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HomeMy WebLinkAbout97-2069 98-0767 criminal appeal3. S86034/99 COMMONWEALTH OF PENNSYLVANIA, : Appellee : : V, : : GLORIA JEAN BRANDT, : Appellant : IN THE SUPERIOR COURT OF PEN NSYLVANIA No. 245 MDA 1999 Appeal from the 3udgment of sentence dated January 12, 1999, in the Court of Common Pleas of Cumberland County, Criminal, at Nos. 97-2069 and 98-0767. JUDGMENF oH CONZ~}~dTtOH W~,~O~r, it ts now here ordered and adjudged by thts Court that the judgment of the Court of Common Pleas of Cumberland Cottltty be, and the same ts hereby Affirmed. D~: February 4. 2000 BY TIlE COURT: 3. S86034/99 COMMONWEALTH OF PENNSYLVANIA, Appellee V. GLORIA 3EAN BRANDT, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 245 MDA 1999 Appeal from the 3udgment of sentence dated 3anuary 12, 1999, in the Court of Common Pleas of Cumberland County, Criminal, at Nos. 97-2069 and 98-0767. BEFORE: HUDOCK, LALLY-GREEN and TAMILIA, 33. MEMORANDUM' ~ ! L I~ 0 F.rB 0 4 2000 This is an appeal from the judgment of sentence imposed after AppeHant's convictions at a non-jury trial~ At docket number 97-2069, the court found Appellant guilty of theft by unlawfu~ taking~ and attempted theft by unlavvfu~ taking2 and sentenced her to pay the costs of prosecution and to make restitution in the amount of $8,200.00 to Chubb Insurance and $500.00 to Linda Mumma. At docket number 98-0767, the court found Appellant guilty of theft by un~awfu~ taking3 and sentenced her to pay the costs of prosecution, to make restitution in the amount of $28,949.00 to Chubb Insurance and $500.00 to Barbara Mumma, and to undergo imprisonment in the Cumberland County Prison for a term of not ~ess than ~ 18 Pa.C.S.A. § 3921(a). 2 18 Pa.C.S.A. §§ 901, 3921(a). 3 18 Pa.C.S.A. § 3921(a). 3, S86034/99 six months or more than twenty-three months. This timely appeal followed. We affirm. Viewing the evidence in the case in the light most favorable to the Commonwealth, the trial court summarized the facts of the case in its opinion as follows: [Appellant] worked as a housekeeper in the homes of Barbara Mumma and her daughter Linda Mumma. As of May 5, 1997, [Appellant] had been a housekeeper for Barbara Mumma for thirteen years and for Linda Mumma for three months. On May 5, 1997, while [Appellant] was working at the home of Linda Mumma, Mumma saw [Appellant] with a trash bag that was fairly full. She went .to help her with the bag and [Appellant] pushed her away. Mumma had [Appellant] put the trash bag in a container in the garage. After [Appellant] left for the day, Mumma looked into the container and found some of her sterling silver in the trash bag. [Appellant] had been polishing Mumma's silver that day. Mumma called the police who had her inventory her possessions in the house. The inventory resulted in her discovering other similar types of property that were missing that were never recovered. [Appellant] had access to Linda Mumma's house by a combination lock. There had been no forced entry into the house. Barbara Mumma was in Florida on May 5, 1997. Linda Mumma[] called her to tell her about the incident that day involving [Appellant].[4] [Appellant], who had access to Barbara Mumma's house, had continued to do housework there when Mumma was in Florida. Barbara Mumma immediately returned home and discovered that property was missing from her house. There had been no forced entry. Mumma retained a private detective to whom [Appellant] gave a written statement admitting that she had stolen items from the house. Harry Donson, who buys and sells precious metals, testified that he purchased some 4 Linda Mumma actually called her sister Barbara, who then called their mother in Florida. -2- 3. S86034/99 silverware and some Cartier lighters from [Appellant]. He further testified that [Appellant] told him that the items had been given to her. Some of Barbara Mumma's property that [Appellant]' sold to Donson was recovered from him. Donson testified that he had melted some of the other property that [Appellant] sold him for its silver. Barbara Mumma identified the property pUrchased by Donson from [Appellant] as property that was stolen from her home. A Cartier watch, whiskey container and glass tea set that Barbara Mumma identified as hers were discovered in [Appellant's] home in Carlisle. [Appellant] testified at trial and admitted she stole those items and some silverware and cigarette lighters from the home of Barbara Mumma. Trial Court Opinion, 2/25/99, at 2-3 (footnotes omitted). Additionally, the evidence establishes that only Appellant and Barbara Mumma had keys to Barbara Mumma's house. When Barbara Mumma returned from Florida, she found that thirty-one boxes in which she had stored some of her belongings had been emptied and Strewn around the basement She produced a list of missing items, which she claimed had a total value of $218,298.00. The list was admitted into evidence, and Appellant's counsel cross-examined Barbara Mumma extensively regarding items on the list. The incident invOlving the silver hidden in the garbage bag at Linda Mumma's home formed the basis for Appellant's attempted theft conviction at docket number 97-2069, and the inventory of missing items prepared by Linda Mumma formed the basis for the theft conviction at that number. The case at docket number 98-0767 concerned the thefts from Barbara Mumma's home. -3- 3. S86034/99 Appellant is challenging only her theft convictions on appeal; she raises no claims concerning her conviction for attempted theft. With respect to the theft conviction at number 98-0767, she asserts that the evidence was insufficient to prove that she stole anything beyond the items that were recovered from her home and from Donson. She also asserts that the restitution order was not supported by the record. With respect to the theft conviction at number 97-2069, she asserts that the evidence was insufficient to prove that she actually stole anything, and she further asserts that the restitution order was not supported by the record. When considering a challenge to the sufficiency of the evidence, we are bound by the following standard of review. In determining whether the Commonwealth has met its burden of proof, the test to be applied is: [w]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. 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) (quoting Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992)), appeal denied, 555 Pa. 740, 725 A.2d 1218 (1998). -4- 3. S86034/99 Theft by unlawful taking or disposition is defined by section 3921 of the Crimes Code. That section provides in relevant part, "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). Regarding orders of restitution, this Court recently stated: Restitution may be imposed only for those crimes to property or person where the victim suffered a loss that flows from the conduct that forms the basis of the crime for which the defendant is held criminally accountable. Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702,. 705 (1992). In computing the amount of restitution, the court "[s]hall consider the extent of injury suffered by the victim and such other matters as it deems appropriate." 18 Pa.C.S.A. § 1106(c)(2)(i). "Because restitution is a sentence, the amount ordered must be supported by the record; it may not be speculative or excessive." Commonwealth v. Reed, 374 Pa. Super. 510, 543 A.2d 587, 589 (1988). The amount of a restitution order is limited by the loss or damages sustained as a direct result of defendant's criminal conduct and by the amount supported by the record. Wright, 722 A.2d at 160. Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999). At number 98-0767, our review indicates that the evidence produced fits so closely together as to justify a finding beyond a reasonable doubt that Appellant stole items from Barbara Mumma beyond those that were recovered. Thirty-one boxes located in Barbara Mumma's basement were emptied while she was in Florida and items that had been stored in those boxes were missing. Appellant was the only person with access to the house while Barbara Mumma was away and there were no signs of forced entry. -5- J. S86034/99 Thus, we conclude that.the evidence was sufficient to prove that Appellant stole items from Barbara Mumma beyond those that were recovered. Appellant's various arguments against that conclusion amount to attacks on the credibility of Barbara Mumma's testimony. Credibility determinations are the province of the trier of fact, George, 705 A.2d at 918, and we will not second-guess those determinations on appeal. As for the $29,449.00 restitution order at number 98-0767, we find that the record supports the amount ordered. Barbara Mumma prepared a list of stolen items and their estimated values, and the list was admitted into evidence. She also testified at trial regarding a number of items on that list. She estimated that the total value of the items was $218,298.00. Appellant argues that more evidence was needed. We disagree. The owner of stolen property is permitted to testify as to its value in criminal cases. Commonwealth v. Warlow, 346 A.2d 826, 829 (Pa. Super. 1975). The weight to be accorded that testimony is for the trier of fact. _Zd. Appellant, in effect, challenges the trial court's credibility determination, which we are not free to second guess on appeal. George, 705 A.2d at 918. In addition, the trial court based the restitution award to Chubb on the amount Chubb paid, and a trial court may rely on the amount of insurance recovered in determining restitution. Commonwealth v. Dublinski, 695 A.2d 827, 829 n.2 (Pa. Super. 1997). -6- ]. S86034/99 Appellant's theft conviction at number 97-2069 was based entirely on circumstantial evidence. After Linda Mumma caught Appellant attempting to sneak some silver from her home in a garbage bag, Linda Mumma searched her home and found' a number of items missing. Appellant had been in Linda Mumma's home on seven or eight occasions over three months working as a housekeeper. Appellant also had access to Linda Mumma's home by a combination lock. There had been no break-ins at Linda Mumma's home. The evidence also showed that Appellant had stolen numerous items from the home of Linda's mother, Barbara Mumma, who also employed Appellant as a housekeeper. The evidence showed that Appellant had access to the items reported stolen and that she had a common scheme or plan of stealing from her employers. See Commonwealth v. Rush, 538 Pa. 104, 112, 646 A.2d 557, 560 (1994). We conclude that these circumstances establish Appellant's guilt beyond a reasonable doubt. At number 97-2069, the trial court based the restitution award to Chubb on the amount Chubb paid, and a trial court may rely on the amount of insurance recovered in determining restitution. DublinSki, 695 A.2d at 829 n.2. The discrepancy between Linda IVlumma's valuation and Chubb's valuation was a credibility issue for the trial court, and we will not second- guess the trial court's determination on appeal. George, 705 A.2d at 918. Judgment of sentence affirmed. -7-