Commonwealth v. Vanness

1

COMMONWEALTH OF PENNSYLVANIA v. RONI MARIE VANNESS Appellant

No. 441 MDA 2023

No. J-S03025-24

Superior Court of Pennsylvania

June 11, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered February 16, 2023 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000072-2022

BEFORE: OLSON, J., NICHOLS, J., and BECK, J.

MEMORANDUM

NICHOLS, J.

Appellant Roni Marie Vanness appeals from the judgment of sentence imposed after a jury convicted her of theft by unlawful taking and theft of property lost, mislaid, or delivered by mistake.^[1] Appellant challenges both the sufficiency and the weight of the evidence. Appellant also claims that the trial court erred by excluding Appellant's text messages. We affirm Appellant's convictions, vacate the restitution component of the sentence, and remand for resentencing.

The trial court summarized the facts of this case as follows:

Appellant worked at a store that sold fireworks. On June 25 2021, Victim was in the store to purchase fireworks. [Victim] accidently left her wallet on the counter and left. Upon realizing that she had left her wallet at the store, Victim returned to the store to retrieve it. Appellant told [Victim] and Appellant testified that she thought the wallet belonged to her friend[, Bridget Anderson,] who was [also] in the store [when Victim was there]. . . . Appellant told Victim and testified that she put the wallet in [Anderson's] vehicle. Appellant [sent text messages and] called [Anderson to ask her] to return to the store. Appellant testified that she expected [Anderson] to return to the store. Victim waited for [Anderson] to return to the store, but she did not. Victim then called the Pennsylvania State Police to report a theft.

[Victim's] wallet contained approximately one thousand two hundred and two ($1,202.00) dollars in cash, credit cards and her identification. The identification was in a clear plastic pocket that could be seen when the wallet was opened. Appellant described the inside of the wallet to the Pennsylvania State Trooper that there was cash and cards inside the wallet. The State Trooper recovered the approximately one thousand two hundred and two ($1,202.00) dollars from [Anderson. The cash recovered from Anderson included one older style $100 bill and two older style $50 bills which Victim stated she had been keeping as birthday presents for her son who collects old money].^[2] [Victim's] wallet, [credit] cards, and identification [were] never recovered.

* * *

Appellant wished to introduce text messages between Appellant and [Anderson] who she gave the wallet to. The Commonwealth objected. Appellant proffered that she sent a text message to [Anderson] that said "I gave you a wallet that I thought was yours, what did you do with the wallet?" [Anderson] replied, "You know what I did with the wallet, I threw it out and drove off." This court ruled that the statement from [Anderson] was hearsay and could not be admitted. . . . [Anderson] did not testify.

Trial Ct. Op., 6/7/23, at 1-2, 4 (some formatting altered).

We add that Appellant testified that she called Bridget Anderson to ask her about the wallet and to request that she come back to the fireworks store. See N.T. Trial, 1/20/23, at 58-59. Victim testified that after she returned to the store to ask about her missing wallet, Appellant replied that she gave the wallet to someone else. See id. at 22-23. Victim then saw Appellant send text messages on her phone and go into another room to make a call. See id. at 23.

On January 20, 2023, a jury convicted Appellant of theft by unlawful taking and theft of property lost, mislaid, or delivered by mistake. On February 16, 2023, the trial court sentenced Appellant to two concurrent terms of two months to twenty-three months and twenty-nine days' imprisonment, imposed $1,000.00 in fines, and ordered Appellant to pay $132.40 in restitution to Victim.

Appellant filed a timely post-sentence motion challenging the sufficiency and weight of the evidence as well as the trial court's exclusion of the text messages at trial, which the trial court denied.

Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises four issues on appeal:

1. Whether the evidence at trial was insufficient to sustain a verdict of guilty beyond a reasonable doubt for the charge of theft by unlawful taking-moveable property?

2. Whether the evidence at trial was insufficient to sustain a verdict of guilty beyond a reasonable doubt for the charge of theft of property lost, mislaid, or delivered by mistake?

3. Whether the trial court abused its discretion in failing to find the verdict against the weight of the evidence for the charge of theft of property lost, mislaid, or delivered by mistake since the verdict is so contrary to the evidence as to shock one's sense of justice?

4. Whether the trial court err[]ed as a matter of law and/or abused its discretion in precluding testimony and evidence regarding text messages by and between the Appellant and [Anderson] on the basis of hearsay and even if admissible, its preclusion [was not] harmless error?

Appellant's Brief at 3 (some formatting altered).

Sufficiency of the Evidence

Appellant's first two issues are related; therefore, we address them together. Appellant argues that the evidence was insufficient to sustain her convictions for theft by unlawful taking and theft of property lost, mislaid, or delivered by mistake because the Commonwealth failed to prove that Appellant intended to deprive Victim of her property. Appellant's Brief at 10-17. Specifically, Appellant refers to her own testimony that she gave Victim's wallet to her friend Bridget Anderson because Appellant mistakenly believed that the wallet belonged to Anderson. Id. at 12-17. Therefore, Appellant contends that the Commonwealth failed to disprove Appellant's mistake of fact, which negated the element of criminal intent. Id. at 12, 15-17.

With respect to her conviction for theft of property lost mislaid, or delivered by mistake, Appellant argues that the evidence was insufficient to prove that she failed to take reasonable measures to restore the property to Victim. Id. at 17-19. Appellant contends that she "took reasonable steps to get the property returned upon learning [the identity of] its rightful owner." Id. at 18. Specifically, Appellant notes she called and sent text messages to Anderson asking her to return to the store with Victim's wallet, contacted her manager to ask for assistance, and waited with Victim for approximately two hours for Anderson to return. Id. at 17-18. Appellant also observes that she provided information about Anderson to the state trooper, who ultimately recovered the cash from Victim's wallet from Anderson. Id. at 18-19.

In reviewing a challenge to the sufficiency of the evidence, our standard of review is as follows:

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation omitted and formatting altered).

Challenges to reliability of evidence go to the weight of the evidence, not sufficiency. See, e.g., Commonwealth v. Barkman, 295 A.3d 721, 733 (Pa. Super. 2023) (noting that unlike weight claim, "a sufficiency claim must accept the credibility and reliability of all evidence that supports the verdict" (citation omitted)). Indeed, the "[e]xistence of inconsistencies in the testimony of a witness does not alone render evidence insufficient to support a verdict." Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (citations omitted); see also Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (reiterating that "[v]ariances in testimony . . . go to the credibility of the witnesses and not the sufficiency of the evidence" (citation omitted)).

"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 (3) intent to deprive (permanently)." Commonwealth v. Young, 35 A.3d 54, 62 (Pa. Super. 2011) (citation omitted and some formatting altered).

The offense of theft of property lost, mislaid, or delivered by mistake is defined as follows:

A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with the intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.

18 Pa.C.S. § 3924.

The Commonwealth may prove the intent necessary for theft by unlawful taking or disposition "either by showing an intent to withhold property of another permanently or...