Commmonwealth v. Ynirio
| Citation | 270 A.3d 1159 (Table) |
| Decision Date | 22 December 2021 |
| Docket Number | 1202 MDA 2020 |
| Parties | COMMMONWEALTH of Pennsylvania, Appellee v. Alexis YNIRIO, Appellant |
| Court | Superior Court of Pennsylvania |
Appellant, Alexis Ynirio, was charged in a one-count information with multiple acts of theft from his employer, Axis Self Storage, Inc. ("Axis"). The trial court, sitting without a jury, found Appellant guilty of theft by failure to make required disposition of funds received,1 graded his offense as a third-degree felony, and sentenced him to four years’ probation and restitution of $2,983.44. Appellant argues, inter alia , that the trial court abused its discretion by permitting hearsay evidence in a spreadsheet that purported to chart the dates on which he had sole access to stolen funds. Although we agree that the spreadsheet was inadmissible hearsay, we conclude for reasons given below that its admission was harmless error. Accordingly, we affirm the judgment of sentence except for the amount of Appellant's restitution, which we remand to the trial court for downward modification.
We begin by summarizing the evidence adduced during Appellant's non-jury trial. Axis operates 23 storage units in Pennsylvania, New Jersey and New York. N.T., Trial, 3/16/20, at 6. Axis's main office is in Frazer, Pennsylvania. Id. at 8-9. Edward DiMarcantonio, Axis's owner, testified that between March and June 2019, Appellant was an employee at Axis's storage facility in Reading, Pennsylvania. Id. at 6-8. Only two employees worked at this facility: Appellant, a site manager, and Carlos Fuentes, Appellant's superior, a senior site manager. Id. at 7, 9, 41-42.
The Commonwealth accused Appellant of stealing funds from Axis on fifteen separate dates in 2019. The parties stipulated that on the fifteen days in question, twenty Axis customers gave Appellant rental payments either in the form of cash or money orders.2 Commonwealth Exhibit 1. The Commonwealth contended that Appellant kept the cash and money orders instead of forwarding them to Axis's main office in Frazer.
DiMarcantonio testified that Appellant and Fuentes used different procedures for forwarding customer payments from the Reading facility to the Frazer office. Appellant was required to convert all cash payments during each business day into a money order at a nearby Turkey Hill convenience store. Appellant would mail that money order, along with any other money orders and checks received that day and a daily deposit report, to the Frazer office. N.T., 3/16/20, at 8-10, 54. Fuentes, as a senior employee, did not have to mail payments to the Frazer office. Instead, after converting cash payments into a money order, Fuentes had a device that would "remote capture" money orders and checks and deposit them directly into the bank. Id. at 10-11.
In mid-April 2019, upon reviewing bank reconciliations, DiMarcantonio noticed that deposits were missing, because Axis's computer records for monies received at the Reading facility did not match the bank statements. Id. at 11-12. DiMarcantonio testified that on fifteen different dates between March 11, 2019 and June 29, 2019, Appellant received cash and money order payments from customers at the Reading facility, but these proceeds never arrived at the Frazer office. Id. at 13-37.
Fuentes testified that he did not take the missing proceeds. Id. at 92. In addition, Fuentes’ testimony indicates that Appellant adjusted deposit records on one occasion to create the appearance that Fuentes took proceeds instead of Appellant. On May 25, 2019, Lukeisha Gonzalez paid rent of $620.50 in cash to Appellant at the Axis property in Reading. Commonwealth Exhibit 1 (parties’ stipulation). On the same day, Fuentes testified, Appellant typed on a daily deposit report that Fuentes deposited $620.50. Id. at 90-91. The following Tuesday, Fuentes checked with Appellant, and Appellant said that he (Appellant) had sent the payment to Frazer. Id. Fuentes wrote "[Appellant] sent to Frazer" on the deposit sheet to reflect what Appellant told him. Id. at 91.
The Commonwealth contended that on the dates in question, Appellant was the only employee present at the Reading facility at the time of closing and therefore had the opportunity to steal customer payments. Axis required all employees to submit weekly time sheets and send in emails each day when they clock in and out of work. Id. at 38-39. The time sheets and emails are kept in Axis's computer, and DiMarcantonio is the custodian of these records. Id. at 39-40. Based on the emails and timesheets, DiMarcantonio created an Excel spreadsheet that purported to show who was present on the fifteen days in question and the amount of money missing on each date. Id. at 40; Commonwealth Exhibit 3 (spreadsheet). The Commonwealth did not submit the emails or timesheets themselves into evidence. Appellant objected to the spreadsheet on the ground that it was not a business record because it was created "in anticipation of prosecution of this case." N.T., 3/16/20, at 40; see also id. at 100 (same objection). The court overruled the objection, id. at 41, and admitted the spreadsheet into evidence. Id. at 101.
The spreadsheet indicated that on two of the fifteen days in question (May 11, 2019 and May 25, 2019), Fuentes was present at the Reading facility but left before closing. Commonwealth Exhibit 3; N.T., 3/16/20, at 41-42 (DiMarcantonio). The spreadsheet indicated that on the remaining dates, Appellant was by himself all day. Commonwealth Exhibit 3. The total amount of missing proceeds was $2,983.44. Id.
Evidence other than the spreadsheet indicates that Appellant was the only employee present at closing on twelve of the fifteen days. On these twelve dates, Appellant's initials, "AP," appeared on the facility's daily deposit reports. Commonwealth Exhibit 2. Appellant admitted3 that he closed out the account on days when his initials appeared on the daily deposit reports.4 N.T., 3/16/20, at 123-24. Appellant also admitted that he "normally" closed out the account on days when Fuentes was not there, id. at 138, which meant that Appellant was alone on days he closed out the account.
DiMarcantonio asked Appellant about the missing payments. Appellant claimed that he sent everything to Frazer, but after DiMarcantonio confronted him, he failed to produce receipts for any of the money orders he claimed to have obtained from Turkey Hill. Id. at 45-48. Appellant claimed that he threw out the receipts while cleaning his car. Id. at 130, 134.
The court found Appellant guilty of theft by failure to make required disposition of funds received, graded as a third-degree felony. On June 18, 2020, the court imposed sentence. Appellant filed timely post-sentence motions challenging the weight of the evidence, which the court denied, and a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises four issues in this appeal, which we reorder for the sake of convenience:
Commonwealth v. Antidormi , 84 A.3d 736, 756 (Pa. Super. 2014).
The Crimes Code defines theft by failure to make required disposition of funds received as follows:
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...
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