J-A34003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MICHAEL B. DEPUGH

Appellant No. 686 MDA 2015

Appeal from the Judgment of Sentence March 6, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0001456-2014

BEFORE: PANELLA, J., OTT, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 17, 2016

Appellant, Michael B. DePugh, appeals from the judgment of sentence 

entered after a jury convicted him of theft by unlawful taking. DePugh 

argues that the evidence at trial was insufficient to establish that he stole 

any money, and further that the trial court erred in holding his decision to 

take this case to trial against him in imposing sentence. After careful review, 

we affirm.

In late 2013, the Commonwealth charged DePugh with stealing money 

from change machines at the car wash where he was employed as a 

maintenance man. We summarize the evidence presented at the jury trial 

that commenced on March 4, 2015, as follows.

The car wash was operated by Monica Massey. She testified that the 

automated car wash ran on quarters, so customers would insert paper 
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money into a change machine on site and then proceed to use the dispensed 

quarters to operate the car wash. The change machine held $1,400 worth of 

quarters and was emptied on Tuesday and Friday every week. In essence, 

the quarters simply recycled between the automated car wash machines and 

the change machines, with the paper money in the machines being taken as 

revenue.

In the early summer of 2013, Massey noticed that the quarters were 

being depleted, requiring her to go to the bank to buy more quarters. Over 

the course of the summer, she had to purchase quarters several times, 

amounting to over $3,500 in purchases. However, there was no evidence 

that anyone had damaged the change machines or broken into them. 

Suspecting theft, Massey installed security cameras around the car 

wash. On September 22, 2013, the cameras recorded DePugh at the 

carwash almost 40 minutes before his shift began on a Saturday morning. 

Massey watched the recordings as DePugh approached a bookshelf in the 

office where the keys to the change machines were kept. Nearly 30 minutes 

later, the recordings revealed DePugh reaching into the back of the change 

machines.

Armed with the videos, Massey confronted DePugh with her suspicions. 

DePugh conceded that he had stolen $120. When Massey explained that 

thousands of dollars had gone missing, DePugh replied that he had needed 

money to pay rent and support his family. After Massey confronted DePugh, 
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the loss of quarters stopped, and the recycling of quarters between the 

machines continued unimpaired. 

After hearing the evidence, the jury convicted DePugh of misdemeanor 

theft by unlawful taking, and the trial court sentenced him to a period of 

incarceration of 6 to 23 months. DePugh filed post-sentence motions that

the trial court denied. This timely appeal followed.

On appeal, DePugh raises two issues. First, he argues that the 

evidence at trial was insufficient to support his conviction. 

The standard we apply when reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for the 

fact-finder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. 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. 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 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. Furthermore, when reviewing a sufficiency claim, our 

Court is required to give the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence.

However, the inferences must flow from facts and circumstances 

proven in the record, and must be of such volume and quality as 

to overcome the presumption of innocence and satisfy the jury 

of an accused’s guilt beyond a reasonable doubt. The trier of fact 

cannot base a conviction on conjecture and speculation and a 
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verdict which is premised on suspicion will fail even under the 

limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted).

At trial, the Commonwealth had the burden of proving, beyond a 

reasonable doubt, that DePugh had unlawfully taken, or exercised unlawful 

control over, the quarters used at the car wash. See 18 Pa.C.S.A. § 

3921(a). Furthermore, “[t]he Commonwealth is not required to establish the 

precise market value of the stolen property. Rather, the Commonwealth 

must present evidence from which a reasonable jury may conclude that the 

market value was at least a certain amount.” Commonwealth v. Hanes, 

522 A.2d 622, 626 (Pa. Super. 1987). 

DePugh argues that there is no evidence that he stole anything from 

the car wash, and further, that there is no evidence of the amount stolen.

However, Massey testified that under normal operations, the quarters only 

needed to be transferred from the automated car wash machines back to the 

change machines. See N.T., Trial, 6/5/15, at 30-31. The quarters were 

essentially recycled internally in the business, and only the bills needed to be

removed for revenue purposes; the number of quarters in the automated 

machines stayed constant. See id., at 30-31.

However, this normal scenario changed in the summer of 2013, when 

the number of quarters recovered from the automated machines dipped 

precipitously. See id., at 33. Massey estimated that normally, around 

$1,500 in quarters would be removed from the machines. See id. That 
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summer, it would only be $100 or $200 in quarters. See id. As a result, she 

was forced to buy quarters three separate times that summer, totaling 

$3,600. See id., at 34.

Suspecting theft, Massey installed cameras at the business. See id., at 

44. After observing DePugh act suspiciously on the recordings, Massey 

confronted DePugh, accusing him of theft. See id., at 66-67. Eventually, 

DePugh admitted to stealing $120 “this time.” Id., at 67.

Viewing this evidence in the light most favorable to the 

Commonwealth, as the verdict winner, we conclude that it easily supports 

the jury’s verdict that DePugh had stolen over $3,000 from the car wash. 

DePugh’s first argument merits no relief.

In his second argument on appeal, DePugh contends that the trial 

court erred in penalizing him during sentencing for his decision to take this 

case to trial. In determining whether a sentencing court considered 

impermissible factors in imposing sentencing, we review the entirety of the 

court’s comments. See Commonwealth v. Bethea, 379 A.2d 102, 106-107 

(Pa. 1977). If it reasonably appears from the record that the sentencing 

court relied upon an impermissible factor, we will remand for resentencing. 

See id. DePugh is correct in noting that such an action would be illegal. 

See id., at 104. However, we have no difficulty in concluding that this did 

not happen here.

DePugh focuses on one comment during sentencing:
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Mr. Depugh, again you elected to take a trial by jury, which is 

your right, of course, obviously, but it was a case where the 

evidence was rather substantial against you, rather 

overwhelming. But nevertheless, you exercised your right and 

the jury has found you guilty. 

With the prior thefts, I believe a sentence in Dauphin County 

Prison is appropriate. I will make you eligible for work release. 

I have no problem with that.

N.T., Sentencing, 6/5/15, at 180. While the trial court mentions DePugh’s 

election of trial by jury, it did not indicate that this was a factor in 

sentencing. It is arguable in extremis that the sentencing court considered 

his decision not to plead guilty while sentencing. However, the more 

reasonable reading of the proceeding is that the court was concerned with 

DePugh’s failure to accept responsibility for his crimes. This is an appropriate 

factor to consider during sentencing. See Commonwealth v. Gonzalez, 

109 A.3d 711, 732 (Pa. Super. 2015). 

Furthermore, the only factor the court explicitly noted as impacting its 

decision was the fact of DePugh’s prior convictions. Finally, DePugh concedes 

that the sentence imposed was in the standard range of the guidelines. See 

Appellant’s Brief, at 18. Under these circumstances, we conclude that the 

trial court did not consider an impermissible factor in imposing sentence on 

DePugh.
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Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2016