Com. v. Green, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DOMINIQUE WILLIAM GREEN :
:
Appellant : No. 1024 WDA 2016
Appeal from the Judgment of Sentence June 20, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013385-2015
BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED APRIL 23, 2018
Dominique W. Green appeals from the judgment of sentence of two
years probation and restitution, imposed following his conviction of forgery
for uttering a forged writing. After careful review, we reverse.
The pertinent facts underlying Appellant’s conviction are as follows. On
August 3, 2015, Appellant cashed a check, which was payable to him in the
amount of $467.21, and purportedly issued by St. Moritz Labor Services, a
temporary staffing company. However, the check was one of eighteen
checks payable to eighteen different payees that were duplicates of lawfully
issued checks. Appellant never worked for St. Moritz and had no affiliation
with that entity.
The company discovered the eighteen fraudulent checks in mid-to-late
August of 2015, and Leslie Schattauer, President of St. Moritz initiated a
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fraudulent-check investigation with the assistance of Officer Terry Bradford
of the Whitehall Police Department. During the course of the investigation,
Officer Bradford contacted Appellant and asked to speak to him regarding a
check that was cashed. The officer testified at the non-jury trial that
Appellant responded, “[I] only did it once.” N.T. Non-Jury Trial, 6/20/16, at
27. After Officer Bradford advised Appellant of his Miranda rights, Appellant
told the officer that he cashed the check at K-Mart because he needed
money to pay off fines. Appellant continued that he did not know where the
check came from or who sent the check; it came in the mail. N.T. Non-Jury
Trial, 6/20/16, at 29-30. Appellant confirmed that he never worked for St.
Moritz and admitted that he did not have any reason to receive a check from
that entity.
At a preliminary hearing on October 27, 2015, the Magistrate Judge
found that the Commonwealth had made out a prima facie case on the
forgery charge, but dismissed charges of access device fraud and bad
checks. On December 14, 2015, the Commonwealth filed a criminal
information charging Appellant with forgery in violation of 18 Pa.C.S. §
4101(a)(3), uttering a forged instrument. Appellant filed a petition for writ
of habeas corpus on January 11, 2016, to which the Commonwealth filed a
response. A hearing on the habeas corpus motion was held immediately
before the June 20, 2016 non-jury trial, and relief was denied. The case
proceeded to trial, and the court found Appellant guilty of forgery under §
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4101(a)(3). Appellant was sentenced to probation and restitution, following
which he filed a timely post-sentence motion. When his motion was denied,
Appellant appealed. The trial court directed him to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, he complied, and the
trial court authored its Rule 1925(a) opinion.
Appellant presents one issue for our review:
I. To sustain a conviction for forgery requires showing the
accused had either (1) an intent to defraud or injure; or
(2) knowledge that he is facilitating a fraud or injury.
Where Appellant was shown to be one of many who
possessed a check from a source that he had no
connection with or awareness of, and he negotiated the
same for his benefit, was the evidence insufficient to prove
that Appellant possessed the requisite mens rea to be
convicted of forgery?
Appellant’s brief at 4.
Appellant argues that there was insufficient evidence of the requisite
criminal intent to sustain the guilty verdict on the charge of forgery. In
support of his position, Appellant cites this Court’s decision in
Commonwealth v. Gibson, 416 A.2d 543 (Pa.Super. 1979), which held
that mere possession of a forged check was not sufficient to support a
forgery conviction. The Commonwealth counters that the evidence herein
was sufficient to sustain the forgery conviction as intent to injure or defraud
could be inferred by the totality of the circumstances.
Our standard of review when considering a challenge to the sufficiency
of the evidence is:
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whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the finder of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-541 (Pa.Super. 2017)
(citations and quotation marks omitted).
The law is well settled that:
[g]uilty knowledge (like all culpable mental states) may be
proved by circumstantial evidence. Often, intent cannot be
proven directly but must be inferred from examination of the
facts and circumstance of the case. When examining the totality
of the circumstances to determine if there is sufficient evidence
from which a jury could infer the requisite mens rea, we must,
as with any sufficiency analysis, examine all record evidence and
all reasonable inferences therefrom.
Commonwealth v. Newton, 994 A.2d 1127, 1132 (Pa.Super. 2010)
(citations omitted); see also Commonwealth v. Myer, 489 A.2d 900, 904
(Pa.Super. 1985) (“We may look to the totality of the defendant’s conduct to
infer fraudulent intent.”) (quoting Commonwealth v. Bollinger, 418 A.2d
320, 324 (Pa.Super. 1979)).
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Appellant was charged with forgery under 18 Pa.C.S. § 4101(a)(3),
which provides:
A person is guilty of forgery if, with intent to defraud or
injure anyone or with knowledge that he is facilitating a
fraud or injury to be perpetrated by anyone, the actor:
(1) Alters any writing of another without his authority;
(2) Makes, completes, executes, authenticates, issues or
transfers any writing so that it purports to be the act of
another who did not authorize the act, or to have been
executed at a time or place or in a numbered sequence
other than was in fact the case, or to be a copy of an
original when no such original existed; or
(3) Utters any writing which he knows to be forged in a
manner specified in paragraphs (1) or (2) of this
subsection.
18 Pa.C.S. § 4101(a) (emphases added). Thus, the statute requires that a
defendant utter1 a writing he knew to be forged with intent to defraud or
with knowledge that he is facilitating a fraud being perpetrated by another.
Appellant contends that there was no proof that he knew the check
was a forgery. He analogizes the facts herein to those in Gibson, supra,and maintains that Gibson controls. In Gibson, the defendant
unsuccessfully attempted to cash a personal check, payable to cash, that
was endorsed by another person. This Court held that the defendant could
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1 “Utter” is defined as “[t]o put or send (a document) into circulation; esp.,
to circulate (a forged note) as if genuine .” Black’s Law Dictionary (10th ed. 2014).
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not be found guilty of forgery under 18 Pa.C.S. § 4101(a)(3), because the
evidence did not prove that he endorsed the check or that he knew that the
check was forged. The Commonwealth established that the payor of the
check was missing some checks, and that the payor did not sign the check
that was made payable to cash. This Court held that these two facts did not
support the inference that the defendant signed the check or knew it was
forged. We stated, “[t]he evidence just as easily supported the inference
that [the defendant] found the check or received it from someone else.”
Gibson, supra at 545.
Appellant argued herein that, although he endorsed the back of the
fraudulent check that was payable to him and negotiated it when he knew he
was not entitled to the funds, there was no proof that he knew the check
was a forgery. He contends that, as in Gibson, one cannot reasonably infer
knowledge that a check is forged from mere possession of a forged check.
The evidence that the check was a forgery was uncontroverted. Leslie
Schattauer testified that, “[t]here was a series of checks that were
fraudulently using the check numbers that were drawn currently and
accurately.” N.T. Non-Jury Trial, 6/20/16, at 18. She explained that the
formatting and signatures on the checks were not consistent with the
company’s legitimately issued checks. Id. In addition, some checks
contained incorrect bank information and the amounts payable on the
checks were significantly higher than St. Moritz’s typical payroll checks. Id.
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at 18-19. In each case, the payees, including Appellant, were unknown to
St. Moritz. Id. at 19-20. Ms. Schattauer testified that the only characteristic
of the check at issue that was consistent with checks legitimately issued by
St. Moritz was the routing number; the signature and all other formatting
components of the check were inconsistent. Id. at 20-21.
Although Ms. Schattauer could readily discern that her company’s
check was a forgery, the issue is whether the Commonwealth proved that
Appellant knew that he was facilitating a fraud by uttering a forged writing.
The trial court, sitting as factfinder, based its finding of guilt on the
appearance of the check:2
If you look at the check, it’s pre-typed, and someone handwrote
in Dominique Green. . . . Isn’t it peculiar that the stolen check3
also has all of his information on it as opposed to just a name. It
is sent. There was some planning involved, that it would have
his name, his address, apartment number, zip code.
N.T. Non-Jury Trial, 6/20/16, at 36-37. In finding Appellant guilty, the trial
court concluded:
if there’s no connection, I do not believe this check came in that
name. I took a look. You negotiated a $467 check that you know
you have no right to. You are either . . . going to harm St.
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2 Unfortunately, although the check was admitted into evidence, neither the
original nor a photocopy was placed in the certified record. Hence, we have
no check to review.
3 There was no evidence that the check was stolen. Ms. Schattauer testified
that the fraudulent checks bore numbers that were duplicative of duly-issued
checks, some contained the actual routing number, but that the formatting
and signatures on the forged checks were different than the real checks.
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Moritz, who owns the account, or you are going to harm K-Mart,
who cashes the check. . . . The detail on this check, the
Defendant’s statement I only did it once, in my view indicates
that he had awareness that this was not a check that was
legitimate. There was some preplanning to put the Defendant’s
complete information on the check, albeit in the wrong place if
you look at the format.
Id. at 43.
In its Rule 1925(a) opinion, the trial court stated the following: “The
evidence adduced at trial amply supported the defendant’s conviction. . . .
The evidence clearly established that the defendant knew the check wasn’t
legitimate and that he uttered a forged check purporting to appear as
though it was authorized by St. Moritz when it was not.” Trial Court Opinion,
6/23/17, at 4. The trial court did not credit Appellant’s claim that he
innocently received the check in the mail. Moreover, with respect to
Appellant’s statement to Officer Bradford that he “only did it once,” the trial
court said, “I don’t agree that it necessarily means I knew seventeen other
checks were done. It may be he was saying, I only did this once as in why, I
didn’t do that much, but it does -- the interpretation is that he understood
his conduct to be not legitimate.” N.T. Non-Jury Trial, 6/20/16, at 39.
The Commonwealth argues that Appellant’s negotiation of the check
when he knew he had no right to the money was sufficient to permit a
reasonable inference from the totality of the circumstances that he intended
to defraud. We do not disagree. The evidence supported the finding that
Appellant knew he was defrauding St. Moritz when he cashed the check and
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received funds to which he was not entitled. Appellant may very well be
guilty of theft. The Commonwealth also correctly reads § 4101(a)(3) as
proscribing the utterance of any writing that is known to be forged, but cites
Ms. Schattauer’s testimony that the check was forged as satisfying that
knowledge element. With that, we disagree. The Commonwealth had to
prove beyond a reasonable doubt that Appellant, not Ms. Schattauer, knew
that the check was forged in order to convict him under 18 Pa.C.S. §
4101(a)(3). Indeed, that was our holding in Gibson, supra. The
Commonwealth must establish not only that the check was forged, but that
Appellant knew it was forged.
We find that any inference that Appellant knew the check was a
forgery could not fairly be drawn from the evidence. Ms. Schattauer
recognized that the check was a forgery due to her experience with payroll
checks as the President of St. Moritz. She also testified that employees
would recognize the difference between a duly-issued payroll check and the
forged check because they would be familiar with the appearance of St.
Moritz checks after receiving one.4 N.T. Non-Jury Trial, 6/20/16, at 23.
However, the evidence was uncontroverted that Appellant never worked for
St. Moritz or received a genuine St. Moritz payroll check. Since he had no
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4 The Commonwealth did not introduce into evidence a genuine St. Moritz
payroll check for purposes of comparison. The only evidence of the
appearance of a real check is Ms. Schattauer’s verbal description.
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familiarity with a legitimate check, one cannot reasonably infer that he
would have known simply by looking at the check that it was a forgery.
The trial court did not believe Appellant’s statement to police that he
received the check in the mail, and cited that fact as the basis for inferring
Appellant’s intent to defraud. There was no evidence, however, that
Appellant forged the check himself or that he inserted his own name on the
check as payee.5 Also absent was any proof that he had a connection to one
or more of the other people who cashed similar checks. Nor do we find it
reasonable to infer from Appellant’s possession of a check to which he was
not entitled that he forged the check or made it payable to himself, which is
what the factfinder concluded. For these reasons, we find the evidence
insufficient to support the forgery conviction.
Judgment of sentence reversed. Case remanded for discharge of
Appellant. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
President Judge Emeritus Ford Elliott files a dissenting memorandum.
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5 The trial court, sitting as factfinder, offered no opinion whether the
handwritten endorsement on the back of the check was similar in
appearance to the handwritten payee’s name.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2018
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