Com. v. Lovett, A. ( 2016 )

J. S35012/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY J. LOVETT, : No. 1177 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 13, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006004-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 06, 2016
The trial court, sitting as finder-of-fact in this matter following a waiver
trial, has summarized the testimony as follows:
On May 1, 2014, Ms. Daniella Matthews, the
manager and sous chef at a Bon Appetit
restaurant[1] located at 3417 Spruce Street in
Philadelphia was leaving work at about 11:00 or
11:15 p.m., when she observed a cart outside the
door to the kitchen that had trash bags, two cases of
cheese steaks, two ten pound bags of hot dogs, and
a ten pound bag of turkey sausage. (N.T. 7-8,
10).[Footnote 2] The cart caught her attention
because it was odd that it was located in its location
at that time of night. (N.T. 8). Upon observing the
cart, Ms. Matthews looked into the kitchen and saw
someone in the kitchen, which prompted her to
enter. (N.T. 9).
1
Bon Appétit is a management company that provides food services for the
University of Pennsylvania (“UPenn”). (Notes of testimony, 12/9/14 at 7.)
The kitchen is located in Houston Hall on UPenn’s campus. (Id. at 8.)
J. S35012/16
[Footnote 2] All references to the record,
unless otherwise noted, pertain to the
transcript of Appellant’s trial on
December 9, 2014.
Once inside, Ms. Matthews encountered
Appellant, who, when asked what he was doing in
the kitchen, responded, “Well, if I had known you
were still here, then I would have waited until you
left.” (N.T. 10). Although Appellant was an
employee at that Bon Appetit location, Ms. Matthews
testified he was not supposed to be there at that
time of night.[2] Id. Ms. Matthews ordered
Appellant to leave the kitchen after telling him that
he did not belong there. (N.T. 11). Appellant did as
instructed at which time Ms. Matthews checked the
kitchen before exiting it. Id. As she left the kitchen,
she noticed that the cart containing the
aforementioned items was no longer outside the
door to the kitchen. Id.
The next day, Ms. Matthews received a
telephone call from Appellant who asked her if she
had taken a photograph of him. (N.T. 12).
Ms. Matthews told [Appellant] that she had not and
directed him not to call her again.[3] Id. A couple of
days later, while Ms. Matthews was speaking to
police, Appellant texted her and chastised her for
lying to police about what she had observed the
night he was caught inside the Bon Appetit
2
Appellant worked for Bon Appétit during the daytime hours, and for the
facilities department of UPenn at night. (Notes of testimony, 12/9/14 at
9-10, 25-26.) Appellant worked for Bon Appétit from 8:00 a.m. until
4:00 p.m. (Id. at 25.)
3
Specifically, Ms. Matthews testified, “He asked if I took a picture and I
explained to him I didn’t and did he see me take a picture of him? And he
said, No, I didn’t think you would do something like that. Then I said, don’t
call my phone.” (Notes of testimony, 12/9/14 at 12.)
-2-
J. S35012/16
kitchen.[4] Id. Ms. Matthews estimated the value of
items she saw on the cart to be $150.00 and further
indicated that the kitchen was not open to the
general public. (N.T. 13, 17).
Mr. Matthew Morett, executive chef at the time
the incident herein occurred, was notified by
Ms. Matthews that Appellant was observed in the
kitchen, a restricted area after hours, and that there
had been a cart loaded with product outside the door
to the kitchen. (N.T. 18-19). Mr. Morett testified
that Appellant was a member of his staff. However,
on the date in question, Appellant clocked out at
4:00 p.m., and he was not permitted in the kitchen
at the time Ms. Matthews observed him. (N.T. 19).
Morett further testified that he conducted an
inventory of the kitchen and ascertained that cases
of steaks and hot dogs were missing. (N.T. 20).
After completing the inventory, Mr. Morett
contacted the police department of the University of
Pennsylvania. Subsequent thereto, Mr. Morett was
asked by authorities to review certain kitchen items,
including pots, food items, and kitchen utensils that
had been recovered from Appellant’s residence.
(N.T. 21-22, 30). Morett indicated that those items
were used by Bon Appetit and that Appellant did not
have permission to have those items inside his
residence. (N.T. 21-23). Morett further testified
that police did not find the missing food items inside
Appellant’s residence. (N.T. 28).[Footnote 3]
4
Ms. Matthews explained,
I received a text message from the defendant on
Monday, the following Monday, when I was in the
office being interviewed by the detectives and he
said in a text message, I can’t believe you’re in there
telling all those lies to the detective. I imagine
someone told him that [I] was in there and then he
texted me.
Notes of testimony, 12/9/14 at 12.
-3-
J. S35012/16
[Footnote 3] At the time of the incident,
Appellant was also employed by the
University of Pennsylvania and had
worked from 4:00 p.m. to 11:00 p.m.,
on the day of the incident. (N.T. 25-26).
Mr. [Morett] testified that employees of
the University were not permitted inside
the kitchen of the restaurant. (N.T. 28-
29, 30).[5]
Trial court opinion, 6/24/15 at 2-3.
At docket number CP-51-CR-0006004-2014, relating to the May 1,
2014 incident, appellant was charged with criminal trespass, burglary, theft
by unlawful taking, and receiving stolen property (“RSP”). At docket number
CP-51-CR-0006003-2014, relating to the items recovered from appellant’s
residence pursuant to the search warrant, appellant was charged with theft
by unlawful taking and RSP. On December 9, 2014, following a non-jury
trial, appellant was found guilty of all charges at CP-51-CR-0006004-2014,
and found not guilty of the charges at CP-51-CR-0006003-2014. On
February 13, 2015, the trial court imposed an aggregate sentence of 11½ to
23 months, plus 5 years of reporting probation. Appellant was granted
immediate parole to house arrest so that he could continue to work at his
job at a restaurant on Germantown Avenue. (Notes of testimony, 2/13/15
5
In addition, Wister Tilghman (“Tilghman”) testified that he is a cook for
Bon Appétit. (Notes of testimony, 12/9/14 at 31.) In February or March
2014, appellant admitted to Tilghman that he had stolen approximately
$50,000 worth of items from Bon Appétit. (Id. at 32-33.)
-4-
J. S35012/16
at 7, 10.) Appellant’s sentence was a below-guidelines sentence. (Id. at 6.)
The victim, Bon Appétit, did not seek restitution. (Id. at 11.)
On February 21, 2015, appellant filed a timely post-sentence motion,
challenging the weight and sufficiency of the evidence to sustain the charges
of burglary, RSP, and theft. Appellant’s post-sentence motion was denied on
April 16, 2015, following oral argument on the record. A timely notice of
appeal was filed on April 28, 2015. On April 29, 2015, appellant was
ordered to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P. 1925(b). Appellant timely complied by filing a
Rule 1925(b) statement on May 19, 2015, challenging the sufficiency of the
evidence to sustain the convictions of burglary, theft by unlawful taking, and
RSP. Appellant did not challenge the sufficiency of the evidence to sustain
the trial court’s guilty verdict as to the charge of criminal trespass. On
June 24, 2015, the trial court filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review:
Was not the evidence insufficient to convict
appellant of burglary, theft by unlawful taking and
[RSP] as the Commonwealth failed to prove beyond
a reasonable doubt that appellant, a long-term
employee in the dining services and facilities
departments at [UPenn], stole food where no one
saw appellant take the items and they were stored in
a University kitchen accessible to many others?
Appellant’s brief at 3.
When considering a challenge to the sufficiency of the evidence, this
court must view the evidence presented in a light most favorable to the
-5-
J. S35012/16
Commonwealth, the verdict winner, and draw all reasonable inferences
therefrom. Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super.
1999). We must then determine whether the evidence was sufficient to
permit the fact-finder to conclude that all of the elements of the crimes
charged were proven beyond a reasonable doubt. Id. Any question of
doubt is for 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. Id. at 804.
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 trial 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.
Commonwealth v. George, 705 A.2d 916, 918 (Pa.Super. 1998), appeal
denied, 725 A.2d 1218 (Pa. 1998), quoting Commonwealth v. Valette,
613 A.2d 548, 549 (Pa. 1992) (citations and quotation marks omitted).
Appellant was found guilty of burglary, graded as a felony of the
second degree:
(a) Offense defined.--A person commits the
offense of burglary if, with the intent to
commit a crime therein, the person:
(4) enters a building or occupied
structure, or separately secured or
occupied portion thereof that is not
adapted for overnight
-6-
J. S35012/16
accommodations in which at the
time of the offense no person is
present.
18 Pa.C.S.A. § 3502(a)(4). “The Commonwealth may prove its case by
circumstantial evidence, and the specific intent to commit a crime necessary
to establish the second element of burglary may thus be found in the
defendant’s words or conduct, or from the attendant circumstances together
with all reasonable inferences therefrom.” Commonwealth v. Franklin,
452 A.2d 797, 799-800 (Pa.Super. 1982) (citations omitted).
Appellant was also found guilty of theft by unlawful taking and RSP.
The Crimes Code defines theft by unlawful taking, in relevant part, as
follows:
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.--A person is guilty of theft
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).
RSP is defined as follows:
§ 3925. Receiving stolen property
(a) Offense defined.--A person is guilty of theft 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, unless the property is
received, retained, or disposed with intent to
restore it to the owner.
-7-
J. S35012/16
(b) Definition.--As used in this section the word
‘receiving’ means acquiring possession, control
or title, or lending on the security of the
property.
18 Pa.C.S.A. § 3925.
To establish the offense of receiving stolen property,
the Commonwealth was required to present evidence
sufficient to prove beyond a reasonable doubt that
(1) the property had been stolen, (2) the accused
received the property and (3) the accused knew or
had reasonable cause to know that it had been
stolen. The Commonwealth may sustain its burden
of proof by means of circumstantial evidence.
Commonwealth v. Worrell, 419 A.2d 1199, 1201 (Pa.Super. 1980)
(citations omitted).
Appellant argues that the trial court’s verdict was based on pure
speculation and conjecture where no one actually saw him take the food
from the Bon Appétit kitchen the night of May 1, 2014. Ms. Matthews saw
appellant standing in the kitchen after hours, when he was not authorized to
be there; however, she did not see him remove anything from the kitchen or
place anything on the utility cart. (Appellant’s brief at 11.) Ms. Matthews
did not see appellant wheel away the utility cart with the missing food items.
(Id.) Appellant also argues that his subsequent statements to Ms. Matthews
only prove that he knew he was not supposed to be in the kitchen after it
was closed for the day; it was not evidence that he stole anything from the
kitchen. (Id.)
-8-
J. S35012/16
According to appellant, it was just as likely that someone else took the
food from the kitchen. (Id. at 12.) Appellant contends this is so because
the kitchen was accessible to many other people on a daily basis besides
appellant. (Id.) Appellant explains his subsequent phone call and text
message to Ms. Matthews as demonstrating his concern that she would
disclose his unauthorized presence in the kitchen. (Id. at 12-13.) Appellant
points out that none of the missing food items from May 1, 2014, were
found in his apartment. (Id. at 13.) Appellant also argues that his
admission to Tilghman that he had stolen $50,000 worth of goods from
Bon Appétit related to prior alleged thefts, not the May 1, 2014 incident.
(Id.) Appellant argues that the circumstantial evidence adduced by the
Commonwealth at trial was insufficient to prove beyond a reasonable doubt
that he took the missing items from the kitchen on the night of May 1, 2014.
(Id. at 13.) We disagree.
The trial court relied on Commonwealth v. Haines, 442 A.2d 757(Pa.Super. 1982), which we agree is instructive. In that case, the defendant
asked the clerk to get a hardware item for him, and the clerk walked to the
rear of the store and up some stairs to find the item. Id. at 759. He was
absent from the main store area for between three and five minutes during
which time the defendant was alone in that part of the store. Id. The clerk
testified that when he returned, he told the defendant that he did not have
the part in stock, and the defendant left the store. Id. When the
-9-
J. S35012/16
storeowner returned from lunch a short time later, he noticed that two chain
saws were missing. Id. As in this case, no one actually saw the defendant
take the items. Id. During the course of their investigation, police
discovered that a chain saw was being repaired at a garage and that the
serial number of that saw was the same as that of one of the missing saws.
Id. The saw was traced to a Richard Seawood, who testified that he bought
the chain saw from an unidentified man sent by the defendant. Id. The
defendant testified and corroborated the fact that he did not know the man’s
name. Id. (citations to the transcript omitted). The trial judge did not find
the testimony of either the defendant or Seawood to be credible, and found
the defendant guilty of theft by unlawful taking and RSP. Id.On appeal, this court affirmed, stating,
While it is true as the trial court noted that there was
no evidence unquivocally placing the chain saws in
the hands of defendant, we hold that the
Commonwealth, albeit circumstantially, sustained its
burden to prove beyond a reasonable doubt that
defendant was guilty of theft. A defendant is guilty
of 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.” We hold
that 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
defendant to the recovered saw. Since there was
sufficient evidence to convict defendant of theft by
unlawful taking or disposition, it necessarily follows
that the evidence was also sufficient to convict him
of receiving stolen property.
Id. at 759-760.
- 10 -
J. S35012/16
Similarly, here, although no one actually saw appellant take anything,
he was alone in the kitchen, after hours, when Ms. Matthews observed the
cart laden with food outside the kitchen door. (Notes of testimony, 12/9/14
at 8-9.) Ms. Matthews told appellant he was not supposed to be there and
he should leave. (Id. at 11.) After appellant left, Ms. Matthews inspected
the kitchen to make sure it was empty, then clocked out and left. (Id.) At
that time, the cart was gone. (Id.)
In addition, appellant’s subsequent contacts with Ms. Matthews could
fairly be construed as consciousness of guilt. While appellant chooses to
characterize the phone call and text message to Ms. Matthews as relating to
his fear of being turned in for being in the kitchen after hours, the trial court,
as finder-of-fact, could make a reasonable inference that appellant was
afraid of being reported to police for stealing food. In fact, the trial court did
find that appellant’s comments to Ms. Matthews were evidence of
consciousness of guilt. (Trial court opinion, 6/24/15 at 6.)
Appellant argues that the food that was reported stolen was not found
in his apartment when police executed the search warrant. However, the
search warrant was not executed until May 7, 2014, nearly one week later.
(Notes of testimony, 12/9/14 at 30.) This was ample time to dispose of the
items. In addition, the stolen items included perishable foodstuffs such as
cheesesteaks, hot dogs, and sausage. (Id. at 8.) The fact that these items
- 11 -
J. S35012/16
were not recovered from appellant’s apartment nearly one week later is not
persuasive of appellant’s innocence.
Furthermore, although he was found not guilty of the charges at
CP-51-CR-0006003-2014, the trial court was free to consider the testimony
that additional items, including commercial kitchen utensils matching the
brand used by Bon Appétit, were recovered from appellant’s apartment.
(Notes of testimony, 12/9/14 at 21-22.) Appellant also admitted to
Tilghman in February or March 2014 that he had stolen things from
Bon Appétit. (Id. at 32-33.) While this evidence did not relate specifically
to the May 1, 2014 theft, it was admissible under Pa.R.E. 404(b) as evidence
of a common plan, scheme, or design. In addition, on sufficiency review,
this court reviews all evidence actually received, without regard to
admissibility. Examining the totality of the evidence, in the light most
favorable to the Commonwealth, together with all reasonable inferences, it
was clearly sufficient to meet all the elements of the crimes charged.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
- 12 -
J. S35012/16
- 13 -