Com. v. Clark, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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
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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
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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)
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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.
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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
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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
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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.
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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.
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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
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employee who was scheduled to arrive the next morning. Defendant had never met Mrs. Roberts
or worked in her 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
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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
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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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