J-S17026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

DERRICK SMITH 

Appellant

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 500 EDA 2017

Appeal from the Judgment of Sentence February 2, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009467-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 13, 2018

Derrick Smith appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, after he was convicted, in a 

nonjury trial, of theft by unlawful taking,1theft by deception,2 and receiving 

stolen property.3 Upon careful review, we affirm. 

The trial court set forth the facts of this matter as follows:

On September 25, 2016, at about 4:00 p.m., Ms. Swainetta 

Bowens, her son, a friend of her son’s, and her sister went to 

Lincoln Financial Field in Philadelphia where [the] Philadelphia 

Eagles [were] scheduled to play a football game that day. Ms. 

Bowens and the others did not have tickets to the game and just 

planned to walk around the stadium area. As they were doing so, 

[Smith] asked Ms. Bowens if she and the others were looking for 

____________________________________________

1 18 Pa.C.S.A. § 3921.

2 18 Pa.C.S.A. § 3922.

3 18 Pa.C.S.A. § 3925.
J-S17026-18

- 2 -

tickets and Ms. Brown answered affirmatively[,] at which time 

[Smith] said he had tickets for sale. Ms. Bowens then purchased 

two tickets from [Smith] for $300.00, which Ms. Bowens gave to 

her son and his friend.

Subsequent thereto, [Ms. Bowens’] son and his friend returned to 

Ms. Bowens and she immediately flagged down a police officer to 

whom she pointed out [Smith] because her son and his friend 

were denied admission into the stadium after the tickets were 

scanned.[

4] According to Ms. Bowens’ son[,] he and his friend 

were denied entry into the stadium because the tickets were 

deemed either to have been scanned already or were duplicate 

tickets. Ms. Bowen indicated that when she purchased the tickets, 

[Smith] told her that he would be in the same location and would 

reimburse her if there were any problems with the tickets.2

2Ms. Bowen’s son testified that when the tickets were 

purchased[,] [Smith] did say that he would remain in the 

same location but disagreed with his mother’s testimony 

that [Smith] stated that he would reimburse his mother if 

the tickets were rejected.

[Smith] testified in his own defense and stated that he sold tickets 

at the stadium for a living. He further stated that he bought five 

tickets for $575.00 (two of which he sold to Ms. Bowens) and that 

he told Ms. Bowens that he did not know if they were genuine and 

that he would reimburse Ms. Bowens if they were unusable. He 

also testified that he gave Ms. Bowens a business card that

contained his name, phone number, and email address.

Trial Court Opinion, 5/18/17, at 2-3.

After a waiver trial, Smith was convicted of the above charges, plus one 

count of forgery. The trial court sentenced Smith to 111⁄2 to 23 months’ 

incarceration, with immediate parole, for forgery, followed by 3 years’ 

probation for theft by deception. The court imposed no further penalty on the 

____________________________________________

4 Ms. Bowen testified that, while she was waiting to find out from her son if 

the tickets were valid, she noticed that the police had apprehended Smith for 

selling other tickets. She then approached the officers and advised them that 

she, too, had purchased tickets from Smith. 
J-S17026-18

- 3 -

remaining charges. Smith filed post-sentence motions, after which the trial 

court arrested judgment as to the forgery charge. Upon resentencing on 

February 2, 2017, the court imposed a sentence of 11 1⁄2 to 23 months’ 

incarceration, followed by 3 years’ probation, on the theft by deception 

charge, with no further penalty on the remaining counts. Smith filed a timely 

notice of appeal on February 6, 2017, followed by a court-ordered statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Smith raises the following issue for our review:

Was not the evidence insufficient to prove that [Smith] had the 

requisite criminal intent to sustain his convictions for theft, theft 

by deception and receiving stolen property where [Smith] resold 

football tickets to the complainant just prior to the game in front 

of the stadium, [Smith] assured the complainant that if there were 

any problems with the tickets she should return to him for a full 

refund, [Smith] provided the complainant with his business card, 

which included his email address and telephone number, and 

[Smith] remained in place seeking to sell other tickets?

Brief of Appellant, at 3. 

We begin by noting our well-settled standard of review of sufficiency 

claims:

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record “in the light most favorable 

to the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence.” 

Commonwealth v. Widmer, [] 744 A.2d 745, 751 ([Pa.] 2000). 

“Evidence will be deemed sufficient to support the verdict when it 

establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt.” 

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 

2005). Nevertheless, “the Commonwealth need not establish guilt 

to a mathematical certainty.” Id.; see also Commonwealth v. 
J-S17026-18

- 4 -

Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts 

and circumstances established by the Commonwealth need not be 

absolutely incompatible with the defendant’s innocence[.]”). 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. See Commonwealth v. DiStefano, 

782 A.2d 574, 582 (Pa. Super. 2001).

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. See Brewer, 876 A.2d at 1032. 

Accordingly, “[t]he fact that the evidence establishing a 

defendant’s participation in a crime is circumstantial does not 

preclude a conviction where the evidence coupled with the 

reasonable inferences drawn therefrom overcomes the 

presumption of innocence.” Id. (quoting Commonwealth v. 

Murphy, 795 A.2d 1025, 1038–39 (Pa. Super. 2002)). 

Significantly, we may not substitute our judgment for that of the 

fact finder; thus, so long as the evidence adduced, accepted in the 

light most favorable to the Commonwealth, demonstrates the 

respective elements of a defendant’s crimes beyond a reasonable 

doubt, the appellant’s convictions will be upheld. See Brewer, 

876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super. 2013), 

quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 

2013). The Commonwealth may prove specific intent through purely 

circumstantial evidence. Commonwealth v. Haney, 131 A.3d 24, 36 (Pa. 

2015). Finally, the fact finder is not bound by an actor’s stated intention, but 

may find that he intended the natural and probable consequences of his act. 

Commonwealth v. Little, 614 A.2d 1146, 1154 (Pa. Super. 1992).

Smith was convicted of theft by unlawful taking, theft by deception and 

receiving stolen property. A person is guilty of theft by unlawful taking where 

“he unlawfully takes, or exercises unlawful control over, movable property of 
J-S17026-18

- 5 -

another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a). A person 

commits theft by deception when “intentionally obtains or withholds property 

of another by deception.” 18 Pa.C.S.A. 3922(a). Deception occurs where a 

person intentionally “creates or reinforces a false impression.” 18 Pa.C.S.A. 

§ 3922(a)(1). Finally, a person is guilty of receiving stolen property where 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.” 18 Pa.C.S.A. § 3925(a). 

Smith argues that he did not possess the requisite intent for any of the 

three crimes of which he was convicted because he: (1) told the complainant 

he would remain in the area and would refund her money if there were any 

problems with the tickets, and (2) gave the complainant his business card, 

which contained his telephone number and email address. Smith relies on 

this Court’s decision in Commonwealth v. Williams, 425 A.2d 795 (Pa. 

Super. 1981), disapproved of on other grounds by Commonwealth v. 

Hogan, 468 A.2d 493 (Pa. Super. 1983), to support his argument. In 

Williams, the defendant pulled up alongside a police cruiser and asked the 

officers for directions. After Williams pulled away, one of the officers 

discovered that the car he was driving was listed as stolen. At trial, the car’s 

owner testified that he did not know Williams and had not given him 

permission to use the car. Williams was convicted in a nonjury trial of 

receiving stolen property and unauthorized use of an automobile. In its 
J-S17026-18

- 6 -

opinion, the trial court stated that, in rendering a guilty verdict, it had “placed 

emphasis on the failure of defendant to explain his possession of a vehicle 

stolen only eighteen days earlier.” Williams, 425 A.2d at 796. 

On appeal, this Court reversed Williams’ convictions, reasoning that, 

apart from the fact of possession of the stolen vehicle, which has 

generally been held insufficient in itself to demonstrate guilty 

knowledge, the circumstantial evidence is insufficient to support a 

reasonable inference of guilty knowledge required for a conviction. 

On the contrary, assuming appellant was the driver of the stolen 

car, he stopped and asked the police for directions. Normally, a 

person in possession of a stolen vehicle does not stop to ask the 

police for directions. 

Id. at 797 (emphasis added). 

Smith analogizes the circumstances of his case to Williams, asserting

that, if he had known the tickets were fraudulent, he would not have remained 

in the area, offered a refund, or provided his business card to the complainant. 

In other words, he did not act like a guilty person. Rather, Smith argues, “an 

equally or more reasonable interpretation [of those facts] is that [Smith] sold 

the tickets in good faith.” Brief of Appellant, at 13. The matter at hand is 

distinguishable from Williams and, as such, this argument garners Smith no 

relief.

In Williams, the sole evidence of defendant’s criminal intent was his 

unexplained possession of a stolen car, which the Court held was “insufficient 

in itself to demonstrate guilty knowledge.” Williams, 425 A.2d at 797. There 

was no additional evidence, circumstantial or otherwise, from which the factfinder could have inferred guilt. Contra Commonwealth v. Phillips, 392 
J-S17026-18

- 7 -

A.2d 708 (Pa. Super. 1978) (evidence sufficient to prove intent to receive 

stolen motorbike where owner neither knew appellant nor gave him 

permission; appellant in “recent” possession one week after theft; bike had 

been repainted and serial number marred; appellant’s explanation of 

possession incredible; and appellant attempted to flee from arresting officer). 

In the case at bar, however, the court considered the attendant 

circumstances and concluded that Smith’s explanation was not credible. 

Specifically, Smith testified that he had been in the business of reselling tickets 

for 38 years. Nevertheless, he claimed to have purchased five tickets, for a 

total of $575.00, without first ascertaining their validity. 

[DISTRICT ATTORNEY PESTRAK]: You said that you bought these 

two tickets for a total of $575?

[SMITH]: No, sir. I bought five tickets.

Q: You bought five tickets that totaled --

A: Five seats for $575.

Q: And you had no way to know if they were going to work or 

not?

A: No way at all.

Q: And you do this on a regular basis?

A: About 38 years now.

MR. PESTRAK: I have nothing further.

N.T. Trial, 1/3/17, at 22-23.

The trial court expressed incredulity at Smith’s testimony and, instead, 

inferred that Smith knew the tickets were fraudulent and passed them off as 
J-S17026-18

- 8 -

genuine with the intent to receive and retain Ms. Bowens’ $300.00. Even 

assuming Smith actually did offer to refund Ms. Bowens’ money, such an offer 

could be interpreted by the fact finder as Smith believing the tickets to be

fake, yet selling them anyhow. And, as this Court has previously noted, an

intent to repay does not necessarily negate the crime of theft by deception. 

Commonwealth v. Grife, 664 A.2d 116, 120 (Pa. Super. 1995) (defendant’s 

purposeful intent to give lenders less than what they bargained for in order to 

procure their property evidenced guilty-mind requirement of theft by 

deception statute, regardless of defendant’s intent to repay). Viewed in the 

light most favorable to the Commonwealth as verdict winner, Widmer, 

supra, we can discern no error of law or abuse of discretion in the trial court’s 

conclusion that the evidence was sufficient to prove that Smith acted with the 

requisite criminal intent to support all three guilty verdicts. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/18