Com. v. Gatto, T. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TERESA GATTO, : No. 841 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 4, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0013535-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 02, 2016
Teresa Gatto appeals the judgment of sentence in which the Court of
Common Pleas of Allegheny County, in a waiver trial, sentenced her to serve
a term of six months of restrictive intermediate punishment with permission
for work release followed by two years of probation for theft by unlawful
taking, a first degree misdemeanor.1 Appellant was also ordered to pay
restitution of $972.54.
The facts as recounted by the trial court are as follows:
From 2006-2011, Appellant was in charge of
planning All Camp, a weekend camping event for all
girl scout troops in the West Perry Service Area of
the Girl Scouts of Southwestern Pennsylvania.
All Camp was held between June and August every
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3921(a).
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year. . . . As part of her planning duties, Appellant
managed the All Camp PNC bank account, which was
created in 2004. Every girl attending All Camp paid
a $40 fee. The girls’ troop leader retained $15 of the
fee in the individual troop bank account to pay for
the girl’s [sic] meals while at camp, and the
remaining $25 was deposited into the All Camp bank
account by Appellant. Appellant was then tasked
with using those funds solely to finance the camp.
Specifically, those funds were to be used to rent the
campsite, pay the archery and canoeing instructors,
the lifeguard, rent the canoes and archery equipment
from the Girl Scouts of Southwestern Pennsylvania,
and to pay for any additional unit or camp-wide
activities to be conducted at camp. Typically, the
items for camp activities were purchased in the
months leading up to the camping session. Troop
leaders, who were persons other than Appellant,
purchased all of the food for their individual troop at
camp the week before. . . .
During her time as the manager of the
All Camp bank account, Appellant submitted only one
expense report (in 2012) to West Perry Girl Scouts
financial manager, Peggy Huwe, though Appellant
was required to turn in an expense report annually.
Likewise, Appellant did not submit any receipts for
purchases made from the All Camp account, except
for one receipt with the 2012 expense report.
Administrators from the Girl Scouts organization
never examined any bank statements, as those were
mailed to Appellant’s home, and she never provided
them to the administrators. . . .
When Appellant resigned after the 2011
All Camp, there was $38 remaining in the All Camp
account. Huwe and other Girl Scout leaders then
assumed both the planning and finances for All Camp
for the next year. They collected $2500 from the
girls attending the camp, and only had to spend
$415 from the All Camp account to meet expenses
for the camp. Though camp costs varied slightly
from year to year, the number of girls remained
relatively constant. The Girl Scout leaders became
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concerned that the account managed by Appellant
only had $38 remaining after five years, whereas
they had over $2000 remaining after a single year of
planning for the camp. With that concern, they
requested statements from the bank for previous
years. Upon review of the bank statements they
contacted the West View Police Department to
investigate their preliminary conclusion that
Appellant had misappropriated a significant amount
of money. . . .
Allegheny County District Attorney’s detective
Jackie Weibel investigated the All Camp account from
2006-2011. Detective Weibel interviewed girl scout
representatives, obtained the expense report from
the Girl Scouts, and additional expense reports from
Appellant not turned over to the Girl Scouts, and
interviewed Appellant regarding specific line item
purchases from the All Camp account. Detective
Weibel cross-referenced camp expenditures with
Appellant’s bank account, Appellant’s Giant Eagle
Advantage Card purchases, and the expense reports
submitted by Appellant. At the conclusion of this
investigation, Detective Weibel concluded that
Appellant misappropriated $4818.41 from the
All Camp account for personal purposes. . . .
After reviewing the testimony of the
Commonwealth and defense witnesses, including
that of Appellant, and an independent review of the
bank records, the Trial Court found fourteen
instances of misappropriation proven beyond a
reasonable doubt, totaling $972.54. Those instances
are detailed hereinbelow.
On November 10, 2006, Appellant wrote a
check from the All Camp account to cash for $84.75.
The camping session for 2006 had already been
held, and it would have been too early to buy items
for next year’s camp as planning had not begun yet.
This check did not correspond with any
reimbursements or expenses for the camp. . . .
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On January 17, 2007 (mislabeled January 17,
2017 by Appellant), Appellant wrote a check from
the All Camp account to cash for $140. Again, this
check was written after the 2006 camping session,
and before planning began for the 2007 All Camp.
This check did not correspond with any
reimbursements or expenses for camp. . . .
On June 6, 2008, Appellant wrote a check from
the All Camp account to cash for $134. This check
did not correspond with any reimbursements or
expenses for camp. . . .
On May 20, 2009, Appellant wrote a check
from the All Camp account to herself for $239.40.
This amount did not correspond with any
reimbursement for camp expenses from her personal
account. . . .
On May 27, 2009, Appellant wrote a check
from the All Camp account to cash for $300 as a
“deposit reimbursement.” Bank records show that
appellant paid $251.45 from her personal account as
a deposit for Rent & Event on May 28, 2009.
Appellant over-reimbursed herself $48.55. . . .
On June 18, 2011, Appellant paid for camp
items with the All Camp account at Giant Eagle, but
withdrew an additional $30 in cash from the
All Camp account through the cashback option at the
register. After examining the 2011 expense report,
there is no evidence that she used that money for
camp items. . . . Given the regularity and
consistency with which Appellant used this cashback
option in subsequent trips in 2011, it is clear that
she was taking extra money with each transaction
for personal uses. In total, she withdrew cashback
amounts from the All Camp account eight times from
June 18, 2011, to August 13, 2011. . . .
On June 25, 2011, appellant paid for camp
items with the All Camp account at Giant Eagle, but
again withdrew an additional $30 in cash from the
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All Camp account through the cashback option at the
register. . . .
On July 10, 2011, Appellant paid for
Kennywood tickets for her personal use from the
All Camp account at Giant Eagle. She also withdrew
cash using the cashback function at the register, for
a total personal expenditure of $81.98 from the
All Camp account. . . . Appellant stated that she
accidentally used the wrong account, and simply did
not reimburse herself for items purchased for camp
from her personal account. . . . However, contrary to
Appellant’s self-serving statement, Appellant’s
personal bank account did not have any
unreimbursed camp expenditures, and Appellant
continued to withdraw cash from Giant Eagle (using
cashback), allegedly for camp expenditures, the next
five trips she made to Giant Eagle, for a total of
$115.11. On July 16, 2011, she withdrew
$30 cashback. On July 24, 2011, she withdrew
$12.58 cashback. On July 28, 2011, she withdrew
$12.53 cashback. On August 5, 2011, she withdrew
$30 cashback. On August 13, 2011, she withdrew
$30 cashback. Notably, she only used this cashback
function in 2011, which was her last year controlling
the finances for All Camp. . . .
On August 2, 2011, Appellant wrote a check
from the All Camp account to cash for $200 for
“Snappy Logo Reimbursement.” Appellant’s personal
bank account record shows that Appellant paid
Snappy Logos $131.25 on August 17, 2011 from her
personal account for the patches from Snappy Logo,
and did not reimburse the All Camp account for the
over-reimbursement. Appellant overreimbursed
herself $68.75. . . .
Trial court opinion, 12/9/15 at 4-9 (citations omitted).
Appellant filed a post-sentence motion challenging the weight of the
evidence and also moved for modification of sentence and sought probation.
The trial court denied the motions by order dated April 27, 2015.
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Appellant raises the following issue before this court:
WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
CONVICTION OF THEFT BY UNLAWFUL TAKING (M1)
BECAUSE THE COMMONWEALTH FAILED TO PROVE,
BEYOND A REASONABLE DOUBT, THAT [APPELLANT]
INTENTIONALLY DEPRIVED THE GIRL SCOUTS OF
THE FUNDS AT ISSUE?
Appellant’s brief at 4.
A claim challenging the sufficiency of the
evidence is a question of law. Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
(2000). In that case, our Supreme Court set forth
the sufficiency of the evidence standard:
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). Where the
evidence offered to support the verdict is
in contradiction to the physical facts, in
contravention to human experience and
the laws of nature, then the evidence is
insufficient as a matter of law.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). When
reviewing a sufficiency claim the court is
required to view the evidence in the light
most favorable to the verdict winner
giving the prosecution the benefit of all
reasonable inferences to be drawn from
the evidence. Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630
(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
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Appellant argues that the Commonwealth failed to establish that she
intentionally deprived the Girl Scouts of $972.54.
A person is guilty of theft by unlawful taking of movable property,
18 Pa.C.S.A. § 3921(a), if he “unlawfully takes or exercises unlawful control
over movable property of another with intent to deprive him thereof.”
18 Pa.C.S.A. § 3921(a). The Commonwealth may establish the elements of
theft by unlawful taking by circumstantial evidence. Commonwealth v.
Haines, 442 A.2d 757, 759 (Pa.Super. 1982).
Appellant argues that the evidence presented by the Commonwealth
established that she assigned money from the All Camp account to herself
but did not establish that she was misappropriating funds rather than simply
repaying herself for the purchases that she made as director of All Camp.
According to appellant, no Commonwealth witness had direct knowledge of
the exact costs associated with running the camp during the years in
question because none of them were directly involved with making
purchases for the entire camp. In contrast, appellant argues that she
testified in great detail about the purchases she made. At most, she argues
that she was guilty of bad bookkeeping, and bad bookkeeping is not a
crime.2
2
At times, appellant attempts to argue that she was more credible than the
Commonwealth witnesses. In determining whether the evidence was
sufficient, this court may not review the evidence and substitute its
judgment for that of the fact-finder. Commonwealth v. Hansley, 24 A.3d
410, 416 (Pa.Super. 2011).
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In order to determine the sufficiency of the evidence, this court must
examine the evidence presented to the trial court. Detective
Jackelyn Weibel (“Detective Weibel”) of the Allegheny County District
Attorney’s Office and a certified fraud examiner was assigned to investigate
the matter after Girl Scout representatives had contacted the West View
Police. Here, Detective Weibel analyzed the PNC Bank account that was
used for the All Camp funds. Based on her analysis, Detective Weibel
testified that there were many checks payable to Giant Eagle and many
checks payable to cash which were negotiated by appellant. (Notes of
testimony, 2/11/15 at 5.) The Commonwealth introduced these bank
records into evidence. (Id. at 6.) Detective Weibel also obtained a search
warrant for appellant’s personal bank account as well as a search warrant to
get the Giant Eagle records for appellant’s Advantage Card. These records
were introduced into evidence. (Id. at 7-8.) The Commonwealth also
introduced into evidence spreadsheets prepared by Detective Weibel which
indicated checks payable to Giant Eagle from the PNC account, checks
payable to cash from the PNC account, and checks payable to appellant from
the PNC account. (Id. at 12-14.) Detective Weibel initially found checks
totaling $539.75 payable to Giant Eagle from the All Camp account that she
believed did not correspond to All Camp expenses after her investigation
which included questioning appellant. (Id. at 15.) Appellant admitted to
Detective Weibel that tickets purchased for Kennywood Park were for her
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personal benefit. (Id. at 18.) Through her analysis, Detective Weibel found
checks payable to cash that were more than the reimbursable amount that
appellant used to pay for camp expenses with her own funds. (Id. at 20.)
Detective Weibel also noted the purchase of gift cards which other Girl Scout
officials said were not used for Girl Scout events. Detective Weibel testified
that the total amount misappropriated was $4,818.41. (Id. at 25.)
Lisa Vogler (“Vogler”), a troop leader who was involved in planning for
the All Camp from 2004 until approximately 2013, testified that the amount
spent on “patches” was approximately $100 after appellant left and that
when she attended planning meetings that appellant organized no food was
provided. (Id. at 40-41.) Essentially, Vogler testified to refute appellant’s
testimony about how the camp was conducted including what was
purchased, when purchases were made, and the amount of purchases.
The trial court reviewed this evidence and reduced the total amount
misappropriated by appellant from $4,818.34 to $972.34. The bank records
for the All Camp account, the Advantage Card records, and appellant’s own
personal bank records, as well as the spreadsheets prepared by
Detective Weibel, supported the conclusion that appellant purchased items
for her own personal use with funds from the All Camp account, directed
funds from the All Camp account to herself using the cashback option at
Giant Eagle, bought tickets for Kennywood Park for herself, and reimbursed
herself for a greater amount than the original outlay for legitimate purchases
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she made for All Camp. In taking that evidence in the light most favorable
to the Commonwealth, the trial court could infer that appellant’s actions
satisfied the elements of theft by unlawful taking.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2016
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