Com. v. Toombs, L. ( 2017 )

J-S54009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE P. TOOMBS :
:
Appellant : No. 1507 WDA 2016
Appeal from the Judgment of Sentence May 19, 2016
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000708-2015
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 13, 2017
Lawrence P. Toombs appeals, nunc pro tunc, from the judgment of
sentence imposed May 19, 2016, in the Washington County Court of
Common Pleas. The trial court sentenced Toombs to an aggregate term of
16 to 32 months’ imprisonment following his bench conviction of forgery and
related charges.1 On appeal, Toombs challenges the weight and sufficiency
of the evidence supporting his convictions. For the reasons below, we
affirm.
The relevant facts underlying Toombs’s arrest and conviction are
summarized by the trial court as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
See 18 Pa.C.S. § 4101(a)(3).
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On October 23, 2014, [Toombs,] a member of the
Washington Community Federal Credit Union, now known as
CHROME Federal Credit Union (hereinafter “credit union”),
appeared at the Griffin Avenue branch office to complete a
financial transaction. According to Susan Guffey, a teller at the
credit union, [Toombs] presented himself to her with a check
payable to him dated October 15, 2014[,] for six thousand eight
hundred and eighty dollars and thirty cents ($6,880.30). The
teller testified that the check was a “non-recognized check,”
meaning that it was not a local paycheck, a social security check,
a pension check, or a check from “companies in the area.” In
addition, the check was not drawn on a bank doing business in
Washington County. Consequently, the teller inquired about the
type of check [Toombs] was presenting. [Toombs], however,
did not understand the teller’s question. She, therefore, asked
[him] where he got the check, to which he responded “the mail”
because “he won a sweepstakes.”
[Toombs’s] response drew the teller’s concern that the
check may be a scam. As a result, the teller asked [Toombs]
what kind of sweepstakes had he won, but [Toombs] was unable
to answer the question. [Toombs] gave the teller a letter (that
accompanied the check) which she described as “bogus” looking
because “there were cut and paste icons at the top.” The teller
then informed [Toombs] that the check looked fraudulent and
advised him to report this matter to the police so that they could
investigate. This answer did not satisfy [Toombs]. Therefore,
the teller left her station to inquire with the deposit process
department.
The teller showed the check and letter to the head of the
deposit process department. That person also believed that the
check was fraudulent and advised the teller not to accept it for
deposit. Again, the teller informed [Toombs] that the credit
union was unable to accept the check and suggested that he
notify the police because this was a scam. [Toombs] then left
with the check and the letter.
The following day, [Toombs] presented himself to the
Racetrack Road office of the credit union to deposit the same
check. A teller at this branch accepted the endorsed check and
put a two-business day hold on the amount for deposit into
[Toombs’s] savings account. A hold is customary for a large
check deposit. The hold should have been for five days,
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according to credit union policy, because the check was greater
than $5,000.
On October 28, 2014, $6,500 was withdrawn from
[Toombs’s] credit union savings account at the Racetrack Road
office. The withdrawal receipt for the $6,500 included the
driver’s license number for the person making the withdrawal
request. The number belonged to [Toombs’s] Pennsylvania
Driver’s License. [Toombs] ultimately depleted all $6,880.30
from his savings account.
After these withdrawals, the credit union received notice
from Mid-Atlantic, the clearinghouse company used for
processing checks, that the $6,880.30 check that [Toombs]
deposited on October 24, 2014[,] was fraudulent. More
specifically, on October 29, 2014, Mid-Atlantic returned the
check with the words “altered or fictitious” stamped thereon.
Anthony Vincequerra, a collector for the credit union,
contacted [Toombs] after being notified by Mid-Atlantic that the
check was “altered or fictitious.” [Toombs] informed Mr.
Vincequerra that he had already spent the money on a car.
Thereafter, Mr. Vincequerra attempted to schedule several
meetings with [Toombs] to discuss converting the $6,880.30
into a car loan with the credit union having a lien on the title.
Each time[, Toombs] responded that he was unable to make the
meeting. Consequently, Mr. Vincequerra contacted the
Pennsylvania State Police.
Trooper [Douglas] Arndt was assigned to the case to
investigate and he contacted [Toombs] by telephone on
December 11, 2014[,] to discuss the matter. [Toombs] stated
that he did not purchase a car with the $6,880.30 check.
Further, [he] told Trooper Arndt that he won the Publisher’s
Clearinghouse Sweepstakes. The check that [Toombs] received,
however was from ROAR Logistics. The trooper informed
[Toombs] that he must contact the credit union by December 19,
2014[,] to make payback arrangements. [Toombs] never
contacted the credit union.
Trial Court Opinion, 11/17/2016, at 1-4 (record citations omitted).
On January 8, 2015, Trooper Arndt filed a criminal complaint charging
Toombs with forgery, theft by unlawful taking, theft by deception, and bad
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checks.2 An additional count of receiving stolen property (“RSP”) 3 was later
added by information. On January 8, 2016, Toombs entered a plea of nolo
contendre to all charges except RSP. However, on April 18, 2016, the trial
court granted Toombs’s pre-sentence motion to withdraw the plea. The case
proceeded to a non-jury trial on May 19, 2016. The trial court found
Toombs guilty of all charges, and sentenced him, that same day, to three
concurrent terms of 16 to 32 months’ imprisonment on the charges of
forgery, theft by deception, and bad checks.4 The court also found Toombs
was RRRI5 eligible, which reduced his minimum sentence to 12 months’
imprisonment.
Toombs filed a timely post-sentence motion challenging the weight of
the evidence. The trial court denied the motion on July 11, 2016, but
Toombs failed to file a timely appeal. Thereafter, on September 29, 2016,
Toombs’s attorney filed a petition for reinstatement of his direct appeal
____________________________________________
2
See 18 Pa.C.S. §§ 4101(a)(3), 3921(a), 3922(a)(1), and 4105(a)(1),
respectively.
3
See 18 Pa.C.S. § 3925(a).
4
The trial court found the charges of theft by unlawful taking and RSP
merged for sentencing purposes with the count of theft by deception. See
N.T., 5/19/2016, at 95.
5
Recidivism Risk Reduction Incentive, 61 Pa.C.S. § 4501, et seq.
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rights nunc pro tunc, which the trial court granted that same day. This
timely appeal followed.6
Based on our disposition, we will address Toombs’s claims together.
In his first issue, Toombs argues the evidence was insufficient to support his
convictions.7 With respect to the charges of forgery and bad checks,8
Toombs contends the evidence did not establish he either forged the check,
or knew it was fraudulent when he presented it for payment. See Toombs’s
Brief at 14-15. Toombs emphasizes that Ms. Guffey could not pinpoint “a
____________________________________________
6
On October 14, 2016, the trial court ordered Toombs to file a concise
statement of errors complained of on appeal. Toombs complied with the
court’s directive, and filed a concise statement on November 3, 2016.
7
Our review of a sufficiency claim is well-settled. We must
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury’s finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden
by means of wholly circumstantial evidence.
Commonwealth v. Biesecker, 161 A.3d 321, 326 (Pa. Super. 2017)
(quotation omitted). Furthermore, we will not “re-weigh the evidence and
substitute our judgment for that of the fact-finder.” Commonwealth v.
Ford, 141 A.3d 547, 553 (Pa. Super. 2016) (quotation omitted), appeal
denied, 164 A.3d 483 (Pa. 2016).
8
See 18 Pa.C.S. §§ 4101(a)(3) (a person commits forgery if, “with the
intend to defraud … or with knowledge that he is facilitating a fraud … the
actor … utters any writing which he knows to be forged[.]”), and 4105(a)(1)
(a person commits the crime of bad checks if he “passes a check … for the
payment of money, knowing that it will not be honored by the drawee.”).
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single defect” on the check that would identify it as fraudulent, and she “did
not confiscate the check as an attempt to pass a fraudulent check, but
instead returned the check to Toombs.” See id. at 14, 16. With respect to
the theft and RSP charges,9 Toombs maintains the evidence failed to prove
he had the intent to deprive the credit union of its property. See id. at 17-
18. Although he did withdraw the proceeds of the check from his savings
account, Toombs points out that he was paying the money back via a “direct
deposit which was made monthly on [his] behalf.” Id. at 17.
In his second issue, Toombs challenges the weight of the evidence
supporting his conviction.10 Specifically, he claims the trial court “afforded
too much weight on the stamp ‘altered/fictitious’[, that appeared on the
____________________________________________
9
See 18 Pa.C.S. §§ 3921(a) (a person is guilty of theft “if he unlawfully
takes, or exercises control over, moveable property of another with intent to
deprive him thereof”), 3922(a)(1) (a person is guilty of theft by deception if
he “intentionally obtains or withholds property of another by … [creating or
reinforcing] a false impression”), and 3925(a) (a person is guilty of RSP if he
“intentionally receives[ or] retains … moveable property of another knowing
that it has been stolen, or believing that it has probably been stolen”).
10
When reviewing a weight of the evidence claim,
an appellate court does not substitute its judgment for the finder
of fact and consider the underlying question of whether the
verdict is against the weight of the evidence, but, rather,
determines only whether the trial court abused its discretion in
making its determination.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S. Ct. 1792 (U.S. 2014). We note Toombs properly preserved his
weight of the evidence claim by raising the issue in a timely post-sentence
motion before the trial court. See Pa.R.Crim.P. 607(A)(3).
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returned check,] in making its ultimate determination of the issues.” Id. at
18-19.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court properly disposed of
Toombs’s issues on appeal in its opinion filed on November 17, 2016. See
Trial Court Opinion, 11/17/2016, at 6-12 (finding (1) evidence was sufficient
to support Toombs’s convictions of forgery, bad checks, and theft by
deception when Toombs presented the check for deposit the day after two
employees - at another branch - informed him the check was fraudulent, and
instructed him to take the check to the police; (2) when Toombs presented
the check for deposit, he knew he was facilitating a fraud and the check
would not be honored; (3) “the mere presentment and deposit of a
fraudulent check” supports a conviction of theft by deception; 11 (4) the fact
that a small electronic deposit was transferred monthly into Toombs’s
account did not demonstrate he lacked the intent to defraud the credit union
because the deposit was “established before [Toombs] deposited the
fraudulent check”12, 13
; and (5) Toombs’s subsequent behavior in (a) failing
____________________________________________
11
Trial Court Opinion, 11/17/2016, at 9.
12
Id. at 10.
13
We note the trial court did not specifically address the evidence supporting
Toombs’s convictions of theft by unlawful taking and RSP because it found
those charges merged with theft by deception. See id. at 8, 10. However,
based upon the evidence outlined above, we find Toombs’s actions in
(Footnote Continued Next Page)
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to show up for two scheduled meetings with Vincequerra, (b) providing two
different stories as to how he spent the money, and (c) failing to contact the
credit union to make payment arrangements after being instructed to do so
by police, evidenced his “guilty knowledge” so that the verdict was not
against the weight of the evidence). Accordingly, we rest on the court’s
well-reasoned bases.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
_______________________
(Footnote Continued)
depositing a check he knew was fraudulent, then withdrawing the funds and
refusing to repay them, supports those convictions as well.
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Circulated 10/04/2017 04:14 PM