J-S70024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JENNIFER CLARK

Appellant No. 1074 EDA 2014

Appeal from the Judgment of Sentence March 6, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0005312-2012

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 02, 2014

Appellant, Jennifer Clark, appeals from the March 6, 2014 aggregate 

judgment of sentence of three to 23 months’ imprisonment, imposed 

following convictions for theft by unlawful taking or disposition and receiving 

stolen property.1 After careful review, we affirm.

The trial court has set forth the relevant facts and procedural history 

as follows.

Mrs. Nancy Roberts has, since 2006, lived in an 

apartment in a residential complex for senior 

citizens, known as Shannondell in Valley Forge. At 

all times relevant to this case, [Appellant] was 

employed by Angel Companions, a business firm that 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
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provides home services to the elderly. While so 

employed, [Appellant] was in Mrs. Roberts’ 

apartment from 6:00 a.m. to 8:30 a.m. on June 2, 

2012. At 10:00 a.m., Mrs. Roberts’ daughter Sally 

arrived, and as soon as she did, Mrs. Roberts told 

her, “I’ve been robbed.”

The two took inventory of Mrs. Roberts’ jewelry 

and determined that several items were missing. All 

were gold. The total value of the missing jewelry 

amounted to $32,773.68. They reported the loss to 

the security officer working for Shannondell and the 

Lower Providence Township Police Department.

The apartment where Mrs. Roberts lives is on 

the third floor of her building, about fifty yards away 

from the elevators, past the doors of five other 

apartments. The building is only one of several 

residential buildings on the campus. In order to get 

to the doorway of the bedroom where Mrs. Roberts 

sleeps, one must enter the building, go to the third 

floor, open the door to her apartment and pass 

through a hallway, her living room and another 

hallway.

On the evening before Mrs. Roberts discovered 

the loss, she was visited by another of her 

daughters, Gina Edwards. While there, Mrs. Edwards 

looked at her mother’s jewelry, some of which was 

kept in small containers on top of a bureau. She saw 

some of the items of jewelry that her mother 

discovered to be missing the next morning after 

[Appellant] left. She worried about a particularly 

valuable “serpentine bracelet” because Mrs. 

[Roberts] kept it in a small box on the top of her 

bureau, rather than in a relatively more secure 

location, such as her jewelry box in the bureau 

drawer. Mrs. Roberts testified that the bureau is 

only a few feet from the foot of her bed. She also 

described herself as a light sleeper, who would 

normally wake if a person were to open the door to 

the apartment.
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Mrs. Edwards testified that she helped her 

mother, Mrs. Roberts, to bed that night. Mrs. 

Edwards said she left her mother’s apartment at 

approximately 10:30 p.m. on the evening of June 

1st, and on the outside of the apartment door left a 

note to [Appellant], the Angel Companions employee 

who was scheduled to arrive the next morning. 

[Appellant] had never met Mrs. Roberts or worked in 

her apartment before. The note asked [Appellant], 

by name, to enter and wake her mother if she was 

still asleep. Mrs. Edwards did not remember whether 

she locked the door to the apartment when she left, 

but according to Mrs. Roberts, by ten thirty in the 

evening there is not much pedestrian traffic in the 

halls of Shannondell, as the residents “don’t stay up 

late or [they] stay in their apartments.”

The parties stipulated that about a dozen 

employees of Shannondell who had a master key to 

all of the apartments were on the premises during 

the evening of June 1st or the morning of June 2nd, 

2012. The parties also stipulated that two un-solved 

thefts occurred at Shannondell, one on March 3, 

2012 and the other on June 29, 2012. One was a 

theft of two candlesticks from a resident’s 

apartment, and the other was a theft of personal 

items from the locker of a Shannondell employee.

[Appellant] arrived at approximately 6:00 a.m. 

on the morning of June 2, 2012. After she arrived, 

[Appellant] did not always remain within the sight of 

Mrs. Roberts. One of the things [Appellant] and 

other Angel Companion aides were to do for Mrs. 

Roberts was to make her bed. Mrs. Roberts did not 

specifically remember telling [Appellant] to make the 

bed, but she remembered that [Appellant] entered 

the bedroom to help her shower and dress. The 

dresser with the jewelry was to the immediate right 

of the entry to her bedroom.

When Mrs. Roberts was in another bedroom, 

she called for [Appellant] to help her. She called 

several times, but [Appellant] did not respond for 

approximately ten minutes. The delay seemed 
J-S70024-14

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unusually long to Mrs. Roberts, and she wondered 

silently why [Appellant] did not respond sooner. 

Mrs. Roberts opined that if the clothes washer and 

dryer were running it might have been possible that 

a person in another room might not have heard her 

first call, but would have heard her subsequent calls.

While [Appellant] was in the apartment she 

said something that stood out to Mrs. Roberts: that 

it was such a long drive to Shannondell that it was 

not financially worth it to have made the trip for such 

a short visit. Within an hour after she left, Mrs. 

Roberts discovered that some of her jewelry was 

missing: while looking for a particular piece, she 

noticed that “the earring box had vacancies in it.” 

Then she looked in the containers on top of the 

bureau and saw that the serpentine bracelet was 

also missing. Mrs. Roberts testified that she wears 

jewelry daily and changes it daily, thus she checks 

her jewelry every day. She described each piece of 

jewelry she discovered missing, and all were gold.

When the police investigated the theft, they 

found that no surveillance video was available. The 

police did not try to obtain fingerprints from the 

remaining jewelry or jewelry containers. They did 

not attempt to “cross-reference” the employees who 

were working at the time of this theft with those who 

were working at the times of the other thefts on 

March 3[r]d and June 29th.

The police contacted numerous pawn shops in 

the area but none reported inventory matching the 

descriptions of the missing pieces of jewelry. 

[Appellant] had a couple of outstanding loans from a 

pawn shop, but none of the items taken from Mrs. 

Roberts were found in her possession. A search of 

the call log of [Appellant]’s cell phone did not show 

that she had called, or received calls from, pawn 

shops.

The police telephoned [Appellant] on the day 

Mrs. Roberts reported the theft, the same day she 

had gone to Mrs. Roberts’ apartment. When the 
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investigating detective identified himself and said he 

was calling about a theft at Shannondell, she 

spontaneously asked whether the theft occurred at 

the apartment of Mrs. Roberts. She agreed to meet

with the detective to discuss the theft, but said she 

was too busy to meet that evening, and stated that 

she was in a meeting and would have to call him 

back. She never called back. The detective called 

twice more before she returned his call and left a

message via voice mail. When he called her back, 

she did not answer.

When the police arrested [Appellant] on July 

13, 2012, she agreed to answer their questions, and 

did so for approximately three hours. During that 

time she denied the allegations against her, although 

the detective characterized her denials as “weak.”

Trial Court Opinion, 6/17/14, at 1-4.

On November 22, 2013, a bench trial occurred, at the conclusion of 

which Appellant was found guilty of the aforementioned crimes. On 

February 28, 2014, prior to sentencing, Appellant filed a motion titled as a 

“Post-Verdict Motion in Arrest of Judgment and for a New Trial[,]” 

challenging both the weight and sufficiency of the evidence. The trial court 

never ruled on said motion. Thereafter, on March 6, 2014, Appellant was 

sentenced to three to 23 months’ imprisonment. On April 7, 2014, Appellant 

filed a timely notice of appeal.2

____________________________________________

2 We observe that the 30th day fell on Saturday, April 5, 2014. When 

computing the 30-day filing period “[if] the last day of any such period shall 

fall on Saturday or Sunday ... such day shall be omitted from the 

computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to 

file a timely notice of appeal was on Monday, April 7, 2014. As a result, we 

(Footnote Continued Next Page)
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On appeal, Appellant raises the following issue for our review.

Whether the evidence presented at trial was 

insufficient as a matter of law to establish beyond a 

reasonable doubt that [] Appellant had committed 

the crimes of Theft by Unlawful Taking and Receiving 

Stolen Property[?]

Appellant’s Brief at 4.3

Our standard of review regarding challenges to the sufficiency of the 

Commonwealth’s case is well settled. “In reviewing the sufficiency of the 

evidence, we consider whether the evidence presented at trial, and all 

reasonable inferences drawn therefrom, viewed in a light most favorable to 

the Commonwealth as the verdict winner, support the jury’s verdict beyond 

a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 

2014) (citation omitted). “The Commonwealth can meet its burden by 

wholly circumstantial evidence and any doubt about the defendant’s guilt is 

to be resolved by 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.” Commonwealth v. Watley, 81 A.3d 

108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation 

omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we 

(Footnote Continued) _______________________

deem her appeal timely filed. Further, Appellant and the trial court have 

complied with Pennsylvania Rule of Appellate Procedure 1925.

3 Appellant’s brief does not contain pagination. For ease of review, we have 

assigned each page a corresponding page number.
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must review “the entire record ... and all evidence actually received[.]” Id.

(internal quotation marks and citation omitted). “Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the evidence is 

so weak and inconclusive that as a matter of law no probability of fact may 

be drawn from the combined circumstances.” Commonwealth v. Kearney, 

92 A.3d 51, 64 (Pa. Super. 2014) (citation omitted), appeal denied, --- A.3d

---, 385 MAL 2014 (Pa. 2014). “[T]he 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.” Id. (citation omitted). “Because 

evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 

119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. 

Pennsylvania, 135 S. Ct. 145 (2014).

Instantly, Appellant asserts the evidence was insufficient to establish 

she committed each of the material elements of the crimes beyond a 

reasonable doubt because the evidence presented “was purely conjecture 

and speculation without any evidence pointing to [] Appellant as the one 

committing the crime.” Appellant’s Brief at 7-8. Additionally, Appellant 

avers that “there was simply no evidence presented that [Appellant] actually 

stole any property or was in possession of stolen property.” Id. at 8.

At the outset, we note that, “[i]n addition to proving the statutory 

elements of the crimes charged beyond a reasonable doubt, the 
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Commonwealth must also establish the identity of the defendant as the 

perpetrator of the crimes.” Commonwealth v. Brooks, 7 A.3d 852, 857 

(Pa. Super. 2010), appeal denied, 21 A.3d 1189. Furthermore, we are 

cognizant of Appellant’s reliance on Commonwealth v. Stores, 463 A.2d 

1108 (Pa. Super. 1983) for the argument that more than mere presence at 

the scene is required to find the evidence sufficient. Appellant’s Brief at 10.

While a criminal conviction may rest upon wholly 

circumstantial evidence, it may not be based upon 

mere surmise or conjecture. Evidence of mere 

presence at or near the scene of a crime is precisely 

the kind of circumstantial evidence that does require 

surmise or conjecture. Evidence of something more 

than presence at or near the scene of a crime is 

required to justify the conclusion that someone 

committed or participated in a crime.

Stores, supra at 1112 (internal citations and quotations omitted).

However, viewing the evidence in the light most favorable to the 

Commonwealth as the verdict winner, the record reveals the evidence 

presented was sufficient to prove Appellant perpetrated the aforementioned 

crimes. Herein, the trial court authored an extensive, 12-page opinion that 

comprehensively discusses and disposes of Appellant’s sufficiency 

arguments. Upon careful review, we agree with the thorough analysis of the 

law and facts as developed by the trial court in its June 17, 2014 opinion. 

Specifically, the record supports the trial court’s finding that Mrs. 

Roberts’ daughter, Gina Edwards, was in her apartment on June 1, 2012, the 

night before the jewelry was discovered stolen. N.T., 11/22/13, at 15. On 
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that evening, Mrs. Edwards observed items that were later determined to be 

stolen were present in Mrs. Roberts’ bedroom, where she slept that evening. 

Id. at 12. Mrs. Edwards testified that when she left her mother’s apartment 

around 10:30 p.m. her mother was in bed. Id. at 17. The following 

morning, Appellant and Mrs. Roberts were the only people present in the 

apartment between 6:00 a.m. and 8:30 a.m. At some point Mrs. Roberts 

was in a second bedroom for approximately ten minutes calling out to 

Appellant who did not respond. Id. at 55. After Appellant left, at 10:00 

a.m., Sally Roberts, Mrs. Roberts’ daughter-in-law, arrived and Mrs. Roberts 

informed her that she discovered the items had been stolen. Id. at 12. 

Based on this circumstantial evidence, the trial court found the evidence was 

sufficient to convict Appellant of the aforementioned crimes. See Watley, 

supra.

Accordingly, for all the foregoing reasons, we adopt the portion of the 

June 17, 2014 opinion of the Honorable Wendy Demchick-Alloy addressing 

Appellant’s sufficiency claim as our own for the purpose of this appellate 

review. Therefore, we affirm Appellant’s March 6, 2014 judgment of 

sentence.

Judgment of sentence affirmed.
J-S70024-14

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2014
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IN Tl-IE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA Nos. CP-46-CR-0005312-20 12 

v. 

JENNIFER CLARK 

OPINION 

OEM CHICK-ALLOY, J. JUNE 11, 2014 

Defendant-appellant was convicted of theft by unlawful taking or disposition, 18 Pa.C.S. 

§ 392I(a), and receiving stolen property, 18 Pa.C.S. § 3925(a) and w,", sentenced on March 6, 

2014. Defendant has fi led a concise statement of errors complained of on appeal that appears 10 

raise two claims of error: the evidence was not sufficient to support the verdict, and the verdict 

was against the weight of the evidence, I After reciting the material facts of record, this opinion 

will address the sufficiency claim and then the weight claim. 

FACTS 

Mrs. Nancy Roberts has, since 2006,lived in an apartment in a residential complex for 

senior citizens, kno,\'Jl as Shannondell in Valley forge. At all times relevant to this case, 

defendant was employed by Angel Companions, a business firm that provides home services to 

the elderly. While so employed, defendant was in Mrs. Roberts' apartment from 6:00 a.m. to 

1 lne concise statement consists of items numbered "I," "2," "2(a)," and "3." Hems "1" and "2" 

expressly and unambiguously claims that the verdict was against the weight of the evidence. 

Item "2(a)" states both that the "Commonwealth failed to present sufficient evidence ... and the 

Commonwealth's evidence was based purely on speculation and conjecturer.]" which seems to 

first raise a !)u[fici(;ncy claim imd then rdise a weight claim. Item "3" states that the wldersigned 

judge erred and abused her discretion by inferring guilt based upon certain evidence, which might 

raise either a sufficiency claim, a weight claim, or both. 
Circulated 11/21/2014 01:50 PM , . 

8:30 a.m. on June 2. 2012. At 10:00 a.m .• Mrs. Roberts' daughter Sally arrived. and as soon as 

she did, Mrs. Roberts told her, "I've been robbed." 

The two took inventory of Mrs. Roberts' j ewelry and detennined that several items were 

missing. All were gold. The total value of the missingjeweJry amounted to $32,773.68. They 

reported the loss to the security officer working for Shannondcll and the Lower Providence 

Township Police Department. 

The apartment where Mrs. Roberts Jives is on the third floor of her building, about fifty 

yards away from the elevators, past the doors of five other apartments. The building is only one 

of several residential buildings on the campus. In order to get to the doorway of the bedroom 

where Mrs. Roberts sleeps, onc must enter the building, go to the third floor, open the door to her 

apartment and pass through a hallway, her living room and another hallway. 

On the evening before Mrs. Roberts discovered the loss, she was visited by another of her 

daughters, Gina Edwards. While there, Mrs. Edwards looked at her mother's jewelry, some of 

which was kept in small containers on top ofa bureau. She saw some of the items of jewelry that 

her mother discovered to be missing the next morning after defendantlcft. She worried about a 

particularly valuable "serpentine bracelet" because Mrs. Edwards kept it in a small box on the 

top of her bureau, rather than in a relatively more secure location, such as her jewelry box in the 

bureau drawer. Mrs. Roberts testified that the bureau is only a few feet from the foot of her bed. 

She also described herself as a light sleeper, who would normally wake if a person were to open 

the door to the apartment. 

Mrs. Edwards testified that she helped her mother. Mrs. Roberts. to bed that night. Mrs. 

Edwards said she left her mother's apartment at approximately J 0:30 p.m. on the evening of June 

1st, and on the outside of the apartment door left a note to defendant, the Angel Companions 

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employee who was scheduled to arrive the next morning. Defendant had never met Mrs. Roberts 

or worked in her <lpartment before. The note asked defendant, by name, to entcr and wake her 

mother ifshe was still asleep. Mrs. Edwards did not remember whether she locked the door to 

the apartment when she left, but according (0 Mrs. Roberts, by ten thirty in the evening there is 

not much pedestrian traffic in the halls of Shannon dell, as the residents "don't ~1ay up late or 

[they] stay in their apartments." 

The parties stipulated that about a dozen employees of Shannondell who had a master key 

10 all of the apartments were on the premises during the evening of June 1st or the morning of 

June 2nd, 2012. The parties also stipulated that two un-solved thefts occurred at ShalU1ondell, 

one on March 3, 2012 and the other on June 29. 2012. One was a thefl oftwo candlesticks from 

a resident's apartment. and the other was a theft of personal items from the locker of a 

Shannondell employee. 

Defendant arrived at approximately 6:00 a.m. on the morning of June 2, 2012. After she 

arrived, defendant did not always remain within the sight of Mrs. Roberts. One of the things 

defendant and other Angel Companion aides were to do for Mrs. Roberts was to make her bed. 

Mrs. Roberts did not specifically remember telling defendant to make the bed, but she 

remembered that defendant entered the bedroom to help her shower and dress. The dresser with 

the jewelry was to the immediate right ofthe entry to her bedroom. 

When Mrs. Roberts was in another bedroom, she called for defendant to help her. She 

culled several times, but defendant did not respond for approximately len minutes. The delay 

seemed unusually long to Mrs. Roberts, and she wondered silently why defendant did not 

respond sooner. Mrs. Roberts opined that if the clothes washer and dryer were running it might 

have been possible that a person in another room might not have heard her first call, but would 

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have heard her subsequent calls. 

While defendant was in the apartment she said something that stood out to Mrs. Roberts: 

that it was such a long drive to Shannondcll that it was not financially worth it to have made the 

trip for such a short visit. Within an hour after she left, Mrs. Roberts discovered that some of her 

jewelry was missing: while looking for a particular piece, she noticed that "the earring box had 

vacancies in it." Then she looked in the containers on top of the bureau and saw that the 

serpentine bracelet was also missing. Mrs. Roberts testified that she wears jewelry daily and 

changes it daily, thus she checks her jewelry every day. She described each piece ofjeweiry she 

discovered missing, and all were gold. 

When the police investigated the theft, they found that no surveillance video was 

available. The police did not try to obtain fingerprint::; from the remaining jewelry or jewelry 

containers. They did not attempt to "cross-reference" the employees who were working at the 

time ofthi::; thcft with those who were working at the times orlhe other thefts on March 3d and 

June 29th. 

The police contacted numerous pawn shops in the area but none repOItcd inventory 

matching the descriptions ofthe missing pieces of jewelry. Defendant had a couple of 

outstanding loan::; from a pa\\'l1 shop, but none of the items taken from Mrs. Roberts were found 

in her possession. A search of the call log of defendant's cell phone did not show that she had 

called, or received calls Crom, pawn shops. 

The police telephoned defendant on the day Mrs. Roberts reported the theft, the same day 

she had gone to Mrs. Roberts' apartment. When the investigating detective identified himself 

and said hc was calling about a theft at Shannondell, she spontaneously asked whether the theft 

occurred at the apartment of Mrs. Roberts. She agreed to meet with t11e detective to discuss the 

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theft, but said she was too busy 1'0 meet that evening, and stated that she was in a meeting and 

would have to caJl him back. She never callcd back. The detective called twice more berore she 

returned his call and left a message via voice mail. \Vhen he call cd her back, she did not answer. 

When the police arrested defendant on July 13,2012, she agreed to answer their 

questions, and did so for approximately three hours. During that time she denied the allegations 

against her, although the detective characterized her denials as "weak." 

DISCUSSION 

1. The verdict was snpported by sufficient evidence 

A person "is guilty of theft by unlawful taking or disposition 'ifhe unlawfully takes, or 

exercises unlawful control over, movable property of another with intent to deprive him 

thereof.'" Commonwealth v. Haines, 442 A.2d 757, 760 (pa. Super. C1. 1982) (quoting 18 

Pa.C.S.A. § 3925(a». A pe"on "is guilty of receiving stolen property '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.'" Ed. (quoting 18 Pa.C.S.A. § 3925(a)). If the 

evidence is sufficient 10 prove the former crime, it is "necessarily" sufficient to prove the latter. 

ld 

When evaluating the sufficiency of the evidence, "the Commonwealth does not have to 

establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial 

evidcnce. On the other hand. guilt must be proved; mere conjecture or surmise is not sufficient." 

Haines a1758-59 (quoting Commonwealth v. Herman, 412 A.2d 6 17, 619 (pa. Super. Ct. 1979». 

"It is also clear that in reviewing the evidence, we must consider it in the light most favorable to 

the verdict wiJUler." ld. 

In Commonwealth v. Slores,463 A.2d 11 08 (pa. Super. Ct. 1983)thc Superior Court 

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elaborated, "While a criminal conviction may rest upon wholly circumstantial evidence, it 'may 

not be based upon mere surmise or conjecture.' Evidence of mere presence at or ncar the scenO 

of a crime is precisely the kind of circumstantial evidence that does require surmise or 

conjccture." ld at 1112 (quoting Commol7wealth v. Berrios, 434 A.2d 1173, 1176 (Pa. 1981) 

(other citation omitted). In Haines, the circumstantial evidence was sufficient to sustain the 

conviction of theft by unlawful taking, but in SlOres it was not. A review of each opinion shows 

that this case is more like Haines than Stores, and lhe circlUl1stantial evidence is sufficient 

In Slores, a jury convicted defendant of theft by unlawful taking after hearing 

circumstantial evidence that he stoic sixteen diamond rings from a display case in the jewelry 

department ofa department store. Stores at 1109. Thejewelry department was at the time 

attended by a single sales clerk, Ms. Trott. Id Ms. Trott testified that the rings were in the case 

when she began working that day, but she discovered them missing approximately one half hour 

aftcr dcfendant and his companion left the jewelry departmcnt. ld. at 1109-10. The defendant 

and his companion had been leaning over the case, apparelltly looking at the rings. Jd at 1109. 

Ms. Troll was attending to otllCr customers while defendant and his companion were in the store. 

JeI. at 1111 . Ms. Trott did not testify that she had seen the rings in the display case shortly before 

she saw defendant and his companion, and she did not testifY that she knew the rings could not 

have been tilken by other customers walking by the jewclry department after defendant. fd at 

1110-12. Ms. Troll testified that her view of the display case was, at times, blocked. ld at 1112. 

The Superior Court reasoned that the circumstantial evidence was not sufficient to sUpJX>r! the 

guilty verdict for theft by unlawful taking: 

In summary, then: Thejwy had evidence that appellant and his companion had 

had the opportunity to take the rings inasmucll as they had been in the jewelry 

department and had not been closely observed by Ms. Trott. But the jury also had 

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evidence that other persons either had been or might have been in the jewelry 

department, and that at least some of these other persons ruso had had the 

opportunity to take the rings inasmuch as they too had not been closely observed--

indeed, perhaps not observed at all--by Ms. Trott. No evidence tied any particular 

person to the missing ri ngs. Apparently there were no fingerprints on the display 

case--at least, no evidence of any was offered. While Ms. Trott saw appellant and 

his companion looking at the rings, she didn't see them prying the case open, nor 

"what they were doing with their harxls if anything[.]" Thus what the jury was 

lcfl with was prooftha! appellant and his companion had been present at the scene 

of the theft of the ri ngs-and so had other persons. 

ld. (citations to trial record omitted, bracketed text added). 

In Haines, the defendant \VdS convicted after a bench trial of theft by unlawfu l taking after 

the judge heard circtlmstantial evidence that he stole two chain saws from a fami ly-ov.'l1cd 

hardware store. Haines at 758-59. The defendant had parked his van only a few feet from a door 

that could only be opened by persons inside the store. Id. at 759. The store was atlen:led by only 

one person when the defendant entered and asked for a hardware item. Id. The clerk walked to 

the rear of the store and up some stairs to find the item, and did not return for three to five 

minutes. Id. He told defendant he could not find the item, and defendant left. lei. The owner 

returned to the store within an hour and noticed that two chain saws were missing. Id. One of 

the missing saws was later recovered from a garage, where it was being repaired. Id The 

putative buyer ofthe saw testifi ed that he bought the saw fTom an unidentified man who said he 

was sent by the defendant because defendant "knew he needed a chain saw." Id. The defendant 

also testified that he did not know the name of the unidentified man. Id. The trial judge stated 

that he did not believe the defendant or the buyer, and believed the buyer purchased the saw from 

the defendant. ld 

The trial judge noted "that there was no evidence unequivocally placing the chain saws in 

the hands of defcndant[.]" Id. As in Stores, the store clerk did not testify that he had seen the 

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chain saws shortly before defendant entered the store. And although the Superior Court opinion 

stated that defendant was alone in the "main store area" while the clerk was in another part of the 

store, on another level, searching for the hardware the defendant requested, id., the opinion does 

not state that the clerk testified that no one else could have entered and left the store during that 

time. Nonetheless, the panel in Haines concluded, "the Commonwealth, albeit circumstantially, 

maintained ils burden to prove beyond a reasonable doubt that defendant was guilty of theft." Id. 

The Superior Court reasoned, "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 the defendant to the recovered saw." Id. at 760. 

In Stores, the stolen items were not recovered, hence there was no link between recovered 

property and the accused, as there was in liaines, and it appears that the link between the 

recovered property and the accused compensated for the lack of evidence ruling out the 

possibility that someone other than the accused could have entered thc premises and stolen the 

property during the period whcn the theft could have occurred. In Stores, however, the jewelry 

was stolen from a department store, in an area that the public could freely enter and exit without 

having to walk tlrrough a door, and similarly in Haines, the chain saws were stolen from a 

hardware store the public could enter by walking through a door, and exit through one of two 

doors. The likelihood that someone other than the accused committed the theft is much lower in 

this case than in Stores or Haines, therefore the need for evidence linking (he defendant (0 

recovered property is much lower. 

The evidence of record indicates that the door of Mrs. Roberts's apartment may have 

been unlocked between 10:30 p.m. on June I, 2012 and 6:00 a.m. on June 2, 2012, bUl the 

evidence also indicates that it was very unlikely that anyone entered without her knowledge. She 

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stated that she was a light sleeper and would have awakened if SOmeone opened the apartment 

door. The bureau where she kept her jewelry was only a few feet fi"Om her bed. Her bedroom 

was past her living room and at the end of a hallway inside her private apartment, which was fifty 

yards from the eJevator on the third floor of a residential building that was only one of several on 

the campus. Public access was infinitesimally lower than aecess to a jewelry department in a 

department store, or to the sales area ofa hardware store. If someone had entered, she was much 

more likely to have noticed than the store clerk in Stores, whose vision of the jewelry case was 

partially blocked, and who was distracted by other customers, or the store clerk in ffaines, who 

was in another part of the building altogether. The evidence did not absolutely rule out the 

possibility that a person had entered the apartment unbidden and undetected during the relevant 

period, but the Commonwealth docs not have to establish guilt to a mathematicru certainty in 

order to produce sufficient evidence to support a guilty verdict. Therefore, the Commonwealth's 

failure to produce evidcnce linking defendant to the crime through the recovery of the stolen 

jewelry is not a reaSon to conclude that the other evidence was insufficient to prove th e defendant 

guilty of the crimes charged, 

2. The \'cnlict was not against the weight of the evidence 

"Ille Supreme Court ofPcnnsylvania advises that 

[a] trial judge must do more than reassess the credibility of the witnesses and 

all ege thal he would not have assented to the verdict ifhe were ajuror, Trial 

judges, in reviewing a claim that the verdict is against the weight of the evidence 

do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine 

that "notwithstanding all the facts, certain facts arc so clearly of greater weight 

that to ignore them or to give them equal weight with all the facts is to deny 

justice. " 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (quoting 111Ompson v. City 0/ 

Philadelphia, 493 A.2d 669,674 (Pa. 1985». As for the role of the appell ate courts, 

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ld. 

review ofa weight claim is a review oflhe exercise of discretion, not of the 

underlying question of whether the verdict is against the weight of the evidence. 

Because the trial judge has hfld the opportunity to hear and see the evidence 

presented, an appellate court will give the gravest consideration to the findings 

an4 reasons advanced by the trial judge when rcvicVo.ting a trial court's 

detemination that the verdict is against the weight of the evidence. 

In this case, only three facts weighed against the verdict of guilt. First, Mrs. Edwards 

may nol have locked the apartment door when she left, in which case it would have remained 

unlocked until defendant arrived. Second, she left a note on the door, asking defendant, by name, 

to let herself in. The note did not state that the door was lU110cked, hence any other reader would 

not nccessa.Jily have assumed that the person named in the note did not have a key to the 

apartment. Moreover, the note expressly stated that the apartment was occupied at the time. 

Third, in the months bef~re and after the theft in question, two unsolved thefts occuned at 

ShannondelI, only one of which occurred in the apartment of another resident. 

The parties stipulated that during the hours when the door was unlocked, a dozen 

employees who were in possession of master keys were on the campus of Shannondell. That 

particular stipulation should be assigned very little weight, for there is no reason to believe that 

an "employee with a master key would have roamed the campus looking for an unlocked 

apartment door. To the contrary, because the testimony indicated that almost all of the residents 

were in their apartments during the night, an employee with a master key would have preferred to 

enter an apartment during tIle daytime, when it would be less likely that the resident of the 

apartment was present. One could thus infer that, of the employees 'I;\~th master keys, those most 

likely to steal ii-om an apartment would be those who kne\-v the schedule ora particular resident, 

and they would enter when they were confident the resident would be gone, most likely during 

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the day. 

Based on the foregoing facts, it is of little weight that a dozen employees on the campus 

at the time of the theft had master keys, To the contrary, those facts suggest that nonc of those 

employees would have intenlionally sought out an unlocked apartment in the middle of the night. 

Moreover, the note on the door did not necessarily suggest that the apartment was unlocked, but 

it did expressly state that it was occupied. 

The likeJihood that someone other than defendant stole the jewelry depends on the chance 

that, orall the apartments on aJl the Doors of all the residential buildings on the Shannondcll 

campus, someone without a master key just happened to: go to the building where Mrs. Roberts 

lived; take the elevator to the floor where she lived; walk fifty yards from the elevator, past five 

other doors to her apartment; surmise from the note that the door was unlocked; turn the 

doorknob and push open the door, disregarding the fact that the note stated the apartment was 

occupied; walk through the first hallway, through her living room, through the second hallway 

and across the threshold of her bedroom; and there, in the darkness of her bedroom, open the 

containers on top of the bureau, the drawer of the bureau, and the jewelry box inside that drawer, 

silently pick the jewelry out of the containers and jewelry box, then turn and sneak out; all 

without waking Mrs. Roberts, a light sleeper. It would be exceedingly unlikely ifaH of those 

conditions had been met simultaneously, just as defendant was scheduled to arrive at 6:00 a.m. 

for her first visit, which she gratuitously told Mrs. Roberts was barely worth it, financially, for 

her to have made. ft would require speculation, surmise and conjecture to assert olherv· .. ise. The 

Wldersigned judge was present in the court and observed the demeanor of the witnesses as they 

testified, and is, based on those first-hand observations, convinced beyond a reasonable doubt 

that no one but defendant and Mrs. Roberts was in the apartment between the time Mrs. Edwards 

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" 

left C1nd the lime Mrs. Roberts discovered her jewelry stolen. 

CONCLUSION 

Upon consideration of the foregoing discussion, the undersigned respectfully submits that 

the judgment of sentence should be affinned. 

BY THE COURT, 

Copy of "bove sent on ~'faj7< to: 

Robert M. Falin, Deputy District tomey, Appellate DIvIsion; by mler-office mall 

Gregory P. DiPippo, Esquire; Pizonka, Reilley, Bello & McGrory, PC; 144 E. DeKalb Street, 

Suite 300; King o[Prussia, PA 19406 

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