J-A01030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

LYNN KLESO

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1315 EDA 2019

Appeal from the Order Entered April 18, 2019

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

No(s): CP-45-CR-0002202-2018

BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 04, 2020

The Commonwealth appeals from the trial court’s order dismissing with 

prejudice all charges filed against Appellee, Lynn Kleso (Kleso). Upon review, 

we affirm. 

Kleso1 was the manager of Better Homes & Gardens Real Estate (BHG) 

from March 2015 to August 2015.2 In her role as manager, Kleso received 

rent payments from tenants at the Bushkill office and transported the 

payments to the Stroudsburg office. In May 2016, the Pennsylvania State 

Police began investigating Kleso after receiving a report that she had stolen

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The trial court notes that Kleso was formerly known as Lynn “Wilklow.” Trial 

Court Opinion 4/18/19, at 1 n.1. 

2 BHG is a real estate office affiliated with NEPA Management (NEPA), based 

in Monroe County, Pennsylvania. 
J-A01030-20

- 2 -

$2,900 from BHG during the course of her employment. In 2017, the 

Commonwealth charged Kleso with five counts of theft by unlawful taking at 

docket number 1922 CR 2017. See Trial Court Opinion, 4/18/19, at 1 n.1. 

After the trial court conducted a hearing, it dismissed the charges because 

“there was an absence of evidence to indicate that the rent payments in 

question were ever deposited[,]” and the Commonwealth failed to prove “a 

prima facie case that [Kleso] took or exercised unlawful control over the cash 

rent payments.” Id. 

On November 20, 2018, the Commonwealth again filed charges, this 

time alleging that Kleso had received stolen property, committed theft by 

failing to make required disposition of funds, and committed five counts of 

theft by unlawful taking of movable property.3 The affidavit of probable cause 

states: 

On Monday, May 2, 2016[, Trooper John Lutchko] began a 

theft investigation which occurred at the Better Homes and 

Garden Bushkill Branch, located at 5226 Milford Road, Middle 

Smithfield Township, Monroe County. The victims report that 

between the months of March and August of 2015, it was reported 

that five (5) cash deposits in the amount of $580.00 had been 

received by the victim, NEPA Management. These deposits were 

received and receipts given to the depositor. Reconciliation sheets 

were completed with daily deposits; however, the $580.00 cash 

deposit was missing from each of the five (5) interoffice cash 

receipts log. 

On each interoffice cash receipt log, the manager who is 

identified as [Kleso] signed the interoffice cash receipts log and 

delivered the deposits to the main accounting department in 

____________________________________________

3 18 Pa.C.S.A. §§ 3925, 3927, and 3921(a). 
J-A01030-20

- 3 -

Stroudsburg, PA, which is part of her duties as a manager. Also, 

as a manager, [Kleso] had direct access to the safe via key. These 

deposits were received and entered into an automated cash flow 

system. It was discovered that multiple people who were assigned 

to sit at the front desk of NEPA Management would receive these 

cash deposits and place them into the safe. It is customary for 

two (2) agents to sign the deposit and receipt, verifying the cash. 

[Kleso] would then open the safe with her management key 

she was issued, and remove all the deposits. She would then list 

all of the deposits on the interoffice cash receipts log. Each time 

the $580.00 deposit was not listed on the reconciliation sheet; 

however, [it] had [Kleso’s] signature on it. During the 

investigation, interviews were conducted with the victims and the 

office chief financial officer. [Trooper Lutchko] examined copies 

of the interoffice cash receipts and reconciliation sheets. 

A total of five (5) deposits were made, and receipts issued. 

Each of these five (5) deposits were dropped into the safe and 

[Kleso] gathered the deposits and listed each deposit except for 

the $580.00 cash deposit. The total amount of money in which 

was stolen by [Kleso] was $2,900. . . . 

Affidavit of Probable Cause, 4/20/16, at 1.

At the conclusion of the preliminary hearing on October 3, 2018, the 

magisterial district judge bound the charges for trial. On December 21, 2018, 

Kleso filed an omnibus pretrial motion, which included a motion for writ of

habeas corpus, requesting that the court conduct a hearing for the 

Commonwealth “to carry its burden of proving a prima facie case with regard 

to all charges placed within the [c]riminal [i]nformation.” Omnibus Pretrial 

Motion, 12/21/18, at 2. A hearing on the motion was held on February 4, 

2019. 

On April 18, 2019, the trial court issued an opinion and order granting 

Kleso’s motion and dismissing the November 20, 2018 criminal information 
J-A01030-20

- 4 -

with prejudice. The Commonwealth filed a timely notice of appeal4 and a 

concise statement pursuant to Pennsylvania Rule of Appellate Procedure 1925. 

The trial court filed a Rule 1925(a) opinion relying on its April 18, 2019 order 

and opinion. 

The Commonwealth presents the following issue for review:

WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

FAILING TO REVIEW THE EVIDENCE IN A LIGHT MOST 

FAVORABLE TO THE COMMONWEALTH WHEN IT REVIEWED THE 

EVIDENCE PRESENTED FOR THE PRIMA FACIE CASE ON ALL 

CHARGES? 

Commonwealth Brief at 6.

The Commonwealth argues that the trial court viewed the evidence 

incorrectly, averring that the court “erred as a matter of law in dismissing the 

charges against [Kleso] when it found the evidence presented at the omnibus 

hearing on [Kleso]’s motion for habeas relief failed to establish a prima facie

case for all charges.” Id. at 7. 

At the outset, we recognize:

In reviewing a trial court’s order granting a defendant’s 

petition for writ of habeas corpus, we must generally consider 

whether the record supports the trial court’s findings, and whether 

the inferences and legal conclusions drawn from those findings are 

free from error. A trial court may grant a defendant’s petition for 

writ [of] habeas corpus after a preliminary hearing where the 

Commonwealth has failed to present a prima facie case against 

the defendant. 

____________________________________________

4

In compliance with Pennsylvania Rule of Appellate Procedure 311(d), the 

Commonwealth certified “that the preclusion of charges ordered by the [c]ourt 

in its Opinion dated April 18, 2019, will terminate or substantially handicap 

the prosecution.” Notice of Appeal, 5/2/19, at *3.
J-A01030-20

- 5 -

Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (citations 

omitted). 

Further: 

The evidentiary sufficiency of the Commonwealth’s case, or 

lack thereof, is a question of law; as such, our scope of review is 

plenary. Commonwealth v. Karetny, [] 880 A.2d 505, 528 

([Pa.] 2005). We have previously described the well-settled 

principles governing preliminary hearings, as well as the 

Commonwealth’s concomitant burden, as follows: 

The purpose of a preliminary hearing is to determine 

whether the Commonwealth has made out a prima 

facie case for the offenses 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 establishes a prima facie case

when it produces evidence that, if accepted as true, 

would warrant the trial judge to allow the case to go 

to a jury. The Commonwealth need not prove the 

elements of the crime beyond a reasonable doubt; 

rather, the prima facie standard requires evidence of 

the existence of each and every element of the crime 

charged. Moreover, the weight and credibility of the 

evidence are not factors at this stage, and the 

Commonwealth need only demonstrate sufficient 

probable cause to believe that the person charged has 

committed the offense.

Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. 

Super. 2018) []. 

Commonwealth v. Perez, --- A.3d ----, 2019 WL 4926192, *5 (Pa. Super. 

2019) (en banc) (emphasis and footnote omitted).
J-A01030-20

- 6 -

The Commonwealth claims the trial court incorrectly determined that it 

failed to prove a prima facie case of receiving stolen property for Kleso’s 

alleged actions during her employment at BHG. Commonwealth Brief at 12. 

“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.” 18 Pa.C.S.A. § 3925. In 

Section 3925, “the word ‘receiving’ means acquiring possession, control or 

title, or lending on the security of the property.” Id. Therefore, three 

elements need to be proven to establish the crime of receiving stolen 

property: “(1) intentionally acquiring possession of the movable property of 

another; (2) with knowledge or belief that it was probably stolen; and (3) the 

intent to deprive permanently.” Commonwealth v. Robinson, 128 A.3d 

261, 265 (Pa. Super. 2015) (citations omitted). 

The Commonwealth also contends that the trial court incorrectly 

determined that it failed to establish a prima facie case of theft by failure to 

make required disposition of funds received. Commonwealth Brief at 9-11. 

The Crimes Code provides: 

(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 
J-A01030-20

- 7 -

belonging to the victim at the time of the failure of the actor to 

make the required payment or disposition. 

(b) Presumptions.--An officer or employee of the government 

or of a financial institution is presumed: 

(1) to know any legal obligation relevant to his 

criminal liability under this section; and 

(2) to have dealt with the property as his own if he 

fails to pay or account upon lawful demand, or if an 

audit reveals a shortage or falsification of accounts. 

18 Pa.C.S.A. § 3927. 

To secure a conviction under Section 3927, the Commonwealth must 

prove that the defendant: (1) obtained the property of another; (2) subject 

to an agreement or known legal obligation upon the receipt to make specific 

payments or other disposition thereof; (3) intentionally dealt with the property 

obtained as if it were the defendant’s own; and (4) failed to make the required 

disposition of property. Commonwealth v. Wood, 637 A.2d 1335, 1343 (Pa. 

Super. 1994) (citations omitted). 

Finally, the Commonwealth claims the trial court incorrectly determined 

that it failed to establish prima facie cases of theft by unlawful taking. 

Commonwealth Brief at 12-13. “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. “Proof of theft by 

unlawful taking requires three elements: (1) unlawful taking or unlawful 

control over movable property; (2) movable property belongs to another; and 
J-A01030-20

- 8 -

(3) intent to deprive (permanently).” Commonwealth v. Young, 35 A.3d 

54, 62 (Pa. Super. 2011) (citations and unnecessary capitalization omitted). 

In response, Kleso submits that the trial court correctly dismissed the 

charges because the Commonwealth failed to establish a prima facie case for

the three theft crimes. Kleso asserts that the Commonwealth did not provide 

any evidence that she ever took possession of the cash payments, and “the 

evidence shows someone other than Ms. Kleso accepted and handled the cash 

payments.” See Kleso’s Brief at 7-9. She argues that the “record is devoid 

of any evidence that the payments were deposited in the safe and by whom,” 

and the “Commonwealth presented no evidence that she ever handled or 

transported the funds,” or that she “exercised control over the alleged cash 

payments in question.” Id. Upon review, we agree. 

We reiterate, “[t]o demonstrate that a prima facie case exists, the 

Commonwealth must produce evidence of every material element of the 

charged offense(s) as well as the defendant’s complicity therein.” 

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) 

(citation omitted). The Commonwealth may sustain its burden of proving 

every element of the crime(s) by means of wholly circumstantial evidence. 

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011). However, 

“we have also noted that suspicion and conjecture are not evidence and are 

unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269 

(Pa. Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s 

case relies solely upon a tenuous inference to establish a material element 
J-A01030-20

- 9 -

of the charge, it has failed to meet its burden of showing that the crime 

charged was committed.” Id. (citation omitted, emphasis in original). “To 

meet its burden, the Commonwealth may utilize the evidence presented at 

the preliminary hearing and also may submit additional proof.” Dantzler, 135 

A.3d at 1112 (citation omitted). 

The trial court accurately summarized the evidence presented by the

Commonwealth as follows: 

* * *

At the [p]reliminary [h]earing, Rosemarie Lobe Waller 

testified. Ms. Waller is the [chief financial officer] of NEPA, and in 

2016, she conducted an audit of BH&G after being contacted by 

an owner. That owner claimed that he was owed money. Through 

an audit of the records, she discovered discrepancies in the cash 

envelopes received at BH&G and those transmitted to NEPA. Ms. 

Waller explained that when a tenant pays in cash, the employee 

of BH&G places the money into an envelope and prepares a receipt 

for the payment on a receipt log. The receipt is carbonized, one 

copy is given to the tenant and another transmitted to NEPA for 

payment to the owner. The cash envelope is then placed into a 

safe which is under the front desk and bolted to the floor. The 

manager retrieves the money from the safe and prepares a 

transmittal sheet of each envelope (Interoffice Cash Receipt Log). 

The procedure is completed by the manager who writes down 

everything taken out of the safe. The envelopes and transmittal 

sheet are then delivered to Ms. Waller in the Stroudsburg office.

Mr. Shah is an owner who was contracted with NEPA. Mr. 

Shah or his son contacted NEPA about money missing from their 

tenant, Mr. Tobias Diaz. The dates of the missing money were 

3/2, 4/2, 6/1, 7/1, and 8/3 of 2015. After being advised of the 

discrepancy, Ms. Waller then conducted an audit of the Bushkill 

office specific to this owner and tenant. The payments were 

allegedly made in cash generating a cash receipt. Ms. Waller 

noted a discrepancy between the receipt log and transmittal 

sheet. The dates of 3/2, 4/2, 6/1, 7/1, and 8/3 of 2015 were the 
J-A01030-20

- 10 -

dates of the missing cash payments. Each of the missing 

payments was in the amount of $580 for a total of $2,900.

* * *

The evidence presented by the Commonwealth include the 

cash receipt journals, interoffice cash receipts logs, and a 

summary of the rent analysis of 5245 Milford Road, LLC, owned 

by the Shahs. The deposit envelope for March 2, 2015, was 

written by Matt Jacobson containing the buyer/lessee as Tobias 

Diaz but containing an incorrect address and payment amount. 

The amount was listed as $175 for the address Tour Maple Lane, 

Unit 4, Bldg. 1. The receipt number on the envelope was listed as 

receipt #35924; however, the cash receipt was listed as receipt 

number #35928. That receipt (#35928) also contained the 

additional signature of Donna DiBernard. . . . 

At [the] hearing held on February 4, 2019, Trooper Lutchko 

testified that he never interviewed Matt Jacobson about the theft 

and his handling of the money. He also stated that he was unable 

to speak to [Kleso] about the thefts. 

Ms. Waller testified that whoever was at the front desk 

would accept the cash payment brought in by tenants. Therefore, 

multiple employees may receive payments, place it in an envelope 

and secure it in the safe. After secured in the safe, it was the 

responsibility of the manager to transport the cash envelopes to 

NEPA in Stroudsburg. The cash receipts contain signatures of the 

employee accepting the payment; however, the specific payments 

missing in this case are not listed on the Interoffice Cash Receipts 

Log. [Kleso] signed the Interoffice Cash Receipts Log for transport 

of the envelopes to the Stroudsburg office. 

Trial Court Opinion, 4/18/19, at 1-5 (citations to notes of testimony omitted). 

The trial court addressed the dearth of evidence in attempting to 

establish a prima facie case for the three theft crimes:

Although criminal intent may be inferred from circumstantial 

evidence, the circumstantial evidence in this case is not strong. 

The specific payments were received by employees at the front 

desk who generated the receipts. These payments were placed in 

envelopes and deposited into the safe. [Kleso], as the manager 
J-A01030-20

- 11 -

in the Bushkill office, was responsible for transporting the 

envelopes deposited in the safe to the Stroudsburg office. She 

did not receive these payments nor did she sign the Interoffice 

Cash Receipts Log reflecting that these envelopes were being 

transported. The record is devoid of any evidence that these 

payments were ever deposited into the safe and by whom. The 

Commonwealth introduced cash receipts into evidence; however, 

there was no evidence that these payments were actually 

deposited into the safe. Although Ms. Waller testified that this 

was the office procedure, there was no evidence that the 

envelopes were actually placed in the safe. 

The receipts entered into evidence demonstrate that 

individuals other than [Kleso] handled the cash payments. There 

is a dearth of evidence to demonstrate that [Kleso] ever 

handled the cash or envelopes. The cash receipts indicate that 

several other employees actually received the cash payments in 

question. The exhibits do not reflect the payments for transport 

in the Interoffice Cash Receipts Log. 

In regard to access to the safe, Ms. Waller testified that 

[Kleso] had a key to the safe but she was unaware if Christine 

Wilkins and Tom Wilkins had keys. In addition, Ms. Waller stated 

that Denis Mooney, vice president, functioned as manager on 

occasion at the Bushkill branch, consequently, he would also have 

a key to the safe. On cross-examination at the preliminary 

hearing on October 3, 2018, Ms. Waller stated that she may have 

stated that Christine Wilkins and Tom Wilkins, owners of the 

company (NEPA) had keys to the safe. It is possible that more 

than one person had keys to the safe at BH&G. 

* * *

As we have stated above, there is an absence of evidence 

demonstrating that [Kleso] obtained the property. There was no 

evidence that [she] ever handled or transported the funds in 

question from BH&G. The Interoffice Cash Receipts Log, which 

contained the dates of the cash receipts, does not indicate that 

those envelopes, with the correct amount, were ever handled by 

[Kleso]. 

* * *

As set forth above and viewing all the evidence in a light most 

favorable to the Commonwealth, we have determined that the 
J-A01030-20

- 12 -

Commonwealth has failed to establish [Kleso’s] exercise or control 

over the property. 

Trial Court Opinion, 4/18/19, at 5-8 (emphasis added) (footnotes and citations 

to notes of testimony omitted). 

Our review of the record reflects comports with the trial court’s 

conclusion that the Commonwealth failed to establish Kleso took possession 

of the cash payments received from Mr. Diaz at the front desk of BHG, an 

element of all three crimes charged. See 18 Pa.C.S.A. § 3925; 18 Pa.C.S.A. 

§ 3927; 18 Pa.C.S.A. § 3921(a). The Commonwealth’s claim that Kleso

withdrew the payments from the safe and kept them, instead of delivering the 

money to Ms. Waller, is “suspicion and conjecture” because there is no 

evidence Kleso ever possessed or controlled the cash payments. Id.; see 

also Holston, 211 A.3d at 1269. The Commonwealth thus relies on “tenuous 

inference” to establish the possession element of all three crimes, and as such, 

fails to make a prima facie case for receiving stolen property, theft by unlawful 

taking, or theft by failure to make required disposition of funds. Accordingly, 

we affirm the trial court’s order dismissing with prejudice the charges filed 

against Kleso. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/4/20