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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

LAKEIA K. WINSTON, No. 1691 EDA 2018

Appellant

Appeal from the Judgment of Sentence, May 21, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0006697-2017

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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2019

Lakeia K. Winston appeals from the May 21, 2018 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following her

conviction of theft by unlawful taking and receiving stolen property.' After

careful review, we affirm in part and vacate in part.

The trial court provided the following synopsis of the relevant factual

and procedural history:

In April of 2017, Sharonda Adams, the complaining

witness, kept $10,000.00 in cash inside a lock box,

which she kept hidden inside her bedroom closet.

Ms. Adams managed to save this amount of money

from the two (2) positions of employment she

maintained and also from a financial refund she had

received [from] Walden University. Ms. Adams' bank

statement and an email correspondence from Walden

University corroborate her testimony. In April of

' 18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
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2017, Ms. Adams had two (2) keys to her lock box.

She kept both keys to her lock box on the same

keychain which she used for the key to her vehicle.

Approximately one (1) week before April 6, 2017,

Ms. Adams allowed [a]ppellant, [appellant's] mother,

and [a]ppellant's two (2) minor children to move in to

Ms. Adams' residence. The only persons residing with

Ms. Adams prior to the move -in were Ms. Adams'

three (3) minor children. On April 6, 2017, Ms. Adams

visually confirmed that the $10,000.00 in cash was

inside her lock box. On April 7, 2017, Ms. Adams lent

the use of her vehicle to [a]ppellant and provided her

with access to the keychain which contained both keys

to the lock box. On April 8, 2017, Ms. Adams left the

house for a social outing. The only people present in

Ms. Adams' home during her absence were

[a]ppellant, [appellant's] mother, [a]ppellant's

children and Ms. Adams' children. On April 9, 2017,

Ms. Adams noticed that the contents of her closet had

been rummaged through. She opened her lock box and discovered that the $10,000.00 in cash was

missing. Ms. Adams also discovered that one (1) of

the keys to her lock box was missing from her keyring

as well. Ms. Adams suspected [a]ppellant as the

person responsible and called her on the phone.

Appellant's mother, Rhonda Winston, answered

[a]ppellant's cell phone, and Ms. Adams informed her

that she discovered that her $10,000.00 was missing.

On April 10, [2017], Ms. Adams went to the police

station to file a report regarding the stolen money.

Ms. Adams indicated to the detective that although

she had not seen who stole the money from her lock

box, the only other person who had access to the keys

to the lock box was [a]ppellant. Prior to the theft of

the $10,000.00, Ms. Adams had informed [a]ppellant

that Ms. Adams was saving the money to purchase a

new vehicle. Text messages between [a]ppellant and

Ms. Adams corroborate that [a]ppellant was aware

Ms. Adams was saving money to purchase a new

vehicle.
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After filing the report with the police, Ms. Adams

returned home to find that [a]ppellant, [appellant's]

mother and children had abruptly vacated Ms. Adams'

residence, leaving behind their furniture and other

personal items. Appellant never provided any prior

notice that she was planning to move out from

Ms. Adams' residence.

On April 11, 2017, Ms. Adams observed [a]ppellant

operating a 2011 [Chevrolet] Equinox. Ms. Adams

knew [a]ppellant had not owned the vehicle prior to

the $10,000.00 in cash being stolen. After Ms. Adams

confronted her about the missing money, [a]ppellant

responded "If you think I ruined your life now, I'm

really going to ruin your life because you can't prove

it."

Ms. Adams never gave permission to [a]ppellant to

remove, take, borrow or spend the $10,000.00 in

cash.

Appellant and her mother purchased a 2011

[Chevrolet] Equinox on April 10, 2017. Appellant

placed a down payment of $3,500.00 in cash and

financed the balance of the purchase price, which was

$14,073.00. In the application to purchase the

vehicle, [a]ppellant knowingly produced a false

address to the finance company.

Although [a]ppellant has not been employed since

December 2016, she and her mother . . . claimed that

they were able to save the down payment of $3,500.00 by withdrawing cash from [a]ppellant's

mother's SSI benefits account, which receives a . . . $1,400.00 monthly payment. The SSI benefits

account was the only source of income for [a]ppellant,

her mother and [a]ppellant's two (2) children.

Appellant introduced account statements from her

mother's SSI benefits account in [an] effort to

corroborate her . . . testimony. . . .
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At the conclusion of the trial, [the trial court] entered

a verdict of guilty against [a]ppellant as to the

offenses of Theft [by unlawful taking] and Receiving

Stolen Property, both graded as a felony in the third

degree. On May 21, 2018, [the trial court] sentenced

[a]ppellant to four (4) years['] reporting probation on

each offense to run concurrent and ordered

[a]ppellant to remit $10,000.00 in restitution to the

complaining witness. Appellant filed a Motion to

Reconsider the verdict. On June 6, 2018, [the trial

court] denied [a]ppellant's Motion and specified that

the verdict was based on the credibility of the

witnesses. Subsequently, [a]ppellant filed timely this

instant appeal.

Trial court opinion, 8/1/18 at 2-5.

On June 18, 2018, the trial court ordered appellant to file a concise

statement of errors complained of on appeal. Appellant timely complied on

July 9, 2018. On August 1, 2018, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

[I.] Was the evidence insufficient to sustain a

conviction for theft and receiving stolen

property?

[II.] Did the [trial] court illegally sentence appellant

on theft and receiving stolen property where the

charges merged for sentencing purposes?

Appellant's brief at 3 (full capitalization omitted).

In her first issue, appellant contends that the Commonwealth failed to

introduce sufficient evidence to justify her convictions of theft by unlawful

taking and receiving stolen property. Specifically, appellant argues that the

Commonwealth failed to meet its burden because no one saw appellant take

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the $10,000 at issue and "there was ample time and opportunity for other

people to have taken the money." (Id. at 10.)

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. 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-

1039 (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

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appellant's convictions will be upheld. See Brewer,

876 A.2d at 1032.

Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa.Super. 2013), citing

Commonwealth v. Pettyjohn, 64 A.3d 1072, (Pa.Super. 2013) (citations

omitted).

In order for a conviction of theft by unlawful taking to be upheld, the

Commonwealth is required to prove beyond a reasonable doubt that the

defendant unlawfully took or exercised unlawful control over another person's

movable property with the intent to deprive the person of the movable

property. 18 Pa.C.S.A. § 3921(a), see, e.g., Commonwealth v. Robinson,

33 A.3d 89, 94-95 (Pa.Super. 2011), appeal denied, 42 A.3d 292 (Pa. 2012).

To obtain a conviction of receiving stolen property, the Commonwealth must

prove beyond a reasonable doubt that the defendant "intentionally receives,

retains, or disposes of movable property of another knowing that it has been

stolen, or believing that is has probably been stolen, unless the property is

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

Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super. 2010), appeal

denied, 8 A.3d 898 (Pa. 2010), citing 18 Pa.C.S.A. § 3925(a); quoting

Commonwealth v. Galvin, 985 A.2d 783, 792 (Pa. 2009).

Here, after viewing the evidence presented at trial in a light most

favorable to the Commonwealth, as verdict winner, we find that the

Commonwealth presented sufficient evidence to justify convictions of both

theft by unlawful taking and receiving stolen property. Indeed, the

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Commonwealth's evidence established that Ms. Adams kept the two keys to

her lock box on her keyring, along with keys to her residence, car, and other

keys. (Notes of testimony, 3/5/18 at 14, 23.) On April 7, 2016, Ms. Adams

gave the keyring to appellant so appellant could use Ms. Adams' car. (Id. at

22-23.) As noted by the trial court, appellant "subsequently had the

opportunity to locate and remove the cash from the lock box on April 8, 2017

when Ms. Adams left [a]ppellant and her mother alone in the house with their

minor children." (Trial court opinion, 8/1/18 at 6; see also notes of

testimony, 3/5/18 at 23.) The evidence further reflects that appellant

implicitly admitted to Ms. Adams that she stole the $10,000 when confronted

by Ms. Adams.2 (Notes of testimony, 3/5/18 at 33-34.) Finally, when

confronted by Ms. Adams, we find that the Commonwealth established that

appellant implicitly expressed an intent to permanently deprive Ms. Adams of

her property when appellant stated to Ms. Adams: "If you think I ruined your

life now, I'm really going to ruin your life because you can't prove it." (Id. at

33-34.)

Accordingly, we find that the Commonwealth has produced sufficient

evidence to justify convictions for theft by unlawful taking and receiving stolen

property. Appellant's first issue is without merit.

2 The record reflects that when Ms. Adams asked appellant why she took her

money, appellant said, "Bitch, you can't prove it." (Id. at 33-34.)

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In her second issue, appellant argues that the trial court imposed an

illegal sentence because her convictions merge for sentencing purposes.

(Appellant's brief at 16.) The Commonwealth agrees, stating that both of

appellant's convictions "arose from the single criminal act of taking Ms. Adams

$10,000 out of her lock box." (Commonwealth's brief at 14.)

We preliminarily note that appellant failed to include this issue in her

Rule 1925(b) statement. Our supreme court has held that cases involving

merger of convictions for sentencing purposes implicate the legality of the

sentence. Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011), citing

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Issues

implicating the legality of sentence are nonwaivable on appellate review;

therefore, we will consider appellant's second issue on its merits. See

Commonwealth v. Eisenberg, 98 A.3d 1268, 1278 n.11 (Pa. 2014), citing

Foster, 17 A.3d at 345.

Our cases have consistently held that convictions for theft by unlawful

taking and receiving stolen property merge for sentencing purposes.

Commonwealth v. Young, 35 A.3d 54, 63 (Pa.Super. 2011), appeal

denied, 48 A.3d 1249 (Pa. 2012); Commonwealth v. Wilson, 458 A.2d

244, 245-246 (Pa.Super. 1983). Here, the trial court imposed two concurrent

sentences of four years' probation. (Notes of testimony, 5/21/18 at 22.)

Because the two convictions merge for sentencing purposes, we vacate the

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judgment of sentence for receiving stolen property, while affirming the

conviction.

Because the two sentences were concurrent, we need not remand for

re -sentencing, as our conclusion does not upset the trial court's overall

sentencing scheme of four years' probation. See Commonwealth v.

Martinez, 153 A.3d 1025, 1033 (Pa.Super. 2016); Commonwealth v. Thur,

906 A.2d 552, 570 (Pa.Super. 2006), appeal denied, 946 A.2d 687 (Pa.

2008). We affirm all other aspects of appellant's judgment of sentence.

Judgment of sentence for theft by unlawful taking affirmed. Judgment

of sentence for receiving stolen property vacated. Convictions affirmed.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn,

Prothonotary

Date: 7/15/19

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