Com. v. Burgess, J.

J-A24030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER VOGEL BURGESS :
:
Appellant : No. 1591 WDA 2019
Appeal from the Judgment of Sentence Entered July 11, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005723-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 04, 2021
Jennifer Vogel Burgess appeals from the judgment of sentence entered
after being convicted of Bad Checks.1 Burgess challenges the sufficiency of
the evidence and the imposition of restitution as a part of her sentence. We
affirm.
The trial court aptly summarized the facts of this case as follows:
In December of 2017 [Burgess] engaged in conversations
about purchasing a residential property from the victim[,
Rachel Khan]. The victim worked for her family’s
commercial and residential real estate business and did not
know [Burgess] prior to this interaction. [Burgess] and her
husband were unable to secure a mortgage and entered into
a lease/rental agreement for the same property. The victim
permitted [Burgess’s] family to move into the property in
mid-December 2017, even though the rental agreement did
not begin until January 1, 2018. Under the terms of the
agreement $1,800 was due on January 1, 2018,
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1 18 Pa.C.S.A. § 4105(a)(1).
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representing a $900 security deposit and $900 for the first
month’s rent. It is undisputed that [Burgess] and her
husband did not make this payment on January 1st, and on
January 8, 2018 victim went to the property to demand
payment. It was on this day that [Burgess] knowingly wrote
a check from a closed account to the victim for $1,800. The
check was post-dated January 15, 2018 and the memo line
read “rent and security.” The victim testified that she
accepted the post-dated check because [Burgess] offered it
as “collateral” in an effort to secure another form of
payment in the coming days. The victim was not aware the
account was closed and would not have accepted the check
if she had been told so by [Burgess]. According to
[Burgess], she told the victim the account was closed and
not to cash it, and that the only reason she wrote the check
was to appease the victim’s family, who was demanding the
rent and security deposit. When neither [Burgess] nor her
husband provided any other type of payment, victim
deposited the check on January 19, 201[8], eleven (11)
days after she received the check and four (4) days after
the post-date. On January 23, 201[8], Key Bank informed
the victim that [Burgess’s] check would not be honored
because it was written from a closed account.
Trial Ct. Op., filed 2/4/20, at 3-4 (footnotes omitted). The Commonwealth
charged Burgess with the above referenced offense and Burgess proceeded
with a non-jury trial.
At trial the victim and Burgess testified. The trial court found Burgess
guilty and the same day sentenced her to five years’ probation and imposed
restitution in the amount of the bad check which was $1,800. Burgess filed a
post sentence motion raising challenges to the weight of the evidence and the
imposition of restitution. Regarding restitution, Burgess noted that a civil
judgment was entered against her husband and claimed that it included the
amount of $1,800 for the bad check. See Post Sentence Motion, filed 7/18/19,
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at para. 8 and Exhibit B. Burgess attached the civil complaint filed against her
husband in the amount of $11,600. See Post Sentence Motion, Exhibit B. The
breakdown of that amount included the following: $8,000 for ruined kitchen
cabinets and $3,600 for rent remaining due and unpaid on the filing date of
the complaint. Id. She also attached the order granting judgment against her
husband in the amount of $6,600. Id. This included $5,400 for rent and
$1,200 for utility bills. Id. The plaintiff listed on the complaint and order was
Noorjihan Khan. The trial court denied this motion and this timely appeal
followed.
Burgess presents the following claims before this Court:
I. Is the evidence wholly insufficient in this case to support
the conviction for Bad Checks in that no evidence of any
criminal intent was proven?
II. Did the trial court err in imposing restitution in this case
where it amounts to "double dipping" in that a civil judgment
had been entered against the appellant's husband for this
same amount of money?
Burgess’s Br. at 6.
Burgess’s first claim challenges the sufficiency of the evidence. She
alleges that because the Commonwealth did not prove that she intended to
defraud the victim, the evidence was insufficient to support the conviction.
While she acknowledges that the statute does not require intent as an element
of the crime, she nonetheless claims “that does not mean that a defendant
can be convicted even with no wrongful intent at all, which is what occurred
in this case.” Id. at 17.
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When reviewing a claim challenging the sufficiency of the evidence, “our
standard of review is de novo, however, our scope of review is limited to
considering the evidence of record, and all reasonable inferences arising
therefrom, viewing in the light most favorable to the Commonwealth as the
verdict winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa.
2014).
The trial court in reviewing the evidence, determined that Burgess’s
claim was meritless. It noted that “[b]y the plain reading of the statute and
the decisions handed down by the Pennsylvania Supreme Court,” the
Commonwealth was only required to prove that Burgess wrote a check from
an account that she knew was closed. Trial Ct. Op. at 5. We agree.
The trial court found Burgess guilty of Bad Checks 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.”
18 Pa.C.S.A. § 4105(a)(1). Further, in Commonwealth v. Mutnik, 406 A.2d
516, 518 (Pa. 1979), our Supreme Court held that “section 4105 does not
require the Commonwealth to prove an intent to defraud on the part of the
defendant.”
At trial, Burgess admitted that she knew the account from which the
check was written was closed. See N.T., Trial, 7/11/19, at 30-31. Though
Burgess claimed that she informed Ms. Khan of this as well, as fact finder, the
court was free to believe all, part, or none of this testimony. See
Commonwealth v. Gause, 164 A.3d 532, 541 (Pa.Super. 2017) (en banc)
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(citation omitted). As the trial court made clear, it did not find Burgess’s
testimony credible. See N.T., Trial, at 33 (“In order for me to find you not
guilty, I would have to believe that Ms. Khan knew the account was closed
and that she took this check anyway. I do not believe that, all right”). Viewing
the evidence in the light most favorable to the Commonwealth, the evidence
was sufficient to sustain the conviction.
Next, Burgess claims that the trial court erred in imposing restitution as
a part of her sentence when Ms. Khan “obtained a civil judgment against
[Burgess’s] husband for the $1,800.00 owed for rent and security deposit[.]”
Burgess’s Br. at 27. Thus, Burgess argues that “restitution as a part of her
sentence was improper and amounts to a second collection for one debt.” Id.She cites the restitution statute which provides that a victim may obtain
restitution “provided that any civil award shall be reduced by the amount paid
under the criminal judgment.” 18 Pa.C.S.A. § 1106(g). Burgess maintains that
the statute requires that the “amount of restitution [be] reduced by the
amount of the civil award.” Burgess’s Br. at 27. Burgess also argues that the
trial court did not inquire about her ability to make restitution payments.
A claim challenging the imposition of restitution implicates the legality
of sentence. See Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa.Super.
2018). “When the legality of a sentence is at issue, our ‘standard of review
over such questions is de novo and our scope of review is plenary.’” Id. at
769 (quoting Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super.
2008), appeal denied, 955 A.2d 356 (Pa. 2008)).
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Burgess challenges the court’s ability to impose restitution due to there
being a civil judgment against her husband. Section 1106(g) “clearly provides
that the criminal defendant who is the subject of a restitution order is entitled
to an offset in a subsequently entered civil judgment for the amount of
restitution ordered as part of the sentence in the criminal proceeding.” L.B.
Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090,
1095 (Pa.Super. 2001). However, the civil judgment does not prevent a trial
court from ordering restitution.
This Court previously addressed a similar claim in Commonwealth v.
Pleger, 934 A.2d 715, 720 (Pa.Super. 2007). The Pleger Court concluded
that a general release and settlement entered against the appellant was
irrelevant to the court’s imposition of restitution. Pledger was convicted of
driving under the influence (DUI).2 Prior to Pledger’s sentencing, the victim
accepted a settlement through Pledger’s insurance company. The trial court
determined that it could not impose restitution because of the settlement. This
Court vacated the judgment of sentence and remanded for resentencing for
purposes of imposing restitution, concluding that the trial court was required
to do the following: 1) “pursuant to the aforesaid statutes and caselaw, to
consider fully the request for restitution presented by the district attorney’s
office”; 2) “evaluate that request in a manner consistent with 18 Pa.C.S.A. §
1106 and 42 Pa.C.S.A. § 9721(c)”; 3) “to arrive at the full amount of
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2 75 Pa.C.S.A. § 3802(b).
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restitution due”; and 4) “issue an appropriate order requiring full restitution
as an aspect of [Pleger’s] sentence.” Pleger, 934 A.2d at 721.
Here, the entry of civil judgment against Burgess’ husband did not
preclude the trial court from imposing restitution against Burgess, who wrote
the bad check. First, the judgment was entered in favor of Noorjihan Khan,
who is not the victim in the present case. Secondly, the civil judgment did not
remedy the criminal conduct of Burgess since husband did not write the bad
check. The civil judgment entered against husband amounted to $6,600,
$5,400 of which was for rent. The amount nor the order specify if the $5,400
included the $1,800 from the bad check. The trial court did not err in imposing
restitution as a part of Burgess’s sentence.
Regarding Burgess’s secondary claim that the trial court failed to inquire
as to her ability to pay restitution, we note that she did not raise this claim
before the trial court. However, because such a claim raises a challenge to the
legality of sentence, it is unwaivable. Ramos, 197 A.3d at 768;
Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa.Super. 2019) (stating
challenge to legality of sentence unwaivable).
The record refutes Burgess’s allegation that the court failed to consider
her ability to pay. At sentencing, the trial court inquired what Burgess did for
a living as well as her husband and it inquired as to how she provided for their
five children. See N.T., Trial, at 35. She replied that she was a housewife and
relied on her husband’s income as a landscaper and contractor. Id. She also
stated that she received payments through social security for one of her
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children. Id. at 36. The court then ordered that Burgess pay $50 a month to
pay off the restitution and court costs. Id. at 38.
Additionally, the trial court was limited in its ability to impose restitution
as the statute requires that reimbursement be made to the victim in “the face
amount of the check.” 18 Pa.C.S.A. § 4105(e)(1) (“Upon conviction under this
section the sentence shall include an order for the issue or passer to
reimburse the payee or such other party as the circumstances may indicate
for: [t]he face amount of the check”) (emphasis added). Burgess’s claim is
meritless. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
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