Com. v. St. Aude, N. ( 2015 )

J-A02027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICOLE S. ST. AUDE
Appellant No. 1058 EDA 2014
Appeal from the Judgment of Sentence of March 6, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0000499-2012
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED MARCH 04, 2015
Nicole S. St. Aude challenges her March 6, 2014 judgment of
sentence. Herein, St. Aude contends that the evidence was insufficient to
support her jury conviction of theft by unlawful taking and receiving stolen
property.1 We affirm.
The trial court set forth the factual history of this case as follows:
On November 8, 2011, Kurt Linneman (“victim”), the owner of
Crocodile Café, reported a theft to Tredyffrin Township Police
Department. Crocodile Café is located in Wayne, Tredyffrin
Township, Chester County, Pennsylvania. The victim stated that
[St. Aude], who was one of his employees and [his] executive
assistant, stole money from his company.
As the victim’s executive assistant, [St. Aude] was responsible
for calling in the company’s payroll every two weeks to
Automatic Data Processing (“ADP”) who handled the
____________________________________________
1
18 Pa.C.S. §§ 3921(a) and 3925(a), respectively.
J-A02027-15
establishment’s payroll account. [St. Aude’s] other job duties
included managing the company’s finances, paying the
company’s bills, maintaining the payroll account statements and
credit card statements[,] and other administrative duties.
The victim was alerted to the thefts when he wanted to obtain
salary information on his general manager, Erin Szylek. The
victim asked [St. Aude] to provide him with a copy of the payroll
account statement for October 2011, but she never did. In
response to the victim’s repeated requests for the payroll
information, [St. Aude] provided excuses as to why she could
not locate it. Based on [St. Aude’s] evasiveness, the victim
decided to examine some of the most recent payroll statements
that were in the office.
Upon examining these statements, the victim suspected that [St.
Aude] was being overpaid. The victim informed [St. Aude] that
he thought she was being overpaid in response to which, [St.
Aude] volunteered to bring him a copy of her TD [B]ank
statement for the past year to show that she was not being
overpaid. [St. Aude’s] authorized salary when she started
working at Crocodile Café was $40,000 and when she finished
her salary was $45,000. [St. Aude’s] pay check is directly
deposited into her TD Bank Account. The purported TD Bank
statement provided by [St. Aude] to the victim appeared to be
an account statement generated on TD Bank Letterhead and
contained [St. Aude’s] hand written notes. The statement
showed that [St. Aude] was receiving her authorized salary and
was not being overpaid.
However[,] not completely satisfied by the purported bank
statement, the victim called ADP to verify the direct deposit
amount reflected in the purported bank statement. ADP
instructed the victim to remain on the phone while it faxed him
the unmasked master payroll report. The victim agreed and
informed all staff members to leave the office so that he could
be certain that no one else received the incoming fax. The
unmasked master payroll report revealed that [St. Aude] was
being substantially overpaid. The victim discovered that
between August 27, 2010 and November 4, 2011 [St. Aude] had
received eighteen paychecks where she was overpaid. The
report indicated that the overpayments were the result of salary
overrides. A salary override can only occur when an employee
with the company payroll code calls ADP and specifically
authorizes an increase. It is ADP’s policy that the employee who
-2-
J-A02027-15
calls in payroll and has the company code may authorize a salary
increase for any employee besides himself. The victim, [St.
Aude], and Erin Szylek, have access to the company code. The
total amount of unauthorized overpayments to [St. Aude] was
$34,961.83. The victim never called in the company payroll
during [St. Aude’s] tenure with the company. Ms. Szylek only
called in payroll once or twice when [St. Aude] was on vacation.
No other employee was overpaid during [St. Aude’s] tenure with
Crocodile Café.
A short time after receiving the unmasked master payroll report,
the victim received an email purportedly from ADP. The Email
was allegedly sent to replace the incorrect information reflected
in the unmasked master report. The Email contained different
payroll numbers from the unmasked master and showed that
[St. Aude] was only receiving her authorized salary. Confused
by the conflicting documents, the victim called ADP to inquire
about these discrepancies. ADP informed the victim that the
Email was not sent from ADP, and therefore it was fraudulent.
At this point, the victim confronted [St. Aude] about the
overpayments and asked her to go with him to TD Bank. The
victim wanted to personally accompany [St. Aude] to the bank
so that they could obtain her bank statements and compare
them to the purported TD Bank statement previously provided
by [St. Aude] and the unmasked master report sent by ADP.
[St. Aude] agreed to go with the victim to TD Bank and she
obtained her account statements from December of 2010 to
January of 2011. These statements were consistent with the
unmasked master payroll report and reflected that [St. Aude]
was being overpaid. Additionally, the authentic TD bank
statements contained different amounts than the purported TD
Bank Statement previously supplied by [St. Aude]. Now,
suspecting that [St. Aude] provided him with fraudulent
documents, the victim decided to call the police and report the
theft.
After discovering the payroll thefts, the victim decided to review
the company’s American Express credit card statements. Upon
reviewing the statements from August 2010 to October 2011,
obtained directly from American Express, the victim discovered
numerous unauthorized credit card purchases. The unauthorized
purchases were not remotely related to business expenses. The
victim only allowed the company credit cards to be used for
-3-
J-A02027-15
legitimate business expenses. The total amount of unauthorized
purchases made with the company card was $29,591.55.
The actual American Express statements reviewed by the victim
after finding out that [St. Aude] was receiving salary
overpayments were different from the purported credit card
statements previously provided to him by [St. Aude].
Specifically, the statements that the victim previously reviewed
with [St. Aude] only reflected authorized business related
purchases. All unauthorized purchases were omitted from the
statements. The victim, Sarah Bushner and Erin Szylek had
company credit cards. Although [St. Aude] was not directly
issued a company card, she occasionally borrowed a card from
one of the three cardholders. Specifically, [St. Aude] would
inform one of the cardholders that she needed to use their card
to make a legitimate business purchase. The jury ultimately
found [St. Aude] not guilty on the related American Express
charges.
Trial Court Opinion (“T.C.O.”), 9/2/2014, at 2-4. (citations to notes of
testimony and exhibits omitted).
On January 9, 2014, a jury convicted St. Aude of one count each of
theft by unlawful taking in violation of 18 Pa.C.S. § 3921(a), and receiving
stolen property in violation of 18 Pa.C.S. § 3925(a). The jury found the total
amount of money taken from the victim and received by St. Aude was
$34,961.83. On March 6, 2014, following a pre-sentence investigation, St.
Aude was sentenced to eleven and one half to twenty-three months’
incarceration plus five years’ probation for theft by unlawful taking. 2 On
March 14, 2014, St. Aude timely filed a motion for reconsideration of
____________________________________________
2
No further sentence was imposed for the receiving stolen property
conviction.
-4-
J-A02027-15
sentence and a motion for reconsideration of verdict, both of which the trial
court denied without a hearing.
On April 3, 2014, St. Aude timely filed a notice of appeal. The trial
court ordered, and St. Aude timely submitted, a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 2,
2014, the trial court issued a Pa.R.A.P. 1925(a) opinion.
St. Aude raises three3 issues for this Court’s consideration:
I. Did the Commonwealth present sufficient evidence to
support [St. Aude’s] convictions for theft-unlawful taking
and theft-receiving stolen property where: (1) the
Commonwealth introduced no evidence to show that [St.
Aude] was the individual who caused a third-party
company to deposit excessive funds in her bank account;
(2) there was no evidence presented to show that [St.
Aude] knew she had received unauthorized funds; (3) the
evidence showed that [St. Aude] in fact returned funds in
the amount of $4,400 to her employer when she realized
she had been overpaid; and (4) the Commonwealth’s
evidence established that multiple individuals had access
to a company code to authorize the payment of funds into
[St. Aude’s] bank account?
II. Was the evidence proffered to support [St. Aude’s]
convictions for theft-unlawful taking and theft-receiving
stolen property so unreliable that it rendered the evidence
insufficient as a matter of law where the jury was required
to base its verdict largely on the receipt of inadmissible
hearsay evidence?
III. Did the trial court err when it instructed the jury that it
could consider [St. Aude’s] statement to the police as
____________________________________________
3
St. Aude raised a fourth issue in her Pa.R.A.P. 1925(b) statement.
However, because she failed to pursue this issue in her brief, it has been
waived. Pa.R.A.P. 2119(a).
-5-
J-A02027-15
substantive evidence of her guilt where the statement was
not introduced into evidence and the prosecutor clearly
explained that he was using the statement only for
impeachment purposes?
Brief for St. Aude at 4 (minor spelling errors corrected).
St. Aude first contests the sufficiency of the evidence to support her
convictions for theft by unlawful taking and receiving stolen property. She
argues, inter alia, that the Commonwealth failed to prove that she caused
the unauthorized overpayments to be deposited into her bank account, and
that there was no evidence indicating that she knew that she had received
the overpayments. Brief for St. Aude at 10-13. We disagree.
Our standard of review for a sufficiency of the evidence claim is well
established:
The standard we apply . . . is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
[the above] test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. 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. 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 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.
-6-
J-A02027-15
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).
In addressing the merits of St. Aude’s claim, we first examine the
sufficiency of the evidence supporting her conviction of theft by unlawful
taking. A person is guilty of theft by unlawful taking “if [she] unlawfully
takes, or exercises unlawful control over, moveable property of another with
intent to deprive him thereof.” 18 Pa.C.S. § 3921(a).
First, St. Aude, as the victim’s executive assistant, was the employee
responsible for calling in the company’s payroll to ADP. Notes of Testimony
(“N.T.”), 1/7/2014, at 42-43. The evidence demonstrates that St. Aude, Ms.
Szylek, and the victim were the only individuals with access to the company
code to authorize salary payments. Id. at 45. In addition, trial testimony
revealed that Ms. Szylek called payroll only once or twice during St. Aude’s
tenure, and only when St. Aude was on vacation. Id. Furthermore, St.
Aude was the only employee who received excessive overpayments, which
transpired over eighteen paychecks between August 27, 2010 and November
4, 2011. Id. at 62. In order for these overpayments to occur, an employee
of Crocodile Café needed to call ADP and request that the employee’s salary
be adjusted. Id. at 45-46. From this evidence, it was reasonable for the
jury to infer that St. Aude was responsible for the overpayments.
St. Aude also claims that there was no evidence establishing her
knowledge of receipt of the unauthorized funds. Brief for St. Aude at 18-19.
In support of her claim, St. Aude testified that she first noticed a substantial
-7-
J-A02027-15
increase of funds in her bank account around February 2011. N.T.,
1/8/2014, at 103-06. St. Aude claimed that she was careless in monitoring
her bank account, and believed that the victim or her father provided the
excess money that she discovered in her bank account. Id. However, the
jury found that St. Aude was responsible for the overpayments and did not
find her testimony about lack of knowledge credible.
In addition, the fact that St. Aude attempted to conceal her thefts
further supports the jury’s finding. St. Aude repeatedly failed to supply the
victim with a statement of the company’s payroll account, and offered him a
fraudulent statement of her TD Bank account when he suspected she had
been overpaid. N.T., 1/7/2014, at 48-51. The victim also requested a
payroll statement directly from ADP, which indicated that St. Aude was
overpaid, and then received an email, allegedly from ADP, stating that St.
Aude had not been overpaid. Finding this suspicious, the victim then called
ADP and was informed that the email was fraudulent. Id. at 56-59.
Because St. Aude was responsible for payroll and had the company
code to authorize salary payments, was the only employee to receive
continuous overpayments, and was the only employee with reason to
authorize the overpayments, we conclude that the evidence was sufficient to
prove that St. Aude caused ADP to deposit excessive funds into her bank
account. Therefore, we find that the evidence presented by the
Commonwealth allowed the jury to conclude beyond a reasonable doubt that
St. Aude was guilty of theft by unlawful taking.
-8-
J-A02027-15
Next, we examine the sufficiency of the evidence supporting St. Aude’s
conviction of receiving stolen property. A person is guilty of receiving stolen
property “if [she] 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. § 3925(a). Once again,
St. Aude alleges that the evidence presented by the Commonwealth was
insufficient to establish her guilt beyond a reasonable doubt. Brief for St.
Aude at 18. Again, we disagree.
To obtain a conviction for receiving stolen property, “the
Commonwealth has the burden of proving three distinct elements of the
crime of receiving stolen goods: (a) that the goods are stolen; (b) that the
defendant received such goods; and (c) that he received them knowing, or
having reasonable cause to know that they were stolen.” Commonwealth
v. Stafford, 623 A.2d 838, 840 (Pa. Super. 1993) (quoting
Commonwealth v. Davis, 280 A.2d 119, 121 (Pa. 1971)). However, “the
mere possession of stolen property is insufficient to prove guilty knowledge,
and the Commonwealth must introduce other evidence, which can be either
circumstantial or direct, that demonstrates that the defendant knew or had
reason to believe that the property was stolen.” Commonwealth v.
Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002) (citing Commonwealth
v. Matthews, 632 A.2d 570, 571 (Pa. Super. 1993)).
-9-
J-A02027-15
Having determined that the Commonwealth presented sufficient
evidence to allow the jury to conclude that St. Aude was guilty of theft by
unlawful taking, the first two elements of receiving stolen property are
established through sufficient evidence: (a) that the goods are stolen, and
(b) that St. Aude received such goods. Therefore, we need only consider
whether the Commonwealth presented sufficient evidence for the jury to
determine that St. Aude knew, or had reasonable cause to know, that she
was in possession of stolen funds. Because St. Aude personally caused the
unauthorized overpayments to be deposited directly into her account, St.
Aude was clearly aware that she was in possession of “stolen goods.”
Moreover, the evidence indicating that St. Aude attempted to conceal the
overpayments only supports the conclusion that she knew that she was in
possession of stolen goods.
Because the evidence provided by the Commonwealth was sufficient to
prove that St. Aude caused the unauthorized salary overpayments at issue
to be deposited into her bank account, she undoubtedly was aware that she
was in possession of the stolen funds. Therefore, in reviewing the record in
the light most favorable to the Commonwealth, we conclude that the
Commonwealth provided sufficient evidence to sustain the receiving stolen
property and theft by unlawful taking convictions. St. Aude’s first issue does
not merit relief.
In St. Aude’s second issue, she argues that the trial court erred by
allowing the jury to consider inadmissible hearsay evidence. Brief for St.
- 10 -
J-A02027-15
Aude at 21-24. This issue is waived. In making its decision, the trial court
found that St. Aude’s Rule 1925(b) statement was vague with regard to this
issue. Specifically, the trial court stated that “[St. Aude’s] failure to
adequately identify the issue pursued on appeal, prevents us from providing
meaningful review regarding this issue.” T.C.O. at 9. Consequently, the
trial court did not address this claim and deemed it waived. Id.;
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014).
In her brief to this Court, St. Aude identifies five instances in which
she claims that the trial court erroneously permitted the Commonwealth to
offer inadmissible hearsay evidence. Brief for St. Aude at 23-24. Despite
this contention, our review of the record reveals that St. Aude failed to
object to any of the alleged hearsay testimony at trial. N.T., 1/7/2014, at
50, 53, 56-57, 58, 59-60. Therefore, she has waived any objection to that
testimony on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
In her final issue, St. Aude alleges that the trial court erred in its jury
instruction by allowing the jury to consider St. Aude’s statement to the
police as substantive evidence. Brief for St. Aude at 27. We disagree. This
issue also is waived. In her statement to the police, St. Aude admitted to
using the company credit card for personal purchases. N.T., 1/8/2014, at
136-38. Nonetheless, St. Aude again failed to object to the jury instruction
at trial, therefore waiving the issue on appeal. See Pa.R.Crim.P. 647(B)
(“No portions of the charge nor omissions from the charge may be assigned
- 11 -
J-A02027-15
as error, unless specific objections are made thereto before the jury retires
to deliberate. All such objections shall be made beyond the hearing of the
jury.”); Pa.R.A.P. 302(a), supra.
Moreover, even if St. Aude had preserved her issue for appeal, and if
the instruction was erroneous, the evidence offered in her statement
amounted to no more than harmless error. Error is harmless where:
1) the error did not prejudice the defendant or the prejudice was
de minimis; or 2) the erroneously admitted evidence was merely
cumulative of other, untainted evidence which was substantially
similar to the erroneously admitted evidence; or 3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Williams, 573 A.2d 536, 538-39 (Pa. 1990). The
statement at issue is irrelevant to St. Aude’s convictions, because the
statement concerns only whether the victim authorized St. Aude to use the
company credit card for personal expenses. N.T., 1/8/2014, at 136-38;
T.C.O. at 10. However, the jury acquitted St. Aude on the charges related
to credit card use. N.T., 1/9/2014, at 36; T.C.O. at 10. Therefore, even if
she had not waived this issue, St. Aude was not prejudiced by the trial
court’s instruction that her statement to police could be considered as
substantive evidence of her guilt.
Judgment of sentence affirmed.
- 12 -
J-A02027-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
- 13 -