Com. v. Winston, L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LAKEIA K. WINSTON, No. 1691 EDA 2018
Appellant
Appeal from the Judgment of Sentence, May 21, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006697-2017
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2019
Lakeia K. Winston appeals from the May 21, 2018 judgment of sentence
entered by the Court of Common Pleas of Philadelphia County following her
conviction of theft by unlawful taking and receiving stolen property.' After
careful review, we affirm in part and vacate in part.
The trial court provided the following synopsis of the relevant factual
and procedural history:
In April of 2017, Sharonda Adams, the complaining
witness, kept $10,000.00 in cash inside a lock box,
which she kept hidden inside her bedroom closet.
Ms. Adams managed to save this amount of money
from the two (2) positions of employment she
maintained and also from a financial refund she had
received [from] Walden University. Ms. Adams' bank
statement and an email correspondence from Walden
University corroborate her testimony. In April of
' 18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
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2017, Ms. Adams had two (2) keys to her lock box.
She kept both keys to her lock box on the same
keychain which she used for the key to her vehicle.
Approximately one (1) week before April 6, 2017,
Ms. Adams allowed [a]ppellant, [appellant's] mother,
and [a]ppellant's two (2) minor children to move in to
Ms. Adams' residence. The only persons residing with
Ms. Adams prior to the move -in were Ms. Adams'
three (3) minor children. On April 6, 2017, Ms. Adams
visually confirmed that the $10,000.00 in cash was
inside her lock box. On April 7, 2017, Ms. Adams lent
the use of her vehicle to [a]ppellant and provided her
with access to the keychain which contained both keys
to the lock box. On April 8, 2017, Ms. Adams left the
house for a social outing. The only people present in
Ms. Adams' home during her absence were
[a]ppellant, [appellant's] mother, [a]ppellant's
children and Ms. Adams' children. On April 9, 2017,
Ms. Adams noticed that the contents of her closet had
been rummaged through. She opened her lock box
and discovered that the $10,000.00 in cash was
missing. Ms. Adams also discovered that one (1) of
the keys to her lock box was missing from her keyring
as well. Ms. Adams suspected [a]ppellant as the
person responsible and called her on the phone.
Appellant's mother, Rhonda Winston, answered
[a]ppellant's cell phone, and Ms. Adams informed her
that she discovered that her $10,000.00 was missing.
On April 10, [2017], Ms. Adams went to the police
station to file a report regarding the stolen money.
Ms. Adams indicated to the detective that although
she had not seen who stole the money from her lock
box, the only other person who had access to the keys
to the lock box was [a]ppellant. Prior to the theft of
the $10,000.00, Ms. Adams had informed [a]ppellant
that Ms. Adams was saving the money to purchase a
new vehicle. Text messages between [a]ppellant and
Ms. Adams corroborate that [a]ppellant was aware
Ms. Adams was saving money to purchase a new
vehicle.
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After filing the report with the police, Ms. Adams
returned home to find that [a]ppellant, [appellant's]
mother and children had abruptly vacated Ms. Adams'
residence, leaving behind their furniture and other
personal items. Appellant never provided any prior
notice that she was planning to move out from
Ms. Adams' residence.
On April 11, 2017, Ms. Adams observed [a]ppellant
operating a 2011 [Chevrolet] Equinox. Ms. Adams
knew [a]ppellant had not owned the vehicle prior to
the $10,000.00 in cash being stolen. After Ms. Adams
confronted her about the missing money, [a]ppellant
responded "If you think I ruined your life now, I'm
really going to ruin your life because you can't prove
it."
Ms. Adams never gave permission to [a]ppellant to
remove, take, borrow or spend the $10,000.00 in
cash.
Appellant and her mother purchased a 2011
[Chevrolet] Equinox on April 10, 2017. Appellant
placed a down payment of $3,500.00 in cash and
financed the balance of the purchase price, which was
$14,073.00. In the application to purchase the
vehicle, [a]ppellant knowingly produced a false
address to the finance company.
Although [a]ppellant has not been employed since
December 2016, she and her mother . . . claimed that
they were able to save the down payment of
$3,500.00 by withdrawing cash from [a]ppellant's
mother's SSI benefits account, which receives a . . .
$1,400.00 monthly payment. The SSI benefits
account was the only source of income for [a]ppellant,
her mother and [a]ppellant's two (2) children.
Appellant introduced account statements from her
mother's SSI benefits account in [an] effort to
corroborate her . . . testimony. . . .
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At the conclusion of the trial, [the trial court] entered
a verdict of guilty against [a]ppellant as to the
offenses of Theft [by unlawful taking] and Receiving
Stolen Property, both graded as a felony in the third
degree. On May 21, 2018, [the trial court] sentenced
[a]ppellant to four (4) years['] reporting probation on
each offense to run concurrent and ordered
[a]ppellant to remit $10,000.00 in restitution to the
complaining witness. Appellant filed a Motion to
Reconsider the verdict. On June 6, 2018, [the trial
court] denied [a]ppellant's Motion and specified that
the verdict was based on the credibility of the
witnesses. Subsequently, [a]ppellant filed timely this
instant appeal.
Trial court opinion, 8/1/18 at 2-5.
On June 18, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal. Appellant timely complied on
July 9, 2018. On August 1, 2018, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
[I.] Was the evidence insufficient to sustain a
conviction for theft and receiving stolen
property?
[II.] Did the [trial] court illegally sentence appellant
on theft and receiving stolen property where the
charges merged for sentencing purposes?
Appellant's brief at 3 (full capitalization omitted).
In her first issue, appellant contends that the Commonwealth failed to
introduce sufficient evidence to justify her convictions of theft by unlawful
taking and receiving stolen property. Specifically, appellant argues that the
Commonwealth failed to meet its burden because no one saw appellant take
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the $10,000 at issue and "there was ample time and opportunity for other
people to have taken the money." (Id. at 10.)
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the record
"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. Widmer, [], 744 A.2d 745, 751
([Pa.] 2000). "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. Brewer, 876 A.2d 1029, 1032
(Pa.Super. 2005). Nevertheless, "the Commonwealth
need not establish guilt to a mathematical certainty."
Id.; see also Commonwealth v. Aguado, 760 A.2d
1181, 1185 (Pa.Super. 2000) ("[T]he facts and
circumstances established by the Commonwealth
need not be absolutely incompatible with the
defendant's innocence"). 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. See
Commonwealth v. DiStefano, 782 A.2d 574, 582
(Pa.Super. 2001).
The Commonwealth may sustain its burden by means
of wholly circumstantial evidence. See Brewer, 876
A.2d at 1032. Accordingly, "[t]he fact that the
evidence establishing a defendant's participation in a
crime is circumstantial does not preclude a conviction
where the evidence coupled with the reasonable
inferences drawn therefrom overcomes the
presumption of innocence." Id. (quoting
Commonwealth v. Murphy, 795 A.2d 1025, 1038-
1039 (Pa.Super. 2002)). Significantly, we may not
substitute our judgment for that of the fact finder;
thus, so long as the evidence adduced, accepted in
the light most favorable to the Commonwealth,
demonstrates the respective elements of a
defendant's crimes beyond a reasonable doubt, the
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appellant's convictions will be upheld. See Brewer,
876 A.2d at 1032.
Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa.Super. 2013), citing
Commonwealth v. Pettyjohn, 64 A.3d 1072, (Pa.Super. 2013) (citations
omitted).
In order for a conviction of theft by unlawful taking to be upheld, the
Commonwealth is required to prove beyond a reasonable doubt that the
defendant unlawfully took or exercised unlawful control over another person's
movable property with the intent to deprive the person of the movable
property. 18 Pa.C.S.A. § 3921(a), see, e.g., Commonwealth v. Robinson,
33 A.3d 89, 94-95 (Pa.Super. 2011), appeal denied, 42 A.3d 292 (Pa. 2012).
To obtain a conviction of receiving stolen property, the Commonwealth must
prove beyond a reasonable doubt that the defendant "intentionally receives,
retains, or disposes of movable property of another knowing that it has been
stolen, or believing that is has probably been stolen, unless the property is
received, retained, or disposed of with intent to restore it to the owner."
Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super. 2010), appeal
denied, 8 A.3d 898 (Pa. 2010), citing 18 Pa.C.S.A. § 3925(a); quoting
Commonwealth v. Galvin, 985 A.2d 783, 792 (Pa. 2009).
Here, after viewing the evidence presented at trial in a light most
favorable to the Commonwealth, as verdict winner, we find that the
Commonwealth presented sufficient evidence to justify convictions of both
theft by unlawful taking and receiving stolen property. Indeed, the
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Commonwealth's evidence established that Ms. Adams kept the two keys to
her lock box on her keyring, along with keys to her residence, car, and other
keys. (Notes of testimony, 3/5/18 at 14, 23.) On April 7, 2016, Ms. Adams
gave the keyring to appellant so appellant could use Ms. Adams' car. (Id. at
22-23.) As noted by the trial court, appellant "subsequently had the
opportunity to locate and remove the cash from the lock box on April 8, 2017
when Ms. Adams left [a]ppellant and her mother alone in the house with their
minor children." (Trial court opinion, 8/1/18 at 6; see also notes of
testimony, 3/5/18 at 23.) The evidence further reflects that appellant
implicitly admitted to Ms. Adams that she stole the $10,000 when confronted
by Ms. Adams.2 (Notes of testimony, 3/5/18 at 33-34.) Finally, when
confronted by Ms. Adams, we find that the Commonwealth established that
appellant implicitly expressed an intent to permanently deprive Ms. Adams of
her property when appellant stated to Ms. Adams: "If you think I ruined your
life now, I'm really going to ruin your life because you can't prove it." (Id. at
33-34.)
Accordingly, we find that the Commonwealth has produced sufficient
evidence to justify convictions for theft by unlawful taking and receiving stolen
property. Appellant's first issue is without merit.
2 The record reflects that when Ms. Adams asked appellant why she took her
money, appellant said, "Bitch, you can't prove it." (Id. at 33-34.)
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In her second issue, appellant argues that the trial court imposed an
illegal sentence because her convictions merge for sentencing purposes.
(Appellant's brief at 16.) The Commonwealth agrees, stating that both of
appellant's convictions "arose from the single criminal act of taking Ms. Adams
$10,000 out of her lock box." (Commonwealth's brief at 14.)
We preliminarily note that appellant failed to include this issue in her
Rule 1925(b) statement. Our supreme court has held that cases involving
merger of convictions for sentencing purposes implicate the legality of the
sentence. Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011), citing
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Issues
implicating the legality of sentence are nonwaivable on appellate review;
therefore, we will consider appellant's second issue on its merits. See
Commonwealth v. Eisenberg, 98 A.3d 1268, 1278 n.11 (Pa. 2014), citing
Foster, 17 A.3d at 345.
Our cases have consistently held that convictions for theft by unlawful
taking and receiving stolen property merge for sentencing purposes.
Commonwealth v. Young, 35 A.3d 54, 63 (Pa.Super. 2011), appeal
denied, 48 A.3d 1249 (Pa. 2012); Commonwealth v. Wilson, 458 A.2d
244, 245-246 (Pa.Super. 1983). Here, the trial court imposed two concurrent
sentences of four years' probation. (Notes of testimony, 5/21/18 at 22.)
Because the two convictions merge for sentencing purposes, we vacate the
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judgment of sentence for receiving stolen property, while affirming the
conviction.
Because the two sentences were concurrent, we need not remand for
re -sentencing, as our conclusion does not upset the trial court's overall
sentencing scheme of four years' probation. See Commonwealth v.
Martinez, 153 A.3d 1025, 1033 (Pa.Super. 2016); Commonwealth v. Thur,
906 A.2d 552, 570 (Pa.Super. 2006), appeal denied, 946 A.2d 687 (Pa.
2008). We affirm all other aspects of appellant's judgment of sentence.
Judgment of sentence for theft by unlawful taking affirmed. Judgment
of sentence for receiving stolen property vacated. Convictions affirmed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 7/15/19
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