Com. v. Kearns, R.

J-S65034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

ROBERT J. KEARNS,

Appellee No. 766 EDA 2014

Appeal from the Order Entered February 4, 2014
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0001673-2013

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED APRIL 13, 2015

The Commonwealth appeals from the trial court’s order1 granting the

omnibus pre-trial motion, including the motion for habeas corpus relief in

favor of Appellee, Robert J. Kearns (and Patrick Joseph McLaine), 2 and

dismissing the underlying charges: theft by unlawful taking,3 receiving stolen

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
“An order granting a defendant’s motion for habeas corpus relief based on
insufficiency of the evidence is a final order appealable by the
Commonwealth.” Commonwealth v. Fountain, 811 A.2d 24, 25 n.1 (Pa.
Super. 2002) (citations omitted).
2
Appellee McLaine’s surname is spelled inconsistently in the record before
us. We adopt the predominant spelling, as used by McLaine himself.
3
18 Pa.C.S.A. § 3921.
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property,4 theft by failure to make required disposition of funds, 5 and

criminal conspiracy.6 The trial court found that the Commonwealth failed to

present sufficient prima facie evidence to substantiate each of the elements

of the crimes charged. This appeal is a companion case to the appeal in

Commonwealth v. McLaine, No. 757 EDA 2014. Because the question

raised by the Commonwealth in both appeals is identical, and the trial court

addresses both appeals in one opinion, we will address both appeals

together, albeit in separate but essentially matching decisions. 7 With the

exception of the charge of receiving stolen property, we conclude under our

standard of review that the Commonwealth did meet its burden to establish

both the commission of the crimes alleged, and that Appellees committed

the offenses. Accordingly, we affirm in part, vacate in part, and remand for

disposition in accordance with the legal principles discussed in this decision.

At all times relevant to both of the cases on appeal, Robert J. Kearns

was the president, and Patrick Joseph McLaine was the treasurer of
____________________________________________

4
18 Pa.C.S.A. § 3925.
5
18 Pa.C.S.A. § 3927.
6
18 Pa.C.S.A. § 903.
7
The arguments raised by the co-Appellees are also essentially the same.
Both argue that the Commonwealth failed to prove they “obtained the
property of another” or that they used Coplay’s money for their personal
benefit, and maintain that the trial court acted properly in granting habeas
corpus and dismissing all charges. (See Appellee McLaine’s Brief, at 10-27;
Appellee Kearns’ Brief, at 8-13).

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Municipal Energy Managers, Inc. (also referred to as MEM); they were also

the sole shareholders.8

We derive the factual history from the notes of testimony of the

argument on Appellees’ omnibus pre-trial motion on October 29, 2013,

including admissions and stipulations, and the trial court opinion filed

February 4, 2014.9

____________________________________________

8
We recognize that Appellee McLaine argues that Kearns was the front man
for the organization, who signed the underlying contract at issue, which he
(McLaine) did not sign except as a witness, and therefore he had no “legal
obligation” respecting the funds at issue. (Appellee’s Brief, at 23).
McLaine’s argument is unsupported by authority. (See id.). We find it both
undeveloped and unpersuasive. Viewed in the light most favorable to the
Commonwealth, the record confirms relevant activity by both principals.
(See, e.g., N.T. Preliminary Hearing, 4/09/13 at 30 (PPL dealt with both
Kearns and McLaine)). Under our standard of review, the distinction
McLaine seeks to draw is not material to our disposition, and we decline to
address it further.

9
The trial court advises that the notes of testimony of the preliminary
hearing before Magisterial District Judge Robert C. Halal, on April 9, 2013,
are unavailable. (See Order, 8/04/14, at 1). The parties stipulated to
admission of the exhibits presented originally in the preliminary hearing, and
they were admitted without objection for this Court’s review as a part of a
supplemental record. (See id. at 2). The Commonwealth has included a
copy of the notes of testimony in its reproduced record. However, it is
axiomatic that insertion in the reproduced record of a document does not
substitute for inclusion in the certified record. See Ruspi v. Glatz, 69 A.3d
680, 691 (Pa. Super. 2013) (citing Commonwealth v. Preston, 904 A.2d
1, 6–7 (Pa. Super. 2006), appeal denied, 591 Pa. 663, 916 A.2d 632
(2007)). Independent efforts by this Court to obtain a transcript of the
preliminary hearing for inclusion in a supplemental record have been
unsuccessful.

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On November 30, 2008, MEM entered into a “Guaranteed Turnkey

Performance Agreement” with the borough of Coplay, Pennsylvania. (See

Commonwealth Exhibit C-1). While the contract is voluminous, with many

provisions and exhibits, the crux of the agreement was that MEM would act

as agent for Coplay in the negotiation for and the purchase of streetlights

from PPL Electric Utilities (PPL), and perform related tasks. Municipalities

which purchased streetlights from PPL under this program received a

reduced utility rate.

In June of 2009, pursuant to the turnkey agreement, Coplay issued

two checks payable to MEM: one on June 8, 2009, for $50,000.00, and one

on June 15, 2009, for $110,182.00, for an aggregate total of $160,182.00.

(See Commonwealth’s Exhibit C-2, and C-3, respectively). These checks

represented the initial commencement fee for the streetlights program,

pursuant to the turnkey agreement.

There is no dispute that the two Coplay checks were deposited into

MEM’s general business account, commingled with other MEM funds, and

that both Appellees wrote checks on the account. The funds were not

escrowed for the benefit of Coplay. The funds were used to pay off MEM

debts to PPL unrelated to the Coplay agreement, for general MEM business

purposes and to pay bonus checks for Appellees. (See N.T. Motion,

10/29/13, at 24). The funds were never paid to PPL for Coplay.

PPL had an established procedural scheme for the streetlights

program, reduced to writing in 2003. First, it required a formal written

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notice of interest by the municipality. On receipt of the notice of interest,

PPL sent out a “ball park” estimate of costs. However, it would not go

further, with on-site inspections, initial surveys and the like until it received

a deposit from the inquiring municipality. On receipt of a down-payment,

PPL would also engage in certain preparatory activities, which it referred to

as “make ready work.” PPL then provided its own contract to the

municipality. MEM never submitted a deposit for Coplay and PPL did not

move forward with the initial survey or prepare a contract.

Despite PPL’s formal requirement that it perform the make ready work,

it sometimes granted waivers and, specifically, on occasion had previously

permitted MEM to perform, or subcontract for the performance of, at least

some make ready work for other municipalities.

Disagreements arose between PPL and MEM. In June of 2009, PPL

informed MEM that it would not sign any proposed contracts for streetlight

sales to any of the municipalities represented by MEM in the form PPL had

previously used with eleven (presumably other) municipalities. 10 However,

PPL did not complete a revised contract until July of 2010. In June of 2010,

on learning that MEM was engaging in make ready work, PPL issued a stop
____________________________________________

10
We note for purposes of clarity and completeness that the instant appeals
are two out of a total of nine appeals filed with this Court from four different
criminal cases in four different counties involving the same co-defendants,
Patrick Joseph McLaine and Robert J. Kearns, and the same types of crimes,
theft of funds in government contracts.

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work order, directing MEM to cease work on any PPL owned streetlights

unless PPL had executed a written contract specifically authorizing that work.

Further, PPL apparently advised that if MEM or any of the

municipalities it represented filed a rate discrimination complaint with the

Public Utilities Commission, or other legal action against PPL, PPL would not

negotiate the acquisition of any streetlight systems with that municipality

while it was defending the other action. PPL did not receive the required

letter of interest until July of 2010.

Around early 2012, Coplay officials complained to the law firm which

acted as solicitor for the borough that nothing had happened on the

streetlights acquisition project, and they were unable to get information

from MEM.11 Counsel began investigating. By April of 2012, the MEM

checking account had “bottom[ed] out” at zero.

There is no dispute that neither Appellee (nor MEM) completed

performance of the contract with Coplay. The streetlights were never

purchased. (See Appellee McLaine’s Brief, at 20). PPL still owns the

streetlights. (See Trial Court Opinion, 2/04/14, at 4). Coplay counsel

contacted the office of the District Attorney of Lehigh County, who filed the

____________________________________________

11
The turnkey agreement originally specified an estimated completion date
of one year after the execution of the contract.

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charges previously noted.12 A preliminary hearing occurred on April 9, 2013.

The magisterial district judge found a prima facie case as to both Appellees.

On August 2, 2013, Appellee McLaine filed an omnibus pre-trial

motion, including a motion for a writ of habeas corpus.13 After a hearing on

October 29, 2013, the trial court granted the motion on February 4, 2014.14

This timely appeal followed.15

The Commonwealth presents one omnibus question for our review:

Did the trial court manifestly abuse its discretion in
granting [Appellee’s] Motion to Dismiss (Habeas Corpus) when
the evidence and reasonable inferences drawn therefrom, viewed
in the light most favorable to the Commonwealth, established a
____________________________________________

12
Appellees were first charged with theft by unlawful taking, theft by failure
to make required disposition of funds, and conspiracy, on or about April 9,
2013. The Commonwealth filed an information on May 2, 2013, adding
another count of theft by unlawful taking, and receiving stolen property.
13
In addition to the motion for habeas corpus, Appellee included motions to
dismiss and/or join pursuant to compulsory joinder, a motion to dismiss due
to double jeopardy, and a motion to sever. (See Omnibus Pre-Trial Motion,
8/02/13, at 1). On October 12, 2013 the trial court granted the motion of
appointed counsel for defendant/Appellee Kearns to join the omnibus pre-
trial motion previously filed by counsel for defendant/Appellee McLaine.
(See Trial Ct. Op., at 2-3).
14
Although the order ostensibly granted the entire motion without
qualification, the trial court opinion confirms that the order was based on its
finding of insufficient evidence to substantiate the charges, and the
remaining motions were not addressed. (See Trial Ct. Op., at 17).
15
The Commonwealth filed a statement of errors on March 26, 2014. See
Pa.R.A.P. 1925(b). The trial court filed an order on March 26, 2014,
referencing its opinion and order of February 4, 2014. See Pa.R.A.P.
1925(a).

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prima facie case with regards to all of the charges ─ i.e., Theft
by Unlawful Taking (18 Pa.C.S.A. § 3921); Receiving Stolen
Property (18 Pa.C.S.A. § 3925); Theft by Failure to Make
Required Disposition of Funds (18 Pa.C.S.A. § 3927); and
Criminal Conspiracy (18 Pa.C.S.A. § 903)?

(Commonwealth’s Brief, at 7).

The Commonwealth argues that the trial court erred in granting the

motion for habeas corpus and dismissing the charges. (See

Commonwealth’s Brief, at 12). It maintains that the trial court ignored the

proper standard of review by failing to evaluate the evidence in the light

most favorable to the Commonwealth. We agree.

Our standard of review is well-settled.

The decision to grant or deny a petition for writ of habeas
corpus will be reversed on appeal only for a manifest
abuse of discretion. It is settled that a petition for writ of
habeas corpus is the proper means for testing a pre-trial
finding that the Commonwealth has sufficient evidence to
establish a prima facie case. Although a habeas corpus
hearing is similar to a preliminary hearing, in a habeas
corpus proceeding the Commonwealth has the opportunity
to present additional evidence to establish that the
defendant has committed the elements of the offense
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 need not prove the defendant’s guilt
beyond a reasonable doubt. Rather, the Commonwealth
must show sufficient probable cause that the defendant
committed the offense, and the evidence should be such
that if presented at trial, and accepted as true, the judge
would be warranted in allowing the case to go to the jury.

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Commonwealth v. Black, ___ A.3d ____, 2015 WL 151536, at *6 (Pa.

Super. filed January 13, 2015) (quoting Fountain, supra at 25–26).

“The question of the evidentiary sufficiency of the Commonwealth’s

prima facie case is one of law as to which this Court’s review is plenary.”

Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 2003), cert. denied,

541 U.S. 1012 (2004). In a direct appeal, “[i]t is well settled that a

defendant’s conviction may be sustained on the basis of circumstantial

evidence alone, provided that such evidence is of sufficient quantity and

quality to establish guilt beyond a reasonable doubt.” Commonwealth v.

Bhojwani, 364 A.2d 335, 338 (Pa. Super. 1976) (citations omitted).

Here, the Commonwealth first argues that it presented sufficient

evidence to establish all the elements of theft by failure to make required

disposition of funds received. (See Commonwealth’s Brief, at 13-22).

Our Crimes Code defines the offense of theft by failure to make

required disposition of funds received as follows:

(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 belonging to the victim at the time of the failure of
the actor to make the required payment or disposition.

18 Pa.C.S.A. § 3927(a).

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A defendant is guilty of theft by failure to make required
disposition of funds received if he obtains property upon
agreement or subject to a known legal obligation to make
specified payment or other disposition of the property, and
intentionally deals with the property as his own and fails to make
the required payment or disposition.

Commonwealth ex rel. Lagana v. Commonwealth Office of Atty. Gen.,

662 A.2d 1127, 1130 (Pa. Super. 1995). Similarly,

[T]he four elements necessary to complete the crime [of theft by
failure to make required disposition of funds received] are:

1. The obtaining of property of another;

2. Subject to an agreement or known legal obligation upon
the recipient to make specified payments or other disposition
thereof;

3. Intentional dealing with the property obtained as the
defendant’s own; and

4. Failure to make the required disposition of the property.

Commonwealth v. Austin, 393 A.2d 36, 38 (Pa. Super. 1978) (citing

Commonwealth v. Crafton, 367 A.2d 1092 (Pa. Super. 1976), opinion

corrected, 599 A.2d 1353, 1353 (Pa. Super. 1991)); (see also Trial Ct. Op.,

at 8-9).

Here, it is undisputed that Appellee McLaine, with Appellee Kearns,

obtained the money from Coplay subject to a known (and contractually

specified) legal obligation to purchase streetlights for Coplay and perform

related negotiating and support services.

Additionally, they plainly dealt with the money as their own,

concededly commingling the funds with those of their business, using them

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to pay MEM obligations unrelated to Coplay, and generally using some or all

of the money to finance their business operations, as well as pay bonuses to

themselves, until the business checking account “bottomed out” at zero,

with nothing paid on behalf of Coplay, and nothing left to make good on the

obligation to Coplay.

Nevertheless, the trial court found that the Commonwealth failed to

establish the first element of section 3927, that Appellees obtained the

property of another.16 (See Trial Ct. Op., at 9-13). In support, the court

cites Commonwealth v. Austin, 393 A.2d 36 (Pa. Super. 1978). In

pertinent part, the Austin court relied on caselaw construing a since-

superseded statute on fraudulent conversion, (see Austin, supra at 38)

(finding that “the acceptance of advance money on a construction contract is

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16
The Crimes Code defines “property of another” as follows:

“Property of another.” Includes property in which any person
other than the actor has an interest which the actor is not
privileged to infringe, regardless of the fact that the actor also
has an interest in the property and regardless of the fact that
the other person might be precluded from civil recovery because
the property was used in an unlawful transaction or was subject
to forfeiture as contraband. Property in possession of the actor
shall not be deemed property of another who has only a security
interest therein, even if legal title is in the creditor pursuant to a
conditional sales contract or other security agreement.

18 Pa.C.S.A. § 3901.

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[not] the property [o]f another”) (citing Commonwealth v. Bartello, 301

A.2d 885 (Pa. Super. 1973)).

The trial court adopts Austin’s reasoning: “It seems apparent that in a

single contract providing for certain services at certain prices that where

there is a transfer of money, within the contract price, even in advance of

the due date, that title as well as possession passes and only a contractual

obligation remains.” Austin, supra at 38-39) (quoting Bartello); (see Trial

Ct. Op., at 10).

Here, first and foremost, we are constrained to conclude that the trial

court failed to review the evidence in the light most favorable to the

Commonwealth for a prima facie case, not guilt beyond a reasonable

doubt. See Black, supra at *6; Fountain, supra at 25–26. In relying on

Austin, and endeavoring to distinguish the Commonwealth’s citation to

Crafton, supra and Bhojwani, supra, the trial court, in effect, engaged in

an impermissible weighing of the evidence, rather than reviewing whether

the evidence presented established all of the elements of the crimes

charged. The trial court engaged in an analysis which sought to determine if

viable defenses existed to the crimes charged. It should have confined its

inquiry to determining whether the evidence presented, if accepted as true,

would suffice to send the issue to a jury. We are constrained to conclude

that the trial court abused its discretion.

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Secondly, in so doing, the trial court relied on caselaw reviewing direct

appeals from judgments of sentence, disregarding the even narrower

standard of review for appeals from the granting or denial of habeas corpus.

See Black, supra at *6.

Thirdly, even on the merits, Austin is plainly distinguishable. Austin

addressed the conviction of a construction contractor for theft by

unauthorized disposition of the advance money on a home repair and

remodeling contract. The evidence was undisputed that the contractor, who

had taken an advance payment of $2,495.00 “for materials,” (plus an

additional payment of $800 “for labor”), worked for about two months on

the project until realizing he had underestimated the cost of completion; he

then discontinued work on advice of counsel. See Austin, supra at 37-38.

He had spent $1,243.00 of the advances. See id.

Notably, here, the contract was not for construction, let alone home

repairs, and there is no evidence that Appellees worked diligently for months

on the project, or that they underestimated construction costs.

Furthermore, far from having money left over, these Appellees entirely

dissipated all of the cash deposited in their business checking account,

including all of the funds provided by Coplay.

Still, the trial court agreed with Appellees’ counsel that their “make

ready work,” albeit unsanctioned by PPL, and other incidental preparatory

activities, constituted “partial performance.” (Trial Ct. Op., at 13). Other

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than the implied analogy to Austin, the trial court offers no authority in

support of its supposition. We conclude that partial performance, even if

assumed, does not negate any of the elements of theft by failure to make

required disposition of funds received. Therefore, it does not preclude the

finding of a prima facie case. See e.g., Commonwealth v. Edwards, 582

A.2d 1078, 1086 (Pa. Super. 1990), appeal denied, 600 A.2d 1258 (Pa.

1991) (theft by failing to make legally required disposition of funds proven

by evidence appellant intentionally converted some proceeds of construction

loan to his own use by paying off old debts, double dipping on transportation

expenses, and pocketing money from corporate general contractor;

distinguishing Austin; judgment of sentence affirmed).

Finally, on this issue, we note that the trial court’s analysis overlooks

subsequent case law which distinguishes Austin, substantially curtailing its

import beyond its facts. See id.; see also Commonwealth v. Robichow,

487 A.2d 1000, 1003 (Pa. Super. 1985), appeal dismissed, 508 A.2d 1195

(Pa. 1986) (evidence clearly established advance money fraudulently

obtained at inception of contracting, title did not pass to appellant, and

appellant’s possession of the money was property of another, distinguishing

Austin; judgment of sentence affirmed). We are constrained to conclude

that the trial court misconceived the applicable law and abused its discretion.

The Commonwealth’s claim merits relief.

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Next, the trial court maintains that the Commonwealth failed to

present prima facie evidence that Appellees intended to deal with the

property as their own, the “third” element cited in Austin. (See Trial Ct.

Op., at 14-15). Once again, the trial court relies exclusively on Austin,

supra. We are constrained to conclude its reliance is misplaced.

“In evaluating whether the Commonwealth has made out its prima

facie case, criminal intent may be inferred from circumstantial evidence.”

Lagana, supra at 1129-30 (citations omitted).

Here, the Commonwealth presented evidence that Appellees did not

inform Coplay of the status of the project, and did not respond to Coplay’s

inquiries. Furthermore, Appellees used the funds from Coplay for their own

concededly unrelated purposes, until their general business account was

entirely dissipated. Viewed in the light most favorable to the

Commonwealth, this evidence is more than ample to prove intent to deal

with the property as their own, the third element of the offense.

Next, the trial court addresses theft by unlawful taking17 and receiving

stolen property,18 together. (See Trial Ct. Op., at 15-16). So does the

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17
Theft by unlawful taking or disposition:

(a) Movable property.─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(a).

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Commonwealth. (See Commonwealth’s Brief, at 22-25). In an abbreviated

analysis of one paragraph comprising three sentences, the court adopts by

reference its prior reasoning that the Commonwealth failed to prove

Appellees obtained the property of another. The court offers no additional

authority. (See Trial Ct. Op., at 15-16). We reject this analysis for the

reasons already noted. We conclude that the Commonwealth established a

prima facie case of theft by unlawful taking.

Nevertheless, on independent review, we conclude that the

Commonwealth failed to develop an argument that it introduced sufficient

evidence to establish a prima facie case of receiving stolen property. (See

Commonwealth’s Brief, at 22-25). After its discussion of the sufficiency of

the evidence for theft by unlawful taking, the Commonwealth adds a single

_______________________
(Footnote Continued)
18
Receiving stolen property:

(a) Offense defined.─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.

(b) Definition.─As used in this section the word “receiving”
means acquiring possession, control or title, or lending on the
security of the property.

18 Pa.C.S.A. § 3925(a), (b).

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sentence: “Similarly, a prima facie showing of receiving stolen property has

been made.” (Id. at 25).

The Commonwealth fails to develop an argument or provide supporting

authority for its position. See Commonwealth v. D'Amato, 856 A.2d 806,

814 (Pa. 2004) (concluding one-sentence argument was so undeveloped as

to be functional equivalent of no argument at all; issue waived); see also

Pa.R.A.P. 2119(a), (b); Commonwealth v. Rohrer, 719 A.2d 1078, 1079

n.1 (Pa. Super. 1998); Commonwealth v. Montini, 712 A.2d 761, 769

(Pa. Super. 1998) (Johnson, J., concurring) (“we may not act as appellate

counsel, nor may we advocate positions not properly presented to us on

appeal”). Accordingly, this claim is waived. For this reason, we affirm the

trial court’s dismissal of the charge of receiving stolen property.

Finally, the trial court summarily dismisses the charge of conspiracy,19

reasoning generally that the Commonwealth presented no evidence of the

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19
Criminal conspiracy:

(a) Definition of conspiracy.─A person is guilty of
conspiracy with another person or persons to commit a crime if
with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
(Footnote Continued Next Page)

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elements of conspiracy beyond “a clear association” between the two

Appellees, and their actions as officers of MEM. (Trial Ct. Op., at 16).

Again, the trial court fails to view the evidence in the light most favorable to

the Commonwealth, together with all reasonable inferences. Moreover, the

record does not support the trial court’s reasoning, and the trial court’s

reasoning does not support its conclusions.

To prove criminal conspiracy, the Commonwealth must
show a defendant entered into an agreement to commit or aid in
an unlawful act with another person; that he and that person
acted with a shared criminal intent; and that an overt act was
taken in furtherance of the conspiracy. 18 Pa.C.S.A. § 903. An
explicit or formal agreement to commit crimes can seldom, if
ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities. Therefore, where the
conduct of the parties indicates that they were acting in
concert with a corrupt purpose in view, the existence of a
criminal conspiracy may properly be inferred. This [C]ourt
has held that the presence of the following non-exclusive list of
circumstances when considered together and in the context of
the crime may establish proof of a conspiracy: (1) an association
between alleged conspirators, (2) knowledge of the commission
of the crime, (3) presence at the scene of the crime, and (4)
participation in the object of the conspiracy.

Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (en banc)

(emphasis added) (case citations and internal quotation marks omitted);

see also Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa. Super.

_______________________
(Footnote Continued)

18 Pa.C.S.A. § 903(a)(1), (2).

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1994), appeal denied, 655 A.2d 985 (Pa. 1995) (Commonwealth presented

prima facie case against defendant for theft by deception and criminal

conspiracy by testimony at habeas corpus proceeding).

Here, in the totality of the circumstances, viewed in the light most

favorable to the Commonwealth, we conclude that the evidence presented

was sufficient for a trial court to let the charge of conspiracy go forward to a

jury. Both Appellees participated in the negotiations with Coplay and

interacted with PPL. Both wrote checks on the corporate account. Both

wrote checks to themselves. Therefore, the Commonwealth established an

issue for the jury of whether Appellees conspired to take funds received from

Coplay for payment to PPL and diverted them for their own benefit.

Accordingly, the Commonwealth presented sufficient evidence to establish a

prima facie case of criminal conspiracy. The trial court erred in granting

habeas corpus and dismissing the conspiracy charge.

We emphasize for clarity that under our standard of review, on the

record before us we make no judgment as to Appellees’ guilt or innocence.

We simply hold that the Commonwealth presented sufficient evidence to

make out a prima facie case for each of the crimes charged, except for

receiving stolen property.

Order affirmed on charge of receiving stolen property. In all other

respects, order vacated. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2015

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