OPINION BY STEVENS, P.J.:
Appellant Audrey Quel (hereinafter "Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Allegheny County on June 28, 2010,
The trial court summarized the facts herein as follows:
Trial Court Opinion, filed 12/1/10, at 3-4.
On March 11, 2010, Appellant filed her Post Sentencing Motion and her Motion to Reconsider Sentence. In her Post Sentencing Motion, Appellant claimed, inter alia, trial counsel had been ineffective for failing to call character witnesses on her behalf at trial and that the evidence had been insufficient to sustain her convictions. The sentencing court held a hearing on Appellant's Post Sentencing Motion on June 28, 2010, during which time it considered and denied Appellant's ineffective assistance of counsel claims.
Appellant filed a timely appeal on July 23, 2010. On July 28, 2010, the trial court ordered Appellant to file a statement of the matters complained of on appeal no later than August 19, 2010, and Appellant complied on that date. In her statement filed pursuant to Pa.R.A.P. 1925, Appellant stated trial counsel had been ineffective, claimed the verdict was contrary to the weight of the evidence and averred the evidence had been insufficient to sustain her convictions. In her brief, Appellant sets forth the following Statement of the Question Presented:
Brief for Appellant at 7.
Appellant's first assertion of error is based upon ineffective assistance of trial counsel. Appellant filed a Post Sentencing Motion wherein she raised a claim of trial counsel's ineffectiveness. In an Order filed on March 18, 2010, the sentencing court directed Appellant to supplement her Motion with pertinent transcripts and an affidavit or a signed statement from trial counsel on the issue and otherwise comply with the law regarding the failure to call character witnesses as set forth in Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 599 (2007).
The sentencing court conducted an evidentiary hearing on June 28, 2010, at which time it heard argument on Appellant's ineffectiveness claim. At the conclusion of the hearing, the trial court made a finding on the issue of trial counsel's effectiveness and also addressed that issue in its Opinion filed pursuant to Pa.R.A.P. 1925(a).
In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court announced a general rule providing a defendant "should wait to raise claims of ineffective assistance of trial counsel until collateral review" pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Grant, at 738. Nevertheless, in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), reargument denied, July 17, 2003, cert. denied, Bomar v. Pennsylvania, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), our Supreme Court recognized an exception to Grant and found that where ineffectiveness claims had been raised in the trial court, a hearing devoted to the question of ineffectiveness was held at which trial counsel testified, and the trial court ruled on the claims, a review of an ineffectiveness claim was permissible on direct appeal. See Bomar, 826 A.2d at 853-854; See also Commonwealth
In Fowler, supra, this Court reiterated our Supreme Court's delineation of the parameters of the Bomar exception as follows:
Commonwealth v. Fowler, 893 A.2d 758, 763-764 (Pa.Super.2006).
However, most recently, in Commonwealth v. Barnett, 25 A.3d 371, 376-78 (Pa.Super.2011) (en banc), this Court concluded our Supreme Court has limited the applicability of Bomar and that Barnett's assertions of counsel's effectiveness are appropriately raised only on collateral review. We ultimately determined that "[w]ith the proviso that a defendant may waive further PCRA review in the trial court, absent further instruction from our Supreme Court, this Court, pursuant to Wright and Liston
Appellant's final three issues concern the sufficiency of the evidence presented at trial. Our standard of review when considering such claims is as follows:
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa.Super.2011) (en banc) (citations omitted).
Theft by Deception has been defined as follows:
18 Pa.C.S.A. § 3922(a)(1).
Appellant argues the evidence at trial had been insufficient to sustain her conviction for Theft by Deception because the Commonwealth failed to establish she took the funds in question or that she committed deception with regard to the property. Brief for Appellant at 20. She also avers the circumstantial evidence that she took control of the funds was insufficient as a matter of law because no direct evidence linked her to the crime. Also, Appellant stresses that other individuals had access to the area in which the deposits were kept and the funds themselves prior to the time at which they were deposited at the bank. Id. at 21.
At trial, Mr. Alan Bennett, the Director of Physical and School services in the Moon Area School District, testified that activity groups had deposit envelopes and would list thereon checks and cash obtained for various fundraisers before sending the envelope to the school office. When Appellant received an envelope containing money from a student activity group, she was supposed to enter the amount of the deposit using the Quicken accounting system, complete a deposit slip, place the funds in the standard late deposit bag equipped with a lock, and set it aside in preparation for the courier to pick it up and take it to the bank. Id. at 23-24, 40. Money was sent to the bank on a monthly basis, a report went to the student advisors so they could see the amount of money brought in and spent, and the transactions were audited annually. N.T., 12/14/09, at 21-22. The Quicken accounting program was available only on Appellant's computer. Id. at 24, 38.
Mr. Bennett eventually recognized that the data in Quicken did not match the amount of money reflected in the bank account. After meeting with school officials, it became apparent to Mr. Bennett that funds were potentially missing, and a CPA firm was hired to perform a full audit of the entire system. Id. at 26-27. A police investigation ensued, and Appellant was suspended without pay though she continued to have her employee benefits provided pending the outcome of trial. Id. at 27-30.
Mr. Peter Vancheri, a CPA, testified his analysis revealed variances between amounts recorded and the actual bank deposits. Id. at 46. He asked the club treasurers to confirm what they believed the balances in their respective accounts to be and noted the differences. Id. at 47.
Mr. Michael A. Houser testified that among his duties as the Senior Principal at Moon Area Senior High School was the supervision of the student activity fund. Id. at 65-66. He reiterated the process of how money raised by students was initially tallied and delivered. He explained Appellant held the title of assistant secretary/bookkeeper as of the fall of 2007 and, as such, had the responsibility to verify the amount of money and deposit it in the bank. Id. at 67-69. Appellant also had a duty to seal the money bags and notify Mr. Houser if the amount of money in a given envelope did not match the amount recorded thereon. Id. at 71, 93. Mr. Houser did not have access to Quicken. Id. at 74.
Mr. Houser explained he, Appellant, Mrs. Olsen, his administrative assistant, and the assistant principals had access to the vault where the locked bank bags were kept and that once bags were placed in there, they remained locked until they were unlocked at the bank. Id. at 76. On the occasion that Appellant was absent from work, the envelopes would be placed in the vault until her return, and any substitute for her would not verify the funds in the envelope or have access to them at all. Id. at 91-92. Near the end of 2007, Mr. Houser became aware of a missing deposit from one of the school's athletic contests, and he questioned Appellant about the whereabouts of the money, but she was unable to account for it. Id. at 75. At the outset of the next school year, Mr. Houser became aware of additional significant inconsistencies in the deposits that had been made. Id. at 75-76.
Ms. Lori Lemieux testified that as an English teacher at Moon Area High School, she was involved in student clubs including the Student Impact Club. Id. at 94. She never was made aware of any discrepancies in or missing money from her student account. Id. at 99. Ms. Gail DeMarco also testified she was the sponsor of the class of 2010 and was involved in the planning of the Holiday Ball in December of 2008, the proceeds of which were handed over to Appellant. Id. at 104. She asked Appellant for balance sheets of ticket sales, but she did not receive them until about a month later. She and her students had been keeping track of sales independently as well. Id. at 105-106. It was never brought to Ms. DeMarco's attention that the amount of money in an envelope was less than the amount indicated thereon. Id. at 106.
Mr. John Scott testified he had been employed for fifteen years as a courier for the Moon School District. N.T., 12/15/09, at 110-111. The bags he received from Appellant were either sealed plastic bags that cannot be opened without ripping them or locked bags for which he did not have a key. Id. at 112-113. Mr. Scott was unaware of the actual amount of any deposit as he merely dropped off deposits at the bank. Id. at 113-114.
Ms. Michelle Grimm testified that until June of 2007 she had been the associate bookkeeper at Moon Area High School for five years. Id. at 120. She reiterated the
Ms. Valerie Hallisey who was employed with the accounts payable office in the Moon Area School District testified that while she did not handle cash, she paid all the invoices, kept records all the deposits and handled the balancing of bank statements for the high school and middle school. Id. at 134-135. She worked with Appellant in 2007 concerning funds that Appellant was going to deposit into the general fund, because Appellant handled funds from the student activities on her own. Id. at 136-137. Ms. Hallisey did not have access to the Quicken software, nor did she have a password. Id. at 138. Ms. Hallisey had difficulty getting Appellant to provide her with receipts from football games, though she sent numerous emails and made several phone calls requesting the information. Id. at 138-139. The money she sought never made it into the general account. Id. at 140. Ms. Hallisey noted that no deposits had been made for four or five football games in the 2007 season into the general fund and estimated that an average deposit for a football game would be in an amount of $6,000.00. Id. at 144-145.
Ms. Jacqueline Weibel testified she provides forensic accounting services to the District Attorney's Office and is a certified fraud examiner. Id. at 145-146. Ms. Weibel explained entries on Commonwealth exhibits including envelopes and deposit slips and Quicken documents. Utilizing a spreadsheet she had created which detailed the manner in which deposits were made, she remarked that in every instance, the same dollar amount indicated on the envelope had been entered into Quicken, and the date on the Quicken entry was the same as the date on the deposit slip. Id. at 154. Ms. Weibel observed that in seventeen out of twenty-three deposits, the entire amount of the cash was missing from the deposit. Id. at 155. She also discovered that a particular deposit for a football game differed from the others in that no deposit had been entered into Quicken, though for the other football events deposits in the bank matched the ticket sales. Id. at 156. She ultimately calculated $29,310.20 was missing. Id. at 157.
Appellant testified she began working for Moon Township in 1993 and began as a substitute custodian in various buildings. Id. at 172. Her first day as assistant secretary/bookkeeper was August 1, 2007, though nobody trained her during that month. Id. at 173-175. Appellant indicated that it had been fifteen years since she had seen bank deposit bags made of cloth and equipped with a lock and that she used plastic bags for deposits. Id. at 183.
Appellant testified that prior to hearing Ms. Hallisey's testimony, she had not been aware of any problems with money from four or five football games in 2007 and explained she wrote up a triplicate deposit slip for the money from the October game which went into the general fund. Id. at 196, 199. When asked to explain why there might be a discrepancy between what had been documented in the Quicken system and what was ultimately deposited in the bank, Appellant responded as follows: "I would make the deposit and enter it into the Quicken system. After that I never went back into these bags. They were given to the currier [sic] and taken to the bank, and the receipts went to central office. I have no idea what took place after these were out of my possession." Id. at 205. Appellant testified she never took any cash from the accounts and that it was possible each of the bank envelopes in question could have been tampered with by someone else who had access to the safe. Id. at 205, 222-223.
Upon our review of the aforementioned evidence, we find the Commonwealth established the elements of Theft by Deception. While it was indicated other individuals may have handled the deposit envelopes and had access to the safe room, Appellant was the only individual with access to Quicken and who had the responsibility of verifying the contents of each deposit envelope and placing it in a sealed deposit bag for delivery to the bank. As such, through an abundance of uncontradicted circumstantial evidence, the Commonwealth established Appellant intentionally and deceptively withheld currency that belonged to the school district by removing cash from deposit envelopes after verifying their contents in Quicken which created the false impression that the various student groups' finances were in order.
Appellant next asserts the evidence had been insufficient to sustain her conviction of Theft By Unlawful Taking-Movable Property and Theft by Failure to Make a Required Disposition of Funds Received due to the Commonwealth's failure to prove she took the funds in question. To establish the former crime, the Commonwealth must have proven that Appellant unlawfully took or exercised unlawful control over movable property of another with intent to deprive him thereof. 18 Pa. C.S.A. § 3921(a). The latter crime has been defined as follows:
18 Pa.C.S.A. § 3927(a).
In support of her claim the evidence was insufficient to establish Theft by Unlawful Taking-Movable Property, Appellant generally avers that "[s]ince the Commonwealth's circumstantial evidence
Judgment of sentence affirmed. Ineffective assistance of counsel claim dismissed without prejudice to raise it on collateral review. Jurisdiction relinquished.
BOWES, J. concurs in result.
Commonwealth v. Washington, 592 Pa. 698, 721, 927 A.2d 586, 599 (2007) (citations omitted).