Commonwealth v. QUEL

27 A.3d 1033, 2011 Pa. Super. 179, 2011 Pa. Super. LEXIS 2242, 2011 WL 3672083
CourtSuperior Court of Pennsylvania
DecidedAugust 23, 2011
Docket1200 WDA 2010
StatusPublished
Cited by34 cases

This text of 27 A.3d 1033 (Commonwealth v. QUEL) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. QUEL, 27 A.3d 1033, 2011 Pa. Super. 179, 2011 Pa. Super. LEXIS 2242, 2011 WL 3672083 (Pa. Ct. App. 2011).

Opinion

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, 1 at which time she was sentenced to an aggregate term of seven (7) years’ probation, placed in a county intermediate punishment program for twenty-three (28) months with credit for time served and required to pay restitution in an amount of $29,310.20 following her conviction of one count each of Theft by Deception, Theft by Failure to Make Required Disposition of Funds Received, and Theft by Unlawful Taking or Disposition. 2 Upon our review of the record, we affirm Appellant’s judgment of sentence and dismiss her ineffective assistance of counsel claim without prejudice to her ability to raise it on collateral review.

The trial court summarized the facts herein as follows:

The government’s case was the epitome of a prosecution upon which circumstantial evidence controlled the outcome. There was no evidence that anyone saw [Appellant] take money. However, there was an abundance of circumstances that put the money in [Appellant’s] pocket.
[Appellant] began her job as assistant secretary/bookkeeper for the Moon School District in August, 2007. Her job required multi-tasking. One job function was to account for, deposit and generate records for the various student groups who may raise money throughout the school year. The process worked in rather simplistic fashion. A student group would conduct a fundraiser like selling hoagies. When the money was collected from that function a particular type of deposit envelope would be completed by a representative of that student group and/or the group’s sponsor, traditionally a member of the teaching staff. The deposit envelope required the contents to be broken down by the number of twenty dollar bills, ten dollar bills, five dollar bills, one dollar bills, coins and checks. When the deposit envelope was completed, it was delivered to [Appellant] or, if she was not present, given to a member of the secretarial staff or the administrative staff (i.e. principal or his assistant). Whether by [Appellant] herself, or by someone else, the deposit envelope was then placed in the “safe” which was located inside a “safe room[.”] At an appropriate time during her workday, [Appellant] would then retrieve the deposit envelope and verify its contents. She would count the money and -verify what was numerically reflected on the outside of the envelope matched what was actually inside the envelope. With very few exceptions, [Appellant] found the money inside the envelope matched the figure on the outside of the envelope.
The next step in the process is where the defense’s theory breaks down. According to [Appellant], the next step in the process was to complete a bank deposit slip, put the money and the deposit *1035 slip inside a special plastic deposit bag complete with the bank’s logo on it, return it to the safe to await pick-up by a school district driver/courier. The next step according to [Appellant] was then to enter the amount deposited by a particular student group into a computer software program. The software program used was “Quicken[.”] The Quicken program kept track of all the student groups and maintained running balances of how much money each group had. This sequence, according to [Appellant] would prohibit her from then going back inside the bank deposit plastic bags and removing any money. Contributing to this is the fact that the reports from Quicken always matched the numerical reflection of the money inside the student group delivered deposit envelopes.
The government’s theory, however, had more persuasive punch. After [Appellant] would verify the money received matched the numerical reflection on the outside of the deposit envelope, she would enter that figure into Quicken. This ensured that each student group’s running balance in Quicken would be consistent with each group[’]s own record keeping. Only after that task was completed, would [Appellant] then complete the bank deposit slip. It is at this point, where cash could be diverted from the student generated deposit envelope to [Appellant’s] own pocket. Contributing to this opportunity of theft is that the actual bank deposit slips which were placed inside the plastic deposit bags were never returned to [Appellant]. Those went to the central office. The central office, for some reason, had no access to the Quicken program. [Appellant] was the only person who had the password for that program.

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:

I. Did the trial court err in not granting [Appellant] a new trial where she indicated to the trial court that she wanted to call character witnesses, that she provided a list of potential character witnesses to trial counsel who failed to investigate, inquire of these witnesses, subpoena these witnesses where no reasonable trial strategy would explain his failure to do so?
II. Was the evidence insufficient as a matter of law to sustain a conviction of theft by deception in this case because the Commonwealth failed to prove that [Appellant] took the funds in question and that she committed deception with regard to the property?
*1036 III. Was the evidence insufficient as a matter of law to sustain a conviction of theft by unlawful taking in this case because the Commonwealth failed to prove that [Appellant] took the funds in question?
IV. Was the evidence insufficient as a matter of law to sustain a conviction of theft by failure to make required disposition of funds in this case because the Commonwealth failed to prove that [Appellant] took the funds in question?

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.

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Cite This Page — Counsel Stack

Bluebook (online)
27 A.3d 1033, 2011 Pa. Super. 179, 2011 Pa. Super. LEXIS 2242, 2011 WL 3672083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-quel-pasuperct-2011.