Com. v. Lawrence, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LIONEL LAWRENCE
Appellant No. 3044 EDA 2013
Appeal from the Judgment of Sentence August 27, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000867-2011
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 22, 2015
Appellant, Lionel Lawrence, appeals from the August 27, 2013
aggregate sentence of two to four years’ imprisonment, followed by two
years’ probation, after a jury found him guilty of forgery, theft by deception,
and securing execution of documents by deception.1 After careful review,
we affirm.
The relevant factual and procedural history of this case follows. In
2010, Appellant was living with 86 year-old Annie Benn. N.T., 3/20/13 at 7,
24. Appellant’s mother lived across the street from Benn, and Appellant,
beginning at some point between 1999 and 2004, began assisting Benn with
household chores and helped her complete various errands while he
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1
18 Pa.C.S.A. §§ 4101, 3922(a)(1), and 4114, respectively.
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gradually moved himself into Benn’s home.2 Id. at 8, 55. In 2008, Jackie
Farmer, Benn’s daughter, became aware of possible fraudulent activity on
Benn’s bank account at Wachovia (the Bank). Id. at 13-14. As a result,
Benn closed her account with the Bank and opened a new one with Farmer
as a joint cosigner. Id. Farmer then took responsibility over monitoring
Benn’s finances and paying her bills. Id. at 14.
In the summer of 2010, while Farmer was visiting Benn, the Bank
called Benn about her account. Id. at 16. Farmer accompanied Benn to the
bank, and the bank showed Farmer and Benn copies of checks that the
bank’s fraud department had identified as suspicious. Id. at 17, 23. The
five checks presented to Farmer and Benn totaled $3,290.00. See id. at 18-
22. Each check was addressed to and endorsed by Appellant. Id. The
signature line on each of the checks read “Annie M. Benn,” however, Benn
had not produced the signatures. Id.
After discovering the fraudulent checks, Farmer discovered the
beneficiary on her mother’s life insurance policy had been changed to
Appellant and falsely listed Appellant as Benn’s grandson. Id. at 31-32.
The signature, “Annie M. Benn,” on the document executing the change was
not Benn’s. Id. at 33. A separate accidental insurance policy was also
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2
Benn’s daughter testified the earliest she recalled Appellant living with her
mother was in 2004, but she conceded it could have been as early as 1999
and noted it was a gradual progression. N.T., 3/20/14, at 56-57.
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taken out, listing Appellant as the beneficiary of $200,000.00 worth of
coverage. Id. at 39. Again, the signature listed on the document read,
“Annie M. Benn,” but Benn had not produced the signature. Id.
On August 10, 2010, Farmer accompanied Benn to the police station to
file a report. Id. at 34-35. The Commonwealth ultimately charged
Appellant with the aforementioned offenses as well as theft by unlawful
taking, receiving stolen property, identity theft, and tampering with records.3
Criminal Information, 1/31/11. On March 20, 2013, Appellant proceeded to
a jury trial, where he represented himself with the assistance of standby
counsel.4 At the conclusion of the trial, Appellant was convicted of forgery,
theft by deception, and securing execution of documents by deception. The
remaining charges were either quashed or nolle processed. The trial court
sentenced Appellant on August 27, 2013 and appointed counsel to represent
Appellant on appeal. Appellant’s timely post-sentence motion, filed by
standby counsel, was denied by the trial court on September 30, 2013. On
October 29, 2013, appointed counsel filed a timely notice of appeal. On
November 1, 2013, the trial court ordered Appellant to file a concise
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3
18 Pa.C.S.A. §§ 3921(a), 3925(a), 4120(a), and 4104(a), respectively.
4
Appellant sought to represent himself at trial. The trial court ordered a
psychological evaluation of Appellant on August 11, 2011. The evaluation
indicated Appellant “is competent to participate in trial and to represent
himself.” Trial Court Order, 9/7/11. On September 7, 2011, the trial court
entered an order permitting Appellant to proceed pro se with the assistance
of appointed, standby counsel. Id.; see generally Pa.R.Crim.P. 121.
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statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). On November 25, 2013, counsel for
Appellant filed a statement of errors complained of on appeal and a request
for an extension of time to file a supplemental statement of errors
complained of on appeal following counsel’s receipt of the trial transcripts.
Rule 1925(b) Statement, 11/25/13; Motion for Extension of Time, 11/25/13.
The trial court never ruled on counsel’s request to file a supplemental
statement, and counsel did not file one. On February 6, 2015, this Court
remanded the case for the trial court to rule on counsel’s request to file a
supplemental Rule 1925(b) statement. Commonwealth v. Lawrence,
3044 EDA 2013 (Pa. Super. 2015) (unpublished memorandum). On April 8,
2015, the trial court granted Appellant’s request and ordered Appellant to
file a Rule 1925(b) statement by April 30, 2015. Trial Court Order, 4/8/15.
Appellant complied and filed his counseled 1925(b) statement on April 22,
2015. This matter is now properly before this Court.5
On appeal, Appellant raises the following issues for our review.
[I.] Was the properly admissible evidence sufficient
as a matter of law to support the convictions for
theft by deception, forgery, and securing execution
of documents by deception?
[II.] Did the [trial] court abuse its discretion and
cause [] [A]ppellant undue prejudice when the lower
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5
The trial judge who presided over Appellant’s trial has retired from the
bench, and no Rule 1925(a) opinion was authored.
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court permitted a police detective to testify in front
of the jury that [A]ppellant was in prison in another
county when he was arrested for the crimes at issue
in the case sub judice, when, in fact, [A]ppellant was
arrested in his mother’s home and the detective
referred to a report indicating the same immediately
before falsely stating to the jury that [A]ppellant was
incarcerated in prison in another county at the time
of his arrests?
Appellant’s Brief at 5.
We employ a well-settled standard of review over claims challenging
the sufficiency of the evidence. “In reviewing the sufficiency of the
evidence, we consider whether the evidence presented at trial, and all
reasonable inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury’s verdict beyond
a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.
Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.
(internal quotation marks and citation omitted). “[T]he trier of fact while
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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. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation
omitted), appeal denied, 99 A.3d 925 (Pa. 2014). “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
Appellant challenges the sufficiency of the evidence supporting his
convictions for forgery, theft by deception, and securing execution of
documents by deception in the following manner.
With respect to forgery, there is no evidence in
the trial record that [Appellant] acted without []
Benn’s authority. With respect to [the] theft by
deception charge, there is no evidence in the trial
record that [Appellant] deceived anyone. Finally,
with respect to the charge of securing execution of
documents by deception, there is no evidence in the
trial record that [Appellant] caused another person
to execute any document – to the contrary, all
evidence indicates that [Appellant] executed all
documents which the Commonwealth alleges support
the charge.
Appellant’s Brief at 14. The crimes for which Appellant was convicted are
codified as follows.
§ 4101. Forgery
(a) Offense defined.—A person is guilty of forgery
if, with intent to defraud or injure anyone, or with
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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 that 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
exists;
…
18 Pa.C.S.A. § 4101(a)(1)-(2).
§ 3922. Theft by deception
(a) Offense defined.-- A person is guilty of theft if
he intentionally obtains or withholds property of
another by deception. A person deceives if he
intentionally:
(1) creates or reinforces a false impression,
including false impressions as to law, value,
intention or other state of mind; but deception
as to a person’s intention to perform a promise
shall not be inferred from the fact alone that
he did not subsequently perform the promise;
…
Id. at § 3922(a)(1).
§ 4114. Securing execution of documents by
deception
A person commits a misdemeanor of the second
degree if by deception he causes another to execute
any instrument affecting or purporting to affect or
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likely to affect the pecuniary interest of another
person.
Id. at § 4114.
At trial, Farmer identified five separate checks totaling $3,290.00 that
were made out to Appellant.6 N.T., 3/20/13, at 16-24. Farmer testified that
the signature on the front of each check read Benn’s name, but the
signatures were not generated by Benn. Id. She further testified that she
recognized each signature reading Benn’s name to be the handwriting of
Appellant. Id. Similarly, on the document that changed Benn’s life
insurance beneficiary from Farmer to Appellant, and the additional life
insurance policy which listed Appellant as the beneficiary, Benn did not
produce the signatures that read “Annie M. Benn”. Id. at 31-33; 39.
Appellant does not dispute that he executed the checks and
documents at issue, but he argues that the evidence is insufficient to sustain
his conviction for forgery because there was no evidence that Appellant
“acted without [] Benn’s authorization[]” by signing her name on the checks,
change of beneficiary form, and the additional insurance coverage.
Appellant’s Brief at 15-17. We disagree.
When the bank notified Benn of the possible fraudulent activity with
her checking account, Benn expressed disbelief that such sums could be
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6
At the time of trial, Benn was deceased. Appellant did not object to
Farmer’s testimony.
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missing and “didn’t understand how $3,500[.00] could be missing from her
account.” N.T., 3/20/13, at 16. Benn then went to the bank and filed a
claim regarding the five fraudulent checks. Id. at 24. Two weeks later,
Benn filed a police report. Id. at 35. Further, after Benn learned that her
life insurance policy was changed to name Appellant as the beneficiary, she
changed the policy back to make her daughter, Farmer, the beneficiary. Id.
at 37. Likewise, upon learning an additional policy was effected that named
Appellant the beneficiary of $200,000.00 worth of coverage, Benn cancelled
the policy. Id. at 40.
Viewing the evidence in the light most favorable to the
Commonwealth, we conclude there was sufficient evidence presented to
prove Appellant acted without Benn’s authority in signing her name to her
checks, changing the insurance beneficiary on her life insurance account,
and taking out a separate insurance policy naming himself as the
beneficiary. See Patterson, supra. The jury was free to credit Farmer’s
testimony and infer that the circumstances attendant to Benn’s discovery of
the state of her financial matters, i.e., filing a police report and changing the
insurance policies, proved beyond a reasonable doubt that Appellant acted
without Benn’s authorization. See id., supra; Watley, supra.
With respect to his conviction for theft by deception, Appellant
concedes the evidence established that Appellant wrote and deposited
checks from Benn’s account. Appellant’s Brief at 18. He contends that he
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did not obtain the funds by deception, however, because he argues the
funds were used to make repairs to Benn’s home, and Benn authorized one
check that Appellant wrote to himself for the purpose of giving Appellant’s
godchild a gift. Id. at 18-19. We reject this argument as well. While the
checks that Appellant signed Benn’s name on included various notes on the
“memo line,” suggesting the purpose of each check, there was no evidence
Benn knew Appellant had written these checks or authorized him to do so for
repairs in her home or any other purpose. See N.T., 3/20/13, at 18-22.
The jury was free to weigh the evidentiary value of such self-serving
evidence and conclude Appellant deceived Benn in the process of writing and
cashing checks from her account. See Orie, supra.
In Appellant’s final sufficiency challenge, he argues the Commonwealth
failed to prove securing execution of documents by deception beyond a
reasonable doubt because the Commonwealth “must produce evidence that
someone other than [Appellant] signed a document.” Appellant’s Brief
at 20 (emphasis in original). Appellant supports his argument as follows.
In this case all of the evidence presented- indeed the
Commonwealth’s entire theory of its case- was that
[Appellant] signed [] Benn’s name to the checks and
insurance documents. Moreover, [Appellant]
admitted doing so …. However, the linchpin in the
Commonwealth’s case is fatal to the charge of
securing execution of documents by deception.
Id. While Appellant aptly points out the Commonwealth proved Appellant
signed his name to the insurance documents and checks that gave rise to his
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convictions, he ignores other evidence adduced at trial supporting the
instant charge. Specifically with regard to the insurance policies, Farmer
testified as follows.
[Commonwealth]:
Q. … After you learned of the Crown, Cork, & Seal
document [which changed the beneficiary on Benn’s
life insurance from Farmer to Appellant], did you and
your mother take any action in regards to that
specifically?
[Farmer]:
A. Yes.
Q. What did you do at that time?
A. She changed the beneficiary back to the original.
…
Q. Take a look at C-10. What’s that?
A. Crown, Cork, & Seal Insurance change of
beneficiary form.
Q. Did they send this to you after you discovered
the previous change?
A. They sent the form that had to be filled out that
we returned to them.
Q. Did you fill this form out?
A. Yes.
Q. Who did you fill it out with?
A. My mother.
…
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Q. Without getting into specifics, who is listed as the
beneficiary?
A. I am, Jackie Farmer.
Q. Who is contingent?
A. My son, Akin.
…
N.T., 3/20/13, at 36-38. Further, Benn canceled the additional insurance
policy for $200,000.00 upon her knowledge of its existence. Id. at 39. The
evidence of record belies Appellant’s argument that his actions cannot be the
basis for the charge. As a direct result of Appellant’s actions in changing
Benn’s life insurance policy and taking out an additional policy, Benn
executed instruments changing the former policy and terminating, in its
entirety, the latter. See id. at 36-39. Appellant does not suggest such
changes to insurance policies do not affect, purport to affect, or are likely to
affect the pecuniary interest of another person. See Appellant’s Brief at 19-
20. Rather, his sole argument is the Commonwealth failed to show that his
deception caused another to execute instruments. See id.; accord 18
Pa.C.S.A. § 4114. Viewing the evidence received in the light most favorable
to the Commonwealth, the evidence establishes that Benn indeed executed
documents affecting her pecuniary interest as a result of Appellant’s
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deception.7 Therefore, Appellant’s entire argument on this charge must fail.
See Patterson, supra. Moreover, the jury was free to infer that Appellant’s
forgeries in changing Benn’s life insurance policy and taking out a new
policy, coupled with Benn’s subsequent actions in response thereto, proved
beyond a reasonable doubt that as a result of Appellant’s actions, the
insurance companies executed instruments affecting Benn’s pecuniary
interest. See Watley, supra.
In Appellant’s second issue, he charges the trial court with error for its
failure to provide a curative instruction to the jury following inaccurate
testimony that Appellant was in jail at the time of his arrest. Appellant’s
Brief at 21. “In deciding whether a trial court erred in refusing to give a jury
instruction, we must determine whether the court abused its discretion or
committed an error of law.” Commonwealth v. Clouser, 998 A.2d 656,
658 (Pa. Super. 2010) (citation omitted), appeal denied, 26 A.3d 1100 (Pa.
2011).
The challenged testimony was elicited from Detective Margarita Nix of
the Philadelphia Police Department.
[Commonwealth]:
Q. Where was that [sic] you arrested [] [Appellant]?
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7
We further observe Appellant, who bears no familial relationship to Benn,
falsely identified himself as Benn’s grandson on her life insurance policy.
N.T., 3/20/13, at 31-32.
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[Detective Nix]:
A. Dolphin [sic] County Prison.
Q. When you arrested [] [Appellant]?
[Appellant]:
Objection, Your Honor. Objection. You arrested me
at my mother’s house, not Dolphin [sic] County
Prison.
[Trial Court]:
Is that your objection?
[Appellant]:
Yes, yes.
…
[The Commonwealth]:
… Did there become a time when he was in your
custody?
[Appellant]:
Objection, Your Honor. I want her to state where
she arrested me at.
[Trial Court]:
It might be in the record. It might not be. You’ll
have your chance, just wait.
N.T., 3/20/13, at 79-80. Based on the above-cited testimony, Appellant
contends that “[t]he admission of this evidence without a curative instruction
violates an unassailable, fundamental precept of Pennsylvania criminal law
and warrants the remedy of a new trial.” Appellant’s Brief at 25.
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Following the Commonwealth’s direct examination of Detective Nix,
Appellant cross-examined her as follows.
[Appellant]:
Q. The first question is, when you came to arrest
me, do you know where did you arrest me?
[Detective Nix]:
A. Mr. Lawrence, you pointed out that I arrested you
in your home. I would have to review the PARS
report. Because I did have -- I was scheduled to
arrest you at Dolphin [sic] County Prison. You must
have been released, that’s why I arrested you at
your home.
[Appellant]:
I object to that.
[Trial Court]:
Overruled.
[Appellant]:
Q. You are saying you’re not sure where you
arrested me at?
[Detective Nix]:
A. At this moment, no.
…
Q. When you arrested me at[?]
A. I am not sure if [when] I arrested you [you] were
incarcerated for a while or at your home.
[Appellant]:
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Objection.
[Trial Court]:
Overruled. Ask your next question.
N.T., 03/20/13 at 94-96.
Despite objecting to the answers given by Detective Nix, who
ultimately conceded uncertainty as to where she arrested Appellant,
Appellant never sought a curative instruction from the trial court. Therefore,
Appellant has failed to preserve this issue for our review, and we conclude it
is waived. See Commonwealth v. Johnson, 42 A.3d 1017, 1026 n.5 (Pa.
2012) (concluding the appellant waived his challenge to the trial court’s
failure to give a contemporaneous curative instruction for failure to request
one and rejecting appellant’s position that the trial court was required to
provide a curative instruction sua sponte); accord Pa.R.A.P. 302(a).
Based on the foregoing discussion, we conclude all of Appellant’s
challenges are meritless or waived. Accordingly, we affirm the August 27,
2013 judgement of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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