Com. v. Sands, A.

J-S23015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ASHLEY SANDS
Appellant No. 1453 MDA 2021
Appeal from the Judgment of Sentence Entered July 21, 2021
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000015-2020
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 17, 2022
Appellant Ashley Sands appeals from the July 21, 2021 judgment of
sentence entered in the Court of Common Pleas of Luzerne County (“trial
court”), following her jury conviction for access device fraud under Section
4106(a)(1)(ii) of the Crimes Code, 18 Pa.C.S.A. § 4106(a)(1)(ii). Upon
review, we affirm.
On February 21, 2019, Appellant was charged with, inter alia, the
foregoing crime.1 The affidavit of probable cause accompanying the complaint
alleged:
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* Retired Senior Judge assigned to the Superior Court.
1 Following a preliminary hearing, the charges for criminal use of
communication facility (18 Pa.C.S.A. § 7512(a)), theft by unlawful taking—
movable property (18 Pa.C.S.A. § 3921(a)), and receiving stolen property (18
Pa.C.S.A. § 3925(a)) were dismissed and thus not held for trial.
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On 08/01/2018[,2 Patrolman John H. Urbnski] of the West Pittston
Police Department met with Felicia Kudrako [(“Victim”)]. [Victim]
is a resident of West Pittston. [Victim] called to report that her
bank account had been compromised.
[Victim] informed [Officer Urbnski] that her debit card had been
missing and that she received charges totaling $1,204.29
including late fees that she disputed. She informed [Officer
Urbnski] that she believed that her son Matthew Milne and his
girlfriend, [Appellant], were behind this. She informed [Officer
Urbnski] that they were at her house and asked for money.
[Victim] stated that they told her that they were going to take
their family to Knobels Amusement Park. [Victim] stated that both
of them would know the pin number because she has never
changed it in the past and that she told them the pin when she
did authorize its use.
[Officer Urbnski] received paperwork from M&T Bank Account
Number Last four 5911. This account is under [the name of
Victim] and Mark Nice. The bank paperwork states the total
amount of losses throughout the dates of 08/10/2018-
08/23/2018.
[Officer Urbnski] spoke with bank representatives and they
provided [him] with a photograph of an unknown individual who
used the account for an ATM withdrawal on 08/24/2018. [Officer
Urbnski] spoke with [Victim] and showed her the photo. [Victim]
was able to identify the person in the photograph as [Appellant].
[Victim] stated again that [Appellant] was not authorized to use
the account.
Affidavit of Probable Cause, 2/21/19. The case proceeded to a jury trial on
the sole charge of access device fraud under Section 4106(a). A person
commits an offense under Section 4106(a)(1)ii), if he or she uses an access
device to obtain, or in an attempt to obtain, property or services with
____________________________________________
2 At trial, Officer Urbnski testified that the date on the first line of the affidavit
of probable cause should have been September 1, 2018, not August 1, 2018.
According to Officer Urbnksi, the reference to August 1, 2018 was a
typographical error. N.T. Trial, 5/25/21, at 86, 89-90.
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knowledge that the access device was issued to another person who has not
authorized its use. See 18 Pa.C.S.A. § 4106(a)(1)(ii). Access device is
defined as:
Any card, including, but not limited to, a credit card, debit card
and automated teller machine card, plate, code, account number,
personal identification number or other means of account access
that can be used alone or in conjunction with another access
device to obtain money, goods, services or anything else of value
or that can be used to transfer funds.
18 Pa.C.S.A. 4106(d). The trial court explained,
[h]ere, the record reflects that Victim contacted her bank after
receiving an “insufficient funds” notice. Based on her contact with
the bank, Victim identified several ATM transactions that she did
not make. Victim had not authorized anyone else to use her ATM
card. The police were notified, and, as part of their investigation,
obtained video surveillance from the bank showing a person using
Victim’s ATM card during the time period the transactions in
question were made. Victim identified the person in the video as
her son’s girlfriend, [Appellant]. Victim had not given [Appellant]
permission to use her ATM card.
Trial Court Opinion, 1/22/22, at 3 (record citations omitted). Thus, based on
the evidence adduced at trial, as summarized above by the trial court, on May
26, 2021, the jury found Appellant guilty of access device fraud. On July 21,
2021, the trial court sentenced Appellant to intermediate
punishment/restrictive probation for a period of 18 months, with the first two
months to be served under house arrest with electronic monitoring.
Separately, the trial court ordered Appellant to pay $1,277.50 in restitution to
Victim. On July 30, 2021, Appellant filed post-sentence motions, challenging,
among other things, the weight of the evidence. On October 19, 2021, the
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trial court denied the post-sentence motions. Appellant timely appealed to
this Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant complied, raising two
assertions of error. In response, the trial court issued a Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant presents a single issue for our review.
[I.] Did the Commonwealth establish, beyond a reasonable doubt,
that Appellant was the perpetrator or committed the offense of
access device fraud under [Section 4106(a)(1)(ii)]?
Appellant’s Brief at 2.3 Essentially, Appellant challenges her identification as
the perpetrator. In this regard, she contends that Victim’s trial testimony was
inconsistent and incredible for purposes of identifying Appellant. Id. at 16.
We treat this contention as challenging the weight and credibility
determination of the fact-finder.
As we have explained:
On this issue, our role is not to consider the underlying question
of whether the verdict was against the weight of the evidence.
Rather, we are to decide if the trial court palpably abused its
discretion when ruling on the weight claim. When doing so, we
keep in mind that the initial determination regarding the weight
of the evidence was for the factfinder. The factfinder was free to
believe all, some or none of the evidence. Additionally, a court
must not reverse a verdict based on a weight claim unless that
verdict was so contrary to the evidence as to shock one’s sense of
justice.
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3 Although she couched her claim as one implicating the sufficiency of the
evidence, Appellant does not identify any element of the crime upon which the
Commonwealth’s evidence was insufficient.
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Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]
trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 949 A.2d 873, 880 (Pa. 2008)).
Instantly, Appellant essentially attacks the jury’s weight and credibility
determinations, and invites us to accept her version of events. We decline
the invitation. It is settled that we may not substitute our judgment for that
of the factfinder—whether a jury or the trial court—because it is the province
of the factfinder to assess the credibility of the witnesses and evidence. See
Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate
court is barred from substituting its judgment for that of the finder of fact.”);
Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005) (stating
that “[t]he weight of the evidence is exclusively for the finder of fact[,] who
is free to believe all, part, or none of the evidence and to determine the
credibility of witnesses. An appellate court cannot substitute its judgment for
that for the finder of fact.”). As the jury was free to believe all, part or none
of the Commonwealth’s evidence, Appellant’s claim lacks merit. Accordingly,
Appellant’s weight claim that Victim’s trial testimony was unreliable and
incredible fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
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