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HomeMy WebLinkAbout93-0745 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAs OF : CUMBERLAND COUNTY PENNSYLVANIA : 745 CRIMINAL 1993 RAYMOND V. CALLAHAN : CHARGE: THEFT BY DECEPTION OTN: E210843-3 : : AFFIANT: PTL. JOSEPH ADAMS IN RE: DEFENDANT,S POST-VERDICT MOTION BEFORE OLER, J. QRDER OF COURT AND NOW, this 2~ t~ day of February, 1994, after careful consideration of Defendant,s post-verdict motion, the motion is DENIED· a presentence investigation report is ORDERED, and defendant is DIRECTED to appear for sentencing at the call of the District Attorney· BY THE COURT, J0 Wesley 01~ jr.~~-~. Jonathan R. Birbeck, Esq. Sr. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender Probation Office : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : 745 CRIMINAL 1993 : CHARGE: THEFT BY DECEPTION RAYMOND V. CALLAHAN : OTN: E210843-3 : AFFIANT: PTL. JOSEPH ADAMS IN RE: DEFENDANT'S POST-VERDICT MOTION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present criminal case arises out of a series of incidents which occurred from January 17, 1993, through April 13, 1993, in which Defendant allegedly stole $2096.22 from his employer.~ Following a bench trial on October 4, 1993, Defendant was found guilty of theft by deception in an amount exceeding $2000, a felony of the third degree.2 Defendant has now filed a post-verdict motion in arrest of judgment contending that the evidence was insufficient to sustain a conviction for a felony of the third degree since it was not established that an amount greater than $2000 was taken.3 For the reasons stated in this Opinion, the motion must be denied. Statement of facts. The evidence presented at trial, which was limited to testimony and exhibits introduced on behalf of the ~ Commonwealth v. Callahan, No. 745 Criminal 1993, October 4, 1993, N.T. 3, 31 (hereinafter N.T. ). 2 N.T. 88-89. Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S.A. ~3922; Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S.A. ~3903 (1993 Supp.). 3 Defendant's motion in arrest of judgment, paragraph 2. 745 Criminal 1993 Commonwealth, and one exhibit introduced on behalf of Defendant,4 tended to show the following: Defendant was employed in the stationery department of Boscov's department store in Camp Hill, Cumberland County, Pennsylvania.5 On several occasions during the period from January 17, 1993, through April 13, 1993, Defendant, in his capacity as "department manager of stationery records" at Boscov's, would create a fraudulent return of merchandise by a "phantom" customer. He would then create a fraudulent sale, purportedly to the same customer, using the merchandise credit slip which resulted from the previous return.6 The sale would be in an amount which was less than the merchandise credit, and Defendant would take the difference in cash from the register and pocket it.7 In other instances, Defendant would "void" a prior sale.to a customer and pocket the "refund.-e In two cases of fraudulent returns of merchandise, the merchandise credit slips created by the transactions were never actually redeemed, so that it can not be said that Defendant obtained more than the slips 4 Defendant presented no testimony at the conclusion of the Commonwealth's case; one defense exhibit was marked and admitted N.T. 38, 88. · s N.T. 6-7. 6 N.T. 11-17, 71-72. 7 N.T. 13-14, 71-72. e N.T. 50. 2 745 Criminal 1993 themselves.9 Douglas Biehl, an employee of Boscov's fraud control department, discovered the disproportionately large number of returns that were processed at the cash register in the stationery department where Defendant worked.~0 Mr. Biehl brought this to the attention of Dominic Murgido, assistant director of loss prevention for Boscov,s.~ Following further investigation, Mr. Murgido compiled a list of 33 questionable transactions conducted over the aforesaid period.~2 Mr. Murgido confronted Defendant at an interview on April 15, 1993, at which Mr. Murgido, Defendant, and Matthew Lucky, Boscov's security manager in Camp Hill, were present.~3 At this interview, Defendant signed a written statement admitting to the fraudulent- returns scheme and conceding that he defrauded Boscov's in the approximate amount of $2000.TM At trial, the Commonwealth introduced as Exhibit 2 the list compiled by Mr. Murgido.~5 The list is divided into six columns, N.T. 41-42. N.T. 64. N.T. 8. N.T. 10. N.T. 70. N.T. 71-72. N.T. 9-10, 88. 3 745 Criminal 1993 the first of which consists of numbers 1 through 33, representative of the 33 questionable transactions.~6 Successive columns show the dates of the transactions, the amounts of the fraudulent returns, the amounts of the fraudulent sales of "replacement" merchandise, the amounts of "voided" sales, and the net amounts of the thefts as calculated by Mr. Murgido; the total of the latter figures is $2096.22.~7 Lines 12 and 25 on the list recite fraudulent returns in the amounts of $95.39 and $21.19, but indicate no disposition of the resultant credit slips.~8 In the absence of a use of the credit slips, the transactions were conceded by Mr. Murgido to be "more or less, in limbo,,~9 and "like in the air.-2° In these cases, he said, the money "never went anywhere.,,2~ Nevertheless, these amounts were included in his list's theft column, and they are necessary to the total's being in excess of $2000.22 With specific reference to credit slips, Mr. Murgido testified that fraudulent returns would generate such slips, and that they N.T. 10; Commonwealth's Exhibit 2. N.T. 19-51, 56-57; Commonwealth's Exhibit 2. Commonwealth's Exhibit 2. N.T. 42. N.T. 42. N.T. 42. Commonwealth,s Exhibit 2. 4 745 Criminal 1993 could be taken-to any Boscov's and turned in for merchandise.23 In this sense, he noted that credit slips could be used in the same manner as cash.24 Mr. Biehl expressed his view that the total of the amount-taken column, $2096.22, thus reflected the sum of the thefts from Boscov,s.2s In his motion in arrest of judgment, Defendant challenges the inclusion of the amounts of $95.39 and $21.19 in the total theft amount.26 He argues that Boscov's suffered no monetary loss with respect to such items and that there was "no evidence showing that Defendant obtained the benefits for himself or for anyone else.,,27 Statement of law. A motion in arrest of judgment "is a proper means of challenging the sufficiency of the evidence to support a conviction." 27 Standard Pennsylvania Practice 2d S135:200, at 282 (1985). In reviewing a challenge to the sufficiency of the evidence, the court "views the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the 23 N.T. 45-46. 24 N.T. 46-47. There was also testimony by Mr. Murgido that credit slips nominally expired after 30 days; however, Boscov's practice was to continue to honor them even if turned in several months late. N.T. 47, 72. N.T. 67. Defendant's motion in arrest of judgment, paragraph 2. Defendant's brief in support of post-trial motion, at 9. 5 745 Criminal 1993 evidence, viewed in this light, is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Douglass, 403 Pa. Super. 105, 115, 588 A.2d 53, 58 (1991). It is within the province of the factfinder to determine the weight to be given to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2 (1990), allocatur denied, 527 Pa. 645, 593 A.2d 418 (1991). The elements of the offense of theft by deception are set forth in Section 3922 of the Crimes Code as follows: (a) Offense defined.-A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally: (1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; (2) prevents another from acquiring information which would affect his judgment of a transaction; or (3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship. Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S.A. §3922. "Property," for purposes of Section 3922, is defined as "[a]nything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and 6 745 Criminal 1993 other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power." Act of December 6, 1972, P.L. 1482, Sl, 18 Pa. C.S.A. §3901. Theft offenses are graded pursuant to Section 3903 of the Crimes Code. Act of December 6, 1972, P.L. 1402, §1, as amended, 18 Pa. C.S.A. ~3903 (1993 Supp.). This section provides, in pertinent part, as follows: (a.1) Felony of the third degree.- Except as provided in subsection (a), theft constitutes a felony of the third degree if the amount exceeds $2,000 .... (b) Other Grades. -- Theft not within subsection · (a.1) of this section, constitutes a ~sdemeanor of the first degree (c) Valuation. - The amount involved in a theft shall be ascertained as follows: (1) Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime .... Id. In support of his position, Defendant relies on Commonwealth v. Daubner, 288 Pa. Super. 47, 431 A.2d 280 (1991). In Daubner, the defendant was charged with and convicted of two counts of theft by deception. The defendant prepared two refund vouchers for 7 745 Criminal 1993 customers who never received them, even though they were cashed in. The Commonwealth relied on the inference arising from the defendant's preparation of the vouchers to show that he received the refunds in question; no testimony was presented to more clearly show that it was the defendant to whom the money was paid. Id. at 51-52, 431 A.2d at 282. The conviction was overturned by the Superior Court, which held that there was a lack of evidence from which the jury could justifiably have arrived at a guilty verdict. Id. at 51, 431 A.2d at 282. In reaching this conclusion, the Court noted that there were several people involved in the process from the time a refund voucher was made out until it was cashed. Id. Application of law to fact~. Certain factors militate against granting Defendant's motion in arrest of judgment. First, the facts in the present case, wherein Defendant admitted his participation in a scheme involving false merchandise returns to defraud his employer, are distinguishable from those in Daubner, wherein the proof of the defendant's involvement in the scheme was lacking. Thus, to the extent that Defendant's argument is that an unreasonable inference was involved in the conclusion that he was the party responsible for all of the merchandise "returns" shown on Commonwealth,s Exhibit 2, the Court can not agree. Second, the fact that not all credit slips resulting from fraudulent returns were converted to cash does not diminish the value of the theft. The fair market value of the unredeemed slips, 745 Criminal 1993 as listed on Commonwealth's Exhibit 2, was determinative of their value for purposes of theft. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~ day of February, 1994, after careful consideration of Defendant's post-verdict motion, the motion is DENIED, a presentence investigation report is ORDERED, and defendant is DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jonathan R. Birbeck, Esq. Sr. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender Probation Office :rc