Com. v. Geddes-Kelly, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JALEEL GEDDES-KELLY :
:
Appellant : No. 1348 MDA 2022
Appeal from the Judgment of Sentence Entered July 12, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003794-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 20, 2023
Jaleel Geddes-Kelly appeals from the judgment of sentence entered
following his convictions for numerous offenses: corrupt organizations;
conspiracy to violate corrupt organizations laws; conspiracy to commit access
device fraud; dealing in proceeds of unlawful activities (promoting or carrying
out unlawful activity); dealing in proceeds of unlawful activities (knowledge
that property obtained is stolen or illegally obtained property); two counts of
identity theft; theft by deception; access device fraud (publishes, makes, sells,
gives or otherwise transfers to another); and access device fraud (possession
with knowledge that such access device is counterfeit, altered, or
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incomplete).1 Geddes-Kelly’s counsel has filed an Anders2 brief and a motion
to withdraw as counsel, and Geddes-Kelly has filed a pro se response. We deny
the petition and order the filing of a merits brief.
The trial court summarized the facts as follows:
David R. Fones testified that as an investigation specialist for
Ahold, USA, the parent company of Giant Food Stores, he reviews
and investigates large scale fraud and scams which impact the
company’s profit. (Transcript of Proceedings,: Jury Trial, “N.T.”
pp. 20-21). Mr. Fones began investigation in the instant case
based upon a pattern of fraudulent credit card use to purchase gift
cards in late 2016. (N.T. p. 21). The stores’ asset protection
division informed Mr. Fones that an African American female
conducted repeated transactions of purchase of large quantities of
gift cards in denominations of $100-$500. The stores’ data
analysis platform identified and notified Ahold of a large number
of fraudulent credit card transactions. Id. The stores collected
photos and videos of the female, later identified as Tammy
Gibson, and two African American males. (N.T. p. 22). The stores
obtained Ms. Gibson’s name by requesting identification from her
at the time of a large gift card purchase. (N.T. p. 23).
Ahold utilizes a data collection platform, Shrink Trax, which
records receipts from any individual along with the last four digits
of the credit card used. Id. Another platform Ahold utilizes collects
information as to the entire credit card number. Id. Based upon
the report from the stores’ asset protection division, Mr. Fones
prepared a 128-page spread sheet which tracked fraudulent
activity in the instant case. (N.T. p. 24; Commonwealth Exhibit
1). The spread sheet included the MasterCard number utilized, the
requested amount, the store number, identification of the register
and clerk, and the total amount of the transaction. (N.T. pp. 25).
The information was provided by several sources: the store asset
protection team, the customer service departments, Shrink Trax,
____________________________________________
1 18 Pa.C.S.A. §§ 911(b)(3), 911(b)(4), 903, 5111(a)(1), 5111(a)(2),
4120(a), 3922(a), 4106(a)(2), and 4106(a)(3), respectively.
2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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and the credit card processor. (N.T. p. 26). Mr. Fones linked the
transactions to Ms. Gibson by retrieving and reviewing videos and
photographs in conjunction with the other data collected. (N.T. p.
27). Mr. Fones also created Commonwealth Exhibit 2, a report
based upon all transactions of Ms. Gibson, date by date, at various
Giant Food Stores throughout central Pennsylvania. (N.T. pp. 28-
30). Nearly all the transactions were in the amount of $505.95.
Id. In all these instances, the credit card company, Capital One,
notified Giant that the charges were fraudulent. (N. T. p. 31).
In late December 2016 or early January 2017, Mr. Fones began
receiving instantaneous alerts from the stores’ credit card
processor, Blackhawk, of multiple instances of $500 charges in a
particular store in a short time period. (N.T. p. 32). The same
pattern of transactions took place in numerous Giant Food Stores
in Pennsylvania. (N.T. pp. 33-36). Capital One declined some
transactions as fraudulent. In other instances, Capital One
declined charges identified by the cardholder as fraudulent. Id.Mr. Fones filed charges with Pennsylvania State Police for Ms.
Gibson’s use of card in one instance in the amount of $12,000.
(N.T. P. 36).
Mr. Fones also filed charges with Lower Paxton Township Police
relating to an occurrence on February 14, 2017. (N.T. p. 37).
Ultimately, police arrested Ms. Gibson based upon the information
Mr. Fones provided. (N.T. p. 38; Commonwealth Exhibit 3).
Screen shots and video footage of transactions depicted Ms.
Gibson presenting what were determined to be cloned credit cards
at the register or at the customer service desk to purchase gift
cards. (N.T. p. 39). Initially, Ms. Gibson was the focus of the
investigation. Id. However, video footage included [Geddes-Kelly]
and the driver of the vehicle from which Ms. Gibson exited, later
identified as Joselito Joseph. (N.T. pp. 40-42; N.T. p. 51). Video
footage depicted [Geddes-Kelly] purchasing money orders.
Research into the internal systems which documented the
purchases reflected Ms. Gibson and [Geddes-Kelly] using cloned
credit cards numerous times to purchase gift cards. (N.T. pp. 43-
45). Data and screen shots evidenced [Geddes-Kelly’s] use of a
debit card to purchase money orders in the amount of $499.59
(N.T. pp. 46-50). Some surveillance videos depicted Joselito
Joseph or [Geddes-Kelly] standing near Ms. Gibson at a register
or customer service during a transaction, appearing to watch Ms.
Gibson. (N.T. pp. 51-53).
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On February 14, 2017, Mr. Fones received an alert from the Giant
Foods Corporate office of multiple purchases of gift cards over
$500 at two Harrisburg stores by a person believed to be Tammy
Gibson. (N.T. p. 56). Mr. Fones contacted the store manager to
determine if the person buying the gift cards was first inserting
the chip, then swiping the card. Mr. Fones asked the store
manager for a description of the person. (N.T. pp. 56-57). Based
upon the store locations of activity tracked, Mr. Fones expected
that Ms. Gibson would next go to the Giant Store in Upper Allen
Township. (N.T. p. 57). He soon received a call from the store
manager that Ms. Gibson was in that store. Id.Mr. Fones went to the Upper Allen Township store and approached
Ms. Gibson at the customer service area and called her by name.
(N.T. p. 58; p. 59). Mr. Fones recognized her as the same person
depicted in the stores’ video surveillance. (N.T. p. 62). Mr. Fones
told Ms. Gibson that he was from the corporate office, that he
knew what she was doing, and that she had been in the New
Cumberland store buying gift cards. Id. When asked how she got
to the store, Ms. Gibson stated that she came with her brother in
a red car, which Mr. Fones knew to be false. Id. When asked if
she would cooperate with him, Ms. Gibson responded that she
would not. Id. She did provide her driver’s license. Mr. Fones told
her that police were on their way. Id. [A]lthough Mr. Fones
attempted to block Ms. Gibson from leaving the store, she exited
and got into a vehicle of which Joselito Joseph was the driver and
[Geddes-Kelly] the passenger. (N.T. p. 60). The vehicle sped away
as Upper Allen police cars pursued. (N.T. p. 62).
Ms. Gibson’s fraudulent charge by which she purchased gift cards
was typically made with a cloned card whereby the magnetic strip
on the card contained the real cardholder’s number but not a real
chip. (N.T. p. 64). Ms. Gibson utilized the card by first inserting
the chip, which was not accepted, then swiping the card, which
enabled the sale card number to be read and accepted. (N.T. p.
65). Giant’s Shrink Trax, ACI, and Blackhawk systems captured
transaction data by which Mr. Fones and law enforcement entities
pinpointed the purchase of the gift card with the cloned card, the
full gift card number, and how the gift card was used. (N.T. p. 63).
On December 24, 2016, Ms. Gibson conducted fraudulent credit
card transactions. Surveillance footage and corresponding Shrink
Trax and ACI data tracked [Geddes-Kelly] making the same type
of purchases of gift cards at other Giant locations. (N.T. pp. 74-
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76). An unknown white female sometimes accompanied [Geddes-
Kelly]. Id.***
Ms. Gibson testified that she met [Geddes-Kelly] through a friend
who knew [Geddes-Kelly]. (N.T. pp. 82-83). The friend asked if
Ms. Gibson was “still [doing credit cards]”. Ms. Gibson had never
previously met [Geddes-Kelly] before he called her to arrange to
pick her up at her house. (N.T. pp. 84). Before he picked her up,
Ms. Gibson gave [Geddes-Kelly] her name. Another person
accompanied [Geddes-Kelly] when he picked her up. (N.T. p. 85).
Ms. Gibson identified [Geddes-Kelly] in the courtroom as the
person who picked her up. Id. [Geddes-Kelly] told Ms. Gibson that
they were going to the Giant stores because they were the only
stores accepting the type of credit cards [Geddes-Kelly] was
using. (N.T. p. 87). [Geddes-Kelly] gave Ms. Gibson credit cards
bearing her name. Id. She understood that she would be able to
use the cards by swiping them. (N.T. p. 97).
On five to ten occasions between December 2016 and February
2017, [Geddes-Kelly] picked up Ms. Gibson and provided her with
credit cards. (N.T. p. 88; N.T. p. 101). The runs always took place
with use of a rental car. (N.T. p. 102). [Geddes-Kelly] would
instruct Ms. Gibson to enter the store and buy gift cards in the
amount of $500. (N.T. p. 89; N.T. p. 102). The first time Ms.
Gibson went into a store to conduct a fraudulent transaction,
[Geddes-Kelly] accompanied her. Id. [Geddes-Kelly] did not
speak to her while she was in the store. (N.T. p. 102). After the
transactions, Ms. Gibson received compensation with cash or
cards. (N.T. p. 90).
[Geddes-Kelly] and Joselito Joseph did not swipe cards, but
rather, purchased money orders. (N.T. pp. 90-91). When shown
Commonwealth Exhibits 5A and 8, Ms. Gibson identified [Geddes-
Kelly] as the person buying money orders. Id. Ms. Gibson
identified the other person in the photographs as the person who
drove the vehicle when [Geddes-Kelly] picked her up. (N.T. pp.
92-93). Ms. Gibson identified [Geddes-Kelly] in photographs
conducting transactions accompanied by an unknown female.
(N.T. p. 93).
Ms. Gibson testified regarding the incident on February 14, 2017,
during which Mr. Fones confronted her regarding the fraudulent
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credit cards. (N.T. p. 94). [Geddes-Kelly] was in the store at the
same time. Id. During the entire confrontation with Mr. Fones,
Ms. Gibson spoke on the phone with [Geddes-Kelly]. (N.T. p. 95).
[Geddes-Kelly] told Gibson that he had left the parking lot and
drove to another location where she was to meet them. Id. When
she located [Geddes-Kelly] and Joselito Joseph and got into the
car, she gave the credit cards to [Geddes-Kelly]. (N.T. p. 96).
[Geddes-Kelly] cut them up using scissors he had in the car and
threw them out the window. (N.T. p. 96; p. 106). Police were
unable to stop them. Id. After the incident, Ms. Gibson, and
Joselito Joseph went to eat then switched to a different vehicle.
(N.T. p. 97).
The Commonwealth also called as a witness Michael A. Car[l]son,
a special agent with the Pennsylvania Office of the Attorney
General. Mr. Fones provided Agent Car[l]son with a list of credit
card numbers fraudulently used in Giant Food Stores. (N.T. p.
115). Agent Car[l]son testified regarding Commonwealth Exhibit
42, which listed fraudulently used Capital One cards identified by
Mr. Fones[’] investigation and reports from Capital One. Id.Capital One’s charges back to Giant Food Stores for fraudulent
purchase totaled $45,183.88. (N.T. p. 116; Exhibit 43).
With the gift card numbers provided to him by Mr. Fones, Agent
Car[l]son obtained from Blackhawk information as to when and
where the gift card was purchased, the amount of the gift card,
and where it was spent. (N.T. p. 118). Agent Car[l]son utilized
that information to link the gift card to the purchase transactions
at Giant. (N.T. pp. 119-121). Agent Car[l]son then correlated that
information to still photographs of Tammy Gibson making gift card
purchase with a credit card determined fraudulent. (N.T. p. 119).
[Geddes-Kelly] appeared in some of those photographs with Ms.
Gibson. Id.Agent Car[l]son tracked the number on Western Union money
orders which were paid to the order of [Geddes-Kelly] to an
address of 1000 Grant Street, Hazleton, Pennsylvania. (N.T. pp.
121- 122). The Western Union money orders were deposited to a
TD Bank account bearing the name Jaleel Geddes-Kelly, with an
address in Cambria Heights, New York. (N.T. p. 122).
Commonwealth Exhibit 54 listed the money orders deposited into
[Geddes-Kelly’s] bank account. (N.T. pp. 123-125;
Commonwealth Exhibit 54).
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In addition, Agent Car[l]son obtained information from U.S. Bank
of two gift card purchases made by Ms. Gibson and [Geddes-Kelly]
at Giant Food Stores. (N.T. p. 127; Commonwealth Exhibit 50).
Those cards were used in Pottsville, Pennsylvania to purchase
money orders. (N.T. pp 128- 130; pp. 133-136; Commonwealth
Exhibit 50).
Trial Court Opinion, filed 12/21/22, at 5-11 (footnote omitted).
A jury found Geddes-Kelly guilty of the above-mentioned offenses. The
court imposed an aggregate sentence of 60 to 120 months’ incarceration and
imposed restitution. Geddes-Kelly filed a post-sentence motion, in which he
alleged that the court erred in failing to determine his eligibility for the
Recidivism Risk Reduction Incentive (“RRRI”) program. He also requested a
modification of his sentence claiming that the court’s imposition of consecutive
standard-range sentences was unduly harsh and excessive. The court held a
resentencing hearing solely on the issue of Geddes-Kelly’s eligibility for RRRI.
After the resentencing hearing, the court found that Geddes-Kelly was eligible
for RRRI and modified the sentence accordingly. The remainder of Geddes-
Kelly’s sentence was unchanged. This appeal followed.
Counsel’s Anders brief identifies three potential issues: (1) a challenge
to the sufficiency of the evidence; (2) a challenge to the weight of evidence;
and (3) a challenge to the legal and discretionary aspects of sentence. See
Anders Br. at 26. Geddes-Kelly’s pro se response to counsel’s Anders brief
raises an additional challenge that his prosecution for the offense of identity
theft was barred by the statute of limitations. See Pro Se Letter, filed 4/21/23,
at 1 (unpaginated).
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Before reviewing counsel’s Anders brief, we must first determine
whether counsel has satisfied the necessary requirements for withdrawing as
counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc) (stating that “[w]hen faced with a purported Anders brief,
this Court may not review the merits of any possible underlying issues without
first examining counsel’s request to withdraw”). In order to withdraw pursuant
to Anders, counsel must: 1) petition the court for leave to withdraw stating
that, after a conscientious examination of the record, counsel has determined
that the appeal would be frivolous; 2) furnish a copy of the brief to the client;
and 3) advise the client that he or she has the right to retain other counsel or
proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032
(Pa.Super. 2013) (en banc).
Further, in the Anders brief, counsel seeking to withdraw must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361. If counsel meets the above obligations, “it then
becomes the responsibility of the reviewing court to make a full examination
of the proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Id. at 355 n.5 (quoting Commonwealth
v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).
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Here, we find that counsel has complied with the above requirements.
In his Anders brief, counsel has provided a summary of the procedural and
factual history of the case with citations to the record. Further, counsel’s brief
identifies three issues that could arguably support the appeal, as well as
counsel’s assessment of why the appeal is frivolous, with controlling case law
and citations to the record. Additionally, counsel served Geddes-Kelly with a
copy of the Anders brief and advised him of his right to proceed pro se or to
retain a private attorney to raise any additional points he deemed worthy of
this Court’s review. See Motion to Withdraw, 3/20/23, at ¶ 5. As counsel has
met the requirements of Anders and Santiago, we will proceed to the issues
counsel has identified.
Sufficiency of the Evidence:
The first issue raised in counsel’s Anders brief presents a challenge to
the sufficiency of the evidence supporting Geddes-Kelly’s convictions. Our
standard of review when reviewing a challenge to the sufficiency of the
evidence is de novo, while “our scope of review is limited to considering the
evidence of record, and all reasonable inferences arising therefrom, viewed in
the light most favorable to the Commonwealth as the verdict winner.”
Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). “Evidence will
be deemed sufficient to support the verdict when it establishes each material
element of the crime charged and the commission thereof by the accused,
beyond a reasonable doubt.” Commonwealth v. Widmer, 744 A.2d 745,
751 (Pa. 2000). The Commonwealth may sustain its burden by means of
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wholly circumstantial evidence. Commonwealth v. Dix, 207 A.3d 383, 390
(Pa.Super. 2019). Further, the trier of fact is free to believe, all, part, or none
of the evidence presented. Commonwealth v. Beasley, 138 A.3d 39, 45
(Pa.Super. 2016). “[T]his Court may not substitute its judgment for that of
the factfinder, and where the record contains support for the convictions, they
may not be disturbed.” Commonwealth v. Smith, 146 A.3d 257, 261
(Pa.Super. 2016).
Initially, we observe that although counsel’s Anders brief challenges
the sufficiency of the evidence as to all Geddes-Kelly’s convictions, Geddes-
Kelly’s Rule 1925(b) statement only challenges the sufficiency of the evidence
as to his convictions for dealing with proceeds of unlawful activities, access
device fraud, and identity theft. Therefore, a challenge to the sufficiency of
the evidence as to Geddes-Kelly’s remaining convictions was not preserved
and ordinarily would be deemed waived. See Pa.R.A.P. 1925(b)(4)(vii); see
also Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) (stating
that an issue challenging the sufficiency of the evidence is waived when the
Rule 1925(b) statement fails to specify the element or elements upon which
the evidence was insufficient).
Nevertheless, “[p]ursuant to Anders, this Court must review the merits
of all claims set forth in an Anders brief in order to determine whether to
grant counsel’s petition to withdraw from representation, despite the fact that
the issues have been waived.” Commonwealth v. Bishop, 831 A.2d 656,
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659 (Pa.Super. 2003). Thus, we will address a challenge to the sufficiency of
the evidence as to all of Geddes-Kelly’s convictions.
Access Device Fraud:
The first issue that counsel has identified is a claim that the
Commonwealth failed to establish that he and his co-conspirators used the
credit cards without the owners’ consent, as required to sustain a conviction
for access device fraud.
Under the subsection for which Geddes-Kelly was prosecuted, a person
commits access device fraud if he:
publishes, makes, sells, gives, or otherwise transfers to another,
or offers or advertises, or aids and abets any other person to use
an access device knowing that the access device is counterfeit,
altered or incomplete, belongs to another person who has not
authorized its use, has been revoked or canceled or for any reason
is unauthorized by the issuer or the device holder[.]
18 Pa.C.S.A. § 4106(a)(2).
Agent Carlson of the Pennsylvania Attorney General’s Office testified
that the owners of the credit cards that were used in the transactions at issue
reported to Capital One that their cards were fraudulently used. N.T. Trial,
4/4/22, at 115-117. He stated that Capital One then provided him with
information as to who the actual card owners were by the information on the
magnetic strips of the cards. Id. at 116. In view of the testimony that the card
owners had reported the transactions as fraudulent, there is no reasonable
basis on which to argue that the Commonwealth did not prove that they were
made without the consent of the card owners.
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Theft by Deception:
The next issue identified by counsel is a claim that there was insufficient
evidence to support Geddes-Kelly’s conviction for theft by deception. Theft by
deception is defined, in relevant part:
(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[.]
18 Pa.C.S.A. § 3922(a)(1).
The Commonwealth charged Geddes-Kelly with theft by deception as
follows: “Defendant intentionally obtained Visa gift cards from GIANT, valued
in excess of $2,000, by using fraudulent/cloned credit cards belonging to other
persons, in violation of 18 Pa. C.S.[A.] 3922(a)(1).” Information, filed
10/26/20, at 2.
Counsel claims that a challenge to the sufficiency of the evidence on the
offense of theft by deception is frivolous. However, upon review of the record,
we cannot agree that this issue is wholly frivolous. Contrary to what Geddes-
Kelly was charged with in the Information, the evidence at trial was that
Geddes-Kelly never purchased the gift cards. See N.T. Trial, 4/4/22, at 72,
144. Rather, Gibson and another unknown female were the ones who
purchased the gift cards using the fraudulent credit cards. See id. at 72-74,
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144. It may be that the evidence established that he was the ultimate recipient
of the gift cards, or, as the Anders brief suggested, that the Commonwealth
argued and established liability as an accomplice or his presence established
that he “intentionally obtain[ed] or with[e]ld[] property.” Anders Br. at 32.
However, based on the arguments before us, it cannot be said that the claim
that his theft by deception conviction is based on insufficient evidence is wholly
frivolous, that is, that it “lacks any basis in law or fact.” Santiago, 978 A.2d
at 356. Accordingly, we must deny counsel’s request to withdraw and remand
for the filing of an advocate’s brief on this issue. See Commonwealth v.
Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (stating “if there are non-
frivolous issues, we will deny the petition and remand for the filing of an
advocate’s brief”); see also Commonwealth v. Yorgey, 188 A.3d 1190,
1197 (Pa.Super. 2018) (en banc) (finding that this Court “need not analyze
those issues of arguable merit; just identify them, deny the motion to
withdraw, and order counsel to analyze them.”).
Identity Theft:
The next issue identified is a claim that there was insufficient evidence
to establish the offense of identity theft when the Commonwealth failed to
establish evidence that there was non-consensual use of identifying
information by actual people.
The offense of identity theft is defined as follows:
(a) Offense defined. -- A person commits the offense of identity
theft of another person if he possesses or uses, through any
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means, identifying information of another person without the
consent of that other person to further any unlawful purpose.
18 Pa.C.S.A. § 4120(a). The statute further defines “identifying information”
as:
Any document, photographic, pictorial or computer image of
another person, or any fact used to establish identity, including,
but not limited to, a name, birth date, Social Security number,
driver's license number, nondriver governmental identification
number, telephone number, checking account number, savings
account number, student identification number, employee or
payroll number or electronic signature.
18 Pa.C.S.A. § 4120(f). Further, to establish the offense of identity theft, the
Commonwealth must prove that the names at issue were actual people and
not merely fictitious names. See Commonwealth v. Ballard, 244 A.3d 815,
821 (Pa.Super. 2020).
Here, the Commonwealth presented sufficient evidence that the credit
cards used in the transactions at issue belonged to actual Capital One
customers and had “real” cardholders’ numbers on the magnetic stripes of the
cards. See N.T. Trial, 4/4/22, at 64, 116-17. Thus, Geddes-Kelly’s claim is
without merit.
Dealing in Proceeds of Unlawful Activities:
The next issue identified in counsel’s Anders brief is that the
Commonwealth failed to prove the offense of dealing in proceeds of unlawful
activities pursuant to 18 Pa.C.S.A. § 5111.
Dealing in proceeds of unlawful activities is defined, in relevant part:
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(a) Offense defined.--A person commits a felony of the first
degree if the person conducts a financial transaction under any of
the following circumstances:
(1) With knowledge that the property involved, including
stolen or illegally obtained property, represents the
proceeds of unlawful activity, the person acts with the intent
to promote the carrying on of the unlawful activity.
(2) With knowledge that the property involved, including
stolen or illegally obtained property, represents the
proceeds of unlawful activity and that the transaction is
designed in whole or in part to conceal or disguise the
nature, location, source, ownership or control of the
proceeds of unlawful activity.
18 Pa.C.S.A. § 5111(a)(1)-(2).
The statute defines a “financial transaction” as: “[a] transaction
involving the movement of funds by wire or other means or involving one or
more monetary instruments. The term includes any exchange of stolen or
illegally obtained property for financial compensation or personal gain.” 18
Pa.C.S.A. § 5111(f). The same subsection defines “unlawful activity” as “[a]ny
activity graded a misdemeanor of the first degree or higher under Federal or
State law.” Id. “Section 5111 thus presents explicit language which clearly
defines unlawful activity as any felony or first degree misdemeanor, and
targets the dealing in proceeds derived from any of those various illegal
activities.” Commonwealth v. Barnhart, 722 A.2d 1093, 1096 (Pa.Super.
1998).
Here, the evidence demonstrated that Geddes-Kelly conducted a
“financial transaction,” as that term is explicitly defined to include “any
exchange of stolen or illegally obtained property for financial compensation or
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personal gain.” 18 Pa.C.S.A. § 5111(f). The property at issue was gift cards,
which were illegally obtained through the unauthorized use of credit cards.
Geddes-Kelly then purchased money orders that were deposited into his bank
account. Further, the evidence satisfied Section 5111’s element of “unlawful
activity.” Geddes-Kelly unlawfully took other people’s credit card information
to conduct these transactions, and it was done with the intent to promote the
carrying on of the unlawful activities. Accordingly, this insufficiency claim fails.
Corrupt Organizations and Conspiracy:
The next issue presented is a claim that there was insufficient evidence
to support Geddes-Kelly’s conviction for corrupt organizations and the related
conspiracy conviction.
Geddes-Kelly was convicted of violating section 911(b)(3), which
provides:
It shall be unlawful for any person employed by or associated with
any enterprise to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of
racketeering activity.
18 Pa.C.S.A. § 911(b)(3). He was also convicted of violating section
911(b)(4), which states that it is unlawful for a person to conspire to violate
the corrupt organizations laws. 18 Pa.C.S.A. § 911(b)(4).
The term “enterprise” is defined as “any individual, partnership,
corporation, association or other legal entity, and any union or group of
individuals associated in fact although not a legal entity, engaged in commerce
and includes legitimate as well as illegitimate entities and governmental
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entities.” 18 Pa.C.S.A. § 911(h)(3). A “pattern of racketeering activity” means
“a course of conduct requiring two or more acts of racketeering activity one
of which occurred after the effective date of this section.” 18 Pa.C.S.A. §
911(h)(4). “Racketeering activity” includes the crimes of theft by deception
and dealing in proceeds of unlawful activities. 18 Pa.C.S.A. § 911(h)(1)(i).
Here, the evidence was sufficient to establish that Geddes-Kelly was
involved in an enterprise with Gibson and Joseph. These individuals conspired
and repeatedly engaged in the commerce of buying gift cards with illegally
cloned credit cards. Thus, the evidence was sufficient to support Geddes-
Kelly’s conviction for corrupt organizations and conspiracy.
Weight of the Evidence:
The next issue counsel has identified is a challenge to the weight of the
evidence. See Anders Br. at 49. However, as counsel correctly notes, such a
claim is wholly frivolous because it is waived.
A challenge to the weight of the evidence must be preserved either in a
post-sentence motion, by a written motion before sentencing, or orally prior
to sentencing. Pa.R.Crim.P. 607(A)(1)-(3). “The purpose of this rule is to
make it clear that a challenge to the weight of the evidence must be raised
with the trial judge or it will be waived.” Cmt. to Pa.R.Crim.P. 607. If an
appellant does not give the trial court the opportunity to provide relief, then
there is no discretionary act that this Court can review. See Commonwealth
v. Thompson, 93 A.3d 478, 491 (Pa.Super. 2014).
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Here, Geddes-Kelly did not raise a weight claim in his post-sentence
motion or at sentencing. He also failed to raise such a claim in his Rule 1925(b)
statement. Accordingly, this claim is waived and waived issues are deemed
frivolous for the purposes of Anders review. See Commonwealth v. Tukhi,
149 A.3d 881, 888 (Pa.Super. 2016); Pa.R.A.P. 1925(b)(4)(vii).
Sentencing Claims:
The next issues identified are challenges to the legality of Geddes-Kelly’s
sentence and claims that his offenses should have merged for sentencing
purposes. See Anders Br. at 51.
“No crimes shall merge for sentencing purposes unless the crimes arise
from a single criminal act and all of the statutory elements of one offense are
included in the statutory elements of the other offense. Where crimes merge
for sentencing purposes, the court may sentence the defendant only on the
higher graded offense.” 42 Pa.C.S.A. § 9765.
Here, as pointed out by counsel, Geddes-Kelly was convicted of offenses
that have different statutory elements and none of his offenses is a lesser
included offense of the other. Thus, the offenses did not merge and a claim
challenging the legality of Geddes-Kelly’s sentence is frivolous.
The next issue presented in counsel’s Anders brief is whether the court
abused its discretion in imposing Geddes-Kelly’s sentence. See Anders Br. at
52. This is a challenge to the discretionary aspects of his sentence. “The right
to appellate review of the discretionary aspects of a sentence is not absolute,
and must be considered a petition for permission to appeal.” Commonwealth
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v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s jurisdiction
by satisfying a four-part test: “(1) the appeal is timely; (2) the appellant has
preserved his issue; (3) his brief includes a concise statement of the reasons
relied upon for allowance of an appeal with respect to the discretionary aspects
of his sentence; and (4) the concise statement raises a substantial question
whether the sentence is inappropriate under the Sentencing Code.”
Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also
Pa.R.A.P. 2119(f) (stating that an appellant who challenges the discretionary
aspects of a sentence “shall set forth in a separate section of the brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence”).
Geddes-Kelly’s counsel has not included the requisite Pa.R.A.P. 2119(f)
statement in his Anders brief. However, “[w]here counsel files an Anders
brief, this Court has reviewed the matter even absent a separate Pa.R.A.P.
2119(f) statement. Hence, we do not consider counsel’s failure to submit a
Rule 2119(f) statement as precluding review of whether [an a]ppellant’s issue
is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.
2015) (internal citations omitted).
Nevertheless, this claim fails because he did not raise a substantial
question. In his post-sentence motion, Geddes-Kelly claimed that the
imposition of consecutive standard-range sentences was unduly harsh and
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excessive. See Post-Sentence Motion, filed 7/22/22, at ¶ 19.3 “Generally
speaking, the court’s exercise of discretion in imposing consecutive as
opposed to concurrent sentences is not viewed as raising a substantial
question that would allow the granting of allowance of appeal.”
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa.Super.
2010).
Further, in his pro se response to counsel’s Anders brief, Geddes-Kelly
additionally argues that the court “erred by not stating its reason for imposing
[j]udgment at initial sentencing or at the re-sentencing hearing.” Pro Se Letter
at 2 (unpaginated). The record belies this claim. At the initial sentencing
hearing, the court stated the following:
All right. I’ve reviewed the presentence. I’ve also reviewed the
letters from Dr. Cogan and from his I believe paramour Renata
Crossdale about her illness.
I also remember this trial. I thought the evidence was
overwhelming. There was video that was presented throughout
the trial involving the charges in question. And it was clear that
every time that the phony cards were passed and passed for
money orders, the defendant was either in the store or outside of
the store.
There’s no question that he was the individual that was running
the show. And we heard testimony from one of the individuals who
passed the phony cards and received the money and who gave it
____________________________________________
3 In his Rule 1925(b) statement, Geddes-Kelly claimed that the trial court
abused its discretion when it departed from the sentencing guidelines and
imposed an aggravated sentence. See Rule 1925(b) Statement, 11/8/22, at
¶ 4. However, in his Anders brief, counsel recognized that the court
sentenced Geddes-Kelly in the standard range of the sentencing guidelines –
not in the aggravated range – and stated that the 1925(b) statement was
“incorrectly phrased.” Anders Br. at 56 n.2.
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to him that he was, in fact, the ringleader of this. The evidence
was overwhelming, and the jury thought so and they convicted
him of these charges.
I will have some mercy because of his family situation, but I can’t
ignore the damage done. And although it is a Capital One credit
card company, it is the pure theft of $18,276.45.
It is –– there’s no question in my mind that the jury was correct
in finding him guilty of corrupt organizations because he ran it, he
had a sophisticated, in a sense, scheme. He had people who he
used to cash these phony cards, and he received the proceeds
from them.
And if it was once or twice, I don’t believe that that would amount
to the offense of corrupt organizations or conspiracy. But there
were many, many cards passed, money received. And there’s no
question that not only does he need punishment for this but
rehabilitation so that when he walks out of state prison, he’s
hopefully going to be a different person.
N.T. Sentencing, 7/12/22, at 14-15.
Moreover, the court had the benefit of a presentence report. See id. at
2. “A sentencing court’s indication that it has reviewed a presentence report
can satisfy the requirement of placing reasons for imposing the sentence on
the record.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super.
2017); see also Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa.Super. 2009) (stating “where the trial court is informed by a pre-sentence
report, it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed”).
Geddes-Kelly’s additional claim in his pro se response to counsel’s
Anders brief that the court should have stated its reasons for his resentence
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on the record at his resentencing hearing also fails. The sole issue at
resentencing was Geddes-Kelly’s eligibility for RRRI. See N.T. Resentencing,
8/31/22, at 2. The court had already stated on the record its reasons for
imposing the underlying sentence at the initial sentencing hearing.
Accordingly, Geddes-Kelly’s claim is without merit.
Statute of Limitations:
In his pro se response to counsel’s Anders brief, Geddes-Kelly claims
that his prosecution for the offense of identity theft was barred by the statute
of limitations. See Pro Se Letter at 1 (unpaginated).
A statute of limitations claim is waived when not raised at the first
available opportunity and when raised after the imposition of sentence. See
Commonwealth v. Carter, 111 A.3d 1221, 1224 (Pa.Super. 2015). Because
Geddes-Kelly did not preserve his statute of limitations claim by filing a pretrial
motion seeking dismissal of the identity theft charge, he has waived the issue
on appeal.4
Conclusion:
For the above reasons, we deny counsel’s petition to withdraw and order
counsel to file an advocate’s brief within 30 days of the date of this
memorandum. In addition to the above issue we have concluded is not
____________________________________________
4 We also observe that Geddes-Kelly failed to raise this claim in his 1925(b)
statement. Thus, we also find waiver on those grounds. See Pa.R.A.P.
1925(b)(4)(vii).
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frivolous, counsel may raise any other non-frivolous issues that he has
identified. The Commonwealth shall have 30 days from that filing to respond.
Petition to withdraw denied. Counsel is granted 30 days from the date
of this decision to file an advocate’s brief, and the Commonwealth shall have
30 days thereafter to file a responsive brief. Jurisdiction retained.
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