J-S65034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ROBERT J. KEARNS,

Appellee No. 766 EDA 2014

Appeal from the Order Entered February 4, 2014

in the Court of Common Pleas of Lehigh County

Criminal Division at No.: CP-39-CR-0001673-2013

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 13, 2015

The Commonwealth appeals from the trial court’s order1 granting the 

omnibus pre-trial motion, including the motion for habeas corpus relief in 

favor of Appellee, Robert J. Kearns (and Patrick Joseph McLaine),2and

dismissing the underlying charges: theft by unlawful taking,3receiving stolen 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

“An order granting a defendant’s motion for habeas corpus relief based on 

insufficiency of the evidence is a final order appealable by the 

Commonwealth.” Commonwealth v. Fountain, 811 A.2d 24, 25 n.1 (Pa. 

Super. 2002) (citations omitted). 

2 Appellee McLaine’s surname is spelled inconsistently in the record before 

us. We adopt the predominant spelling, as used by McLaine himself. 

3 18 Pa.C.S.A. § 3921.
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property,4theft by failure to make required disposition of funds,5and 

criminal conspiracy.6 The trial court found that the Commonwealth failed to 

present sufficient prima facie evidence to substantiate each of the elements 

of the crimes charged. This appeal is a companion case to the appeal in 

Commonwealth v. McLaine, No. 757 EDA 2014. Because the question 

raised by the Commonwealth in both appeals is identical, and the trial court 

addresses both appeals in one opinion, we will address both appeals 

together, albeit in separate but essentially matching decisions.7 With the 

exception of the charge of receiving stolen property, we conclude under our 

standard of review that the Commonwealth did meet its burden to establish 

both the commission of the crimes alleged, and that Appellees committed 

the offenses. Accordingly, we affirm in part, vacate in part, and remand for 

disposition in accordance with the legal principles discussed in this decision.

At all times relevant to both of the cases on appeal, Robert J. Kearns 

was the president, and Patrick Joseph McLaine was the treasurer of 

____________________________________________

4 18 Pa.C.S.A. § 3925.

5 18 Pa.C.S.A. § 3927.

6 18 Pa.C.S.A. § 903.

7 The arguments raised by the co-Appellees are also essentially the same. 

Both argue that the Commonwealth failed to prove they “obtained the 

property of another” or that they used Coplay’s money for their personal 

benefit, and maintain that the trial court acted properly in granting habeas 

corpus and dismissing all charges. (See Appellee McLaine’s Brief, at 10-27; 

Appellee Kearns’ Brief, at 8-13).
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Municipal Energy Managers, Inc. (also referred to as MEM); they were also 

the sole shareholders.8 

We derive the factual history from the notes of testimony of the 

argument on Appellees’ omnibus pre-trial motion on October 29, 2013, 

including admissions and stipulations, and the trial court opinion filed 

February 4, 2014.9 

____________________________________________

8 We recognize that Appellee McLaine argues that Kearns was the front man 

for the organization, who signed the underlying contract at issue, which he 

(McLaine) did not sign except as a witness, and therefore he had no “legal 

obligation” respecting the funds at issue. (Appellee’s Brief, at 23). 

McLaine’s argument is unsupported by authority. (See id.). We find it both 

undeveloped and unpersuasive. Viewed in the light most favorable to the 

Commonwealth, the record confirms relevant activity by both principals. 

(See, e.g., N.T. Preliminary Hearing, 4/09/13 at 30 (PPL dealt with both 

Kearns and McLaine)). Under our standard of review, the distinction 

McLaine seeks to draw is not material to our disposition, and we decline to 

address it further. 

9 The trial court advises that the notes of testimony of the preliminary 

hearing before Magisterial District Judge Robert C. Halal, on April 9, 2013, 

are unavailable. (See Order, 8/04/14, at 1). The parties stipulated to 

admission of the exhibits presented originally in the preliminary hearing, and 

they were admitted without objection for this Court’s review as a part of a 

supplemental record. (See id. at 2). The Commonwealth has included a 

copy of the notes of testimony in its reproduced record. However, it is 

axiomatic that insertion in the reproduced record of a document does not 

substitute for inclusion in the certified record. See Ruspi v. Glatz, 69 A.3d 

680, 691 (Pa. Super. 2013) (citing Commonwealth v. Preston, 904 A.2d 

1, 6–7 (Pa. Super. 2006), appeal denied, 591 Pa. 663, 916 A.2d 632 

(2007)). Independent efforts by this Court to obtain a transcript of the 

preliminary hearing for inclusion in a supplemental record have been 

unsuccessful. 
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On November 30, 2008, MEM entered into a “Guaranteed Turnkey 

Performance Agreement” with the borough of Coplay, Pennsylvania. (See

Commonwealth Exhibit C-1). While the contract is voluminous, with many 

provisions and exhibits, the crux of the agreement was that MEM would act 

as agent for Coplay in the negotiation for and the purchase of streetlights 

from PPL Electric Utilities (PPL), and perform related tasks. Municipalities 

which purchased streetlights from PPL under this program received a 

reduced utility rate. 

In June of 2009, pursuant to the turnkey agreement, Coplay issued 

two checks payable to MEM: one on June 8, 2009, for $50,000.00, and one 

on June 15, 2009, for $110,182.00, for an aggregate total of $160,182.00. 

(See Commonwealth’s Exhibit C-2, and C-3, respectively). These checks 

represented the initial commencement fee for the streetlights program, 

pursuant to the turnkey agreement. 

There is no dispute that the two Coplay checks were deposited into 

MEM’s general business account, commingled with other MEM funds, and 

that both Appellees wrote checks on the account. The funds were not 

escrowed for the benefit of Coplay. The funds were used to pay off MEM 

debts to PPL unrelated to the Coplay agreement, for general MEM business 

purposes and to pay bonus checks for Appellees. (See N.T. Motion, 

10/29/13, at 24). The funds were never paid to PPL for Coplay. 

PPL had an established procedural scheme for the streetlights 

program, reduced to writing in 2003. First, it required a formal written 
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notice of interest by the municipality. On receipt of the notice of interest, 

PPL sent out a “ball park” estimate of costs. However, it would not go 

further, with on-site inspections, initial surveys and the like until it received 

a deposit from the inquiring municipality. On receipt of a down-payment, 

PPL would also engage in certain preparatory activities, which it referred to 

as “make ready work.” PPL then provided its own contract to the 

municipality. MEM never submitted a deposit for Coplay and PPL did not 

move forward with the initial survey or prepare a contract. 

Despite PPL’s formal requirement that it perform the make ready work, 

it sometimes granted waivers and, specifically, on occasion had previously 

permitted MEM to perform, or subcontract for the performance of, at least 

some make ready work for other municipalities. 

Disagreements arose between PPL and MEM. In June of 2009, PPL 

informed MEM that it would not sign any proposed contracts for streetlight 

sales to any of the municipalities represented by MEM in the form PPL had 

previously used with eleven (presumably other) municipalities.10 However, 

PPL did not complete a revised contract until July of 2010. In June of 2010, 

on learning that MEM was engaging in make ready work, PPL issued a stop 

____________________________________________

10 We note for purposes of clarity and completeness that the instant appeals 

are two out of a total of nine appeals filed with this Court from four different 

criminal cases in four different counties involving the same co-defendants, 

Patrick Joseph McLaine and Robert J. Kearns, and the same types of crimes, 

theft of funds in government contracts. 
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work order, directing MEM to cease work on any PPL owned streetlights 

unless PPL had executed a written contract specifically authorizing that work. 

Further, PPL apparently advised that if MEM or any of the 

municipalities it represented filed a rate discrimination complaint with the 

Public Utilities Commission, or other legal action against PPL, PPL would not 

negotiate the acquisition of any streetlight systems with that municipality 

while it was defending the other action. PPL did not receive the required 

letter of interest until July of 2010. 

Around early 2012, Coplay officials complained to the law firm which 

acted as solicitor for the borough that nothing had happened on the 

streetlights acquisition project, and they were unable to get information 

from MEM.11 Counsel began investigating. By April of 2012, the MEM 

checking account had “bottom[ed] out” at zero. 

There is no dispute that neither Appellee (nor MEM) completed 

performance of the contract with Coplay. The streetlights were never 

purchased. (See Appellee McLaine’s Brief, at 20). PPL still owns the 

streetlights. (See Trial Court Opinion, 2/04/14, at 4). Coplay counsel 

contacted the office of the District Attorney of Lehigh County, who filed the 

____________________________________________

11 The turnkey agreement originally specified an estimated completion date 

of one year after the execution of the contract.
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charges previously noted.12 A preliminary hearing occurred on April 9, 2013. 

The magisterial district judge found a prima facie case as to both Appellees. 

On August 2, 2013, Appellee McLaine filed an omnibus pre-trial 

motion, including a motion for a writ of habeas corpus.

13

 After a hearing on 

October 29, 2013, the trial court granted the motion on February 4, 2014.14 

This timely appeal followed.15 

The Commonwealth presents one omnibus question for our review:

Did the trial court manifestly abuse its discretion in 

granting [Appellee’s] Motion to Dismiss (Habeas Corpus) when 

the evidence and reasonable inferences drawn therefrom, viewed 

in the light most favorable to the Commonwealth, established a 

____________________________________________

12 Appellees were first charged with theft by unlawful taking, theft by failure 

to make required disposition of funds, and conspiracy, on or about April 9, 

2013. The Commonwealth filed an information on May 2, 2013, adding 

another count of theft by unlawful taking, and receiving stolen property. 

13 In addition to the motion for habeas corpus, Appellee included motions to 

dismiss and/or join pursuant to compulsory joinder, a motion to dismiss due 

to double jeopardy, and a motion to sever. (See Omnibus Pre-Trial Motion, 

8/02/13, at 1). On October 12, 2013 the trial court granted the motion of 

appointed counsel for defendant/Appellee Kearns to join the omnibus pretrial motion previously filed by counsel for defendant/Appellee McLaine. 

(See Trial Ct. Op., at 2-3). 

14 Although the order ostensibly granted the entire motion without 

qualification, the trial court opinion confirms that the order was based on its 

finding of insufficient evidence to substantiate the charges, and the 

remaining motions were not addressed. (See Trial Ct. Op., at 17). 

15 The Commonwealth filed a statement of errors on March 26, 2014. See

Pa.R.A.P. 1925(b). The trial court filed an order on March 26, 2014, 

referencing its opinion and order of February 4, 2014. See Pa.R.A.P. 

1925(a). 
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prima facie case with regards to all of the charges ─ i.e., Theft 

by Unlawful Taking (18 Pa.C.S.A. § 3921); Receiving Stolen 

Property (18 Pa.C.S.A. § 3925); Theft by Failure to Make 

Required Disposition of Funds (18 Pa.C.S.A. § 3927); and 

Criminal Conspiracy (18 Pa.C.S.A. § 903)?

(Commonwealth’s Brief, at 7).

The Commonwealth argues that the trial court erred in granting the 

motion for habeas corpus and dismissing the charges. (See

Commonwealth’s Brief, at 12). It maintains that the trial court ignored the 

proper standard of review by failing to evaluate the evidence in the light 

most favorable to the Commonwealth. We agree.

Our standard of review is well-settled.

The decision to grant or deny a petition for writ of habeas 

corpus will be reversed on appeal only for a manifest 

abuse of discretion. It is settled that a petition for writ of 

habeas corpus is the proper means for testing a pre-trial 

finding that the Commonwealth has sufficient evidence to 

establish a prima facie case. Although a habeas corpus

hearing is similar to a preliminary hearing, in a habeas 

corpus proceeding the Commonwealth has the opportunity 

to present additional evidence to establish that the 

defendant has committed the elements of the offense 

charged.

A prima facie case consists of evidence, read in the light 

most favorable to the Commonwealth, that sufficiently 

establishes both the commission of a crime and that the 

accused is probably the perpetrator of that crime. The 

Commonwealth need not prove the defendant’s guilt 

beyond a reasonable doubt. Rather, the Commonwealth 

must show sufficient probable cause that the defendant 

committed the offense, and the evidence should be such 

that if presented at trial, and accepted as true, the judge 

would be warranted in allowing the case to go to the jury.
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Commonwealth v. Black, ___ A.3d ____, 2015 WL 151536, at *6 (Pa. 

Super. filed January 13, 2015) (quoting Fountain, supra at 25–26). 

“The question of the evidentiary sufficiency of the Commonwealth’s 

prima facie case is one of law as to which this Court’s review is plenary.” 

Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 2003), cert. denied, 

541 U.S. 1012 (2004). In a direct appeal, “[i]t is well settled that a 

defendant’s conviction may be sustained on the basis of circumstantial 

evidence alone, provided that such evidence is of sufficient quantity and 

quality to establish guilt beyond a reasonable doubt.” Commonwealth v. 

Bhojwani, 364 A.2d 335, 338 (Pa. Super. 1976) (citations omitted).

Here, the Commonwealth first argues that it presented sufficient 

evidence to establish all the elements of theft by failure to make required 

disposition of funds received. (See Commonwealth’s Brief, at 13-22). 

Our Crimes Code defines the offense of theft by failure to make 

required disposition of funds received as follows:

(a) Offense defined.─A person who obtains property 

upon agreement, or subject to a known legal obligation, to make 

specified payments or other disposition, whether from such 

property or its proceeds or from his own property to be reserved 

in equivalent amount, is guilty of theft if he intentionally deals 

with the property obtained as his own and fails to make the 

required payment or disposition. The foregoing applies 

notwithstanding that it may be impossible to identify particular 

property as belonging to the victim at the time of the failure of 

the actor to make the required payment or disposition.

18 Pa.C.S.A. § 3927(a). 
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A defendant is guilty of theft by failure to make required 

disposition of funds received if he obtains property upon 

agreement or subject to a known legal obligation to make 

specified payment or other disposition of the property, and 

intentionally deals with the property as his own and fails to make 

the required payment or disposition. 

Commonwealth ex rel. Lagana v. Commonwealth Office of Atty. Gen., 

662 A.2d 1127, 1130 (Pa. Super. 1995). Similarly, 

[T]he four elements necessary to complete the crime [of theft by 

failure to make required disposition of funds received] are:

1. The obtaining of property of another;

2. Subject to an agreement or known legal obligation upon 

the recipient to make specified payments or other disposition 

thereof;

3. Intentional dealing with the property obtained as the 

defendant’s own; and

4. Failure to make the required disposition of the property.

Commonwealth v. Austin, 393 A.2d 36, 38 (Pa. Super. 1978) (citing 

Commonwealth v. Crafton, 367 A.2d 1092 (Pa. Super. 1976), opinion 

corrected, 599 A.2d 1353, 1353 (Pa. Super. 1991)); (see also Trial Ct. Op., 

at 8-9). 

Here, it is undisputed that Appellee McLaine, with Appellee Kearns, 

obtained the money from Coplay subject to a known (and contractually 

specified) legal obligation to purchase streetlights for Coplay and perform 

related negotiating and support services. 

Additionally, they plainly dealt with the money as their own, 

concededly commingling the funds with those of their business, using them 
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to pay MEM obligations unrelated to Coplay, and generally using some or all 

of the money to finance their business operations, as well as pay bonuses to 

themselves, until the business checking account “bottomed out” at zero, 

with nothing paid on behalf of Coplay, and nothing left to make good on the 

obligation to Coplay. 

Nevertheless, the trial court found that the Commonwealth failed to 

establish the first element of section 3927, that Appellees obtained the 

property of another.16 (See Trial Ct. Op., at 9-13). In support, the court 

cites Commonwealth v. Austin, 393 A.2d 36 (Pa. Super. 1978). In 

pertinent part, the Austin court relied on caselaw construing a sincesuperseded statute on fraudulent conversion, (see Austin, supra at 38) 

(finding that “the acceptance of advance money on a construction contract is 

____________________________________________

16 The Crimes Code defines “property of another” as follows:

“Property of another.” Includes property in which any person 

other than the actor has an interest which the actor is not 

privileged to infringe, regardless of the fact that the actor also 

has an interest in the property and regardless of the fact that 

the other person might be precluded from civil recovery because 

the property was used in an unlawful transaction or was subject 

to forfeiture as contraband. Property in possession of the actor 

shall not be deemed property of another who has only a security 

interest therein, even if legal title is in the creditor pursuant to a 

conditional sales contract or other security agreement.

18 Pa.C.S.A. § 3901. 
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[not] the property [o]f another”) (citing Commonwealth v. Bartello, 301 

A.2d 885 (Pa. Super. 1973)). 

The trial court adopts Austin’s reasoning: “It seems apparent that in a 

single contract providing for certain services at certain prices that where 

there is a transfer of money, within the contract price, even in advance of 

the due date, that title as well as possession passes and only a contractual 

obligation remains.” Austin, supra at 38-39) (quoting Bartello); (see Trial 

Ct. Op., at 10). 

Here, first and foremost, we are constrained to conclude that the trial 

court failed to review the evidence in the light most favorable to the 

Commonwealth for a prima facie case, not guilt beyond a reasonable 

doubt. See Black, supra at *6; Fountain, supra at 25–26. In relying on 

Austin, and endeavoring to distinguish the Commonwealth’s citation to 

Crafton, supra and Bhojwani, supra, the trial court, in effect, engaged in 

an impermissible weighing of the evidence, rather than reviewing whether 

the evidence presented established all of the elements of the crimes 

charged. The trial court engaged in an analysis which sought to determine if 

viable defenses existed to the crimes charged. It should have confined its 

inquiry to determining whether the evidence presented, if accepted as true, 

would suffice to send the issue to a jury. We are constrained to conclude 

that the trial court abused its discretion.
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Secondly, in so doing, the trial court relied on caselaw reviewing direct 

appeals from judgments of sentence, disregarding the even narrower 

standard of review for appeals from the granting or denial of habeas corpus. 

See Black, supra at *6.

Thirdly, even on the merits, Austin is plainly distinguishable. Austin

addressed the conviction of a construction contractor for theft by 

unauthorized disposition of the advance money on a home repair and 

remodeling contract. The evidence was undisputed that the contractor, who 

had taken an advance payment of $2,495.00 “for materials,” (plus an 

additional payment of $800 “for labor”), worked for about two months on 

the project until realizing he had underestimated the cost of completion; he 

then discontinued work on advice of counsel. See Austin, supra at 37-38. 

He had spent $1,243.00 of the advances. See id.

Notably, here, the contract was not for construction, let alone home 

repairs, and there is no evidence that Appellees worked diligently for months 

on the project, or that they underestimated construction costs. 

Furthermore, far from having money left over, these Appellees entirely 

dissipated all of the cash deposited in their business checking account, 

including all of the funds provided by Coplay. 

Still, the trial court agreed with Appellees’ counsel that their “make 

ready work,” albeit unsanctioned by PPL, and other incidental preparatory 

activities, constituted “partial performance.” (Trial Ct. Op., at 13). Other 
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than the implied analogy to Austin, the trial court offers no authority in 

support of its supposition. We conclude that partial performance, even if 

assumed, does not negate any of the elements of theft by failure to make 

required disposition of funds received. Therefore, it does not preclude the 

finding of a prima facie case. See e.g., Commonwealth v. Edwards, 582 

A.2d 1078, 1086 (Pa. Super. 1990), appeal denied, 600 A.2d 1258 (Pa. 

1991) (theft by failing to make legally required disposition of funds proven 

by evidence appellant intentionally converted some proceeds of construction 

loan to his own use by paying off old debts, double dipping on transportation 

expenses, and pocketing money from corporate general contractor; 

distinguishing Austin; judgment of sentence affirmed).

Finally, on this issue, we note that the trial court’s analysis overlooks 

subsequent case law which distinguishes Austin, substantially curtailing its 

import beyond its facts. See id.; see also Commonwealth v. Robichow, 

487 A.2d 1000, 1003 (Pa. Super. 1985), appeal dismissed, 508 A.2d 1195 

(Pa. 1986) (evidence clearly established advance money fraudulently 

obtained at inception of contracting, title did not pass to appellant, and 

appellant’s possession of the money was property of another, distinguishing

Austin; judgment of sentence affirmed). We are constrained to conclude 

that the trial court misconceived the applicable law and abused its discretion. 

The Commonwealth’s claim merits relief.
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Next, the trial court maintains that the Commonwealth failed to 

present prima facie evidence that Appellees intended to deal with the 

property as their own, the “third” element cited in Austin. (See Trial Ct. 

Op., at 14-15). Once again, the trial court relies exclusively on Austin,

supra. We are constrained to conclude its reliance is misplaced. 

“In evaluating whether the Commonwealth has made out its prima 

facie case, criminal intent may be inferred from circumstantial evidence.” 

Lagana, supra at 1129-30 (citations omitted). 

Here, the Commonwealth presented evidence that Appellees did not 

inform Coplay of the status of the project, and did not respond to Coplay’s 

inquiries. Furthermore, Appellees used the funds from Coplay for their own 

concededly unrelated purposes, until their general business account was 

entirely dissipated. Viewed in the light most favorable to the 

Commonwealth, this evidence is more than ample to prove intent to deal 

with the property as their own, the third element of the offense. 

Next, the trial court addresses theft by unlawful taking17 and receiving 

stolen property,18 together. (See Trial Ct. Op., at 15-16). So does the 

____________________________________________

17 Theft by unlawful taking or disposition:

(a) Movable property.─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). 
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Commonwealth. (See Commonwealth’s Brief, at 22-25). In an abbreviated 

analysis of one paragraph comprising three sentences, the court adopts by 

reference its prior reasoning that the Commonwealth failed to prove 

Appellees obtained the property of another. The court offers no additional 

authority. (See Trial Ct. Op., at 15-16). We reject this analysis for the 

reasons already noted. We conclude that the Commonwealth established a 

prima facie case of theft by unlawful taking.

Nevertheless, on independent review, we conclude that the 

Commonwealth failed to develop an argument that it introduced sufficient 

evidence to establish a prima facie case of receiving stolen property. (See

Commonwealth’s Brief, at 22-25). After its discussion of the sufficiency of 

the evidence for theft by unlawful taking, the Commonwealth adds a single 

(Footnote Continued) _______________________

18 Receiving stolen property:

(a) Offense defined.─A person is guilty of theft if he 

intentionally receives, retains, or disposes of movable property 

of another knowing that it has been stolen, or believing that it 

has probably been stolen, unless the property is received, 

retained, or disposed with intent to restore it to the owner.

(b) Definition.─As used in this section the word “receiving” 

means acquiring possession, control or title, or lending on the 

security of the property.

18 Pa.C.S.A. § 3925(a), (b).
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sentence: “Similarly, a prima facie showing of receiving stolen property has 

been made.” (Id. at 25). 

The Commonwealth fails to develop an argument or provide supporting 

authority for its position. See Commonwealth v. D'Amato, 856 A.2d 806, 

814 (Pa. 2004) (concluding one-sentence argument was so undeveloped as 

to be functional equivalent of no argument at all; issue waived); see also

Pa.R.A.P. 2119(a), (b); Commonwealth v. Rohrer, 719 A.2d 1078, 1079 

n.1 (Pa. Super. 1998); Commonwealth v. Montini, 712 A.2d 761, 769 

(Pa. Super. 1998) (Johnson, J., concurring) (“we may not act as appellate 

counsel, nor may we advocate positions not properly presented to us on 

appeal”). Accordingly, this claim is waived. For this reason, we affirm the 

trial court’s dismissal of the charge of receiving stolen property. 

Finally, the trial court summarily dismisses the charge of conspiracy,19

reasoning generally that the Commonwealth presented no evidence of the 

____________________________________________

19 Criminal conspiracy:

(a) Definition of conspiracy.─A person is guilty of 

conspiracy with another person or persons to commit a crime if 

with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or 

one or more of them will engage in conduct which constitutes 

such crime or an attempt or solicitation to commit such crime; or 

(2) agrees to aid such other person or persons in the 

planning or commission of such crime or of an attempt or 

solicitation to commit such crime. 

(Footnote Continued Next Page)
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elements of conspiracy beyond “a clear association” between the two 

Appellees, and their actions as officers of MEM. (Trial Ct. Op., at 16). 

Again, the trial court fails to view the evidence in the light most favorable to 

the Commonwealth, together with all reasonable inferences. Moreover, the 

record does not support the trial court’s reasoning, and the trial court’s 

reasoning does not support its conclusions. 

To prove criminal conspiracy, the Commonwealth must 

show a defendant entered into an agreement to commit or aid in 

an unlawful act with another person; that he and that person 

acted with a shared criminal intent; and that an overt act was 

taken in furtherance of the conspiracy. 18 Pa.C.S.A. § 903. An 

explicit or formal agreement to commit crimes can seldom, if 

ever, be proved and it need not be, for proof of a criminal 

partnership is almost invariably extracted from the 

circumstances that attend its activities. Therefore, where the 

conduct of the parties indicates that they were acting in 

concert with a corrupt purpose in view, the existence of a 

criminal conspiracy may properly be inferred. This [C]ourt 

has held that the presence of the following non-exclusive list of 

circumstances when considered together and in the context of 

the crime may establish proof of a conspiracy: (1) an association 

between alleged conspirators, (2) knowledge of the commission 

of the crime, (3) presence at the scene of the crime, and (4) 

participation in the object of the conspiracy. 

Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (en banc) 

(emphasis added) (case citations and internal quotation marks omitted); 

see also Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa. Super. 

(Footnote Continued) _______________________

18 Pa.C.S.A. § 903(a)(1), (2). 
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1994), appeal denied, 655 A.2d 985 (Pa. 1995) (Commonwealth presented 

prima facie case against defendant for theft by deception and criminal 

conspiracy by testimony at habeas corpus proceeding). 

Here, in the totality of the circumstances, viewed in the light most 

favorable to the Commonwealth, we conclude that the evidence presented 

was sufficient for a trial court to let the charge of conspiracy go forward to a 

jury. Both Appellees participated in the negotiations with Coplay and 

interacted with PPL. Both wrote checks on the corporate account. Both 

wrote checks to themselves. Therefore, the Commonwealth established an 

issue for the jury of whether Appellees conspired to take funds received from 

Coplay for payment to PPL and diverted them for their own benefit. 

Accordingly, the Commonwealth presented sufficient evidence to establish a 

prima facie case of criminal conspiracy. The trial court erred in granting 

habeas corpus and dismissing the conspiracy charge. 

We emphasize for clarity that under our standard of review, on the 

record before us we make no judgment as to Appellees’ guilt or innocence. 

We simply hold that the Commonwealth presented sufficient evidence to 

make out a prima facie case for each of the crimes charged, except for 

receiving stolen property. 

Order affirmed on charge of receiving stolen property. In all other 

respects, order vacated. Case remanded for proceedings consistent with this 

decision. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015