Com. v. Davis, B. ( 2016 )

J. A29005/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BARBARA JEAN DAVIS, : No. 1878 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, October 23, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0012544-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 07, 2016
Barbara Jean Davis appeals from the judgment of sentence following
her conviction in the Court of Common Pleas, Criminal Division, Allegheny
County, of theft by unlawful taking1 and access device fraud.2
The facts as found by the trial court are as follows:
Appellant was employed from 2007 until 2013
as the caregiver of Geno Bussler and Lois Bussler.
The Busslers hired their first caretaker after
Geno Bussler broke his hip in a serious vehicle
accident in September 2004. Geno Bussler was
confined to a motorchair and required assistance
with showering and dressing. Lois Bussler required
assistance due to blindness, tremors, and bipolar
disorder. Appellant also prepared meals for the
Busslers.
1
18 Pa.C.S.A. § 3921(a).
2
18 Pa.C.S.A. § 4106(a)(1).
J. A29005/15
As part of her caregiving duties with the
Busslers, Appellant had authority to use the
Bussler[s’] bank card to purchase groceries and do
other shopping for the Busslers. On occasion the
Busslers lent money to Appellant and she was
expected to repay the borrowed amount into their
bank account. Appellant did not have authorization
to withdraw funds from the Bussler[s’] account
without their prior approval.
Appellant took Lois Bussler to the Rivers
Casino twice. While there Appellant called
Geno Bussler for permission to withdraw $500 for
Lois to use for gambling. Geno authorized Appellant
to withdraw $500 on both of those occasions for
Lois’s use. Appellant called Geno Bussler on a third
occasion requesting to borrow $500 for her personal
gambling use at a casino, which Geno authorized.
On a fourth occasion, Geno Bussler called Appellant
while she was at a casino, and she told Geno that
she had already withdrawn $500 from his account
without first asking permission. The Busslers never
gave Appellant unlimited permission to withdraw
money from their bank accounts; they only
authorized withdrawals for gambling at a casino on
those three occasions, and did not challenge her
withdrawal on the fourth occasion.
In January 2013, the Busslers contacted
Detective Alan Ballo of the Allegheny County District
Attorney’s Office when they noticed that their bank
accounts were significantly lower than they should
have been, noting that they suspected Appellant of
withdrawing money from their accounts for
gambling. Investigators examined the Bussler[s’]
bank accounts from December 2009-January 2013,
and found dozens of withdrawals from five different
casinos totaling $34,591.[Footnote 11] [Footnote 12]
Detective Ballo cross-referenced the withdrawal
dates with dates when Appellant used her player’s
card at each casino. From January 1, 2009-
January 31, 2013, Appellant had losses of $56,000
at Rivers Casino and $26,000 at Meadows Casino.
-2-
J. A29005/15
[Footnote 11] Appellant withdrew money
from the Bussler[s’] account at Rivers
Casino, Mountaineer Casino, The
Meadows, Wheeling Island, and Atlantic
City, New Jersey. Commonwealth
Exhibits 5, 6.
[Footnote 12] The amount of possible
cash deposit withdrawals and authorized
casino withdrawals was deducted from
this amount in determining restitution.
See also Commonwealth Post-Sentence
Motion Exhibit 1.
Trial court opinion, 4/16/15 at 4-6 (internal citations omitted).
Appellant was arrested and charged with one count of theft by
unlawful taking, two counts of forgery, two counts of access device fraud,
two counts of insurance fraud, two counts of theft by deception, two counts
of tampering with records, two counts of securing execution of documents
by deception, and one count of theft by failure to make required disposition
of funds received.
Appellant proceeded to a non-jury trial on March 3, 2014, and May 5,
2014, at the conclusion of which appellant was found guilty of one count of
theft by unlawful taking and one count of access device fraud. She was
found not guilty of the remaining counts.
Appellant filed a motion in arrest of judgment on August 1, 2014. On
August 6, 2014, appellant was sentenced to two consecutive four-year
periods of probation. She was ordered to pay restitution in the amount of
$25,738. On August 18, 2014, appellant filed a motion to reduce restitution.
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J. A29005/15
A hearing was held on October 20, 2014. The motion was partially granted
on October 23, 2014, and the amount of restitution owed was reduced to
$20,621. On this same date, the trial court denied appellant’s motion in
arrest of judgment. On appeal, she raises the following issues:
I. Whether the evidence is sufficient to support a
conviction for Theft by Unlawful Taking?
II. Whether the evidence is sufficient to support a
conviction for Access Device Fraud?
Appellant’s brief at 4.
The standard we apply in reviewing the
sufficiency of the evidence is 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.
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J. A29005/15
Commonwealth v. Nypaver, 69 A.2d 708, 714 (Pa.Super. 2013) (citations
omitted). Further, since the trial judge was sitting as fact-finder, this court
defers to the trial judge’s credibility determinations as the trial judge
observes the witnesses’ demeanor firsthand. Commonwealth v. Holton,
906 A.2d 1246, 1250 (Pa.Super. 2006).
The trial judge, the Honorable Edward J. Borkowski, has provided a
well-reasoned discussion in support of the verdict. (See trial court opinion,
7/10/15 at 8-12 (explaining the elements of the crimes; the legal standard
for sufficiency of the evidence; finding the evidence sufficient to establish
the offenses of theft by unlawful deception and access device fraud and a
course of conduct where credible testimony showed appellant obtained
$20,621 by using the victim’s bank cards to make unauthorized withdrawals
from their bank accounts, without permission, on dozens of occasions to
support appellant’s out-of-control gambling habit).) Accordingly, we adopt
the decision of the trial court as dispositive of the issues raised in this
appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2016
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
APPELLEE CC NO.: 201312544
V.
BARBARA JEAN DA VIS,
APPELLANT.
OPINION
BORKOWSKI, J.
PROCEDURAL HISTORY
Appellant was charged by criminal information (CC 201312544) with one
count of theft by unlawful taking, 1 two counts of forgery,' two counts of access
device fraud," two counts of insurance fraud,4 two counts of theft by deception,'
two counts of insurance fraud,6 two counts of tampering with records;' two counts
1
18 Pa. C.S. § 3921(a).
2
18 Pa. C.S. § 410l(a)(3).
3
18 Pa. C.S. § 4106(a)(l).
4
18 Pa. C.S. § 4117(a)(2). These charges were withdrawn prior to trial.
5
18 Pa. C.S. § 3922(a)(l).
6
18 Pa. C.S. § 4117(b)(4).
7
18 Pa. C.S. 6 4104(a).
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of securing execution of documents by deception,8 and one count of theft by failure
to make required disposition of funds received.9
Appellant proceeded to a nonjury trial on March 3, 2014, and May 5, 2014,
at the conclusion of which Appellant was found guilty of one count of theft by
unlawful taking and one count of access device fraud; she was found not guilty of
the remaining counts.
Appellant filed a motion in arrest of judgment on August 1, 2014, which was
denied by the Trial Court on August 6, 2014.
On August 6, 2014, Appellant was sentenced by the Trial Court to the
following:
Count one: theft by unlawful taking - four years probation;
Count four: access device fraud - four years probation to be served
consecutive to the period of probation imposed at count one.
Appellant was ordered to pay restitution in the amount of $25,738.
On August 18, 2014, Appellant filed a motion to reduce restitution, a hearing
was held on October 20, 2014, and the motion was partially granted on October 23,
2014, reducing the amount of restitution owed to $20,621. Appellant filed a timely
notice of appeal.
8
18 Pa. C.S. § 4114. These charges were withdrawn prior to trial.
918
Pa. C.S. § 3927(a). This charge was not held for court.
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In Appellant's Concise Statement of Matters Complained of on Appeal,
Appellant claimed that:
l. The evidence is insufficient to support her conviction of Theft by
Unlawful Taking (18 Pa. C.S. § 3921(a)).
2. The evidence is insufficient to support her conviction of Access
Device Fraud (18 Pa. C.S. § 4106).
In its 1925(a) Opinion, the Trial Court found that given the lack of specificity
engendered by Appellant's claims, the Trial Court could not address thern.l" Trial
Court Opinion, April 13, 2015, p.6.
On May 22, 2015, Appellant filed a Motion to Remand for Filing of
Amended Rule 1925(b) Statement. On June 9, 2015, the Superior Court granted
Appellant's motion and remanded the record to the Trial Court for a period not to
exceed forty days. On June 16, 2015, Appellant timely filed her Amended 1925(b)
Statement. This opinion follows.
STATEMENT OF ERRORS ON APPEAL
Appellant's claims are set forth below exactly as Appellant presented them
in her Amended Statement of Matters Complained of on Appeal:
1. The evidence is insufficient to support her conviction of
Theft by Unlawful Takfog (18 Pa. C.S. § 3921(a)) in the
following particulars:
a. No witness could establish any instance where
money or property was stolen;
10
See Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008).
4 .
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b. No witness testified that Defendant took money
or property of another with the intent to deprive
them thereof;
c. Lois Bussler specifically testified that
Defendant did not take anything from her or
take anything that was hers (March 3, 2014
Transcript, p. 31);
d. Geno Bussler testified that he did not know
whether there was any time that Defendant took
money from his account and did not pay him
back (March 3, 20J 4 Transcript, p. 81) and did
not know of any specific time that Ms. Davis
did not give back the money (id, p. 83);
e. Detective Alan Ballo testified that he did not
know of any occasion where the Defendant
took money from the Busslers and did not pay
them back. (March 3, 2014 Transcript, p. 121).
f. With regard to the wedding rings which were
alleged to have been purchased by Ms. Davis
with the Busslers' funds, it is noted that no
witness actually testified that Ms. Davis
purchased wedding rings for herself with the
Busslers' funds, Geno Bussler did testify that
she purchased wedding rings for "two thousand
five some dollars." (March 3, 2014 Transcript
43). Later, he testified it was a little over
$2,600. (id., p. 63). However, the Busslers
account records indicate that the only purchase
of wedding rings was in 2010. (see Exhibit C to
Defendant's Motion in Arrest of Judgment).
Mr. Bussler admitted that he purchased
wedding bands for himself and his wife in
2010, and that Ms. Davis' marriage was in
2011. (id., 61-2). Detective Ballo testified that
there was only one wedding ring transaction
and that was in August of 2010 for $1,800.00.
(id., p. 110, 121). Detective Ballo also agreed
that the transaction could very well have been
to purchase the Bussler's rings. (id., p. 121).
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2. The evidence is insufficient to support her conviction of
Access Device Fraud (18 Pa. C.S. § 4106) in the following
particulars:
a. No witness testified as to any specific instance
where Ms. Davis used the Buss le rs' A TM card
without authorization;
b. The fact that the Busslers testified that they did
not give Ms. Davis blanket authorization to use
their cards in any way she please does not
support a conclusion that she used the cards
without authorization.
c. The only specific references in the record to the
times that Ms. Davis used the Busslers' ATM
cards are to times when she specifically did
have authority to use the cards,
d. Although logically it may be inferred that from
Geno Bussler 's testimony that he authorized
withdrawals only four times, his testimony in
fact was that Ms. Davis would call him "once in
a while" and ask if she could borrow money,
and that it was "probably" more than three or
four times, and that when she did so, he would
check his bank account, and sometimes say yes,
she could borrow the money, and that he
"probably" authorized the use of the ATM card
more than three or four times. (March 3, 2014
Transcript, pp. 71-72).
FINDINGS OF FACT
Appellant was employed from 2007 until 2013 as the caregiver of Geno
Bussler and Lois Bussler. (T.T. 16, 24, 37; T.T.(II) 24).11 The Busslers required
significant assistance after Geno Bussler broke his hip in a serious vehicle accident
in September 2004. Geno Bussler was confined to a rnotorchair and required
11
The designation "T.T." followed by numerals refers to Trial Transcript, March 3, 2014. The
designation "T.T.(Il)" followed by numerals refers to Trial Transcript (cont.), May 5, 2014.
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assistance with showering and dressing. Lois Bussler required assistance due to
blindness, tremors, and bipolar disorder. As their primary caregiver, Appellant
assisted the Busslers with everyday activities. (T.T. 15, 38, 54).
As part of her caregiving duties with the Busslers, Appellant had authority to
use the Busslcr 's bank card to purchase groceries and do other shopping for the
Busslers. (T.T. 25, 34, 39). On occasion the Busslers lent money to Appellant and
she was expected to repay the borrowed amount into their bank account. Appellant
did not have authorization to withdraw funds from the Bussler's account without
their prior approval. (T.T. 17-18, 33, 40-42, 71-72; T.T.(II) 26).
Appellant took Lois Bussler to the Rivers Casino twice. While there
Appellant called Geno Bussler for permission to withdraw $500 for Lois to use for
gambling. Geno authorized Appellant to withdraw $500 on both of those occasions
for Lois's use. Appellant called Geno Bussler on a third occasion requesting to
borrow $500 for her personal gambling use at a casino, which Geno authorized. On
a fourth occasion, Geno Bussler called Appellant while she was at a casino, and
she told Geno that she had already withdrawn $500 from his account without first
asking permission. The Busslers never gave Appellant unlimited permission to
withdraw money from their bank accounts; they only authorized withdrawals for
gambling at a casino on those three occasions, and did not challenge her
withdrawal on the fourth occasion. (T.T. 19, 23, 44-45, 67, 85).
7
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In January 2013, the Busslers contacted Detective Alan Balla of the
Allegheny County District Attorney's Office when they noticed that their bank
accounts were significantly lower than they should have been, noting that they
suspected Appellant of withdrawing money from their accounts for gambling.
(T.T. 100-102). Investigators examined the Bussler's bank accounts from
December 2009-January 2013, and found dozens of withdrawals at five different
casinos totaling $34,591.12 (T.T. 104-107).13 Detective Balla cross-referenced the
withdrawal dates with dates when Appellant used her player's card at each casino.
(T.T. 106). From January 1, 2009-January 31, 2013, Appellant had losses of
$56,000 at Rivers Casino and $26,000 at Meadows Casino. (T.T. 92-93). Appellant
was arrested and charged as noted hereinabove.
DISCUSSION
Appellant alleges that the evidence is insufficient to support her convictions
of theft by unlawful taking and access device fraud. These claims are without
merit.
The standard of review for sufficiency of the evidence claims has been
stated thusly:
12
Appellant withdrew money from the Bussler's bank account at Rivers Casino, Mountaineer
Casino, The Meadows, Wheeling Island, and Atlantic City, New Jersey. Commonwealth
Exhibits 5, 6.
13
The amount of possible cash deposit withdrawals and authorized casino withdrawals was
deducted from this amount in determining restitution. (T.T. 104-107); Commonwealth Post-
Sentence Motion Exhibit 1.
8
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The standard we apply when reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted al 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 Jaw 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 trier 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. Gray, 867 A.2d 560, 567 (Pa. Super. 2005).
A.
A person commits theft by unlawful taking if she "unlawfully takes, or
exercises unlawful control over, movable property of another with intent to deprive
him thereof." 18 Pa. C.S. § 3921(a). Appellant specifically alleges that the
evidence was insufficient to support her conviction of theft by unlawful taking
based on the argument that no witness could specify an instance when the
Appellant took money from them. Appellant's argument relies on isolated out-of-
context statements by Lois Bussler, Geno Bussler, and Detective Ballo that
Appellant tortures into perceived uncertainty, while the entirety of the record
9
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clearly indicates otherwise. The direct and circumstantial evidence clearly
establishes Geno Bussler's explicit or tacit approval for four withdrawals from the
account, totaling $2000. However, the Busslers' testimony, as well as that of
Detective Ballo, establish dozens of other unauthorized withdrawals from the
Bussler's account that coincide with Appellant's visits to, and losses at, local
casinos. It is well-established that any crime, including theft by unlawful taking,
may be proven by wholly circumstantial evidence. See Gray, 867 A.2d at 567;
Commonwealth v. Haines, 442 A.2d 757, 759-760 (Pa. Super. 1982). The various
statements/testimony which Appellant isolates and now argues in this sufficiency
claim were taken into account in evaluating credibility; the totality of the evidence
found to be credible by the fact-finder established a series of thefts totaling over
$20,000 by Appellant to support an out of control gambling habit. (T.T. 17-19, 23,
33, 40-42, 44-45, 67, 71- 72, 85, 92-93, 104-107; T.T.(II) 26). This evidence was
sufficient to establish that Appellant committed the crime of theft by unlawful
taking. See Commonwealth v. Thomas, 684 A.2d 1085, 1086-1088 (Pa. Super.
1996) (evidence sufficient to support conviction for theft by unlawful taking where
defendant was permitted to withdraw money from account for certain business
expenditures, but instead withdrew money for personal expenditures)."
Appellant's claim is without merit.
14
In her claim at l(t), Appellant devotes a long paragraph detailing a claim of error on a charge
10
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B.
A person commits access device fraud if she "uses an access device to obtain
[ ... ] property or services with knowledge that: the access device was issued to
another person who has not authorized its use." 18 Pa. C.S. § 4106(a)(l)(ii).
Appellant's argument again challenges the conviction by attacking the
circumstantial evidence in this case. The Busslers inability to cite a specific
instance when they witnessed Appellant use their bank card without authorization
does not mean that Appellant cannot be convicted of access device fraud. The
entirety of the record establishes beyond a reasonable doubt that Appellant was
permitted to use the Bussler's bank card for caregiving expenditures, but was not
authorized to use the bank card for personal expenses without prior approval. In
spite of that restriction, Appellant withdrew money from the Bussler's bank
accounts using their bank card on dozens of occasions, without their knowledge
and permission, for the purpose of personal gambling at several casinos. (T.T. 17-
19, 23, 33, 40-42, 44-45, 67, 71-72, 85, 92-93, 104-107; T.T.(II) 26). This evidence
was sufficient to establish that Appellant committed the crime of access device
fraud.
Further, Appellant's argument that the evidence was insufficient to establish
access device fraud because Geno Bussler stated that he occasionaJJy permitted
of which she was acquitted, consequently, the Trial Court will not address it.
11
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Appellant to borrow money is without merit. The amounts here were not loans, but
rather unauthorized withdrawals to fuel Appellant's gambling habit. The Trial
Court found that Appellant accessed the Bussler's bank account without
permission or knowledge when she withdrew money from the casino ATMs for her
personal gambling.15 That Appellant had permission to withdraw money on
occasion does not negate the evidence of record that Appellant withdrew money
from the Bussler 's account for personal gambling at area casinos on dozens of
occasions without the Bussler 's knowledge or permission. See, supra, pp. 9-11.
Appellant's claim is without merit.
CONCLUSION
Based upon the foregoing, the judgment of sentence imposed by this Court
should be affirmed.
By the Court,
DATE:~1.,( ,o, i.01t;
Edward J. Borkowski
15
In determining Appellant's amount of restitution owed, the Trial Court deducted the four
casino withdrawals that were authorized/unchallenged, and also gave Appellant the benefit of the
doubt in deducting the amount of possible cash withdrawals that Appellant may have been
authorized to make. (T.T. 104-107); Commonwealth Post-Sentence Motion Exhibit 1.
l2