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HomeMy WebLinkAboutCP-21-CR-1603-2003COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: THEFT BY UNLAWFUL TAKING OR DISPOSITION BRENDA LEE KLEINFELTER OTN: L159273-2 CP-21-CR-1603-2003 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., August 27, 2004. In this criminal case, Defendant was found guilty by a jury of Theft by Unlawful Taking or Disposition, a misdemeanor of the second degree. ~ Defendant was sentenced to pay the costs of prosecution, make restitution to the victim in the amount of $125.00, and undergo a twenty-three month period of supervised probation.2 From the judgment of sentence, Defendant has filed an appeal to the Pennsylvania Superior Court.3 The sole issue being pursued on appeal is expressed by Defendant in a statement of matters complained of on appeal as follows: The evidence presented at trial was not sufficient for a conviction on the charge of Theft by Unlawful Taking or Disposition. The owner of the candy store [from which the theft occurred] did not see Defendant in the store behind the counter, where money was kept. The owner of the store went to a bank inside the mall. She left the store with the gate unlocked and partially closed. A second witness saw Defendant at the gate to the store, but did not see Defendant behind the counter in the store, where the money was kept.4 Act of December 6, 1972, P.L. 1482, § 1, as amended, 18 Pa. C.S.A. §3921 (a). Order of Court, dated June 29, 2004. Notice of Appeal, filed July 13, 2004. Defendant's Concise Statement of Matters Complained of on Appeal, filed July 28, 2004. This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS At trial, three witnesses testified on behalf of the Commonwealth and Defendant testified on her own behalf. Their testimony may be summarized as follows: Testimony of Pamala Mummert. Pamala Mummert,5 the owner of a confectionary shop known as the Candy Chateau,6 arrived at her store7 at approximately 8:00 a.m.8 on Wednesday, June 4, 2003.9 Ms. Mummert's store was located adjacent to the Boscov's department store in the interior of the Camp Hill Shopping Mall,l° in the Borough of Camp Hill, Cumberland County, Pennsylvania. ~ As was her usual routine when opening the store,~2 Ms. Mummert accounted for the money received on the previous day, prepared a bank deposit, and stocked two cash registers and a separate drawer which held proceeds from lottery ticket sales.~3 It was Ms. Mummert's practice to stock each of the cash registers with $75.00 in assorted bills and coins and the lottery cash drawer with $150.00 in assorted bills.TM 5 Notes of Testimony, Trial, May 10, 2004, at 10 [hereinafter N.T.j. 6 lc/. Ms. Mummert had owned the store for approximately twelve years. N.T. 11. She testified that the routine she employed during those twelve years did not vary. N.T. 20, 34. 7 N.T. 20. 8N.T. 18. 9 N.T. 20. ~° N.T. 11. ~ N.T. 46. ~2 N.T. 20; see also supra note 6 and accompanying text. ~ N.T. 20-21. Ms. Mummert testified that lottery rules require that a vendor of lottery tickets keep lottery proceeds "completely separate" from other proceeds. N.T. 20. 14 N.T. 22-23. 2 Every other week,~5 a delivery person from the Weaver Nut Company~6 would deliver candy and nuts to Ms. Mummert's shop between 9:00 and 9:15 a.m.~7 That person was usually Defendant,la Brenda Lee Kleinfelter,~9 who had worked as a delivery person for the Weaver Nut Company for approximately one year.2° During the course of the deliveries to the store, Defendant would enter the area of the store behind the counter by way of its sole entrance, which was opened and closed by the manipulation of a section of the counter.2~ A person who thus proceeded behind the counter of the store would have a clear view of the lottery cash drawer.22 On the day in question, because the delivery person had not yet arrived,23 Ms. Mummert exited the shop24 at approximately 9:50 a.m.25 with her deposit.26 In doing so, she closed a metal gate27 used to secure the premises, to within four inches of complete closure,28 and proceeded to a bank29 within the mall.3° The bank was situated approximately three minutes away by foot.3~ ~5 N.T. 17. 16 N.T. 14. ~7 N.T. 17. 19 N.T. 20 N.T. 2~ N.T. 22 N.T. 23 N.T. 24 N.T. 25 N.T. 26 Id. 27 N.T. 24. 28 N.T. 37. 29 N.T. 24. 30 N.T. 27. 14. 14, 16-17, 36. 14-17. 16; see Commonwealth's Exhibit 5, Trial, May 10, 2004. 30. 22-23. 23. 3~ N.T. 28. Ms. Mummert testified that her store opened at 10:00 a.m.N.T. 23. 3 After conducting her business at the bank,32 Ms. Mummert returned to her store at approximately 10:00 a.m.33 to find Defendant34 waiting with about eight boxes35 of delivery items on a hand-truck.36 Ms. Mummert then opened the gate and she and Defendant brought the delivery items into the store, where they were 37 put away. Defendant had been behind the counter of the Candy Chateau on numerous occasions in the course of assisting Ms. Mummert in stocking the delivery items, and, from that vantage point, as indicated above, had a view of where the lottery cash drawer was located.38 This particular day was the only day in which she had not been present at the store when Defendant arrived with a delivery.39 Additionally, Defendant had not been given permission to deliver goods behind the gate or counter in Ms. Mummert's absence,4° and Defendant had not previously been permitted to be alone behind the counter.4~ In accordance with past practice,42 Ms. Mummert paid for the delivered items with a check43 and received a receipt in return.44 After receiving the check and issuing a receipt, Defendant departed.45 32 N.T. 24. 33 N.T. 29. 34 Ms. Mummert identified Defendant at the trial. N.T. 39. 35 N.T. 79. 36 N.T. 28, 73, 76. 37 N.T. 29. 38 N.T. 16-17, 30-31; see also supra note 22 and accompanying text. 39 N.T. 30. 40 N.T. 38-39. 41 N.T. 36, 38-39. 42 N.T. 29. 43 Ms. Mummert testified that although the usual practice was that each would sign the receipt, on the date in question, Defendant did not sign the receipt. N.T. 29. It was the only time during their one-year acquaintanceship that the normal routine was not followed. N.T. 29-30. 4 Ms. Mummert discovered that money had been taken at approximately 10:10 46 a.m., when she was unable to make change for the first customer who purchased lottery tickets.47 After realizing that a theft had occurred from her lottery cash drawer, she counted the money in the two cash registers used for candy purchases, and found no money missing.48 She found that $125.00 was missing from the lottery cash drawer.49 Ms. Mummert then immediately contacted mall security, as well as the Camp Hill Borough Police,so and reported the crime,s~ Approximately thirty minutes after leaving the stare,s2 and approximately twenty minutes after Ms. Mummert had determined that money was missing,s3 Defendant called the Candy Chateau on the telephone, asked Ms. Mummert if "everything was ak,''s4 and inquired as to whether Ms. Mummert had found a certain receipt which Defendant said she might have left in the store from an earlier delivery,ss Ms. Mummert responded that she had not found any such receipt and asked if Defendant "knew about [her] maney.''s6 Defendant indicated to Ms. Mummert that she did not "know anything about it.''sT With respect to the area between the counter and the gate of her store, Ms. Mummert testified that, based upon the actual size of the boxes delivered, and the 45 N.T. 31. 46 N.T. 32. 47 J[d. 48 See N.T. 32-33. 49 N.T. 32-33, 37. 50 N.T. 33. 52 N.T. 31. 53 See id. 54 N.T. 67-68. 55 N.T. 31, 67, 75-76. 56 N.T. 31. 5'/I'd. approximately one-foot wide area between the gate and the counter, this narrow area could not physically accommodate the boxes.58 Testimony of Vicki Louise Rechel. Vicki Louise Rechel,59 one of the regular lottery ticket customers of the Candy Chateau,® arrived at the mall at approximately 9:20 a.m.6~ on the date in question.62 Ms. Rechel initially proceeded to a Barnes and Noble bookstore, where she browsed among the books, then stopped at a restroom.63 Eventually Ms. Rechel proceeded to an area near the entrance to the Boscov's department store, where she waited for its 10:00 a.m. opening.64 At 9:35 a.m.,6~ Ms. Rechel was standing so as to be facing Boscov's, with the Candy Chateau a short distance66 to the left,67 and she remained there until Boscov's opened.68 Upon her arrival at that location, she observed the owner,69 Ms. Mummert, behind the counter at the store7° with the gate closed.TM She did not notice the 58 N.T. 82. 59 N.T. 46. 60 N.T. 53, 57. 61 N.T. 48, 54. 62 See N.T. 46. 63 N.T. 48. 64 N.T. 46, 48. 65 N.T. 48, 55. 66 Although Ms. Rechel testified that she was approximately thirty-five yards away from the Candy Chateau, her sense of distance was somewhat inaccurate, as reflected by her testimony that a swimming pool is typically five yards long. N.T. 48-49. The Commonwealth was, however, able to demonstrate her approximate distance from the Candy Chateau on the date in question by asking Ms. Rechel to direct the assistant district attorney to stop when he had reached the approximate distance from the witness stand which correlated to her distance from the Candy Chateau. N.T. 49. Ms. Rechel directed the assistant district attorney to stop when he was situated approximately 20-25 feet away from the witness stand. N.T. 49. 67 N.T. 47. 68 N.T. 48, 55. 69 Ms. Rechel testified she has been a patron at the store on previous occasions and recognized the owner but did know her personally. N.T. 53, 57. She also testified that she knew the store had other employees, but she did not see any on the date in question. N.T. 53. 6 owner leave the store;TM however, she did see an unfamiliar individual,73 who she identified as Defendant,TM opening the gate.75 When Boscov's opened at 10:00 a.m., and before she entered the department store, she noticed that the owner, Ms. Mummert, had returned to the Candy Chateau.76 After spending approximately twenty minutes77 in the Boscov's store, Ms. Rechel went to the Candy Chateau in order to purchase lottery tickets.78 By that 79 time, officers had arrived at the crime scene. Testimony of Officer Lane Pryor. Officer Lane Pryor,8° of the Camp Hill Borough Police Department,8~ was one of the officers who reported to the Candy Chateau that morning to investigate the reported theft.82 During the course of his investigation,83 he spoke with both Ms. Mummert and Ms. Rechel.84 He also conducted an interview with Defendant at the Camp Hill Borough Police Station on June 5, 2003.85 During the course of that interview, Defendant confirmed her 7o N.T. 52, 55-56. 71 N.T. 56. 72 N.T. 52, 56. 73 N.T. 52. 74 N.T. 51, 58. 75 N.T. 49-51, 54, 58. Ms. Rechel testified that she heard the sound of the gate being opened on three occasions; however, she did not see the Defendant behind the counter, according to her testimony. N.T. 51-52. She also testified that she did not see anyone else behind the counter or in the area of the store, other than the Defendant, between 9:35 a.m. and 10:00 a.m.N.T. 53. 76 N.T. 54. 77 N.T. 59. 78 N.T. 58. 80 N.T. 60. 83 84 Id. 85 N.T. 65. 7 presence at the Candy Chateau the previous morning, stating that she had arrived at the store around 9:30 a.m. to find it unattended,a6 During the interview, she claimed to have been given prior permission by Ms. Mummert to go behind the gate and place delivery items there in Ms. Mummert's absence,a7 and that she had done so on previous occasions,aa She stated to Officer Pryor that, upon her arrival, the gate was closed, but not locked,a9 Defendant indicated to Officer Pryor that she had opened the gate of the store, placed the delivery items between the gate9° and store counter9~ and, thereafter, closed the gate.92 Shortly after closing the gate, according to Defendant's statement to the officer, she became concerned that she might be blamed for something she did not do,93 as a consequence of which she reopened the gate, removed the delivery items from the store and closed the gate.94 Defendant told Officer Pryor that she then waited outside the store for Ms. Mummert to return.95 With respect to the telephone call placed by Defendant to Ms. Mummert96 97 approximately thirty minutes after Defendant made the delivery to the store, 86 N.T. 66. 87 N.T. 70. 88 N.T. 66. On direct examination, however, Defendant testified that June 4, 2003, was the only occasion in the one-year period during which she delivered to Ms. Mummert's store where she had arrived to find the store unattended. N.T. 75. 89 N.T. 66. On direct examination, Defendant testified the gate was open upon her arrival. N.T. 73, 77. 90 N.T. 70. 91 N.T. 69-70. 92 See N.T. 67. 93 N.T. 67. 94 96 Officer Pryor testified that the call had been placed from Defendant's cell phone. /d. 97 N.T. 31, 83. Officer Pryar asked Defendant why she had not called the previous stare98 to inquire if it was in possession of the allegedly missing receipt.99 In response, Defendant indicated that she had wanted to make sure that "everything was okay" at the Candy Chateau.~°° When asked by Officer Pryar who Defendant thought might have stolen the money, Defendant responded that he should interview everyone at the mall, and she blamed the theft entirely on Ms. Mummert for her failure to lock the gate. ~0~ Testimony of Defendant. Defendant testified that, when she arrived at the store on the date in question, the owner was absent and the gate was open by approximately three feet. ~02 She stated she had been given prior permission by the owner to deliver items in the owner's absence and had done so on that particular day.~°3 With respect to the delivery items, she testified that she had opened the gate one time,~°4 placed the items between the counter and gate and then closed the gate. lo5 Defendant testified that she did not remove the items from between the gate and counter once she placed them there. ~06 Once the owner returned, Defendant helped the owner stock the items.~°7 Defendant maintained that this was the first time that she had been behind the counter of the stare.~°8 Defendant testified that the day in question was the only 98 The store was a candy store located in Strawberry Square, in Harrisburg. N.T. 67. 99 N.T. 67-68. 100 ~d. ~o~ N.T. 68. ~o2 N.T. 72-73, 77. ~o3 N.T. 73. ~o4 N.T. 79. ~o5 N.T. 73. los N.T. 75. ~o7 N.T. 74. ~o8 N.T. 74, 77. 9 day in which Ms. Mummert had not been present at the store when Defendant arrived with a delivery. ~09 DISCUSSION Statement of the Law Test for Sufficiency of the Evidence. In an evaluation of the sufficiency of the evidence presented at trial, the proper test is "whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984)). The trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). On a challenge to the sufficiency of evidence in a criminal case, the evidence is to be viewed "in the light most favorable to the Commonwealth" and "all reasonable inferences in the Commonwealth's favor" are to be entertained. Jones, 449 Pa. Super. at 61, 672 A.2d at 1354 (quoting Carter, 329 Pa. Super. at 495-96, 478 A.2d at 1288). Circumstantial Evidence. In a criminal case, "[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Cunningham, 2002 PA Super. 249, ¶ 5, 805 A.2d 566, 571, allocatur denied, 573 Pa. 663, 820 A.2d 703 (2003). Indeed, as once observed by Henry David Thoreau, "[s]ome circumstantial evidence is very strong, as when you find a trout in the milk." Thoreau, Journal (November 11, 1854). 109 N.T. 75. 10 Theft by Unlawful Taking or Disposition. Section 3921(a) Pennsylvania Crimes Code provides, in pertinent part, as follows: 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.~° of the Application of Law to Facts In the present case, if the evidence is viewed in the light most favorable to the Commonwealth, and if all reasonable inferences are drawn in its favor, a number of factors can be cited in support of the jury' s finding that Defendant was the perpetrator of the theft from the candy shop. These included evidence tending to show the following: (1) Defendant's prior familiarity with the victim's practice of keeping cash drawers upon the premises;TM (2) her prior knowledge as to the non-public area of the premises in which they were kept;~ ~2 (3) her presence at the scene of the crime within the brief period during which it occurred;~3 (4) the absence of other persons at the scene;TM (5) her unauthorized entry into the non- public area where the crime occurred;~5 and (6) the suggestion of a consciousness of guilt arising out of her pretextual call to the owner shortly after the crime;~6 and her purported withdrawal from the interior of the shop to avoid any appearance of wrongdoing. ~7 In addition, the verdict was supported by the adverse effect upon Defendant's credibility arising out of: (1) her prior statement to Officer Pryor that n0 Act of December 6, 1972, P.L. 1482, § 1, as amended, 18 Pa. C.S.A. §3921(a). n~ SeeN.T. 14, 16-18, 30-31. n2 N.T. 16-18, 30-31. n3 N.T. 28, 50, 66-67, 72. 114 N.T. 23, 52-53, 72. n5 N.T. 73. Whether the Defendant went behind the counter or simply placed the delivery items behind the gate was one of the issues in contention which was resolved in the Commonwealth's favor; however, both are non-public areas when the gate is closed. n6 N.T. 31, 67-68. n7 N.T. 67. 11 she had made deliveries in the past to the store in the owner's absence, which was inconsistent with her trial testimony that she had never before arrived at the store while the owner was not in attendance;~8 (2) the conflict between her prior statement that she had been given permission to enter the premises in the owner's absence and the owner's testimony to the contrary;~m (3) the conflict between her trial testimony that she had put the delivery items between the gate and counter, and the owner's testimony that, because of the size of the delivery boxes and the limited space between the counter and gate, this would have been impossible;~2° and (4) the conflict between her initial statement to Officer Pryor about removing the delivery items to avoid the appearance of wrongdoing and her contradictory testimony denying those actions. TM In the present case, although the evidence against Defendant was largely circumstantial in nature, the court is of the view that the evidence, as recounted above, was more than sufficient to support a finding of Defendant's guilt of the crime charged beyond a reasonable doubt. The court is, therefore, of the belief the judgment of sentence appealed from was properly entered in this case. BY THE COURT, J. Wesley Oler, Jr., J. Geoffrey S. Mclnroy, Esquire Assistant District Attorney ~8 Compare N.T. 66 with 75; see also supra note 88 and accompanying text. ~9 Compare N.T. 66, 73 with 38-39, 83. ~2o Compare N.T. 69-70, 73 with 82-85. ~:~ Compare N.T. 67 with 75. 12 Aria M. Waller, Esquire Assistant Public Defender 13