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HomeMy WebLinkAbout98-0321 criminalCOMMONWEALTH JOSHUA WAYNE MCCLEARN IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 98-0321 CRIMINAL TERM OPINION PURSUANT TO PENNSYLVANIA RULF: OF APPELLATE PROCEDURE 1925 Bayley, J. January 29, 1999:-- Following a bench trial, defendant was found guilty of five counts of theft, four of which are felonies in the third degree and one which is a misdemeanor in the first degree.~ On September 29, 1998, defendant was sentenced on one count of theft to pay the costs of prosecution, undergo imprisonment in the Cumberland County Prison for not less than eleven and a half nor more than twenty-three months, and to make restitution in the amount of $4,471.2 On the other four counts of theft, defendant was sentenced to pay the costs of prosecution and make restitution respectively of $3,420, $2,350, $3,920, and $699.95. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, he alleges that the evidence of the Commonwealth, even if accepted as true, was insufficient to sustain his convictions. In his brief in support of the concise statement, defendant maintains that the evidence was insufficient only on three of the five counts 1. Defendant was found not guilty on one count of theft. 2. The sentence of imprisonment was made consecutive to a sentence that defendant was then serving. 98-0321 CRIMINAL TERM of theft. In evaluating a challenge to the sufficiency of the evidence, we are to view all of the evidence admitted at trial in the light most favorable to the verdict winner, along with any reasonable inferences to be drawn therefrom. We must then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Nicotra, 425 Pa. Super. 600 (1993). The facts and circumstances presented at trial need not preclude every possibility of innocence. Id. It is within the province of the fact-finder to pass upon the credibility of evidence. The fact-finder is free to believe all, part, or none of the testimony. Commonwealth v. Spencer, 432 Pa. Super. 631 (1994). In the case sub judice, the evidence in a light most favorable to the Commonwealth was as follows.3 The thefts of computer and related equipment from Gannett Fleming, Inc., in Camp Hill, Cumberland County, occurred during (1) the weekend of August 15-17, 1997, (2) the weekend of September 5-7, 1997, (3) the weekend of October 3-6, 1997, (4) the weekend of November 14-17, 1997, and (5) on Wednesday, November 19, 1997. The thefts in August, September and October all followed a similar pattern as to the type of equipment stolen and the location of the items stolen within the Gannett Fleming facility. The company then installed a video camera in a hallway outside of a locked equipment room and inside that room. 3. Commonwealth v. Reddix, 355 Pa. Super. 514 (1986). -2- 98-0321 CRIMINAL TERM Defendant, who was an employee of Gannett Fleming, Inc., was videotaped committing the two thefts that occurred in November, 1997. Defendant does not now contest the sufficiency of the evidence, which included the videotapes, of the thefts during the weekend of November 14-17, 1997, and on November 19th. Rather, he maintains there was insufficient evidence to convict him to the thefts in August, September and October, 1997.4 All of the thefts at Gannett Fleming followed the same plan, design, scheme and modus operandi. Due to the secure nature of the Gannett Fleming facility, and the areas within the building where the thefts occurred, it was apparent that the thief was an employee. There were a limited number of employees in the facility during the weekends of August, September and October, 1997, when the first three thefts occurred. After the video camera was installed, defendant was observed committing the thefts on the weekend of November 14-17 and on November 19th, that were similar to the thefts that occurred in August, September and October. The Commonwealth produced time cards and time sheets that showed that defendant had been in the building when the thefts occurred in August, September and October, and that he repeatedly entered and exited the building during those times. Defendant told a police investigator after he was arrested following the thefts in November, during which he was videotaped, that despite having a good job, he was living on the 4. The one sentence of imprisonment that was imposed was for the theft that occurred during the weekend of August 15-17, 1997. -3- 98-0321 CRIMINAL TERM streets because he was drug dependent. Thus, defendant has a motive to steal. Given all these facts, and the reasonable inferences to be drawn therefrom, we are satisfied that the Commonwealth proved beyond a reasonable doubt that defendant committed all of the thefts of the computer and related equipment at Gannett Fleming from August through November, 1997. Mary-Jo Mullen, Esquire For the Commonwealth Austin Grogan, Esquire For Defendant Edgar B. Bayley, J.~ :saa -4-