 02, 2014

        Appellant, Jennifer Clark, appeals from the March 6, 2014 aggregate

judgment of sentence of three to 23 months’ imprisonment, imposed

following convictions for theft by unlawful taking or disposition and receiving

stolen property.1 After careful review, we affirm.

        The trial court has set forth the relevant facts and procedural history

as follows.

                     Mrs. Nancy Roberts has, since 2006, lived in an
              apartment in a residential complex for senior
              citizens, known as Shannondell in Valley Forge. At
              all times relevant to this case, [Appellant] was
              employed by Angel Companions, a business firm that
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
J-S70024-14


          provides home services to the elderly. While so
          employed, [Appellant] was in Mrs. Roberts’
          apartment from 6:00 a.m. to 8:30 a.m. on June 2,
          2012. At 10:00 a.m., Mrs. Roberts’ daughter Sally
          arrived, and as soon as she did, Mrs. Roberts told
          her, “I’ve been robbed.”

                The two took inventory of Mrs. Roberts’ jewelry
          and determined that several items were missing. All
          were gold. The total value of the missing jewelry
          amounted to $32,773.68. They reported the loss to
          the security officer working for Shannondell and the
          Lower Providence Township Police Department.

                The apartment where Mrs. Roberts lives is on
          the third floor of her building, about fifty yards away
          from the elevators, past the doors of five other
          apartments. The building is only one of several
          residential buildings on the campus. In order to get
          to the doorway of the bedroom where Mrs. Roberts
          sleeps, one must enter the building, go to the third
          floor, open the door to her apartment and pass
          through a hallway, her living room and another
          hallway.

                 On the evening before Mrs. Roberts discovered
          the loss, she was visited by another of her
          daughters, Gina Edwards. While there, Mrs. Edwards
          looked at her mother’s jewelry, some of which was
          kept in small containers on top of a bureau. She saw
          some of the items of jewelry that her mother
          discovered to be missing the next morning after
          [Appellant] left. She worried about a particularly
          valuable    “serpentine   bracelet”    because  Mrs.
          [Roberts] kept it in a small box on the top of her
          bureau, rather than in a relatively more secure
          location, such as her jewelry box in the bureau
          drawer. Mrs. Roberts testified that the bureau is
          only a few feet from the foot of her bed. She also
          described herself as a light sleeper, who would
          normally wake if a person were to open the door to
          the apartment.




                                   -2-
J-S70024-14


                  Mrs. Edwards testified that she helped her
          mother, Mrs. Roberts, to bed that night.         Mrs.
          Edwards said she left her mother’s apartment at
          approximately 10:30 p.m. on the evening of June
          1st, and on the outside of the apartment door left a
          note to [Appellant], the Angel Companions employee
          who was scheduled to arrive the next morning.
          [Appellant] had never met Mrs. Roberts or worked in
          her apartment before. The note asked [Appellant],
          by name, to enter and wake her mother if she was
          still asleep. Mrs. Edwards did not remember whether
          she locked the door to the apartment when she left,
          but according to Mrs. Roberts, by ten thirty in the
          evening there is not much pedestrian traffic in the
          halls of Shannondell, as the residents “don’t stay up
          late or [they] stay in their apartments.”

                 The parties stipulated that about a dozen
          employees of Shannondell who had a master key to
          all of the apartments were on the premises during
          the evening of June 1st or the morning of June 2nd,
          2012. The parties also stipulated that two un-solved
          thefts occurred at Shannondell, one on March 3,
          2012 and the other on June 29, 2012. One was a
          theft of two candlesticks from a resident’s
          apartment, and the other was a theft of personal
          items from the locker of a Shannondell employee.

                [Appellant] arrived at approximately 6:00 a.m.
          on the morning of June 2, 2012. After she arrived,
          [Appellant] did not always remain within the sight of
          Mrs. Roberts. One of the things [Appellant] and
          other Angel Companion aides were to do for Mrs.
          Roberts was to make her bed. Mrs. Roberts did not
          specifically remember telling [Appellant] to make the
          bed, but she remembered that [Appellant] entered
          the bedroom to help her shower and dress. The
          dresser with the jewelry was to the immediate right
          of the entry to her bedroom.

               When Mrs. Roberts was in another bedroom,
          she called for [Appellant] to help her. She called
          several times, but [Appellant] did not respond for
          approximately ten minutes.      The delay seemed

                                  -3-
J-S70024-14


          unusually long to Mrs. Roberts, and she wondered
          silently why [Appellant] did not respond sooner.
          Mrs. Roberts opined that if the clothes washer and
          dryer were running it might have been possible that
          a person in another room might not have heard her
          first call, but would have heard her subsequent calls.

                 While [Appellant] was in the apartment she
          said something that stood out to Mrs. Roberts: that
          it was such a long drive to Shannondell that it was
          not financially worth it to have made the trip for such
          a short visit. Within an hour after she left, Mrs.
          Roberts discovered that some of her jewelry was
          missing: while looking for a particular piece, she
          noticed that “the earring box had vacancies in it.”
          Then she looked in the containers on top of the
          bureau and saw that the serpentine bracelet was
          also missing. Mrs. Roberts testified that she wears
          jewelry daily and changes it daily, thus she checks
          her jewelry every day. She described each piece of
          jewelry she discovered missing, and all were gold.

                When the police investigated the theft, they
          found that no surveillance video was available. The
          police did not try to obtain fingerprints from the
          remaining jewelry or jewelry containers. They did
          not attempt to “cross-reference” the employees who
          were working at the time of this theft with those who
          were working at the times of the other thefts on
          March 3[r]d and June 29th.

                The police contacted numerous pawn shops in
          the area but none reported inventory matching the
          descriptions of the missing pieces of jewelry.
          [Appellant] had a couple of outstanding loans from a
          pawn shop, but none of the items taken from Mrs.
          Roberts were found in her possession. A search of
          the call log of [Appellant]’s cell phone did not show
          that she had called, or received calls from, pawn
          shops.

               The police telephoned [Appellant] on the day
          Mrs. Roberts reported the theft, the same day she
          had gone to Mrs. Roberts’ apartment. When the

                                   -4-
J-S70024-14


              investigating detective identified himself and said he
              was calling about a theft at Shannondell, she
              spontaneously asked whether the theft occurred at
              the apartment of Mrs. Roberts. She agreed to meet
              with the detective to discuss the theft, but said she
              was too busy to meet that evening, and stated that
              she was in a meeting and would have to call him
              back. She never called back. The detective called
              twice more before she returned his call and left a
              message via voice mail. When he called her back,
              she did not answer.

                    When the police arrested [Appellant] on July
              13, 2012, she agreed to answer their questions, and
              did so for approximately three hours. During that
              time she denied the allegations against her, although
              the detective characterized her denials as “weak.”

Trial Court Opinion, 6/17/14, at 1-4.

       On November 22, 2013, a bench trial occurred, at the conclusion of

which Appellant was found guilty of the aforementioned crimes.              On

February 28, 2014, prior to sentencing, Appellant filed a motion titled as a

“Post-Verdict Motion in Arrest of Judgment and for a New Trial[,]”

challenging both the weight and sufficiency of the evidence. The trial court

never ruled on said motion.         Thereafter, on March 6, 2014, Appellant was

sentenced to three to 23 months’ imprisonment. On April 7, 2014, Appellant

filed a timely notice of appeal.2

____________________________________________


2
   We observe that the 30th day fell on Saturday, April 5, 2014. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Monday, April 7, 2014. As a result, we
(Footnote Continued Next Page)


                                           -5-
J-S70024-14


      On appeal, Appellant raises the following issue for our review.

             Whether the evidence presented at trial was
             insufficient as a matter of law to establish beyond a
             reasonable doubt that [] Appellant had committed
             the crimes of Theft by Unlawful Taking and Receiving
             Stolen Property[?]

Appellant’s Brief at 4.3

      Our standard of review regarding challenges to the sufficiency of the

Commonwealth’s case is well settled.              “In reviewing the sufficiency of the

evidence, we consider whether the evidence presented at trial, and all

reasonable inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth as the verdict winner, support the jury’s verdict beyond

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

2014) (citation omitted).          “The Commonwealth can meet its burden by

wholly circumstantial evidence and 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.”                Commonwealth v. Watley, 81 A.3d

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we

                       _______________________
(Footnote Continued)

deem her appeal timely filed. Further, Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.
3
 Appellant’s brief does not contain pagination. For ease of review, we have
assigned each page a corresponding page number.



                                            -6-
J-S70024-14


must review “the entire record … and all evidence actually received[.]” Id.

(internal quotation marks and citation omitted).       “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.” Commonwealth v. Kearney,

92 A.3d 51, 64 (Pa. Super. 2014) (citation omitted), appeal denied, --- A.3d

---, 385 MAL 2014 (Pa. 2014). “[T]he 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.” Id. (citation omitted). “Because

evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d

119, 126    (Pa. 2013) (citation omitted),        cert. denied, Diamond v.

Pennsylvania, 135 S. Ct. 145 (2014).

      Instantly, Appellant asserts the evidence was insufficient to establish

she committed each of the material elements of the crimes beyond a

reasonable doubt because the evidence presented “was purely conjecture

and speculation without any evidence pointing to [] Appellant as the one

committing the crime.”     Appellant’s Brief at 7-8.     Additionally, Appellant

avers that “there was simply no evidence presented that [Appellant] actually

stole any property or was in possession of stolen property.” Id. at 8.

      At the outset, we note that, “[i]n addition to proving the statutory

elements   of   the   crimes   charged   beyond    a   reasonable   doubt,   the


                                     -7-
J-S70024-14


Commonwealth must also establish the identity of the defendant as the

perpetrator of the crimes.”     Commonwealth v. Brooks, 7 A.3d 852, 857

(Pa. Super. 2010), appeal denied, 21 A.3d 1189.          Furthermore, we are

cognizant of Appellant’s reliance on Commonwealth v. Stores, 463 A.2d

1108 (Pa. Super. 1983) for the argument that more than mere presence at

the scene is required to find the evidence sufficient. Appellant’s Brief at 10.

            While a criminal conviction may rest upon wholly
            circumstantial evidence, it may not be based upon
            mere surmise or conjecture.        Evidence of mere
            presence at or near the scene of a crime is precisely
            the kind of circumstantial evidence that does require
            surmise or conjecture. Evidence of something more
            than presence at or near the scene of a crime is
            required to justify the conclusion that someone
            committed or participated in a crime.

Stores, supra at 1112 (internal citations and quotations omitted).

      However, viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, the record reveals the evidence

presented was sufficient to prove Appellant perpetrated the aforementioned

crimes. Herein, the trial court authored an extensive, 12-page opinion that

comprehensively     discusses    and   disposes   of   Appellant’s   sufficiency

arguments. Upon careful review, we agree with the thorough analysis of the

law and facts as developed by the trial court in its June 17, 2014 opinion.

      Specifically, the record supports the trial court’s finding that Mrs.

Roberts’ daughter, Gina Edwards, was in her apartment on June 1, 2012, the

night before the jewelry was discovered stolen. N.T., 11/22/13, at 15. On


                                       -8-
J-S70024-14


that evening, Mrs. Edwards observed items that were later determined to be

stolen were present in Mrs. Roberts’ bedroom, where she slept that evening.

Id. at 12. Mrs. Edwards testified that when she left her mother’s apartment

around 10:30 p.m. her mother was in bed.         Id. at 17.    The following

morning, Appellant and Mrs. Roberts were the only people present in the

apartment between 6:00 a.m. and 8:30 a.m. At some point Mrs. Roberts

was in a second bedroom for approximately ten minutes calling out to

Appellant who did not respond.    Id. at 55.   After Appellant left, at 10:00

a.m., Sally Roberts, Mrs. Roberts’ daughter-in-law, arrived and Mrs. Roberts

informed her that she discovered the items had been stolen.       Id. at 12.

Based on this circumstantial evidence, the trial court found the evidence was

sufficient to convict Appellant of the aforementioned crimes. See Watley,

supra.

     Accordingly, for all the foregoing reasons, we adopt the portion of the

June 17, 2014 opinion of the Honorable Wendy Demchick-Alloy addressing

Appellant’s sufficiency claim as our own for the purpose of this appellate

review. Therefore, we affirm Appellant’s March 6, 2014 judgment of

sentence.

     Judgment of sentence affirmed.




                                    -9-
J-S70024-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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  IN Tl-IE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

                                       CRIMINAL DIVISION

 COMMONWEALTH OF PENNSYLVANIA                                 Nos.     CP-46-CR-0005312-20 12

                        v.

JENNIFER CLARK



                                             OPINION
OEM CHICK-ALLOY, J.                                                           JUNE 11, 2014

        Defendant-appellant was convicted of theft by unlawful taking or disposition, 18 Pa.C.S.

§ 392I(a), and receiving stolen property, 18 Pa.C.S. § 3925(a) and w,", sentenced on March 6,

2014. Defendant has fi led a concise statement of errors complained of on appeal that appears 10

raise two claims of error: the evidence was not sufficient to support the verdict, and the verdict

was against the weight of the evidence, I After reciting the material facts of record, this opinion

will address the sufficiency claim and then the weight claim.

                                              FACTS

        Mrs. Nancy Roberts has, since 2006,lived in an apartment in a residential complex for

senior citizens, kno,\'Jl as Shannondell in Valley forge. At all times relevant to this case,

defendant was emp loyed by Angel Companions, a business firm that provides home services to

the elderly. While so employed, defendant was in Mrs. Roberts' apartment from 6:00 a.m. to



1 lne   concise statement consists of items numbered "I," "2," "2(a)," and "3 ." Hems "1" and "2"
expressly and unambiguously claims that the verdict was against the weight of the evidence.
 Item "2(a)" states both that the "Commonwealth failed to present sufficient evidence ... and the
Commonwealth's evidence was based purely on speculation and conjecturer.]" which seems to
first raise a !)u[fici(;ncy claim imd then rdise a weight claim. Item "3" states that the wldersigned
judge erred and abused her discretion by inferring guilt based upon certain evidence, which might
raise either a sufficiency claim, a weight claim, or both.
, .
                                                                                          Circulated 11/21/2014 01:50 PM




      8:30 a.m. on June 2. 2012. At 10:00 a.m .• Mrs. Roberts' daughter Sally arrived. and as soon as

      she did , Mrs. Roberts told her, "I've been robbed."

              The two took inventory of Mrs. Roberts' j ewelry and detennined that several items were

      missing. All were gold. The total value of the missingjeweJry amounted to $32,773.68. They

      reported the loss to the security officer working for Shannondcll and the Lower Providence

      Township Police Department.

              The apartment where Mrs. Roberts Jives is on the third floor of her building, about fifty

      yards away from the elevators, past the doors of five other apartments. The build ing is only one

      of several residential buildings on the campus. In order to get to the doorway of the bedroom

      where Mrs. Roberts sleeps, onc must enter the building, go to the third floor, open the door to her

      apartment and pass through a hallway, her living room and another hallway.

             On the evening before Mrs. Roberts discovered the loss, she was visited by another of her

      daughters, Gina Edwards. While there, Mrs. Edwards looked at her mother's jewelry, some of

      which was kept in small containers on top ofa bureau. She saw some of the items of jewelry that

      her mother di scovered to be missing the next morning after defendantlcft. She worried about a

      particularly valuable "serpentine bracelet" because Mrs. Edwards kept it in a small box on the

      top of her bureau, rather than in a relatively more secure location, such as her jewelry box in the

      bureau drawer. Mrs. Roberts testified that the bureau is only a few feet from the foot of her bed.

      She also described herself as a light sleeper, who would normally wake if a person were to open

      the door to the apartment.

             Mrs. Edwards testified that she helped her mother. Mrs. Roberts.    to   bed that night. Mrs.

      Edwards said she left her mother's apartment at approximately J 0:30 p.m. on the evening of June

      1st, and on the outside of the apartment door left a note to defendant, the Angel Companions

                                                       2
                                                                                      Circulated 11/21/2014 01:50 PM




 employee who was scheduled to arrive the next morning. Defendant had never met Mrs. Roberts

or worked in her <lpartment before. The note asked defendant, by name, to entcr and wake her

 mother ifshe was still asleep. Mrs. Edwards did not remember whether she locked the door to

 the apartment when she left, but according (0 Mrs. Roberts, by ten thirty in the evening there is

 not much pedestrian traffic in the halls of Shannon dell, as the residents "don't   ~1ay   up late or

[they] stay in their apartments."

          The parties stipulated that about a dozen employees of Shannondell who had a master key

10   all of the apartments were on the premises during the evening of June 1st or the morning of

June 2nd, 2012. The parties also stipulated that two un-solved thefts occurred at ShalU1ondell,

one on March 3, 2012 and the other on June 29. 2012. One was a thefl oftwo candlesticks from

a resident's apartment. and the other was a theft of personal items from the locker of a

Shannondell employee.

         Defendant arrived at approximately 6:00 a.m. on the morning of June 2, 2012. After she

arrived, defendant did not always remain within the sight of Mrs. Roberts. One of the things

defendant and other Angel Companion aides were to do for Mrs. Roberts was to make her bed.

Mrs. Roberts did not specifically remember telling defendant to make the bed, but she

remembered that defendant entered the bedroom to help her shower and dress. The dresser with

the jewelry was to the immediate right ofthe entry to her bedroom.

         When Mrs. Roberts was in another bedroom, she called for defendant to help her. She

culled several times, but defendant did not respond for approximately len minutes. The delay

seemed unusually long to Mrs. Roberts, and she wondered silently why defendant did not

respond sooner. Mrs. Roberts opined that if the clothes washer and dryer were running it might

have been possible that a person in another room might not have heard her first call, but would

                                                  3
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 have heard her subsequent calls.

         While defendant was in the apartment she said something that stood out to Mrs. Roberts:

 that it was such a long drive to Shannondcll that it was not financially worth it to have made the

 trip for such a short visit. Within an hour after she left, Mrs. Roberts discovered that some of her

jewelry was missing: while looking for a particular piece, she noticed that "the earring box had

vacancies in it." Then she looked in the containers on top of the bureau and saw that the

serpentine bracelet was also missing. Mrs. Roberts testified that she wears jewelry daily and

changes it daily, thus she checks her jewelry every day. She described each piece ofjeweiry she

discovered missing, and all were gold.

        When the police investigated the theft, they found that no surveillance video was

available. The police did not try to obtain fingerprint::; from the remaining jewelry or jewelry

containers. They did not attempt to "cross-reference" the employees who were working at the

time ofthi::; thcft with those who were working at the times orlhe other thefts on March 3d and

June 29th.

        The police contacted numerous pawn shops in the area but none repOItcd inventory

matching the descriptions ofthe missing pieces of jewelry. Defendant had a couple of

outstanding loan::; from a pa\\'l1 shop, but none of the items taken from Mrs. Roberts were found

in her possession. A search of the call log of defendant's cell phone did not show that she had

called, or received calls Crom, pawn shops.

       The police telephoned defendant on the day Mrs. Roberts reported the theft, the same day

she had gone to Mrs. Roberts' apartment. When the investigating detective identified himself

and said hc was calling about a theft at Shannondell, she spontaneously asked whether the theft

occurred at the apartment of Mrs. Roberts. She agreed to meet with t11e detective to discuss the

                                                 4
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theft, but said she was too busy 1'0 meet that evening, and stated that she was in a meeting and

would have to caJl him back. She never callcd back. The detective called twice more berore she

returned his call and left a message via voice mail. \Vhen he call cd her back, she did not answer.

        When the police arrested defendant on July 13,2012, she agreed to answer their

questions, and did so for approximately three hours. During that time she denied the allegations

against her, although the detective characterized her denials as "weak."

                                           DISCUSSION

1.      The verdict was snpported by sufficient evidence

        A person "is guilty of theft by unlawful taking or disposition ' ifhe unlawfully takes, or

exercises unlawful control over, movable property of another with intent to deprive him

thereof.'" Commonwealth v. Haines, 442 A.2d 757, 760 (pa. Super. C1. 1982) (quoting 18

Pa.C.S.A. § 3925(a». A pe"on "is gui lty of receiving stolen property '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.'" Ed. (quoting 18 Pa.C.S.A. § 3925(a)). If the

evidence is sufficient 10 prove the former crime, it is "necessarily" sufficient to prove the latter.

ld

        When evaluat ing the sufficiency of the evidence, "the Commonwealth does not have to

establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial

evidcnce. On the other hand. guilt must be proved; mere conjecture or surmise is not sufficient."

Haines a1758-59 (quoting Commonwealth v. Herman, 412 A.2d 6 17, 619 (pa. Super. Ct. 1979».

"It is also clear that in reviewing the evidence, we must consider it in the light most favorable to

the verdict wiJUler." ld.

       In Commonwealth v. Slores,463 A.2d 11 08 (pa. Super. Ct. 1983)thc Superior Court

                                                  5
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          elaborated, "While a criminal conviction may rest upon wholly circumstantial evidence, it 'may

          not be based upon mere surmise or conjecture.' Evidence of mere presence at or ncar the scenO

          of a crime is precisely the kind of circumstantial evidence that does require surmise or

          conjccture." ld at 1112 (quoting Commol7wealth v. Berrios, 434 A.2d 1173, 1176 (Pa. 1981)

          (other citation omitted). In Haines, the circumstantial evidence was sufficient to sustain the

          conviction of theft by unlawful taking, but in SlOres it was not. A review of each opinion shows

          that this case is more like Haines than Stores, and lhe circlUl1stantial evidence is sufficient

                  In Slores, a jury convicted defendant of theft by unlawful taking after hearing

          circumstantial evidence that he stoic sixteen diamond rings from a display case in the jewelry

          department ofa department store. Stores at 1109. Thejewelry department was at the time

          attended by a single sales clerk, Ms. Trott. Id Ms. Trott testified that the rings were in the case

          when she began working that day, but she discovered them missing approx im ately one half hour

          aftcr dcfendant and his companion left the jewelry departmcnt. ld. at 1109-10. The defendant

          and his companion had been leaning over the case, apparelltly looking at the rings. Jd at 1109.

          Ms. Troll was attending to otllCr customers while defendant and his co mpani on were in the store.

          JeI. at 1111 . Ms. Trott did not testify that she had seen the rings in the display case sho rtly before

          she saw defendant and his companion, and she did not testifY that she knew the rings could not

          have been tilken by other customers walking by the jewclry department after defendant. fd at

          1110-12. Ms. Troll testified that her view of the display case was, at times, blocked. ld at 1112.

          The Superior Court reasoned that the circumstantial evidence was not sufficient to sUpJX>r! the

          guilty verdict for theft by unlawful taking:

                 In summary, then: Thejwy had evidence that appellant and his companion had
                 had the opportunity to take the rings inasmucll as they had been in the jewelry
                 department and had not been closely observed by Ms. Trott. But the jury also had

                                                             6
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        evidence that other persons either had been or might have been in the jewelry
        department, and that at least some of these other persons ruso had had the
        opportunity to take the rings inasmuch as they too had not been closely observed--
        indeed , perhaps not observed at all--by Ms. Trott. No evidence tied any particular
        person to the missing ri ngs. Apparently there were no fingerprints on the display
        case--at least, no evidence of any was offered. Whi le Ms. Trott saw appellant and
        his companion looking at the rings, she didn't see them prying the case open, nor
        "what they were doing with their harxls if anything[.]" Thus what the jury was
        lcfl with was prooftha! appellant and his companion had been present at the scene
        of the theft of the ri ngs-and so had other persons.

ld. (ci tations to trial record omitted, bracketed text added).

        In Haines, the defendant   \VdS   convi cted after a bench trial of theft by unlawfu l taking after

the judge heard circtlmstantial evidence that he stole two chain saws from a fami ly-ov.'l1cd

hardware store. Haines at 758-59. The defendant had parked his van only a few feet from a door

that could only be opened by persons inside the store. Id. at 759. The store was atlen:led by only

one person when the defendant entered and asked for a hardware item. Id. The clerk walked to

the rear of the store and up some stairs to find the item, and did not return for three to five

minutes. Id. He told defendant he could not find the item, and defendant left. lei. The owner

returned to the store withi n an hour and noticed that two chain saws were missing. Id. One of

the m issing saws was later recovered from a garage, where it was being repai red. Id The

putative buyer ofthe saw testi fi ed that he bought the saw fTo m an unidentified man who sai d he

was sent by the defendant because defendant "knew he needed a chain saw." Id. The defendant

also testified that he did not know the name of the unidentified man. Id. The trial judge stated

that he did not believe the defendant or the buyer, and bel ieved the buyer purchased the saw from

the defendant. ld

       The trial judge noted "that there was no evidence unequivocally placing the chain saws in

the hands of defcndant[.]" Id. As in Stores, the store clerk did not testify that he had seen the



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 chain saws shortly before defendant entered the store. And although the Superior Court opinion

 stated that defendant was alone in the "main store area" while the clerk was in another part of the

 store, on another level, searching for the hardware the defendant requested, id., the opinion does

not state that the clerk testified that no one else could have entered and left the store during that

time. Nonetheless, the panel in Haines concluded, "the Commonwealth, albeit circumstantially,

maintained ils burden to prove beyond a reasonable doubt that defendant was guilty of theft." Id.

The Superior Court reasoned, "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 the defendant to the recovered saw." Id. at 760.

        In Stores, the stolen items were not recovered, hence there was no link between recovered

property and the accused, as there was in liaines, and it appears that the link between the

recovered property and the accused compensated for the lack of evidence ruling out the

possibility that someone other than the accused could have entered thc premises and stolen the

property during the period whcn the theft could have occurred. In Stores, however, the jewelry

was stolen from a department store, in an area that the public could freely enter and exit without

having to walk tlrrough a door, and similarly in Haines, the chain saws were stolen from a

hardware store the public could enter by walking through a door, and exit through one of two

doors. The likelihood that someone other than the accused committed the theft is much lower in

this case than in Stores or Haines, therefore the need for evidence linking (he defendant   (0


recovered property is much lower.

       The evidence of record indicates that the door of Mrs. Roberts's apartment may have

been unlocked between 10:30 p.m. on June I, 2012 and 6:00 a.m. on June 2, 2012, bUl the

evidence also indicates that it was very unlikely that anyone entered without her knowledge. She

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stated that she was a light sleeper and would have awakened if SOmeone opened the apartment

door. The bureau where she kept her jewelry was only a few feet fi"Om her bed. Her bedroom

was past her living room and at the end of a hallway inside her private apartment, which was fi fty

yards from the eJevator on the third floor of a residential building that was on ly one of several on

the campus. Public access was infinitesimally lower than aecess to a jewelry department in a

department store, or to the sales area ofa hardware store. If someone had entered, she was much

more likely to have noticed than the store clerk in Stores, whose vision of the jewelry case was

partially blocked, and who was distracted by other customers, or the store clerk in ffaines, who

was in another part of the building altogether. The evidence did not absolutely rule out the

possibility that a person had entered the apartment unbidden and undetected during the relevant

period, but the Commonwealth docs not have to establish guilt to a mathematicru certainty in

order to produce sufficient evidence to support a gui lty verdict. Therefore, the Commonwealth's

failure to produce evidcnce linking defendant to the crime through the recovery of the stolen

jewelry is not a reaSon to conclude that th e other evidence was insufficient to prove th e defendant

gui lty of the crimes charged,

2.     The \'cnlict was not against the weight of the evidence

       "Ille Supreme Court ofPcnnsylvania advises that

        [a] trial judge must do more than reassess the credibility of the witnesses and
       all ege thal he would not have assented to the verdict ifhe were ajuror, Trial
       judges, in reviewing a claim t hat the verdict is against the weight of the evidence
       do not si t as the th irteenth juror. Rather, the role of the trial judge is to determine
       that "notwithstanding all the facts, certain facts arc so clearly of greater weight
       that to ignore them or to give them equal weigh t with all the facts is to deny
       justice. "

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (quoting 111Ompson v. City 0/

Philadelphia, 493 A.2d 669,674 (Pa. 1985». As for the role of the appell ate courts,

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             review ofa weight claim is a review oflhe exercise of discretion, not of the
             underlying question of whether the verdict is against the weight of the evidence.
             Because the trial judge has hfld the opportunity to hear and see the evidence
             presented, an appellate court will give the gravest consideration to the findings
             an4 reasons advanced by the trial judge when rcvicVo.ting a trial court's
             detemination that the verdict is against the weight of the evidence.

     ld.

             In this case, only three facts weighed against the verdict of guilt. First, Mrs. Edwards

     may nol have locked the apartment door when she left, in which case it would have remained

     unlocked until defendant arrived. Second, she left a note on the door, asking defendant, by name,

     to let herself in. The note did not state that the door was lU110cked , hence any other reader would

     not nccessa.Jily have assumed that the person named in the note did not have a key to the

     apartment. Moreover, the note expressly stated that the apartment was occupied at the time.

     Third, in the months bef~re and after the theft in question, two unsolved thefts occuned at

     ShannondelI, only one of which occurred in the apartment of another resident.

            The parties stipulated that during the hours when the door was unlocked, a dozen

     employees who were in possession of master keys were on the campus of Shannondell. That

     particular stipulation should be assigned very little weight, for there is no reason to believe that

     an "employee with a master key would have roamed the campus looking for an unlocked

     apartment door. To the contrary, because the testimony indicated that almost all of the residents

     were in their apartments during the night, an employee with a master key would have preferred to

     enter an apartment during tIle daytime, when it would be less likely that the resident of the

     apartment was present. One could thus infer that, of the employees 'I;\~th master keys, those most

     likely to steal ii-om an apartment would be those who kne\-v the schedule ora particular resident,

     and they would enter when they were confident the resident would be gone, most likely during



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the day.

        Based on the foregoing facts, it is of little weight that a dozen employees on the campus

at the time of the theft had master keys, To the contrary, those facts suggest that nonc of those

employees would have intenlionally sought out an unlocked apartment in the middle of the night.

Moreover, the note on the door did not necessarily suggest that the apartment was unlocked, but

it did expressly state that it was occupied.

        The likeJihood that someone other than defendant stole the jewelry depends on the chance

that, orall the apartments on aJl the Doors of all the residential buildings on the Shannondcll

campus, someone without a master key just happened to: go to the building where Mrs. Roberts

lived; take the elevator to the floor where she lived; walk fifty yards from the elevator, past five

other doors to her apartment; surmise from the note that the door was unlocked; turn the

doorknob and push open the door, disregarding the fact that the note stated the apartment was

occupied; walk through the first hallway, through her living room, through the second hallway

and across the threshold of her bedroom; and there, in the darkness of her bedroom, open the

containers on top of the bureau, the drawer of the bureau, and the jewelry box inside that drawer,

silently pick the jewelry out of the containers and jewelry box, then turn and sneak out; all

without waking Mrs. Roberts, a light sleeper. It would be exceedingly unlikely ifaH of those

conditions had been met simultaneously, just as defendant was scheduled to arrive at 6:00 a.m.

for her first visit, which she gratuitously told Mrs. Roberts was barely worth it, financially, for

her to have made. ft would require speculation, surmise and conjecture to assert olherv·.. ise. The

Wldersigned judge was present in the court and observed the demeanor of the witnesses as they

testified, and is, based on those first-hand observations, convinced beyond a reasonable doubt

that no one but defendant and Mrs. Roberts was in the apartment between the time Mrs. Edwards

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"




    left C1nd the lime Mrs. Roberts discovered her jewelry stolen.

                                             CONCLUSION

           Upon consideration of the foregoing discussion, the undersigned respectfully submits that

    the judgment of sentence should be affinned.

                                                          BY THE COURT,




    Copy of "bove sent on      ~'faj7<      to:
    Robert M. Falin, Deputy District tomey, Appellate DIvIsion; by mler-office mall
    Gregory P. DiPippo, Esquire; Pizonka, Reilley, Bello & McGrory, PC; 144 E. DeKalb Street,
    Suite 300; King o[Prussia, PA 19406




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