J-S50029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
YVONNE ICAN BRADLEY, :
:
Appellant : No. 305 WDA 2014
Appeal from the Judgment of Sentence Entered February 13, 2014,
In the Court of Common Pleas of Fayette County,
Criminal Division, at No. CP-26-CR-0000112-2013.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 06, 2014
Appellant, Yvonne Ican Bradley, appeals from the judgment of
sentence entered following her convictions of theft by deception, receiving
stolen property, forgery, and tampering with records. We affirm.
The trial court summarized the factual history of this case as follows:
In November, 2012, Officer John M. Kauer of the
Uniontown P
investigation of an unrelated matter when he learned that a gray
GMC Yukon, stolen in Pittsburgh, might be present in Fayette
County.
The vehicle was reported stolen by Mrs. Paula Thorpe, to
whom its title had recently been transferred. Mrs. Thorpe
testified that, on July 5, 2012, while searching Craigslist, she
came across a 2007 GMC Yukon for sale. Mrs. Thorpe responded
to the ad by email with her contact information. Within two
hours, she received a phone call from an individual, identified as
meet Jorry at the Uniontown Sunoco Station, at around 7:00
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who met the Thorpes at the Sunoco, and who called herself
Michelle Jorry.
[Appellant] informed the Thorpes that she was a home
healthcare aid, which was believable because she wore scrubs
and a tag identifying herself as Michelle Jorry. She claimed to
have purchased the Yukon the year prior at an auto auction. Her
asserted reason for selling the Yukon was that she had recently
lost everything she owned in a fire and needed money. She
claimed the title to the vehicle was new, the original having also
been destroyed by the fire. [Appellant] indicated she would take
In the dash compartment, Mrs. Thorpe noticed a window
sticker of the type usually appearing in new vehicles. Using the
VIN appearing on that sticker, she ran a Carfax report and
contacted the DMV. Those sources returned results for a 2007
GMC Yukon, and came up clear of any accidents or reports of
theft. The next day, Mrs. Thorpe again met [Appellant] at the
Sunoco, placing a $3,800.00 cash down payment. Mrs. Thorpe
was able to get an additional $6,000.00 from her mother, for a
total of $9,800.00, which [Appellant] accepted as final payment.
After taking possession of the Yukon, Mrs. Thorpe removed
from the dash compartment. She then took the title to a notary,
Tina Dennis, to transfer the same. Mrs. Thorpe executed a bill of
Sometime in late August, Mrs. Thorpe learned that Ms. Dennis
could not transfer the title.
Ms. Dennis testified that, in her opinion, the facts and
circumstances of this case demonstrated that the title provided
to Mrs. Thorpe was a fake. Ms. Dennis noted, the title bore the
Following his meeting with Mrs. Thorpe, Officer Kauer ran
VIN, having been recently transferred, returned to Mrs. Thorpe.
The registration, however, indicated that the vehicle was indeed
stolen and belonged to Jesse Virgin.
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In May or June, 2012, Mr. Virgin posted the Yukon on
Craigslist for $25,000.00. He received several calls from an
individual interested in purchasing the vehicle. That person, who
for P&W
foreign car dealership, of Pittsburgh, and asked Mr. Virgin to
meet her there in the evening. Mr. Virgin identified [Appellant]
as the person calling herself Audrey Merkel, and stated that he
recognized her voice from the phone calls. [Appellant] handed
Mr. Virgin a check for $25,000, at which time he handed her the
keys. Mr. Virgin stated that the title could only be transferred
after he used the money to pay off the loan on the vehicle.
Maureen Lucas, the officer manager at P&W testified that,
while Audrey Merkel was a real employee, [Appellant] was not
Audrey Merkel. Though she had only seen [Appellant] one time
at P&W, Ms. Lucas was able to identify her as a member of the
cleaning staff. Around the end of June, Ms. Lucas became aware
of an unauthorized check for $25,000, bearing forged signatures,
was 7698 and was made out to Jesse Virgin. After speaking with
Mr. Virgin, Ms. Lucas contacted the bank and the police.
[Appellant] was arrested sometime later, during which
time her purse was taken by Uniontown Police and transferred to
Officer Jamie Holland. Officer Holland inventoried the bag and
provided lengthy testimony of its contents. Officer Holland
catalogued, inter alia, $5,237.00 in cash, an identification card
four USB flash drives.
The flash drives were analyzed by PSP Trooper Donald
Lucas. Trooper Lucas is a member of the Bureau of Criminal
Investigation, computer crimes unit, and was recognized as an
expert in the field of forensic analysis of digital devices. His
investigation uncovered twenty-two files, all of which were
converted to twenty-four image printouts. Those printouts
depicted, in relevant p
notarial seal for Maryann Maiolo; (5) a blank back page of a
Pennsylvania vehicle titl
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notarial seal; and, (6) an image matching the image that
appeared on the badge [Appellant] wore while meeting the
Thorpes.
Trooper Lucas opined that many of the noted documents
bore clear evidence of electronic forgery or were formatted in
ways that would make forgery a relatively simple task.
Trial Court Opinion, at 2-6.
Following a jury trial, Appellant was found guilty of theft by deception,
receiving stolen property, forgery, and tampering with records. No post-trial
or post-sentence motions were filed. Appellant filed this timely appeal and,
pursuant to court order, filed a Pa.R.A.P. 1925(b) statement.
Appellant presents the following issues for our review:
1. Did the court err when it failed to grant Appella
motions for mistrial based upon the Commonwealth introducing
evidence of other crimes, specifically the reference to checks
possibly stolen from P & W Motors?
2.
motions for judgment of acquittal as to the forgery and
tampering with documents charges. Specifically, that the
Commonwealth did not prove beyond a reasonable doubt that
Appellant forged or tampered with the documents in the instant
case?
3. Did the Commonwealth fail to establish Appell
beyond a reasonable doubt that Appellant was the person that
purchased the vehicle from Mr. Virgin or had ever been to P & W
Motors?
Appellant first asserts that the trial court erred when it failed to grant
Appe
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It is well-
a motion for a mistrial is limited to determining whether the trial
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-
is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
here
cautionary instructions are adequate to overcome prejudice.
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (internal
citations omitted).
Appellant argues that the trial court erred in denying her motion for a
mistrial based on the prosecu
because she was not charged with theft of the checks or receiving stolen
property for the checks, such thefts should not have been referenced as they
constitute prior uncharged bad acts. Id. at 10-11. Appellant claims that
evidence of the stolen checks did not relate to the crimes charged. Id. at
11.
A review of the record reflects that Appellant made a motion for
-8.
statement. Id. at 7. Instead, a simple notation indicates:
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Id. Following
that notation is a discussion among the attorneys and the trial court as to
what was actually said in referencing those stolen checks, indicating that
there was some uncertainty or disagreement as to the specific statements
made to the jury. Id. at 7-8.
we have no way of knowing what the prosecutor actually said during her
opening statement. In addressing a lack of notes of testimony necessary for
appellate review, our Supreme Court has stated the following:
Rule 1911(a) of the Pennsylvania Rules of Appellate Procedure
required under this chapter in the manner and make any
necessary payment or deposit therefor in the amount and within
the time prescribed by Rules 5000.1 et seq. of the Pennsylvania
a party is indigent, and is entitled to taxpayer-provided
transcripts or portions of the record, he will not be assessed
costs. But, that does not absolve the appellant and his lawyer of
his obligation to identify and order that which he deems
necessary to prosecute his appeal. The plain terms of the Rules
contemplate that the parties, who are in the best position to
know what they actually need for appeal, are responsible to take
affirmative actions to secure transcripts and other parts of the
record. See, e.g., Commonwealth v. Steward, 775 A.2d
819, 833 (Pa. Super. 2001) (noting that it was not the
responsibility of the trial court to order the notes of transcript of
plain that it is the responsibility of the Appellant to order all
Commonwealth v. Peifer, 730 A.2d 489, 492 n. 3 (Pa. Super.
1999) (explaining that it is the responsibility of the appellant and
not the court to provide a complete record for review, including
any necessary transcripts).
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Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011).
In Steward, this Court was presented with an instance, similar to that
was based on the substance of that closing statement.
Steward, 775 A.2d at 833. We explained that although counsel requested
transcripts, he did not specifically order a transcript of the closing
arguments. Id. at 833-834. As a result, the court reporter did not
automatically transcribe those arguments because, under our rules of
judicial administration, he was under no obligation to do so. Id. at 834;
See also
... shall be recorded, but
Without a transcription of the closing statement, this Court concluded it was
Steward, 775 A.2d at 835.
In the case sub judice, Appel
that the trial court abused its discretion in denying her motion for mistrial.
Rule 1911 makes it abundantly plain that it is the responsibility of the
appellant to order all transcripts necessary to the disposition of his appeal.
Commonwealth v. Reed, 971 A.2d 1216, 1219 (Pa. 2009) (stating that
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to ensure that the certified record is complete for
necessary to the disposition of her claim, and as a result, we are precluded
1
We also note that although Appellant was permitted to proceed in
forma pauperis
and order that which she deemed necessary to prosecute her appeal.
Lesko, 15 A.3d at 410. Because Appellant has failed to provide us with the
statements unfairly prejudiced her, we are constrained to conclude that this
issue is waived. Steward, 775 A.2d at 835 (
record provides sufficient information to conduct a meaningful review
Appellant next argues that the Commonwealth failed to prove beyond
a reasonable doubt that Appellant forged or tampered with the documents in
1
We also note that the record reflects no attempt by Appellant to include a
statement pursuant to Pa.R.A.P. 1923 (providing that where no report of the
evidence or proceedings at a hearing or trial was made, or if a transcript is
may be satisfied through
a statement in absence of transcript procedures). We are mindful, however,
that a statement pursuant to Pa.R.A.P. 1923 may not have been sufficient
under the facts of this case given that the specific statements made by the
prosecutor, in the presence of the jury, would be necessary to review the
claim in this case.
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Commonwealth established only that Appellant was in possession of a flash
drive that contained altered documents, but failed to present any evidence
that Appellant was the individual who had altered or created these
documents. Id.
these charges. Id. at 13. Appellant asserts that the trial court erred when
it failed to grant that motion. Id.
evidence to sustain a conviction on a particular charge, and is granted only
in cases in which the Commonwealth has failed to carry its burden regarding
Commonwealth v. Foster, 33 A.3d 632, 635 (Pa. Super.
2011). Our standard of review when considering a challenge to the
sufficiency of the evidence is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is 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
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defen -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
proof or 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
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all evidence actually received must be considered. Finally, the
trier 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.
Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003).
Appellant was convicted of forgery, as defined at 18 Pa.C.S. §
4101(a)(2):
§ 4101. Forgery
(a) Offense defined.--A person is guilty of forgery if, with
intent to defraud or injure anyone, or with knowledge that he is
facilitating a fraud or injury to be perpetrated by anyone, the
actor:
***
(2) makes, completes, executes, authenticates,
issues or transfers any writing so that it purports to
be the act of another who did not authorize that act,
or to have been executed at a time or place or in a
numbered sequence other than was in fact the case,
or to be a copy of an original when no such original
existed;
18 Pa.C.S. § 4101(a)(2).
Appellant was also convicted of tampering with records, as defined at
18 Pa.C.S. § 4104(a):
§ 4104. Tampering with records or identification
(a) Writings.--A person commits a misdemeanor of the first
degree if, knowing that he has no privilege to do so, he falsifies,
destroys, removes or conceals any writing or record, or
distinguishing mark or brand or other identification with intent to
deceive or injure anyone or to conceal any wrongdoing.
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18 Pa.C.S. §4104(a).
With regard to the charge for forgery, the evidence of record supports
the conclusion that Appellant, with the intent to defraud, executed the
unauthorized check from P&W Motors and presented it to Jesse Virgin for
purposes of obtaining the GMC Yukon. N.T., 2/3/14, at 17, 20. By doing so,
Appellant purported to be an agent of P&W Motors and acted on its behalf
when she did not have the authority to do so. Id. at 83-84. Viewing the
evidence admitted at trial in the light most favorable to the Commonwealth,
we conclude that the Commonwealth produced evidence sufficient to
establish beyond a reasonable doubt that Appellant was guilty of forgery.
Again viewing the evidence in the light most favorable to the
Commonwealth, we also conclude that the Commonwealth produced
evidence sufficient to establish the elements of tampering with records
beyond a reasonable doubt. The evidence established that Appellant
presented herself to the Thorpes as Michelle Jorry and provided the Thorpes
with a falsified Pennsylvania certificate of title for the vehicle, indicating that
Michelle Jorry had title to the vehicle. N.T., 2/3/14, at 58, 111, 120-122,
126. This falsified document was included on the flash drive found on
-141, 145,
149.
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Appellant contends that such evidence was insufficient to establish
that Appellant altered the documents. Appell
The fact that no evidence was produced showing specifically that Appellant
was the individual who had created those documents, does not render the
ct
involvement with the altered record, specifically her providing the fake title
to Mrs. Thorpe. Additionally, these altered documents were found on a flash
jury to determine that it was Appellant who had altered these records. The
Commonwealth may establish elements of a crime by wholly circumstantial
evidence. Lehman, 820 A.2d at 772. As such, the trial court did not err in
In her final argument, Appellant maintains that the Commonwealth
failed to establish beyond a reasonable doubt that she was the person who
purchased the vehicle from Mr. Virgin, or had ever been to P&W Motors.
rgin was able to identify
her as the individual who bought the car only after seeing her identified as
Id.
Jesse Virgin testified that he had posted his 2007 GMC Yukon on
Craigslist for sale for $25,000.00, which was based on the Kelly Bluebook
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value. N.T., 2/3/14, at 10, 12. He received approximately three or four
phone calls from a single individual, who was inquiring about the vehicle and
trying to set up a time to see the vehicle. Id. at 13. The individual inquiring
about the purchase of the vehicle identified herself as Audrey Merkel and
indicated that she worked for P&W Motors dealership. Id. at 16-17. The
individual made plans for Mr. Virgin to meet her at P&W Motors for the sale
of the vehicle. Id. at 16. He testified that the voice of the person that he
met at P&W Motors matched the voice of the individual with whom he spoke
on the phone. Id. at 14. Appellant, identifying herself as Audrey Merkel,
presented M
Id. at 20. At trial, Mr. Virgin identified Appellant as the person who had
purchased his GMC Yukon at P&W Motors. Id. at 19.
prove
beyond a reasonable doubt that Appellant was the individual who sold the
car to Mr. Virgin to be unpersuasive. In his testimony, Mr. Virgin
unwaveringly identified Appellant as the woman who had purchased his
vehicle. On cross-examination he stated that he spent approximately ten-
to-fifteen minutes with her during this exchange and confirmed that
Appellant was the woman he met at P&W Motors. N.T. 2/3/14, at 24. Thus,
there was sufficient evidence upon which the jury could determine that
Appellant
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Similarly, Appellant argues that there was insufficient evidence to
establish beyond a reasonable doubt that Appellant was the individual who
Ms. Lucas saw at the dealership. Ms. Lucas, Office Manager for P&W Motors,
testified to having seen Appellant at the dealership on one prior occasion.
N.T., 2/3/14, at 29. Ms. Lucas stated that Appellant had worked for a
cleaning company that P&W Motors had employed, and that she saw
Appellant on a Friday evening as Ms. Lucas was leaving the dealership. Id.
Proof that Ms. Lucas saw Appellant at the dealership was not
necessary, in and of itself, to satisfy the elements of the crimes with which
Appellant was charged. Such testimony, however, was circumstantial
evidence that the jury could rely upon in making a fact determination as to
that the Commonwealth did not meet its burden of proof with regard to
identifying Appellant as the actor in this case.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/06/2014
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