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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ANTHONY J. LOVETT, : No. 1177 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, February 13, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0006004-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 06, 2016

The trial court, sitting as finder-of-fact in this matter following a waiver 

trial, has summarized the testimony as follows:

On May 1, 2014, Ms. Daniella Matthews, the 

manager and sous chef at a Bon Appetit 

restaurant[1] located at 3417 Spruce Street in 

Philadelphia was leaving work at about 11:00 or 

11:15 p.m., when she observed a cart outside the 

door to the kitchen that had trash bags, two cases of 

cheese steaks, two ten pound bags of hot dogs, and 

a ten pound bag of turkey sausage. (N.T. 7-8, 

10).[Footnote 2] The cart caught her attention 

because it was odd that it was located in its location 

at that time of night. (N.T. 8). Upon observing the 

cart, Ms. Matthews looked into the kitchen and saw 

someone in the kitchen, which prompted her to 

enter. (N.T. 9).

 

1 Bon Appétit is a management company that provides food services for the 

University of Pennsylvania (“UPenn”). (Notes of testimony, 12/9/14 at 7.) 

The kitchen is located in Houston Hall on UPenn’s campus. (Id. at 8.)
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[Footnote 2] All references to the record, 

unless otherwise noted, pertain to the 

transcript of Appellant’s trial on 

December 9, 2014.

Once inside, Ms. Matthews encountered 

Appellant, who, when asked what he was doing in 

the kitchen, responded, “Well, if I had known you 

were still here, then I would have waited until you 

left.” (N.T. 10). Although Appellant was an 

employee at that Bon Appetit location, Ms. Matthews 

testified he was not supposed to be there at that 

time of night.[2] Id. Ms. Matthews ordered 

Appellant to leave the kitchen after telling him that 

he did not belong there. (N.T. 11). Appellant did as 

instructed at which time Ms. Matthews checked the 

kitchen before exiting it. Id. As she left the kitchen, 

she noticed that the cart containing the 

aforementioned items was no longer outside the 

door to the kitchen. Id.

The next day, Ms. Matthews received a 

telephone call from Appellant who asked her if she 

had taken a photograph of him. (N.T. 12). 

Ms. Matthews told [Appellant] that she had not and 

directed him not to call her again.[3] Id. A couple of 

days later, while Ms. Matthews was speaking to 

police, Appellant texted her and chastised her for 

lying to police about what she had observed the 

night he was caught inside the Bon Appetit

 

2 Appellant worked for Bon Appétit during the daytime hours, and for the 

facilities department of UPenn at night. (Notes of testimony, 12/9/14 at 

9-10, 25-26.) Appellant worked for Bon Appétit from 8:00 a.m. until 

4:00 p.m. (Id. at 25.)

3 Specifically, Ms. Matthews testified, “He asked if I took a picture and I 

explained to him I didn’t and did he see me take a picture of him? And he 

said, No, I didn’t think you would do something like that. Then I said, don’t 

call my phone.” (Notes of testimony, 12/9/14 at 12.)
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kitchen.[4] Id. Ms. Matthews estimated the value of 

items she saw on the cart to be $150.00 and further 

indicated that the kitchen was not open to the 

general public. (N.T. 13, 17).

Mr. Matthew Morett, executive chef at the time 

the incident herein occurred, was notified by 

Ms. Matthews that Appellant was observed in the 

kitchen, a restricted area after hours, and that there 

had been a cart loaded with product outside the door 

to the kitchen. (N.T. 18-19). Mr. Morett testified 

that Appellant was a member of his staff. However, 

on the date in question, Appellant clocked out at 

4:00 p.m., and he was not permitted in the kitchen 

at the time Ms. Matthews observed him. (N.T. 19). 

Morett further testified that he conducted an 

inventory of the kitchen and ascertained that cases 

of steaks and hot dogs were missing. (N.T. 20).

After completing the inventory, Mr. Morett 

contacted the police department of the University of 

Pennsylvania. Subsequent thereto, Mr. Morett was 

asked by authorities to review certain kitchen items, 

including pots, food items, and kitchen utensils that 

had been recovered from Appellant’s residence. 

(N.T. 21-22, 30). Morett indicated that those items 

were used by Bon Appetit and that Appellant did not 

have permission to have those items inside his 

residence. (N.T. 21-23). Morett further testified 

that police did not find the missing food items inside 

Appellant’s residence. (N.T. 28).[Footnote 3]

 

4 Ms. Matthews explained,

I received a text message from the defendant on 

Monday, the following Monday, when I was in the 

office being interviewed by the detectives and he 

said in a text message, I can’t believe you’re in there 

telling all those lies to the detective. I imagine 

someone told him that [I] was in there and then he 

texted me.

Notes of testimony, 12/9/14 at 12.
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[Footnote 3] At the time of the incident, 

Appellant was also employed by the 

University of Pennsylvania and had 

worked from 4:00 p.m. to 11:00 p.m., 

on the day of the incident. (N.T. 25-26). 

Mr. [Morett] testified that employees of 

the University were not permitted inside 

the kitchen of the restaurant. (N.T. 28-

29, 30).[5]

Trial court opinion, 6/24/15 at 2-3.

At docket number CP-51-CR-0006004-2014, relating to the May 1, 

2014 incident, appellant was charged with criminal trespass, burglary, theft 

by unlawful taking, and receiving stolen property (“RSP”). At docket number 

CP-51-CR-0006003-2014, relating to the items recovered from appellant’s 

residence pursuant to the search warrant, appellant was charged with theft 

by unlawful taking and RSP. On December 9, 2014, following a non-jury 

trial, appellant was found guilty of all charges at CP-51-CR-0006004-2014, 

and found not guilty of the charges at CP-51-CR-0006003-2014. On 

February 13, 2015, the trial court imposed an aggregate sentence of 111⁄2 to 

23 months, plus 5 years of reporting probation. Appellant was granted 

immediate parole to house arrest so that he could continue to work at his 

job at a restaurant on Germantown Avenue. (Notes of testimony, 2/13/15 

 

5

In addition, Wister Tilghman (“Tilghman”) testified that he is a cook for 

Bon Appétit. (Notes of testimony, 12/9/14 at 31.) In February or March 

2014, appellant admitted to Tilghman that he had stolen approximately 

$50,000 worth of items from Bon Appétit. (Id. at 32-33.)
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at 7, 10.) Appellant’s sentence was a below-guidelines sentence. (Id. at 6.) 

The victim, Bon Appétit, did not seek restitution. (Id. at 11.)

On February 21, 2015, appellant filed a timely post-sentence motion, 

challenging the weight and sufficiency of the evidence to sustain the charges 

of burglary, RSP, and theft. Appellant’s post-sentence motion was denied on 

April 16, 2015, following oral argument on the record. A timely notice of 

appeal was filed on April 28, 2015. On April 29, 2015, appellant was 

ordered to file a concise statement of errors complained of on appeal within 

21 days pursuant to Pa.R.A.P. 1925(b). Appellant timely complied by filing a 

Rule 1925(b) statement on May 19, 2015, challenging the sufficiency of the 

evidence to sustain the convictions of burglary, theft by unlawful taking, and 

RSP. Appellant did not challenge the sufficiency of the evidence to sustain 

the trial court’s guilty verdict as to the charge of criminal trespass. On 

June 24, 2015, the trial court filed a Rule 1925(a) opinion.

Appellant has raised the following issue for this court’s review:

Was not the evidence insufficient to convict

appellant of burglary, theft by unlawful taking and 

[RSP] as the Commonwealth failed to prove beyond 

a reasonable doubt that appellant, a long-term 

employee in the dining services and facilities 

departments at [UPenn], stole food where no one 

saw appellant take the items and they were stored in 

a University kitchen accessible to many others?

Appellant’s brief at 3.

When considering a challenge to the sufficiency of the evidence, this 

court must view the evidence presented in a light most favorable to the
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Commonwealth, the verdict winner, and draw all reasonable inferences 

therefrom. Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super. 

1999). We must then determine whether the evidence was sufficient to 

permit the fact-finder to conclude that all of the elements of the crimes 

charged were proven beyond a reasonable doubt. Id. Any question of 

doubt is for the fact-finder, unless the evidence is so weak and inconclusive 

that as a matter of law no probability of fact can be drawn from the 

combined circumstances. Id. at 804.

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), appeal 

denied, 725 A.2d 1218 (Pa. 1998), quoting Commonwealth v. Valette, 

613 A.2d 548, 549 (Pa. 1992) (citations and quotation marks omitted).

Appellant was found guilty of burglary, graded as a felony of the 

second degree:

(a) Offense defined.--A person commits the 

offense of burglary if, with the intent to 

commit a crime therein, the person:

(4) enters a building or occupied 

structure, or separately secured or 

occupied portion thereof that is not 

adapted for overnight 
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accommodations in which at the 

time of the offense no person is 

present.

18 Pa.C.S.A. § 3502(a)(4). “The Commonwealth may prove its case by 

circumstantial evidence, and the specific intent to commit a crime necessary 

to establish the second element of burglary may thus be found in the 

defendant’s words or conduct, or from the attendant circumstances together 

with all reasonable inferences therefrom.” Commonwealth v. Franklin, 

452 A.2d 797, 799-800 (Pa.Super. 1982) (citations omitted).

Appellant was also found guilty of theft by unlawful taking and RSP. 

The Crimes Code defines theft by unlawful taking, in relevant part, as 

follows:

§ 3921. 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).

RSP is defined as follows:

§ 3925. 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.
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(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.

To establish the offense of receiving stolen property, 

the Commonwealth was required to present evidence

sufficient to prove beyond a reasonable doubt that 

(1) the property had been stolen, (2) the accused 

received the property and (3) the accused knew or 

had reasonable cause to know that it had been 

stolen. The Commonwealth may sustain its burden 

of proof by means of circumstantial evidence.

Commonwealth v. Worrell, 419 A.2d 1199, 1201 (Pa.Super. 1980) 

(citations omitted).

Appellant argues that the trial court’s verdict was based on pure 

speculation and conjecture where no one actually saw him take the food 

from the Bon Appétit kitchen the night of May 1, 2014. Ms. Matthews saw 

appellant standing in the kitchen after hours, when he was not authorized to 

be there; however, she did not see him remove anything from the kitchen or 

place anything on the utility cart. (Appellant’s brief at 11.) Ms. Matthews 

did not see appellant wheel away the utility cart with the missing food items. 

(Id.) Appellant also argues that his subsequent statements to Ms. Matthews 

only prove that he knew he was not supposed to be in the kitchen after it 

was closed for the day; it was not evidence that he stole anything from the 

kitchen. (Id.)
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According to appellant, it was just as likely that someone else took the 

food from the kitchen. (Id. at 12.) Appellant contends this is so because 

the kitchen was accessible to many other people on a daily basis besides 

appellant. (Id.) Appellant explains his subsequent phone call and text 

message to Ms. Matthews as demonstrating his concern that she would 

disclose his unauthorized presence in the kitchen. (Id. at 12-13.) Appellant 

points out that none of the missing food items from May 1, 2014, were 

found in his apartment. (Id. at 13.) Appellant also argues that his 

admission to Tilghman that he had stolen $50,000 worth of goods from 

Bon Appétit related to prior alleged thefts, not the May 1, 2014 incident. 

(Id.) Appellant argues that the circumstantial evidence adduced by the 

Commonwealth at trial was insufficient to prove beyond a reasonable doubt 

that he took the missing items from the kitchen on the night of May 1, 2014. 

(Id. at 13.) We disagree.

The trial court relied on Commonwealth v. Haines, 442 A.2d 757 

(Pa.Super. 1982), which we agree is instructive. In that case, the defendant 

asked the clerk to get a hardware item for him, and the clerk walked to the 

rear of the store and up some stairs to find the item. Id. at 759. He was 

absent from the main store area for between three and five minutes during 

which time the defendant was alone in that part of the store. Id. The clerk 

testified that when he returned, he told the defendant that he did not have 

the part in stock, and the defendant left the store. Id. When the 
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storeowner returned from lunch a short time later, he noticed that two chain 

saws were missing. Id. As in this case, no one actually saw the defendant 

take the items. Id. During the course of their investigation, police 

discovered that a chain saw was being repaired at a garage and that the 

serial number of that saw was the same as that of one of the missing saws. 

Id. The saw was traced to a Richard Seawood, who testified that he bought 

the chain saw from an unidentified man sent by the defendant. Id. The 

defendant testified and corroborated the fact that he did not know the man’s 

name. Id. (citations to the transcript omitted). The trial judge did not find 

the testimony of either the defendant or Seawood to be credible, and found 

the defendant guilty of theft by unlawful taking and RSP. Id.

On appeal, this court affirmed, stating,

While it is true as the trial court noted that there was 

no evidence unquivocally placing the chain saws in 

the hands of defendant, we hold that the 

Commonwealth, albeit circumstantially, sustained its 

burden to prove beyond a reasonable doubt that 

defendant was guilty of theft. A defendant is guilty 

of 18 Pa.C.S.A. § 3921(a) “if he unlawfully takes, or 

exercises unlawful control over, movable property of 

another with intent to deprive him thereof.” We hold 

that the trial court’s verdict was premised upon a 

reasonable inference from the evidence that the 

saws were taken during the hour defendant was in 

the store and from the evidence connecting 

defendant to the recovered saw. Since there was 

sufficient evidence to convict defendant of theft by 

unlawful taking or disposition, it necessarily follows 

that the evidence was also sufficient to convict him 

of receiving stolen property.

Id. at 759-760.
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Similarly, here, although no one actually saw appellant take anything, 

he was alone in the kitchen, after hours, when Ms. Matthews observed the 

cart laden with food outside the kitchen door. (Notes of testimony, 12/9/14 

at 8-9.) Ms. Matthews told appellant he was not supposed to be there and 

he should leave. (Id. at 11.) After appellant left, Ms. Matthews inspected 

the kitchen to make sure it was empty, then clocked out and left. (Id.) At 

that time, the cart was gone. (Id.)

In addition, appellant’s subsequent contacts with Ms. Matthews could 

fairly be construed as consciousness of guilt. While appellant chooses to 

characterize the phone call and text message to Ms. Matthews as relating to 

his fear of being turned in for being in the kitchen after hours, the trial court, 

as finder-of-fact, could make a reasonable inference that appellant was 

afraid of being reported to police for stealing food. In fact, the trial court did 

find that appellant’s comments to Ms. Matthews were evidence of 

consciousness of guilt. (Trial court opinion, 6/24/15 at 6.)

Appellant argues that the food that was reported stolen was not found 

in his apartment when police executed the search warrant. However, the 

search warrant was not executed until May 7, 2014, nearly one week later. 

(Notes of testimony, 12/9/14 at 30.) This was ample time to dispose of the 

items. In addition, the stolen items included perishable foodstuffs such as 

cheesesteaks, hot dogs, and sausage. (Id. at 8.) The fact that these items 
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were not recovered from appellant’s apartment nearly one week later is not 

persuasive of appellant’s innocence.

Furthermore, although he was found not guilty of the charges at 

CP-51-CR-0006003-2014, the trial court was free to consider the testimony 

that additional items, including commercial kitchen utensils matching the 

brand used by Bon Appétit, were recovered from appellant’s apartment. 

(Notes of testimony, 12/9/14 at 21-22.) Appellant also admitted to 

Tilghman in February or March 2014 that he had stolen things from 

Bon Appétit. (Id. at 32-33.) While this evidence did not relate specifically 

to the May 1, 2014 theft, it was admissible under Pa.R.E. 404(b) as evidence 

of a common plan, scheme, or design. In addition, on sufficiency review, 

this court reviews all evidence actually received, without regard to 

admissibility. Examining the totality of the evidence, in the light most 

favorable to the Commonwealth, together with all reasonable inferences, it 

was clearly sufficient to meet all the elements of the crimes charged. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2016
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