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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TIFFANY LYNN EVANS :
:
Appellant : No. 838 WDA 2020
Appeal from the Judgment of Sentence Entered July 10, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001344-2019
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 30, 2021
Appellant, Tiffany Lynn Evans, appeals from the judgment of sentence
imposed following her convictions of conspiracy to commit theft of moveable
property by unlawful taking or disposition and receiving stolen property.1 We
affirm.
On May 23, 2019, David Millero and Appellant were at a McDonald’s
restaurant in Connellsville, Fayette County when Millero noticed an older man
with a large amount of cash in his wallet. Millero informed Appellant of what
he saw and the two followed the man, later identified as John Welsh, to his
home in Connellsville with Millero driving. Upon arriving at Welsh’s house,
Millero approached Welsh and acted as if he was lost, asking to use Welsh’s
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 903 and 3925(a), respectively.
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phone. When Welsh said he could not help Millero and walked back towards
his house, Millero struck Welsh from behind and took his wallet, which
contained approximately $260 in cash. Millero and Appellant escaped and
later in the day spent the stolen money on crack cocaine, which they then
used.
Police obtained security footage from one of Welsh’s neighbors and
subsequently discovered that the vehicle in the footage was owned by
Appellant. Appellant and Millero were each charged, and Appellant proceeded
to trial while Millero entered a guilty plea to robbery and other charges. On
July 6, 2020, the jury convicted Appellant of the above-stated offenses. On
July 10, 2020, the trial court sentenced Appellant to a term of imprisonment
of 12 to 24 months on the receiving stolen property charge and no further
penalty on the conspiracy charge. Appellant filed a timely post-sentence
motion, raising, inter alia, a weight-of-the-evidence claim. The trial court
denied the post-sentence motion on July 24, 2020. Appellant thereafter filed
a timely notice of appeal.2
Appellant raises the following issues for our review:
[1.] Whether the evidence presented at trial was legally and
factually sufficient to prove that the Appellant committed the
offense of conspiracy to commit theft by unlawful taking when
there was no evidence presented that the Appellant ever entered
into an agreement with her co-defendant to commit a theft, and
____________________________________________
2Appellant filed her concise statement of errors on September 18, 2020,
and the trial court entered an opinion on October 30, 2020.
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there was no evidence presented that the Appellant shared the
criminal intent with her co-defendant to commit the offense.
[2.] Whether the evidence presented at trial was legally and
factually sufficient to prove that the Appellant committed the
offense of receiving stolen property when there was no evidence
presented that the Appellant ever took possession, received,
retained, or disposed of the stolen items; specifically, $260 in cash
and a wallet.
[3.] In the alternative, whether the verdicts of guilty in this
matter were against the weight of the evidence, and so contrary
to the evidence and testimony presented at trial, as to shock one’s
sense of justice.
Appellant’s Brief at 4 (unnecessary capitalization and suggested answers
omitted).
In her first two issues, Appellant challenges the sufficiency of the
evidence as to both her convictions. A challenge to the sufficiency of the
evidence presents a question of law and is subject to plenary review under a
de novo standard. Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020).
When 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, were sufficient to
prove every element of the offense beyond a reasonable doubt. Id. “[T]he
facts and circumstances established by the Commonwealth need not preclude
every possibility of innocence.” Commonwealth v. Wallace, 244 A.3d 1261,
1274 (Pa. Super. 2021) (citation omitted). “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.” Commonwealth v. Hill,
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210 A.3d 1104, 1112 (Pa. Super. 2019). “The Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.” Wallace, 244 A.3d at 1274
(citation omitted). As an appellate court, “we may not weigh the evidence
and substitute our judgment for that of the fact-finder.” Id. (citation omitted).
We first address the sufficiency of the evidence with respect to
Appellant’s conviction of conspiracy to commit theft of moveable property by
unlawful taking or disposition. An individual is guilty of the underlying offense
if she “unlawfully takes, or exercises unlawful control over, movable property
of another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). To
sustain a conviction for criminal conspiracy, “the Commonwealth must
establish that the defendant (1) entered into an agreement to commit or aid
in an unlawful act with another person or persons, (2) with a shared criminal
intent and, (3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Fisher, 80 A.3d 1186, 1190–91 (Pa. 2013) (citation
omitted). The defendant need not commit the required overt act herself, but,
instead, it may be committed by a co-conspirator. 18 Pa.C.S. § 903(e);
Commonwealth v. Reed, 216 A.3d 1114, 1122 (Pa. Super. 2019).
It is well-established that “[m]ere association with the perpetrators,
mere presence at the scene, or mere knowledge of the crime is insufficient.”
Commonwealth v. Holston, 211 A.3d 1264, 1278 (Pa. Super. 2019) (en
banc). “Rather, the Commonwealth must prove that the defendant shared
the criminal intent, i.e., that the [a]ppellant was an active participant in the
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criminal enterprise and that he had knowledge of the conspiratorial
agreement.” Id. (citation and quotation marks omitted). “The essence of a
criminal conspiracy is a common understanding, no matter how it came into
being, that a particular criminal objective be accomplished.” Commonwealth
v. Gross, 232 A.3d 819, 839 (Pa. Super. 2020) (en banc) (citation omitted).
“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.” Id.
(citation omitted).
Among the circumstances which are relevant, but not sufficient by
themselves, to prove a corrupt confederation are: (1) an
association between alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene of the crime;
and (4) in some situations, participation in the object of the
conspiracy. The presence of such circumstances may furnish a
web of evidence linking an accused to an alleged conspiracy
beyond a reasonable doubt when viewed in conjunction with each
other and in the context in which they occurred.
Holston, 211 A.3d at 1278 (citation omitted).
Appellant argues that there was insufficient evidence to show that she
shared a criminal intent with Millero or that she entered into a criminal
agreement with him. Appellant contends that “Millero made the decision
himself to get the money from the victim” and Appellant did not offer any
words of encouragement or direction to Millero nor did she take any overt
actions to further the theft. Appellant’s Brief at 9. Appellant asserts that the
evidence merely shows that she was present at the scene and partook in the
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drugs Millero purchased with the stolen money, but there is no evidence that
she actively participated in the theft of the victim’s money.
At trial, Welsh testified that he withdrew $260 from an ATM and
proceeded to a McDonald’s restaurant three miles from his house where he
ordered a coffee. N.T., 7/6/20, at 22-24. When he arrived home, he saw a
dark-colored Chevrolet turning around in front of his house. Id. at 24. A man
exited the car, called to Welsh, and asked to use Welsh’s cell phone. Id. at
24-25. Welsh refused the request, turned around, and walked back toward
his house. Id. at 25. As he was on the steps of his house, he was hit in the
back of his head and quickly realized that his wallet had been stolen. Id. at
25-26. Welsh chased after the man, but the man was able to reach the car
first and drive away. Id. at 26. Welsh saw a woman in the passenger seat of
the Chevrolet, but she did not get out of the vehicle or say anything to him.
Id. at 25, 27-28.
After Appellant’s vehicle, a dark blue Chevrolet Malibu, was determined
from surveillance video to have been at Welsh’s house at the time of the
incident, Appellant and Millero were taken into custody by the Pennsylvania
State Police. Id. at 33-36, 49-52. In Appellant’s interview with Troopers
James Garlick and Nicole Sigwalt conducted on the day following the incident,
Appellant at first denied being present at the scene, stating that Millero had
dropped her off down the road before approaching Welsh’s house. Id. at 38,
53-54. However, after the Troopers informed Appellant that they had
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surveillance video showing her in the vehicle as it drove away from Welsh’s
house, Appellant began to cry hysterically. Id. at 54.
Trooper Sigwalt testified that Appellant then explained during the
interview that when they were at the McDonald’s, Millero returned to the car
informing Appellant that he saw a man with “stacks of cash” and they then
followed him. Id. at 54. After they followed Welsh to his house, Millero exited
the car, took Welsh’s wallet, and they fled from the scene. Id. Appellant then
told the Troopers that as they were driving away, Millero removed the money
from Welsh’s wallet and threw it out the window. Id. at 55. Appellant stated
that she and Millero then purchased crack cocaine in Uniontown City with
Welsh’s money and they smoked the crack cocaine that evening. Id. On
cross-examination, Trooper Sigwalt testified that Appellant stated during the
interview that “we” purchased the drugs and then “he purchased more [drugs]
later.” Id. at 63.
Appellant’s interview was video recorded, and relevant portions were
played to the jury. Id. at 55-57; Commonwealth Exhibit 2. Appellant also
provided a written statement to the troopers, which was admitted into
evidence and read to the jury by Trooper Sigwalt. Commonwealth Exhibit 3.
In her statement, Appellant wrote that when they were at the McDonald’s she
saw “an older man in a light blue Buick parked” near her car. N.T., 7/6/20,
at 58-59. According to the statement, “Millero came running out to our car
and said Tif, we’re following him [because he had] two stacks of money in his
wallet. So we followed him to his house.” Id. at 59. After Millero took Welsh’s
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wallet and they drove away, Appellant stated that Millero “then drove us to
Millview Street in Uniontown where we got drugs.” Id.
Millero testified for the defense that he alone made the decision to follow
Welsh home and take his wallet while Appellant “had no clue what I was doing”
and no involvement in the planning of the theft. Id. at 80-82, 85-86. Millero
stated that he purchased drugs with the $260 taken from Welsh’s wallet and
considered the money to be his. Id. at 82-83. He testified that Appellant,
with whom he was in a romantic relationship at the time of the incident, “never
touched a dollar of” the money and she had nothing to do with the purchases
of drugs. Id. at 82-83, 86-87. According to Millero, Appellant was “hysterical
the whole time” and “scared to death.” Id. at 83.
We conclude that the evidence was sufficient to convict Appellant of
conspiracy to commit theft of moveable property by unlawful taking or
disposition. Initially, it is clear that an overt act was done in furtherance of
the conspiracy as Millero consummated the crime of theft by unlawful taking
or disposition when he approached Welsh from behind, struck him, and took
his wallet without permission. While Appellant was not involved in the
commission of the offense, this fact is irrelevant as the overt act may be
accomplished by a co-conspirator. Reed, 216 A.3d at 1122.
In addition, while no direct evidence was presented showing a
conspiratorial agreement or a shared criminal intent, there was ample
circumstantial evidence by which the jury could have reasonably inferred that
Appellant entered into a conspiracy with Millero. Appellant was present when
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Millero announced at McDonald’s that Welsh had a large amount of cash on
him and he intended to follow him, and she was with Millero during the theft
and afterwards when they spent the cash taken from Welsh on drugs and then
used the drugs. While Appellant was not driving the Chevrolet during the
events at issue, she was the owner of that vehicle and in a romantic
relationship with Millero at the time of the incident. Despite their relationship,
Appellant did nothing to stop Millero from his actions and in fact she stayed in
his presence during the criminal act and afterwards when they used the
proceeds of the theft on drugs. Appellant also did not report Millero’s actions
to authorities, and instead she initially falsely told Troopers that she was not
present at Welsh’s house.
Viewing this evidence in the light most favorable to the Commonwealth,
this jury was free to find that Appellant entered into a criminal agreement with
Millero and shared his criminal intent to take Welsh’s money. Appellant’s
conspiracy conviction thus rests on sufficient evidence, and Appellant’s first
issue merits no relief.
Next, Appellant argues that there was insufficient evidence to support
her conviction of receiving stolen property as the Commonwealth did not show
that Appellant ever received or handled the cash stolen from Mr. Welsh. The
receiving stolen property offense is defined by statute as follows:
(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.
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(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. § 3925. Therefore, the Commonwealth must prove three elements
to substantiate a receiving stolen property conviction: “(1) intentionally
acquiring possession, control or title, retaining, disposing, or lending on the
security of movable property of another; (2) with knowledge or belief that it
was probably stolen; and (3) intent to deprive permanently.”
Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super. 2012) (citation
omitted). Appellant only challenges the evidence with respect to the first of
these elements.
The Commonwealth may prove the receipt element of the receiving
stolen property offense by demonstrating that the defendant exercised joint
or constructive possession of the property. Commonwealth v. Grekis, 601
A.2d 1275, 1280-81 (Pa. Super. 1992); Commonwealth v. Brady, 560 A.2d
802, 806 (Pa. Super. 1989). Constructive possession is a legal fiction used to
prove the element of possession of a prohibited item where the defendant was
not in physical possession of the item. Commonwealth v. Peters, 218 A.3d
1206, 1209 (Pa. 2019). “Mere presence or proximity to the contraband is not
enough.” Id. Rather, “[t]he evidence must show a nexus between the
accused and the item sufficient to infer that the accused had the power and
intent to exercise dominion and control over it.” Id. In other words, the
defendant must have had “the ability to reduce the item to actual possession
immediately or was otherwise able to govern its use or disposition as if in
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physical possession.” Id. (citation omitted). Constructive possession may
also be found where two or more actors have “joint control and equal access”
to the item at issue. Commonwealth v. Dix, 207 A.3d 383, 390 (Pa. Super.
2019) (citation omitted); see also Commonwealth v. Haskins, 677 A.2d
328, 330 (Pa. Super. 1996) (“The fact that another person may also have
control and access does not eliminate the defendant’s constructive
possession; two actors may have joint control and equal access and thus both
may constructively possess the contraband.”).
Constructive possession “is an inference arising from a set of facts that
possession of the contraband was more likely than not” and “may be
established by the totality of the circumstances.” Commonwealth v.
Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation omitted). As with any
other element of a crime, constructive possession may be proven by
circumstantial evidence that allows the trier of fact to reasonably infer that
the defendant exercised dominion and control over the contraband at issue.
Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018).
In this case, there was no evidence that Appellant ever handled the
approximately $260 of stolen property. However, Appellant’s oral and written
statements to the Pennsylvania State Police indicate that she and Millero
jointly exchanged the cash for crack cocaine, which she and Millero then
together used. See N.T., 7/6/20, at 59 (“[Millero] then drove us to Millview
Street in Uniontown where we got drugs.”), 63 (“[Appellant] said, we
purchased [drugs] and then in her interview she said, he purchased more
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later.”) (emphasis added). Along with the circumstantial evidence regarding
Appellant’s participation in the conspiracy to take Welsh’s wallet, including her
presence at each stage of the crime and her knowledge and tacit assent to the
plan, this evidence was sufficient to prove that Appellant was not “[m]ere[ly]
presen[t] or proxim[ate]” to the stolen property, Peters, 218 A.3d at 1209,
but that she acquired joint constructive possession over the stolen property
at the time it was used to purchase the crack cocaine. Appellant’s second
appellate issue thus fails.
Lastly, Appellant argues that the convictions for both the conspiracy and
receiving stolen property charges were against the weight of the evidence.
Appellant contends that the evidence showed that Millero alone planned the
crime, confronted the victim and took his money, and retained the money
from Welsh’s wallet after the crime was completed. According to Appellant,
the overwhelming balance of evidence demonstrates that her only role in the
events was as a passive bystander to the theft and a user of the drugs that
Millero purchased with the stolen cash. Appellant argues that the jury’s verdict
was so against the weight of the evidence that it shocks the conscience and
she therefore is entitled to a new trial.
We are guided by the following principles when reviewing a claim that
the verdict is against the weight of the evidence. “The weight of the evidence
is exclusively for the finder of fact, who is free to believe all, none or some of
the evidence and to determine the credibility of witnesses.” Commonwealth
v. Clemens, 242 A.3d 659, 667 (Pa. Super. 2020) (citation omitted). A
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verdict will only be reversed as against the weight of the evidence where the
evidence is “so tenuous, vague and uncertain that the verdict shocks the
conscience of the court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326
(Pa. Super. 2019) (en banc) (citation omitted). The fact-finder is charged
with the responsibility to resolve contradictory testimony and questions of
credibility, and we may not substitute our judgment in place of the fact-finder.
Commonwealth v. Cramer, 195 A.3d 594, 600 (Pa. Super. 2018).
A motion for a new trial based on a weight-of-the-evidence claim is
addressed to the discretion of the trial court, and therefore we review only the
lower court’s exercise of discretion and not the underlying question of whether
the verdict is against the weight of the evidence. Wallace, 244 A.3d at 1276.
When reviewing a trial court’s determination on a weight claim, we give the
“gravest consideration to the findings and reasons advanced by the trial
judge” because it is the trial judge, not the appellate court, that had the
opportunity to see and hear the evidence presented. Id. (citation omitted).
In analyzing Appellant’s weight-of-the-evidence claim, the trial court
stated:
Here, the evidence at trial was that the same night after the
robbery of the victim, [Appellant] participated in using drugs that
she knew were purchased with money from the robbery. This
Court does not find the subsequent verdict of guilty for conspiracy
to commit theft and receiving stolen property to shock one’s sense
of justice.
Order, 7/24/20; see also Trial Court Opinion, 10/30/20, at 10.
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Upon review, we discern no abuse of discretion in the trial court’s
determination that the verdict was not against the weight of the evidence. We
agree with the trial court that the evidence was not “so tenuous, vague and
uncertain that the verdict shocks the conscience of the court,” but rather firmly
establishes her role in the theft of Welsh’s wallet, as well as the subsequent
purchase of drugs with the stolen money and use of the drugs. Akhmedov,
216 A.3d at 326 (citation omitted). While Millero testified that Appellant had
no knowledge that he intended to take Welsh’s wallet by force and no role in
the disposition of the stolen funds, the question of whether to accept as
credible Millero’s account was squarely within the jury's authority as fact-
finder. Cramer, 195 A.3d at 600. Appellant is therefore entitled to no relief
on his weight-of-the-evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2021
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