Com. v. Adbullah-Talib, H. ( 2015 )

J-S47036-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HASAN IB ADBULLAH-TALIB, :
:
Appellant : No. 2100 MDA 2014
Appeal from the Judgment of Sentence Entered October 17, 2014,
in the Court of Common Pleas of Dauphin County,
Criminal Division, at No(s): CP-22-CR-0004469-2013
BEFORE: ALLEN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 04, 2015
Hasan Ib Adbullah-Talib (Appellant) appeals from a judgment of
sentence entered after a jury convicted him of deceptive business practices,
theft by deception, bad checks, and criminal conspiracy. We affirm.
The trial court summarized the background underlying this matter as
follows.
[Appellant’s] charges stem from the purchase of motor vehicle
safety inspection and emission stickers for the purported use at
an inspection service station[, Valley Auto. In short, Appellant
and at least two other men, Edward Boykin (Boykin) and
Nathaniel Shoatz (Shoatz), set up Valley Auto as a sham
business and then purchased 4,000 safety inspection stickers
and 5,000 emission stickers from the Pennsylvania Department
of Transportation (PennDOT). The $8,000 check that the men
utilized to purchase the stickers was dishonored. Moreover, the
record suggests that Valley Auto never did any business.1] A
1
In its opinion, the trial court provides a thorough and accurate summary of
the evidence presented at trial. Trial Court Opinion, 4/30/2015, at 3-14.
We adopt that portion of the court’s opinion for purposes of this appeal.
*Retired Senior Judge assigned to the Superior Court.
J-S47036-15
jury trial was held on August 19-21, 2014, at which time
Appellant was found guilty of all charges. Appellant was
sentenced on October 17, 2014 to an aggregate term of
incarceration of eighteen [] to eighty-four [] months in a state
correctional institution along with payment of the costs of
prosecution and fines totaling $7,[8]00. Appropriate time credit
was applied and Appellant was made RRRI eligible.
Appellant’s timely post-sentence motion challenged the
fine imposed as excess[ive] and requested a new trial or arrest
of judgment contending the verdict rendered was against the
weight of the evidence. The post-sentence motion was denied…
on December 1, 2014. On December 10, 2014, Appellant filed a
timely notice of appeal…. [Both Appellant and the trial court
complied with Pa.R.A.P. 1925.]
Trial Court Opinion, 4/30/2015, at 1-2 (unnecessary capitalization omitted).
On appeal, Appellant asks us to consider the questions that follow.
[1.] Whether the Commonwealth failed to present sufficient
evidence to sustain Appellant’s convictions where the
Commonwealth failed to prove that Appellant: made a false,
misleading, or material statement; agreed with the co-
defendant(s) to engage in conduct which constitutes a crime or
an attempt or solicitation to commit a crime; intended to commit
conspiracy; received property or intended to receive property by
deception; or knew the check in question would not be honored?
[2.] Whether the trial court erred in refusing to instruct the jury
regarding 18 Pa.C.S.A. 4105(b)(1), Presumptions, where such
error constituted an abuse of discretion and error of law as the
instruction was supported by the evidence in record?
[3.] Whether the trial court erred in permitting an amendment
to the criminal information where: Appellant was not fully
apprised of the charges against him; the crimes specified in the
original information did not involve the same basic elements or
arise out of the same factual situation as the crimes specified in
the amended information; Appellant was not placed on notice
regarding his alleged criminal conduct, and; Appellant was
prejudiced?
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[4.] Whether the trial court erred in admitting a copy of the
check used to purchase inspection stickers where such evidence
was not properly authenticated?
[5.] Whether the trial court erred in admitting evidence
regarding the quantity of inspection stickers previously sold in a
single transaction where such evidence was irrelevant and where
the prejudicial nature of the evidence substantially outweighed
its probative value?
[6.] Whether the trial court erred in denying Appellant’s Post-
Sentence Motion where the jury’s verdict was against the weight
of the evidence so as to shock one’s sense of justice where the
Commonwealth failed to prove that Appellant committed the
crimes charged?
[7.] Whether the trial court erred in denying Appellant’s Post-
Sentence Motion where Appellant’s fine was excessive and
unreasonable and constitutes too severe a punishment in light of
the gravity of the offense, the impact on the community, and
Appellant’s rehabilitative needs. The punitive measures inherent
in the sentencing scheme could have been accomplished by the
imposition of a lesser fine?
Appellant’s Brief 12-13 (suggested answers omitted).2
As to the first issue, Appellant claims that the Commonwealth failed to
present sufficient evidence to support his various convictions.
Our standard of review in determining whether the
evidence was sufficient
requires that we consider the evidence admitted at trial in
a light most favorable to the Commonwealth, since it was
the verdict winner, and grant it all reasonable inferences
which can be derived therefrom. The evidence, so viewed,
will be deemed legally sufficient to sustain the jury’s
conviction on appeal only if it proves each element of the
offense charged beyond a reasonable doubt.
2
We have reordered Appellant’s issues.
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Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (citation
omitted).
We begin by addressing Appellant’s challenge regarding his bad checks
conviction. Appellant’s Brief at 51-55. Appellant was convicted of violating
18 Pa.C.S. § 4105(a)(1), which provides, “A person commits an offense if he
issues or passes a check or similar sight order for the payment of money,
knowing that it will not be honored by the drawee.” The thrust of
Appellant’s argument is that the Commonwealth failed to present any
evidence that he knew the $8,000 check would be dishonored.
Despite failing to address the merits of the remainder of Appellant’s
sufficiency challenges in its 1925(a) opinion, the trial court did address
Appellant’s sufficiency argument regarding his bad-checks conviction. 3 After
3
As we noted above, in a post-sentence motion, Appellant challenged the
weight of the evidence presented at trial. The trial court denied that motion.
Appellant claimed in his Pa.R.A.P. 1925(b) statement, inter alia, that the
court erred by rejecting his weight claim and that the Commonwealth failed
to present sufficient evidence to support his convictions.
In its Pa.R.A.P. 1925(a) opinion, the trial court properly observed that
a challenge to the weight of the evidence concedes that sufficient evidence
exists to sustain the jury’s verdict. Trial Court Opinion, 4/30/2015, at 27
(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191-92 (Pa. Super.
2004)). Based upon this legal proposition, the court determined that it need
not address Appellant’s sufficiency-of-the-evidence issues. Id. at 28. In
other words, the court determined that Appellant’s challenges to the weight
of the evidence were lethal to his challenges to the sufficiency of the
evidence. This determination is inaccurate. Indeed, appellants often raise
these alternative arguments, and this Court addresses the merits of each
argument separately. See, e.g., Commonwealth v. Tejada, 107 A.3d 788(Pa. Super. 2015).
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a review of the certified record and the parties’ briefs, we conclude that the
trial court’s opinion adequately addresses and properly rejects this
argument. We therefore adopt that portion of the court’s opinion in
response to Appellant’s argument on appeal. Trial Court Opinion,
4/30/2015, at 30-32.
Regarding Appellant’s deceptive-business-practices conviction, the jury
determined that he violated 18 Pa.C.S. § 4107(6), which provides, “A person
commits an offense if, in the course of business, the person … makes or
induces others to rely on a false or misleading written statement for the
purpose of obtaining property or credit[.]” As to his theft by deception
conviction, the jury concluded that Appellant violated 18 Pa.C.S.
§ 3922(a)(1), which states,
A person is guilty of theft if he intentionally obtains or withholds
property of another by deception. A person deceives if he
intentionally … 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[.]
According to Appellant, “[t]he Commonwealth failed to prove these crimes
due to their [sic] lack of evidence involving any actual written statement,
falsehood, or false impression.” Appellant’s Brief at 48.
When viewed in the light most favorable to the Commonwealth, the
evidence presented at trial clearly demonstrates that Appellant, in concert
with Boykin and Shoatz, submitted written paperwork to PennDOT to
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establish Valley Auto as a vehicle inspection station. However, that
paperwork was false and misleading, as Appellant and his cohorts had no
intention of running a legitimate service station. Instead, as the record
amply establishes, they intended to obtain inspection and emission stickers
from PennDOT with a check that was not supported with sufficient funds.
Indeed, they did obtain such stickers by way of this deception. Thus, the
Commonwealth presented sufficient evidence at trial to allow the jury to
convict Appellant of deceptive business practices and theft by deception.
Next, we address Appellant’s claim that the Commonwealth failed to
present sufficient evidence to prove him guilty of criminal conspiracy.
Appellant’s Brief at 55-57. “A conviction for conspiracy requires only an
intent to commit a crime, an agreement with a co-conspirator, and an overt
act in furtherance of the conspiracy.” Commonwealth v. Thoeun Tha, 64
A.3d 704, 711 (Pa. Super. 2013). Appellant argues, “There was no evidence
offered by the Commonwealth that proves Appellant conspired to commit
any crime with Mr. Boykin or any other unknown person.” Appellant’s Brief
at 56.
At the outset, it is important to note that, although Appellant was tried
and convicted of only one count of criminal conspiracy, the jury was asked to
determine whether Appellant committed deceptive business practices, theft
by deception, and bad checks, as well as conspiracy to commit all of those
crimes with Boykin and “an unknown male,” who was identified at trial as
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Shoatz, Appellant’s cousin. We already have determined that the evidence
presented at trial was sufficient to demonstrate that Appellant committed
deceptive business practices, theft by deception, and bad checks. The trial
court’s accurate recitation of the evidence presented at trial sufficiently
demonstrates that Appellant intended to commit those crimes, that he
agreed to commit those crimes with Boykin and Shoatz, and that the trio
completed overt acts in furtherance of their conspiracy. Trial Court Opinion,
4/30/2015, at 3-14. Appellant’s argument to the contrary is unavailing.
We now will address the second, third, fourth, and fifth issues listed
above. In support of those issues, Appellant contends that the trial court
erred by: refusing to instruct the jury regarding the presumptions found at
18 Pa.C.S. § 4105(b)(1), Appellant’s Brief at 43-47; allowing the
Commonwealth to amend the information pre-trial to include an unknown
male, Shoatz, to Appellant’s criminal conspiracy charge, Appellant’s Brief at
33-38; allowing the Commonwealth to admit the $8,000 check at trial
without authenticating it, Appellant’s Brief at 38-41; and admitting into
evidence irrelevant testimony regarding the quantity of inspections stickers
previously sold by PennDOT employees in a single transaction, Appellant’s
Brief at 41-43. After a review of the certified record and the parties’ briefs,
we conclude that the trial court’s opinion adequately addresses and properly
rejects Appellant’s claims. We therefore adopt those portions of the court’s
opinion in response to Appellant’s arguments on appeal. See Trial Court
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Opinion, 4/30/2015, at 14-17 (addressing Appellant’s claim that the jury
should have been charged with the presumptions found at 18 Pa.C.S.
§ 4105(b)(1)); id. at 17-19 (concluding that the court did not err by
allowing the Commonwealth to amend the criminal information); and id. at
19-26 (holding that the court did not abuse its discretion by allowing the
Commonwealth to admit the $8,000 as evidence and by allowing the
Commonwealth to elicit testimony regarding PennDOT employees’ concerns
with the quantity of stickers Appellant and his conspirators purchased in
comparison to previous purchases of which the employees were aware).
Next, we consider Appellant’s contention that the jury’s verdict was
contrary to the weight of the evidence presented at trial. Appellant’s Brief at
58-61. As this Court has explained, “a weight of the evidence claim must be
preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Failure to properly preserve the
claim will result in waiver, even if the trial court addresses the issue in its
opinion.” Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.
2012) (citations omitted).
Appellant did file a post-sentence motion. That motion included a
section entitled, “Motion for new trial or arrest of judgment.” Post-Sentence
Motion, 10/21/2014, at unnumbered page 2. Under that heading, Appellant
averred as follows:
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[Appellant] respectfully requests a new trial or arrest of
judgment and asserts that the verdict was against the weight of
the evidence so as to shock one’s sense of justice where the
Commonwealth never showed, inter alia, that [Appellant]
was actually associated with the business in question, Valley
Auto, LLC, or that any false or misleading statement was put
forth in regards to the business or in obtaining the
emission/inspection stickers.
Id. (emphasis added). In this paragraph, Appellant conflated the concepts
underlying challenges to the weight of the evidence and the sufficiency of
the evidence. However, because Appellant ultimately contended that the
Commonwealth failed to offer any evidence that Appellant was associated
with Valley Auto or that he made any false or misleading statement, this
claim sounds more as a challenge to the sufficiency of the evidence.
On appeal, Appellant’s weight-of-the-evidence claim hinges entirely on
his contention that Boykin’s trial testimony was unreliable. See, e.g.,
Appellant’s Brief at 59 (“Appellant’s convictions were against the weight of
the evidence where Edward Boykin’s testimony was unreliable,
contradictory, and inconsistent with the remainder of the evidence presented
at trial.”). Appellant did not present this claim to the trial court;
consequently, it is waived.
In support of his last issue, Appellant argues that the trial court
imposed upon him an excessive fine. Such an issue challenges the
discretionary aspects of Appellant’s sentence. See Commonwealth Fusco,
594 A.2d 373, 374 (Pa. Super. 1991) (concluding that Fusco’s claim that his
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fine was excessive constituted a challenge to the discretionary aspects of his
sentence).
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant timely filed a notice of appeal; he preserved his issue in his
post-sentence motion; and his brief contains a Pa.R.A.P. 2119(f) statement.
Thus, we must determine whether Appellant has raised a substantial
question worthy of appellate review.
The determination of whether a substantial question exists
must be made on a case-by-case basis. It is only where
an aggrieved party can articulate clear reasons why the
sentence issued by the trial court compromises the
sentencing scheme as a whole that we will find a
substantial question and review the decision of the trial
court. This [C]ourt has been inclined to find that a
substantial question exists where the appellant advances a
colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of
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the Sentencing Code; or (2) contrary to the fundamental
norms underlying the sentencing process.
Also, a bald allegation that a sentence is excessive does not
raise a substantial question.
Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations
omitted).
In his post-sentence motion, Appellant merely asserted, “It is believed
and therefore averred that the fine of seven thousand nine hundred
4
($7,900.00) dollars was a disproportionate and excessive sentence.” Post-
Sentence Motion, 10/21/2014, at unnumbered page 2. Moreover, while
Appellant’s Pa.R.A.P. 2119(f) statement spans more than three pages, in
substance, the statement only asserts that Appellant’s sentence is
excessive.5 Appellants Brief at 29-32. We conclude that Appellant’s
sentencing claim amounts to nothing more than a bald allegation that his
4
Appellant is incorrect that his fines totaled $7,900. For his deceptive-
business-practices conviction, the trial court sentenced Appellant to pay a
fine of $7,500. The court fined him $100 for each of his remaining three
convictions. N.T., 10/17/2014, at 8-9. Thus, Appellant was sentenced to
pay an aggregate fine of $7,800.
5
At the end of his Pa.R.A.P. 2119(f) statement, Appellant baldly asserts, “In
the case sub judice, the sentencing court acted contrary to the fundamental
norms underlying the sentencing process by sentencing Appellant to pay a
de facto fine equivalent to the restitution paid by Mr. Boykin, Appellant’s co-
defendant.” Appellant’s Brief at 32. This unsupported and undeveloped
sentencing claim is waived, as Appellant failed to present it to the trial court.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
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sentence is excessive. Consequently, Appellant has failed to raise a
substantial question.
Appellant has failed to present this Court with an issue that warrants
relief. Accordingly, we affirm his judgment of sentence.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
6
The parties shall attach a copy of the trial court’s April 30, 3015 opinion to
this memorandum in the event of further proceedings.
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COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
v.
NO.: 4469 CR 2013
(2100 MDA 2014)
HASSAN IB ABDULLAH-TALIB
MEMORANDUM OPINION
Appellant, Hassan lb Abdullah-Talib ("Appellant") is appealing this Court's
judgment of sentence entered October 17, 2014. This opinion is written pursuant to
Pa.R.A.P. 1925(a).
PROCEDURAL HISTORY
Appellant was arrested and charged with one count each of Deceptive Business
Practices,1Theft by Deception,2 Bad Checks,3 and a count of Criminal Conspiracy4 in
connection to each of the three offenses for a total of six counts. 5 The charges stem
from the purchase of motor vehicle safety inspection and emissions stickers for the
purported use at an inspection service station. A jury trial was held on August 19-21,
2014, at which time Appellant was found guilty of all charges. Appellant was sentenced
on October 17, 2014 to an aggregate term of incarceration of eighteen (18) to eighty-
four (84) months in a state correctional institution along with the payment of the costs of
prosecution and fines totaling $7,900. Appropriate time credit was applied and
Appellant was made RRRI eligible.
1
18 Pa.C.S. § 4107(A)(6).
2
18 Pa.C.S. § 3922(A)(1).
3
18 Pa.C.S. § 4105(A)(1).
4
18 Pa.C.S. § 903(C).
5
Counts 4 and 6 were subsequently withdrawn by the Commonwealth.
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Appellant's timely Post-Sentence Motion challenged the amount of the fine
imposed as excess and unreasonable and requested a new trial or arrest of judgment
contending that the verdict rendered was against the weight of the evidence. The Post-
Sentence Motion was denied by this Court on December 1, 2014. On December 10,
2014, Appellant filed a timely Notice of Appeal to the Pennsylvania Superior Court. In
compliance with this Court's Order directing the filing of a Concise Statement of Matters
Complained of on Appeal, Appellant raises the following issues for review:
1. The trial court erred in refusing to instruct the jury regarding 18
Pa.C.S.A. § 4105(b)(1 ), Presumptions, where such error constituted an
abuse of discretion and error of law as the instruction was supported by
the evidence in record.
2. The trial court erred in permitting an amendment to the criminal
information where: Appellant was not fully apprised of the charges against
him; the crimes specified in the original information did not involve the
same basic elements or arise out of the same factual situation as the
crimes specified in the amended information; Appellant was not placed on
notice regarding his alleged criminal conduct; and, Appellant was
prejudiced.
3. The trial court erred in admitting a copy of the check used to
purchase inspection stickers where such evidence was not properly
authenticated.
4. The trial court erred in admitting evidence regarding the quantity of
inspection stickers previously sold in a single transaction where such
evidence was irrelevant and where the prejudicial nature of the evidence
substantially outweighed the probative value.
5. The Commonwealth failed to present sufficient evidence to sustain
Appellant's convictions where the Commonwealth did not prove that
Appellant: made a false, misleading, or material statement; agreed with
the co-defendant(s) to engage in conduct which constitutes a crime or an
attempt or solicitation to commit a crime; intended to commit conspiracy;
received property or intended to receive property by deception; or, knew
the check would not be honored.
6. The trial court erred in denying Appellant's Post-Sentence Motion
where the verdict was against the weight of the evidence so as to shock
one's of justice where the Commonwealth never showed that: Appellant
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was associated with the business in question, agreed with the co-
defendant(s) to engage in the conduct which constitutes a crime or an
attempt or solicitation to commit a crime; intended to commit conspiracy;
or, any false or misleading statement was put forth regarding the business
or obtaining the emission/inspection stickers.
7. The trial court erred in denying Appellant's Post-Sentence Motion
where Appellant's fine was excessive and unreasonable and constitutes
too severe a punishment in light of the gravity of the offense, the impact
on the community, and Appellant's rehabilitative needs. The putative
measures inherent in the sentencing scheme could have been
accomplished by the imposition of a lesser fine.
For the reasons set forth below, this Court finds that Appellant's judgment of
sentence should stand.
FACTUAL BACKGROUND
A jury trial held on August 19-21, 2015 established the following facts: Michael
Smith ("Mr. Smith") oversees the Vehicle Emissions Program for the Pennsylvania
Department of Transportation ("PennDOT"). (Notes of Testimony, Trial at 36-37).6 Mr.
Smith's duties at PennDOT include the oversight of ordering, purchasing and
distribution of safety and emissions stickers used in the safety inspection of motor
vehicles in Pennsylvania. (N.T. at 37). Mr. Smith explained that the safety and
emissions stickers are provided to certified inspection stations that have applied for and
have gained approval to conduct vehicle inspections. (N.T. at 37-38).
Mr. Smith explained how a service station gains approval to perform inspections.
To initiate the process, an individual or company would complete an application called
PennDOT form MV-500. (N.T. at 37-39). Once the application is completed, a quality
assurance officer is assigned to the request and an in-person visit to the service station
6
Hereinafter "N. T."
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is made. (N.T. at 38-39). A quality assurance officer may be a PennDOT employee or
the employee of an entity contracting with PennDOT to provide the certification
services. (N.T. at 38).
On the MV-500, the station owner must list the names of the individuals who are
permitted to place an order for inspection stickers on behalf of the station. (N.T. at 39).
Once an audit is complete and the quality assurance officer is satisfied that all
necessary PennDOT requirements have been met, one of the listed individuals can
place an order for the physical inspection sticker by mail order or in person at
PennDOT's headquarters in Harrisburg, Pennsylvania. (N.T. at 39-40).
Mr. Jay Hawkins ("Mr. Hawkins") is contracted by PennDOT to audit state
inspection facilities for compliance with the rules and requirements of the program and
to certify new stations. (N.T. at 46-48). To begin the certification process an individual
contacts Mr. Hawkins by phone and he asks some preliminary questions about
insurance, whether the individual is certified to perform vehicle safety inspections, for
the purpose of determining his or her familiarity with the vehicle inspection rules and
regulations. (N.T. at 49-50). The next step in the certification process requires a site
visit to inspect the facility, verify insurance credentials, inspect tools, inspect the security
measures for the stickers and inspect for necessary signage. (N.T. at 49; 51-52). After
the certification has been finalized, Mr. Hawkins returns to the inspection station at a
later date to be sure that the proper procedures are being followed. (N.T. at 52).
In 2013 with respect to the instant case, Mr. Hawkins became involved in the
station certification process of Valley Auto, located in Philadelphia, beginning with a
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phone call in mid-to-late winter. (N.T. at 51-52). Mr. Hawkins made an in-person visit to
Valley Auto which he described as atypical in that it had only one bay, one man door, no
lift and no parking in front as the garage emptied onto the sidewalk. (N.T. at 54-55).
Upon inspection, he found that the garage bay area was smaller than the 12" X 22" area
required by PennDOT regulations. (N.T. at 52; 53). Mr. Hawkins denied certification and
explained to the owners that a wall had to be moved to permit him to certify the station.
(N.T. at 52).
Mr. Hawkins could not remember the name of the individual who made the initial
phone call, but he testified that he was the same person he that he had spoken with
during the audit and who had a certificate to inspect vehicles. (N.T. at 51-52). Based
on the signature on a copy of MV-427 that was admitted into evidence during the trial,
Mr. Hawkins had been interacting with Mr. Edward Boykin. ("Mr. Boykin"). (N.T. at 61-
62; Com. Exh. 3). The MV-427 is the inspection station license form that must be
displayed on the wall in the shop. (lg_.)
Mr. Hawkins returned 5-7 days later and the wall had been moved approximately
1 foot to comply with the minimum area requirement. (N.T. at 53). However, during the
second visit to Valley Auto, he discovered that the garage was not equipped with a
necessary jack to lift the cars for the undercarriage inspection as it was not equipped
with a car lift; therefore, certification was denied a second time. (N.T. 57). Mr. Hawkins
said that during the second inspection he met with the same individual along with
Appellant. (N.T. at 58). He stated that Appellant had become involved in the process to
ensure that all requirements of an inspection station were present at Valley Auto. (lg_.)
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The certification was again denied after a third in-person visit due to another
missing tool. (N.T. at 58). Finally, after a fourth in-person visit, Mr. Hawkins found that
the regulatory requirements were met and therefore, the qualification process had been
completed. (N.T. at 59). Mr. Hawkins completed an audit report of his findings. (N.T. at
62). To complete the appointment process, Mr. Hawkins called PennDOT in Harrisburg
with the information provided on the first page of MV-425. The MV-425 is a multiple
page document which includes document MV-500 which must be completed as a
signature card for those individuals in the business that are authorized to purchase
inspection stickers. (N.T. at 63). On page 5 of the document, the owners of the
company or corporation are listed along with their titles, dates of birth and driver's
license numbers. (N.T. at 63-64). Mr. Boykin was listed as the owner and president on
the application along with Appellant as vice president. (N.T. at 64). It also includes the
federal tax Identification number, the state sales tax identification number, Mr. Boykin's
name as an authorized inspection agent, the name of the emissions analyzer, the
insurance coverage information and who will be ordering inspection stickers. (N.T. at
61-65; Com. Exh. 3). PennDOT then provides a station number. (N.T. at 64-65).
Mr. Hawkins later learned that a large sticker order had been placed by Valley
Auto on June 21, 2013, when his supervisor requested him to audit Valley Auto based
on the number of stickers purchased. (N.T. at 68). Mr. Hawkins testified that, based
upon his work experience, the size of a service station enables him to estimate an
average number of inspection stickers a station will need. (N.T. at 67). He specifically
testified that the vehicle inspection regulations require a one hour minimum timeframe
to conduct an inspection and fifteen minutes for an emissions inspection. To formulate
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an estimate, he would compare these requirements to Valley Auto's single bay and
single authorized technician. (lg.)
Mr. Hawkins went to Valley Auto's location on five days from June 24, 2013 -
June 28, 2013, within one week of approving it as an inspection station, only to find it
closed and locked. (N.T. at 68-69; 71-74). In addition to going to the garage, Mr.
Hawkins made six or seven unsuccessful phone calls. (lg.)
Edward Boykin is a trained auto mechanic who, at the time, was licensed to
perform vehicle safety and emissions inspections. (N.T. at 86-87). He had been
working for Dixon Brothers Auto Exchange when he was approached by a man named
Nathaniel who previously dated his sister, about opening an inspection station along
with his cousin, Appellant, because he was already certified to perform vehicle
inspections. (N.T. at 89). Mr. Boykin initially spoke only with Nathaniel and felt unsure
about getting involved in the proposition. (N.T. at 89-90).
Nathaniel and Appellant approached Mr. Boykin again and he agreed to become
involved. (N.T. at 90). Mr. Boykin described his involvement providing as assistance in
obtaining the required tools for the shop. (N.T. at 90-92). Mr. Boykin testified that
Nathaniel and Appellant had already secured a shop location and had gathered the
paperwork to start the certification process. (N.T. at 91-92). The business account was
opened in Mr. Boykin's name while Appellant was in charge of setting up the telephone
service and getting any necessary paperwork. (N.T. at 93). Mr. Boykin stated that
Nathaniel and Appellant funded the purchase of the tools even though he went along a
few times when they were purchased. (N.T. at 93-94). Mr. Boykin testified that the three
7
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men had been working on getting the garage running for about one month before the
inspector made his first visit. (N.T. at 94). Mr. Boykin confirmed that the officer
assigned to inspect the station for certification made three visits before the application
was granted. (N.T. at 94-96). According to Mr. Boykin, Nathaniel and Appellant were
present for all of the visits by the quality assurance officer. (lg_.)
On the day that the quality assurance officer granted approval to Valley Auto, Mr.
Boykin and Appellant signed the paper work as co-owners. (N.T. at 97). The three men
travelled in a car driven by an unknown fourth male to PennDOT in Harrisburg to
purchase the safety and emissions stickers. (N.T. at 97-98). On June 21, 2013, upon
arrival at PennDOT, Boykin and Nathaniel had a discussion about the number of
stickers the men wanted which was 10,000. Boykin said that the large amount
requested made him feel "a little shaky" about the transaction. (N.T. at 97; 99; 105). He
considered this amount to be unusually large based upon his experience with Dixon
Brothers Auto Exchange as two mechanics performed auto inspections and only three
or four hundred stickers were ordered every couple of months. (N.T. at 98). Nathaniel's
only explanation was that he did not want to have to come back to PennDOT to get
more. (N.T. at 97; 99). Mr. Boykin completed and signed the form necessary to
process the sticker request at Nathaniel's and Appellant's direction and with their
assistance. (N.T. at 100-101). Mr. Boykin stated that he completed the entire form but,
Nathaniel and Appellant told him what amount to write. (N.T. at 102-103; Com. Exh. 5).
The men eventually bought 4,000 safety inspection stickers. (N.T. at 105).
The PennDOT teller questioned the request for such a large number of stickers
and encountered difficulty with the computer system when attempting to input a request
8
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that large. (N.T. at 99). After Mr. Boykin went to the restroom to "clear his head," he
returned to the counter where a second PennDOT employee was assisting with the
purchase and was finally able to complete the transaction. (N.T. at 99-100; 105).
The men attempted to complete the necessary form occurred more than one time
due to mistakes and multiple changes to the number of stickers as the computer system
would not allow such a large amount to be processed. (N.T. at 102-104). The stickers
were paid for with the last of four checks after three others were voided due to mistakes
and changes to the order amount. The check had been filled out by Appellant and
signed by Mr. Boykin. (N.T. at 100; 106; 126-127; 135-136). When Boykin questioned
whether the account contained funds to cover the check as he had not remembered any
deposits after the initial $50 to start the account, Nathaniel assured him that $12,000
was in the account. (N.T. at 100; 106; 131).
Mr. Boykin carried the sheets of inspection stickers and the men travelled by car
back to Philadelphia. (N.T. at 111-112). Mr. Boykin was driven back to his own car
where he left the inspection stickers in the possession of Appellant and Nathaniel. (N.T.
at 111-112; 131-132). Over the next few months, Mr. Boykin was unable to reach
Nathaniel so he called Appellant to have him contact Nathaniel. (Id.) After Boykin made
several more phone calls to Appellant, he stopped answering his calls, too. (N.T. at
112). When Mr. Boykin tried to call Valley Auto, no one ever answered. (l.Q.) Mr.
Boykin testified that he never did any inspections for Valley Auto, never saw the stickers
again and never saw Nathaniel or Appellant in connection with the business. (N.T. at
112-113). Later, Mr. Boykin saw Appellant prior to trial when Appellant appeared at the
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Dixon Brothers Garage to ask him to write a letter stating had not done anything
incriminating. (N.T. at 113-114).
Mr. Thomas Wagner ("Mr. Wagner") has been working at PennDOT for
seventeen years and is currently assigned to the dealers counter. (N.T. at 140-142).
His responsibilities include the issuance of safety and emissions inspection stickers to
inspection stations that range in size from small family-owned shops to large car
dealerships and rental car fleets. (N.T. at 141-145). If a station has been newly
authorized to conduct vehicle inspections, he will receive a message about the approval
and that a representative will be coming in for stickers. (N.T. at 143-144). He supplies
the PennDOT form to be completed and provides any necessary customer assistance.
(!Q.) In his experience, the range of sticker amounts for small to medium garage is 10-
300 stickers. (N.T. at 146-147).
On June 21, 2013, Mr. Wagner received notification that a new customer,
Edward Boykin, would be coming to his counter to purchase inspection stickers. (N.T. at
148; 153). Mr. Boykin, Appellant and two other people came to his counter and needed
instruction on completing the paperwork to obtain inspection stickers which is MV-Form
436A. (N.T. at 148; 150-151; 154). As Mr. Wagner explained the process and Mr.
Boykin completed MV-Form 436A, Appellant and Mr. Boykin were conferring with him
about the form. (N.T. at 153-154). Mr. Wagner recognized one of the men as a Mr.
Shoatz, a man with whom he had had prior dealings. (N.T. at 150; 153). The men
requested 7,000 inspection stickers which Mr. Wagner described as "an uncharacteristic
amount" and about which he was concerned. (N.T. at 153-154; 162-163). Because his
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work shift was ending, Mr. Wagner handed over the transaction to another employee,
Mr. Leonard Bittinger ("Mr. Bittinger"). (N.T. at 160-164).
Mr. Bittinger has been employed by PennDOT in various capacities, including
with the Inspection Unit, for twenty-two (22) years. (N.T. at 169-170). He took over the
transaction at issue when Mr. Wagner's shift ended. While apprising himself of the
details of the transaction, he encountered three men working on the form and a request
for an unusually large number of inspection stickers in relation to the size of the shop
and newness of the business. (N.T. at 171-172; 176-177). Mr. Bittinger was haggling
with the men, including Appellant, over the number of inspections stickers Valley Auto
would need. (N.T. at 172-173; 176-177). In Mr. Bittinger's experience, this type of
haggling over the amount of stickers was uncommon. (N.T. at 177). The men told Mr.
Bittinger that they had 12 service bays and were working on signing a fleet account so a
large amount of inspection stickers would be needed. (N.T. at 173).
Mr. Bittinger stated he remembers that they requested over 5,000 stickers
because the computer system prohibited him from issuing any more than that amount
and he had not encountered a limit before. (N.T. at 173-174). He explained that the
situation he faced with Appellant and his associates was so unusual that he consulted
with another Inspections Unit employee, Catherine Barnhill ("Ms. Barnhill"), regarding
the propriety of such a large sale and to verify that there was enough sticker inventory
to meet the request. (N.T. at 180-181). The parties finally settled on 4,000 safety
inspection stickers for a total of $8,0007 and 5000 emissions inspection sticker because
7
The safety inspection stickers come in sheets of 10 at a cost of $2 per sticker. (N .T. at 185; 193). The
emissions inspection stickers are free of charge.
11
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this was the amount the computer system would allow to be processed. (N.T. at 173-
17 4; 177; 181-182; 196). Mr. Bittinger and Ms. Barnhill had to work together negotiating
the amount of stickers to arrive at an amount that the computer system would accept.
(N.T. at 193-194).
Mr. Bittinger accepted a check from Appellant in payment for the stickers. (N.T.
at 182-184). He explained that more than one check was written and form completed
because of mistakes made and the ongoing changes in the amount of the order. (N.T.
at 182-184). Mr. Bittinger testified that he saw Appellant sign the final check submitted
for payment. (N.T. at 182-183). Ms. Barnhill stated that the "younger" gentleman filled
out the form but, did not talk much as Appellant wrote the check and explained how
much business they were going to have. (N.T. at 195). In Mr. Bittinger identified
Appellant as the individual who wrote the check in the group who bought the stickers.
(N.T. at 186-187). He also identified the check and the inspection sticker order form.
(J_g_.) Mr. Bittinger testified that all the men left PennDOT together. (N.T. at 186).
The unusual nature of the large request for inspection stickers was echoed by
Ms. Barnhill. She testified that since the men were starting a new business, in her
experience, you have no way of knowing how much inspection business you will have;
therefore, you do not know when the amount of money paid for a large amount of
stickers will be recouped. (N.T. at 194). When Mr. Bittinger brought up this subject, he
recalls Appellant responding that they would receive a profit to cover the expense or
that money was no object. (N.T. at 178). However, the men gave Ms. Barnhill a
different story regarding the source of their business. Appellant told her that Valley Auto
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was replacing an inspection station and the residents were anxiously awaiting their
opening. (N.T. at 194).
PennDOT initiated the investigation after the check presented by Appellant and
his associates was dishonored and officials noted the unusually large quantity of
stickers had been purchased. (N.T. at 211-212). The circumstances prompted
PennDOT to send a quality assurance officer to investigate Valley Auto who reported
that the garage was closed. (lg.) PennDOT officials detailed the incident in a letter and
informational packet, which included the quality assurance officer's follow up report,
forwarded to the Pennsylvania State Police ("PSP"). (N.T. at 209; 214). As a result,
PennDOT requested that the PSP enter the sticker numbers be entered into the
CLEAN-NCIC database to determine if any had been reported as being recovered.
(N.T. at 212).
Trooper Chad Berstler ("Trooper Berstler") of the PSP Fraud Investigations Unit
became involved in this case at the request of PennDOT. (N.T. at 205; 209). Trooper
Berstler's duties include the investigation of fraud or misuse relating to safety and
emissions inspection stickers. (N.T. at 206).
Trooper Berstler testified that Appellant had been identified by officials at
PennDOT from a video recording of the sticker purchase transaction and a comparison
of the names provided with the documentation submitted from the Valley Auto
inspection station. (N.T. at 210-211 ). Trooper Berstler identified the individuals depicted
in the PennDOT video as Appellant, Edward Boykin and Nathaniel Shoatz. (N.T. at
211 ).
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During his testimony, Mr. Bittinger had explained that each sticker has a serial
number that corresponds to the then sticker she from which it was taken. (N.T. at 185).
The PennDOT computer system also tracks the entire lot given to a particular customer
by serial number. (Id.) Trooper Berstler testified that four inspection stickers from the lot
purchased by Appellant and his associates had been recovered at the time of trial. (N.T.
at213).
DISCUSSION
Appellant's first assertion of error claims that this Court refused to instruct the
jury regarding the presumption found in the "Bad Checks" statute found at 18 Pa.C.S. §
4105(b). This Court provided the following instruction to the jury:
The Defendant has been charged with issuing a bad check in the amount
of $8,000. To find the Defendant guilty of this offense, you must find that
each of the following elements has been proven beyond a reasonable
doubt: First, that the Defendant issued or passed a check in that amount;
and, second, that the Defendant knew that the check would not be
honored by the drawee and the drawee - by the drawee bank because of
insufficient funds. And, third, you would also have to find the amount of
the check, and there's a space on the verdict slip and you would have to
indicate whether the amount of the check was over a certain dollar
amount. I think it's a thousand dollars. Yeah, $1,000. (N.T. at 236).
Appellant placed an exception on the record claiming that the "presumption" in
section 4105(8)8 of the statute "should have been read as an element of the crime"
8
18 Pa.C.S. § 4105(8):
(b) Presumptions.--For the purposes of this section as well as in any prosecution for theft
committed by means of a bad check, the following shall apply:
( 1) An issuer is presumed to know that the check or order ( other than a post-dated check
or order) would not be paid, if:
(i) payment was refused because the issuer had no such account with the
drawee at the time the check or order was issued; or
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when this Court instructed the jury on the law. (N.T. at 250). In support of his position,
Appellant relies upon Commonwealth v. Griffith,9 for the proposition that the Court in
that case defined the "bad checks" charge with the presumption language, thereby
requiring the prosecution to prove in this case that Appellant had received notice of the
check bouncing and did not make good on the check within 10 days. (N.T. at 250).
Appellant contends that pursuant to Griffith, the notice provision in the presumption
language should be strictly construed as requiring proof of such notice to sustain a
conviction; therefore, this Court erred in failing to instruct the jury of the presumption.
(N.T. at 250-251).
Upon review of the "bad checks" jury charge given at trial, this Court finds that it
appropriately instructed the jury on the law. When reviewing a challenge to a part of a
jury instruction, the Court must review the jury charge as a whole to determine if it is fair
and complete. A trial court has broad discretion in phrasing its charge and can choose
its own wording so long as the law is clearly, adequately, and accurately presented to
the jury for its consideration. Only where there is an abuse of discretion or an inaccurate
(ii) payment was refused by the drawee for lack of funds, upon presentation
within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that
refusal.
Notice of refusal may be given to the issuer orally or in writing by any person. Proof that notice was sent
by registered or certified mail, regardless of whether a receipt was requested or returned, to the address
printed on the check or, if none, then to the issuer's last known address, shall raise a presumption that the
notice was received.
(2) A check or order stamped "NSF" or "insufficient funds" shall raise a presumption that
payment was refused by the drawee for lack of funds.
(3) A check or order stamped "account closed" or "no such account" or "counterfeit" shall
raise a presumption that payment was refused by the drawee because the issuer had no such account
with the drawee at the time the check or order was issued.
9
364 A.2d 374 (Pa.Super. 1976).
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statement of the law is there reversible error. Commonwealth v. Jones, 542 Pa. 464,
668 A.2d 491 (1995)(1nternal citations omitted).
Case law interpreting Section 4105 makes clear that the Commonwealth must
establish that an individual issued a check knowing that there were insufficient funds in
his or her account to cover it. (18 Pa.C.S. §4105(a)(1 ); Commonwealth v. Burruss, 380
Pa.Super. 272, 551 A.2d 580 (1988)). The statute also permits a jury to presume that
the drawer of the check had knowledge that the check would be dishonored if, after
receiving notice of dishonor from the financial institution, within 10 days he has not
made good by depositing funds into the account. Commonwealth v. Burruss, 551 A.2d
580, 584, fn.4. However, the statutory presumption is not the only way by which the
Commonwealth can prove intent on the part of the drawer as it also may be proven by
direct evidence. Commonwealth v. Griffith, 242 Pa. Super. 484, 487-488, 364 A.2d 374,
376; Commonwealth v. Chase, 413 Pa. Super. 594, 598 605 A.2d 1276, 1278 (1992).
In the instant case the Court clearly and adequately instructed the jury as to
these specific statutory elements. The jury instruction given by this Court tracks the
statutory language. When defense counsel lodged his objection to this Court's denial of
his request to instruct on the presumption in section 4105(b), he argued that the
"presumption under subsection B of the bad checks charge should have been read as
an element of the crime ... " (N.T. at 250). However, at the conclusion of the jury charge
this Court asked counsel if any additional instructions were necessary and both
attorneys responded in the negative. (N.T. at 239-240). Additionally, upon review of the
statutory language and applicable caselaw, this Court finds that intent may also be
proven by direct evidence.
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As the Commonwealth presented direct evidence of intent by witness testimony
in connection with the security video showing the presentation of the dishonored check,
it did not rely on the presumption to prove intent in this case. As such, this Court clearly
and adequately instructed the jury on this charge; therefore, Appellant's claim is without
merit.
Appellant's next claim on appeal is that this Court erred in permitting the
Commonwealth to amend the criminal information prior to trial. Pennsylvania Rule of
Criminal Procedure 564 provides that "[t]he court may allow an information to be
amended when there is a defect in form, the description of the offense(s), the
description of any person or any property, or the date charged, provided the information
as amended does not charge an additional or different offense. Upon amendment, the
court may grant such postponement of trial or other relief as is necessary in the
interests of justice." When interpreting Rule 564, the Superior Court has found that the
underlying "purpose of Rule 564 is to ensure that a defendant is fully apprised of the
charges, and to avoid prejudice by prohibiting the last minute addition of alleged
criminal acts of which the defendant is uninformed." Commonwealth v. Sinclair, 897
A.2d 1218, 1221 (Pa. Super. 2006) citing Commonwealth v. Duda, 831 A.2d 728, 732
(Pa.Super.2003). The Superior Court in Sinclair went on to announce that the test to
be applied is:
[W]hether the crimes specified in the original indictment or information
involve the same basic elements and evolved out of the same factual
situation as the crimes specified in the amended indictment or information.
If so, then the defendant is deemed to have been placed on notice
regarding his alleged criminal conduct. If, however, the amended provision
alleges a different set of events, or the elements or defenses to the
amended crime are materially different from the elements or defenses to
17
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the crime originally charged, such that the defendant would be prejudiced
by the change, then the amendment is not permitted. Jg. quoting
Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa.Super. 2001)
(citation omitted).
In the instant matter, on the day of trial prior to jury selection, the Commonwealth
made an oral motion to amend the criminal information to consolidate the three
separate conspiracy charges connected to the three underlying crimes charged -
deceptive business practices, theft by deception and bad checks - into one count
connected with all three of them. (N.T. at 1 ). Additionally, the Commonwealth
requested permission to add another name to Edward Boykin's name as co-conspirator,
specifically, Nathaniel Shoatz. (N.T. at 1-2). This Court entertained argument on the
Motion which resulted in the amendment of the criminal information by withdrawing two
conspiracy charges at counts 4 and 6; the addition of theft by deception and/or bad
checks to the crimes underlying the conspiracy charge at count 2; and, adding "other
unknown male" to Edward Boykin as co-conspirator at count 2. (N.T. at 6).
Appellant argues that the amendment which added another possible
coconspirator was prejudicial to him as the amendment took place shortly before picking
a jury and amounted to a new conspiracy charge for which he unprepared to defend.
(N.T. at 2). The Commonwealth countered this position by asserting that on the criminal
complaint form a box indicating that conspiracy is being charged in conjunction with
each primary offense put Appellant on notice. (N.T. at 3-4). The Commonwealth further
argued that in light of the fact that Appellant and his counsel had viewed the
surveillance video from the PennDOT counter showing three men working together to
complete the transaction, the addition of "other unknown male" would not prejudice the
Appellant in mounting his defense. (N.T. at 2-3; 5-6).
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Upon consideration of the arguments, this Court granted the Commonwealth's
request to add to the conspiracy "other unknown male" in addition to Mr. Boykin's name
as a possible co-conspirator. (N.T. at 6). The Commonwealth proffered that it would be
presenting evidence in the form of a video showing Appellant, Mr. Boykin and another
male working together towards the purchase of the inspection stickers. Appellant was
already on notice by way of the criminal complaint that he would have to defend against
conspiracy allegations in connection with the fraudulent business practices, theft by
deception and bad checks charges as a general proposition; therefore, the addition of a
nondescript co-conspirator to the criminal information would not require him to answer
to or defend against any new criminal elements than those already charged. Further,
the crimes with which he was charged arose out of one set of facts involving all three
men. In other words, as Appellant had already seen the video footage showing him
interacting with two other men, one of which was Mr. Boykin, whether the alleged co-
conspirator in each crime was Mr. Boykin or the yet to be identified and arrested
unknown man is of no moment with respect to preparing a defense. Therefore, this
Court finds that Appellant's claim must fail as no new crime was charged by amending
the criminal information and Appellant suffered no prejudice.
The next two issues raised by Appellant challenge this Court's rulings on the
admissibility of evidence. First, he claims that this Court erred when it admitted a copy
of the Valley Auto, Inc. check used to purchase inspection stickers without proper
authentication of the document. The Pennsylvania appellate courts have made clear
that:
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Admission of evidence is within the sound discretion of the trial court and
will be reversed only upon a showing that the trial court clearly abused its
discretion. The requirement of authentication or identification is codified at
Pennsylvania Rule of Evidence 901, 42 Pa.C.S.A.: "(a) General provision.
The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims." Pa. R.E.
901 (a). Testimony of a witness with personal knowledge that a matter is
what it is claimed to be may be sufficient to authenticate or identify the
evidence. Pa. R.E. 901(b)(1). Abuse of discretion is shown in the record
where the court does not apply the law in reaching judgment, or exercises
manifestly unreasonable judgment, or judgment that is the result of
partiality, prejudice, bias, or ill will. Commonwealth v. Mitchell, 883 A.2d
1096, 1109-1110 (Pa. Super. 2005)(internal citations omitted).
Appellant is not specific as to what aspect of the authentication was lacking when
this Court admitted the copy of the check. However, a document may be authenticated
by direct proof and/or by circumstantial evidence. In re: F.P., 878 A.2d 91, 94 (Pa.
Super. 2005). "[P]roof of any circumstances which will support a finding that the writing
is genuine will suffice to authenticate the writing." lg. citing Commonwealth v. Brooks.
352 Pa.Super. 394, 508 A.2d 316, 318 (1986) quoting McCormick, Evidence§ 222 (E.
Cleary 2d Ed.1972). "The courts of this Commonwealth have demonstrated the wide
variety of types of circumstantial evidence that will enable a proponent to authenticate a
writing." lg. (collecting cases). Applying these principles, this Court finds that sufficient
evidence was presented by the Commonwealth to authenticate the copy of the check
and permit its admission into evidence.
Mr. Boykin testified to several supporting facts which taken as a whole served to
authenticate the check. He recognized the check as one of the "starter" checks issued
by Wells Fargo Bank when all three men went to the bank to open the account for
Valley Auto. (N.T. at 135-136). The copy of the check listed Valley Auto as the account
holder and was made out to PennDOT for the amount of $8,000, the specific cost of the
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safety inspection stickers. (N.T. at 135; 196). Mr. Boykin's testimony is that of a witness
with personal knowledge "that a matter is what it is claimed to be .... " (Pa.R.E.
901 (b)(1 )). This Court did not err as the copy of the check admitted into evidence was
sufficiently authenticated.
Appellant next claims that this Court erred by admitting the testimony regarding
the "quantity of inspection stickers sold in a single transaction" as it was irrelevant and
the prejudicial nature of the evidence outweighed the probative value. We disagree.
As previously stated, this Court's ruling on the admissibility of evidence will only
be reversed if upon review the appellate court finds an abuse of discretion.
Commonwealth v. Mitchell, supra. Although the Appellant does not specify which
witness's testimony he is challenging, a review of the record reveals that objections
were lodged in connection with the testimony of Mr. Hawkins and Mr. Wagner regarding
their personal experience during their employment with PennDOT working with the
vehicle inspection program. (N.T. at 66; 162). Notably, Appellant did not object when
Mr. Bittinger and Ms. Barnhill testified regarding unusual nature of the large quantity of
stickers. (N.T. at 172-178; 194).
First, we will address Appellant's claim that the challenged testimony should
have been excluded as irrelevant. A review of the objections lodged by counsel to the
specific testimony at issue reveals that the basis proffered for the objection to Mr.
Hawkins' testimony did not include relevancy. Therefore, this Court finds that Appellant
has waived his challenge with regard to the relevancy of the testimony admitted. "Where
the objection challenges a specific evidentiary matter, all other grounds for excluding
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the evidence are waived." Commonwealth v. Berry, 355 Pa. Super. 243, 256, 513 A.2d
410, 416 (1986) citing Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978).
With respect to Mr. Hawkins' testimony, Appellant's counsel objected to Hawkins
rendering an estimate as to the ordinary amount of inspection stickers a shop the size of
Valley Auto would need to conduct business. (N.T. at 65-67). The basis of Appellant's
objection was that Mr. Hawkins was not qualified as an expert to render such an
opinion. (N.T. at 66). However, it was unnecessary for Mr. Hawkins to be qualified as
an expert to provide his opinion as he was drawing from knowledge gained through
work experience, not the type of scientific, specialized or technical knowledge
contemplated by Pa.R.E. 702 ''Testimony by Experts."
Pa.R.E. 701 "Opinion Testimony by Lay Witnesses" provides:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
Mr. Hawkins testified to the method by which he estimates the amount of
business a particular shop will have and thus, the estimated amount of inspection
stickers necessary to keep up with the amount of business. (N.T. at 67). Notably,
despite the fact that Appellant is challenging the admissibility of the testimony regarding
the "quantity of inspection stickers sold in a single transaction," Mr. Hawkins did not
testify to his opinion on the quantity requested by Appellant and his associates or what
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he deemed to be unusual; rather, he testified that the reason given by his supervisor as
to why PennDOT had requested an in-person visit to Valley Auto was the large number
of stickers obtained in Harrisburg. (N.T. at 67-68). Accordingly, his testimony was not
about the size of the sticker order at all. More importantly though, Mr. Hawkins'
testimony falls squarely under Rule 701, as his estimates are based upon PennDOT
regulations that govern all aspects of vehicle safety inspections including the time that
must be spent on each vehicle safety inspection, which is at least one hour in addition
to fifteen minutes for an emissions inspection. (N.T. at 67). He explained that, to
formulate an estimate, he would compare the regulatory requirements to the size of the
auto shop and the number of mechanics licensed to perform inspections, in this case
one. (l.Q.) Mr. Hawkins' testimony was clearly based on his personal perception of the
operations of Valley Auto and the specific facts observed by him and relayed by his
employment supervisor. This Court properly exercised its discretion in admitting Mr.
Hawkins' testimony on this subject. In addition, applying the rule in Berry, as set forth
above, and given the specific grounds on which the objection was made, we find that
Appellant has waived his claim that Mr. Hawkins' testimony was more prejudicial than
probative.
This Court also finds that no abuse of discretion occurred with regard to Mr.
Wagner's testimony about the large number of inspection stickers involved in the
transaction. Review of the transcript indicates that Appellant's counsel provided no
specific basis for his initial objection to Mr. Wagner's testimony regarding the inspection
sticker quantity requested in the transaction he handled. (N.T. at 162). Later, upon
redirect examination. Appellant objected to Mr. Wagner's testimony that he had never
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had a customer request 7,000 stickers prior to the transaction with Appellant. (N.T. at
166). At this point in his testimony, Appellant's counsel objected on the basis of
relevance. (N.T. at 167). Therefore, this Court finds that with respect to Mr. Wagner he
has preserved the relevance issue for appeal.
Pennsylvania Rule of Evidence 401 reads as follows:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and
(b) the fact is of consequence in determining the action.
The Pennsylvania Supreme Court has interpreted Rule 401 to mean: Evidence is
considered relevant if it logically tends to establish a material fact in the case, tends to
make the fact at issue more or less probable, or supports a reasonable inference or
presumption regarding the existence of a material fact. Commonwealth v. Lacava, 542
Pa. 160, 17 4, 666 A.2d 221, 227-28 (1995). "Evidence that merely advances an
inference of a material fact may be admissible, even where the inference to be drawn
stems only from human experience" Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d
373, 376 (1998)(emphasis in original).
For each of the charges in this matter the Commonwealth was required to prove
the fact that Appellant used some form of deception, misleading statements or false
impression to achieve the end result of obtaining safety and emissions inspection
stickers for improper use. Upon consideration of the context of Mr. Wagner's testimony
on the subject, it is clear that the purpose was to give an estimate of the amount based
on his employment experience of the average amount of stickers usually purchased by
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a shop of comparable size, specifically 10-300. Mr. Wagner provided his opinion that
Appellant's request of 7,000 stickers was unusual and the first time he had encountered
such a request. (N.T. at 147; 162-163; 166-167).
When Appellant was questioned about the unusual nature of his large request,
he gave different stories to Mr. Bittinger and Ms. Barnhill regarding the reason why
Valley Auto needed so many stickers. (N.T. at 178; 194). Viewing Mr. Wagner's
testimony in the context of the ever changing stories given to explain why such a large
quantity of stickers was needed in light of the criminal elements the Commonwealth was
required to prove, Mr. Wagner's testimony about the highly unusual nature of the
transaction based on his years of experience advanced the inference that Appellant's
representation to PennDOT were false impressions or outright misleading. The
evidence is clearly relevant to the jury's determination of the false nature of Appellant's
representations during the transaction. Therefore, this Court properly admitted the
challenged testimony.
This Court was also required to determine whether relevant evidence is more
probative than prejudicial. Appellant argues that the challenged testimony is more
prejudicial than probative, but does not point out in what way it is prejudicial. Once
evidence is determined to be relevant, it may be admitted into the record unless
otherwise excluded by statute or rule of law. (Pa.R.E. 402).10 In addition, "The court
may exclude relevant evidence if its probative value is outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading the jury,
10
All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant
is not admissible. (Pa.R.E. 402).
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undue delay, wasting time, or needlessly presenting cumulative evidence." (Pa.R.E.
403).
As explained by the Superior Court, "The comment to Pa.R.E. 403 instructs that:
'Unfair prejudice' means a tendency to suggest decision on an improper basis or to
divert the jury's attention away from its duty of weighing the evidence impartially.
However, evidence will not be prohibited merely because it is harmful to the defendant.
Exclusion is limited to evidence so prejudicial that it would inflame the jury to make a
decision based upon something other than the legal propositions relevant to the case."
Commonwealth v. Antidormi, 2014 PA Super 10, 84 A.3d 736, 750 appeal denied, 95
A.3d 275 (Pa. 2014)(internal citations and quotation marks omitted).
As stated above, review of the record reveals that Appellant's counsel merely
cited relevance as his basis for the objection to Mr. Wagner's testimony and did not
argue to this Court why the evidence was more prejudicial than probative. Nonetheless,
upon application of the legal standards set forth in Pa.R.E. 403, this Court fails to see
how Mr. Wagner's testimony which was based on his long time work experience created
"unfair prejudice" in any way. There was nothing confusing or inflammatory about Mr.
Wagner relaying his professional experience to the jury; rather, it provided a fact upon
which the jury could make a comparison and credibility determination when deliberating
on the reasons given by Appellant as to why such a large amount of stickers were
necessary for Valley Auto.
Next, the Appellant claims that the Commonwealth failed to present sufficient
evidence at trial to prove that he did the following: made a false, misleading, or material
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statement; agreed with the co-defendant(s) to engage in conduct which constitutes a
crime or an attempt or solicitation to commit a crime; intended to commit conspiracy;
received property or intended to receive property by deception; or, knew the check
would not be honored. However, Appellant also challenges the jury's verdict contending
that it was against the weight of the evidence to such an extent so as to shock one's
sense of justice. Accordingly, this Court must analyze the weight of the evidence issue
first as it is well established that "when a defendant motions for a new trial based on a
weight of the evidence claim, he concedes that sufficient evidence exists to sustain the
jury's verdict." Commonwealth v. Rosetti, 863 A.2d 1185, 1191-1192 (Pa. Super. 2004).
Appellant argues that the verdict is against the weight of the evidence because
the Commonwealth never showed that: Appellant was associated with the business in
question, agreed with the co-defendant(s) to engage in the conduct which constitutes a
crime or an attempt or solicitation to commit a crime; intended to commit conspiracy; or,
any false or misleading statement was put forth regarding the business or obtaining the
emission/inspection stickers. With respect to a weight of the evidence challenge, our
Supreme Court has stated that:
A motion for a new trial alleging that the verdict was against the weight of
the evidence is addressed to the discretion of the trial court. An appellate
court, therefore, reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the evidence. The
fact finder is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. The trial court will award a new
trial only when the jury's verdict is so contrary to the evidence as to shock
one's sense of justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge's discretion was
properly exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion. Thus, the trial
court's denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.
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Commonwealth v. Weathers, 95 A.3d 908 (Pa. Super. 2014) citing Commonwealth v.
~' 597 Pa. 28, 949 A.2d 873, 879-80 (Pa.2008) (internal citations omitted).
Relying upon Rosetti, supra., this Court finds that by making a weight of the
evidence argument with respect to agreeing with co-defendant(s) to engage in conduct
which constitutes a crime or an attempt or a solicitation to commit a crime; the intent to
commit a conspiracy; and, providing false or misleading statements regarding the
business or obtaining the emissions/inspection stickers, he concedes that sufficient
evidence was presented at trial to sustain the jury's verdict. Therefore, this Court finds
that the evidence with respect to these trial issues was sufficient and it is unnecessary
to address those issues in this opinion.
Turning to the weight of the evidence analysis, it is not clear to which particular
charge Appellant is attributing his argument. From what we can discern, it appears that
Appellant is generally contending that the weight of the evidence presented by the
Commonwealth is so meager that it did not connect him to any agreement with the three
individuals who used Valley Auto as a sham to give a false impression to PennDOT that
they were starting an inspection station to obtain vehicle safety and emissions
inspection stickers for their own improper use. A review of the record reveals ample
evidence from which the jury could infer action on the part of Appellant to support the
verdicts rendered.
Regarding Appellant's connection with the business, a review of Mr. Boykin's
testimony as a whole makes clear that he was involved in each step of the process of
establishing Valley Auto as a licensed certified inspection station whether taking his own
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individual action or acting along with Mr. Boykin and the third man identified as
Nathaniel. Appellant took the following steps in the certification process which directly
link him with the business: approached Boykin along with Nate to propose starting the
business; went along with Boykin to set up a business account; sought out and
purchased the necessary tools to comply with PennDOT program regulations; obtained
and completed the application for certification; had his name on the certification as the
Vice President of Valley Auto; participated in the completion of the Penn DOT paperwork
and check writing to purchase the stickers; and, took possession of the stickers upon
their return to Philadelphia. (N.T. at 90-98; 120-127; 131-132).
Mr. Hawkins' testimony also supports the jury's finding of Appellant's association
with the business. According to Mr. Hawkins, Appellant was part of each on-site review
in the certification process, was on the PennDOT documents as the Vice President of
Valley Auto, and his conversations were split 50/50 between Boykin and Appellant.
(N.T. at 58; 64; 76). Finally, Mr. Boykin, Mr. Wagner, Mr. Bittinger and Ms. Barnhill all
identified Appellant as an individual in the security video participating in the purchasing
of vehicle inspection stickers on behalf of Valley Auto. (N.T. at 107-108; 111; 152-160;
175-182). Given that the evidence established Appellant's uninterrupted participation in
the scheme that culminated in the purchase of inspection stickers for a sham business,
the jury's guilty verdict that he intended to commit a crime and was involved in the
solicitation of Boykin into the conspiracy does not shock one's sense of justice.
In addition, the evidence clearly established that Appellant actions and words
amounted to several false statements and misrepresentations. Appellant filled out the
order form at PennDOT on which he represented that Valley Auto was a legitimate
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business entity created for the purpose of performing vehicle safety inspections. At trial
it was established that Appellant filled out paperwork to have the garage certified and
met with Mr. Hawkins during the certification process. (N.T. at 57-59). He also filled out
the check at PennDOT which Boykin signed to finalize the purchase. (N.T. at 182-184).
Mr. Bittinger and Ms. Barnhill testified to the stories Appellant gave him in response to
his inquiry as to why they needed such a large amount of stickers. (N.T. at 194-195).
First he said that the business would be servicing a fleet of rental cars, then he said that
the neighborhood residents were awaiting the reopening of Valley Auto so a group of
customers had already been formed. Finally, Testimony of Mr. Boykin, Mr. Hawkins
and Trooper Berstler established that no vehicle inspections were ever conducted at
Valley Auto and, further, inspection stickers from the lot purchased by Appellant and his
associates were recovered after the serial numbers were entered into CLEAN-NCIC.
(N.T. at 68-69; 71-74; 112-113; 213). Again, based on a review of the evidence
presented by the Commonwealth, this Court finds that the jury's finding that Appellant
presented false statements and/or misrepresentations to obtain the inspection stickers
improperly for an unlawful use does not shock one's sense of justice.
The remaining sufficiency claim pertains to whether the Commonwealth proved
that Appellant knew the check passed to PennDOT would not be honored. The
Superior Court has stated that the standard of review when an appellant is challenging
the sufficiency of the evidence is well established:
" ... 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
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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.
******
This standard is equally applicable to cases where the evidence is
circumstantial rather than direct so long as the combination of the
evidence links the accused to the crime beyond a reasonable doubt.
Although a conviction must be based on more than mere suspicion or
conjecture, the Commonwealth need not establish guilt to a mathematical
certainty." Commonwealth v. Antidormi, 2014 PA Super 10, 84 A.3d 736,
756 (Pa. Super. 2014)(internal citations and quotation marks omitted).
To prove the offense of bad checks, the Commonwealth must show that a
defendant. " ... issue[d] or passe[d] a check or similar sight order for the payment of
money, knowing that it will not be honored by the drawee." 18 Pa.C.S. §4107(a).
Viewing the evidence of record in light of the verdict winner, specifically the
Commonwealth, the totality of the circumstantial evidence supports the guilty verdict on
the bad checks charge. Mr. Boykin testified that the business account had been
opened with only $50 which he had deposited. Appellant filled out and presented the
check signed by Boykin who made clear that he was being directed throughout the
entire purchase process including the amount of stickers ordered. The security video
clearly supports this testimony. It is undisputed that the check was dishonored. (N.T. at
211-212). In addition, as the evidence of presented dispelled any notion that Valley
Auto was ever going to be a viable, legitimate business, it defies logic to argue that
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Appellant thought there was $8,000 in an account for a non-existent business when the
check was presented to PennDOT.
Finally, Appellant challenges the fine imposed by this Court as he contends it is
excessive and unreasonable. With respect to the propriety of a fine our courts have
found that:
"Excessive bail shall not be required nor excessive fines imposed, nor
cruel punishments be inflicted"; see Commonwealth v. Strunk, 400
Pa.Super. 25, 582 A.2d 1326 (1990) (" 'A punishment is considered
"excessive" and therefore unconstitutional if it ... (2) is grossly out of
proportion to the severity of the crime.' " Id. at 36, 582 A.2d at 1331,
quoting Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982(1977))." Com. v. Heggenstaller, 699 A.2d 767, 769 (Pa. Super. Ct.
1997).
Additionally, "[T]he primary purpose of a fine or a penalty is twofold[:] to punish violators
and to deter future or continued violations. Since it serves not only as a punishment but
also as a deterrent, the amount of the fine can be raised to whatever sum is necessary
to discourage future or continued violations, subject, of course, to any restriction
imposed on the amount of the fine by the enabling statute or the Constitution." Com. v.
Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014).
In the instant matter, Appellant was convicted of four third degree felonies.
Pursuant to statute, the maximum fine which may be imposed for a single third degree
felony is $15,000. The aggregate amount of fines imposed in this matter is $7,800 for
four third degree felonies, an amount equal to a little over one-half of the possible fine
for one count. (N.T., Sentencing, 10/17/14 at 8)(emphasis added). Additional important
factors considered by this Court included the $8,000 check issued to PennDOT that
bounced for which Mr. Boykin paid restitution; Appellant's history of convictions for
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financially fraudulent activity including his prior record score of 5 and the fact that he
was on federal probation at the time of sentencing; and finally, the considerable public
safety concern raised by the fact that vehicle inspection stickers were disseminated to
the public for vehicles that were likely hazards on the road. (N.T., Sentencing at 3-8).
In view of the circumstances of Appellant's crimes and the other factors a sentencing
Court may and should consider in fashioning a sentence, the $7,800 fine is far from
excessive and hopefully will serve the purpose of deterring similar behavior in the future
as intended by the law.
MEMORANDUM DATE: 4/_' ( 2-1, 2-or S-
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Abby N. Trovinger, Esq., Deputy District Atty., Dauph. Co. I{)
Jonathan R. White, Esq., Asst. Public Defender, Dauph. Co. iO
Clerk of Courts CG
--
Superior Court Prothonotary 01 Ct ) \
Court Admin. - Crim. )0 ·
FILE - Judge Lewis \ ()
33