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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL WILKERSON
Appellant No. 1786 EDA 2014
Appeal from the PCRA Order of May 22, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0006001-2010
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED MARCH 13, 2015
Michael Wilkerson appeals the May 22, 2014 order denying his petition
for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
46, without a hearing. We affirm.
Upon review of Wilkerson’s direct appeal, a previous panel of this
Court summarized the factual history of this case as follows:
On September 18, 2009, [Wilkerson] gave a salesman for Fort
Washington Mercedes Benz a check for $111,000[.00] in
payment for a Mercedes Benz S550 automobile. Following the
transaction, [Wilkerson] left the dealership with the car. After a
number of days, the salesman was notified that the check had
not cleared the bank. In fact, the account upon which the check
was drawn had been closed for eight months. The salesman
contacted [Wilkerson,] who explained that he had had a
disagreement with his wife, and she had taken money out of the
account. The salesman had previously sold cars to [Wilkerson]
and was familiar with both him and his wife. Over the next few
weeks, the salesman attempted to offer other options to
[Wilkerson], such as paying part of the purchase price and
financing the rest. Nonetheless, although [Wilkerson] promised
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to come to the dealership with a replacement check, [Wilkerson]
did nothing and did not immediately return the car. Ultimately,
the police were contacted.
Approximately three weeks after the purchase, [Wilkerson]
returned the car, but merely left the car’s keys and books on the
counter at the dealership and left without resolving the matter.
Obviously, the value of the automobile was greatly diminished.
The salesman later learned that [Wilkerson] had been trying to
trade the vehicle with a Lexus car dealer. Also[,] a witness from
West Chester Jaguar-Land Rover testified that [Wilkerson] tried
to sell the vehicle to that dealership for $115,000[.00].
A criminal complaint [charging Wilkerson with one count of bad
checks in violation of 18 Pa.C.S. § 4105] was filed against
[Wilkerson] on December 29, 2009. Despite the
Commonwealth’s due diligence[,] [Wilkerson] avoided
apprehension until he was arrested on August 2, 2010. The trial
court listed and relisted [Wilkerson’s] trial for several dates in
2011[,] including February 14, March 7, and March 14.
Ultimately, in May 2011, because of trial docket congestion,
[Wilkerson’s] trial was delayed until August. [Wilkerson’s] trial
commenced on August 8, 2011.
Commonwealth v. Wilkerson, No. 3325 EDA 2011, slip op. at 1-3 (Pa.
Super. Oct. 31, 2012) (footnote omitted).
Wilkerson premised his defense upon his claims that he mistakenly
issued the check on a closed account, and that he believed that the check
was connected to an active account that contained sufficient funds.
Wilkerson claimed that he learned of his mistake shortly after the
transaction, and that he promptly contacted the salesperson to inform him of
the mistake and to instruct the dealership to not attempt to deposit the
check. Wilkerson stated that, during these discussions, he communicated
his intent to deliver a replacement check. His subsequent attempts to
correct the error, Wilkerson claimed, were frustrated by his wife, who
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removed money from the active account because of her anger about the
purchase. Having found no acceptable means of compensating the
dealership, Wilkerson returned the vehicle, but did not reimburse the
dealership for the depreciation incurred during the time that the vehicle was
in his possession.
In support of his “mistake” defense, Wilkerson testified on his own
behalf and presented the corroborating testimony of the investigating officer,
the dealership’s manager, and the dealership’s finance manager. The
defense also presented physical evidence of Wilkerson’s driver’s license, his
insurance card, the affidavit of probable cause, and a deposit slip from
Wachovia Bank, which showed the date on which the dealership attempted
to deposit the check at issue.
The Commonwealth presented the testimony of the salesperson, Fred
Mielke, who testified that Wilkerson did not contact him to inform him of the
mistake, but rather that he sought out Wilkerson after he learned that
Wilkerson’s bank would not honor the check. Mielke stated that the
dealership’s management told him several days after the sale that
Wilkerson’s check would not clear. Regarding the dealership’s attempt to
deposit the check, Mielke stated that “[w]e would have cashed it probably
the next day after the transaction, it would have been deposited into the
bank.” Notes of Testimony (“N.T.”), 8/8/2011, at 47. Mielke testified that
he provided Wilkerson with numerous options to remedy the situation, but
that Wilkerson was unwilling or unable to compensate the dealership.
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Furthermore, the Commonwealth presented the testimony of the chief
operating officer for a different luxury car dealership, who stated that
Wilkerson had attempted to trade or sell the vehicle to that dealership.
In its rebuttal case, the Commonwealth also introduced, by stipulation,
Wilkerson’s prior convictions for theft by deception1 and forgery.2 The trial
court instructed the jury on the presumptions contained in the bad checks
statute, telling the jurors that, if they were satisfied with the fact that
Wilkerson’s account was closed at the time of the transaction, then they
could infer that Wilkerson possessed the requisite knowledge for purposes of
the bad checks statute. See N.T., 8/9/2011, at 54, 63.
Following a two-day jury trial, Wilkerson was convicted of bad checks.
On October 21, 2011, the trial court sentenced Wilkerson to one-and-one-
half to seven years’ incarceration. On October 31, 2012, this Court affirmed
Wilkerson’s judgment of sentence. Wilkerson filed a Petition for Allowance of
Appeal with the Pennsylvania Supreme Court, which was denied on October
29, 2013. On January 15, 2014, Wilkerson timely filed a pro se PCRA
petition, wherein he alleged that his trial counsel was ineffective for failing to
investigate and acquire the bank records associated with the check.
Wilkerson subsequently was appointed new counsel for the purposes of his
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1
18 Pa.C.S. § 3922.
2
18 Pa.C.S. § 4101.
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PCRA petition, but that attorney sought leave to withdraw from the
representation, and filed a Turner/Finley3 “no-merit” letter on April 22,
2014. On April 24, 2014, the PCRA court issued Wilkerson a notice of intent
to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907, and
Wilkerson filed a response on May 13, 2014. On May 22, 2014, the PCRA
court issued a final order dismissing Wilkerson’s petition.
Wilkerson timely filed a pro se notice of appeal on June 17, 2014. On
June 19, 2014, the PCRA court directed Wilkerson to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Because
Wilkerson retained new counsel, the PCRA court granted Wilkerson an
extension of time to file the concise statement. The PCRA court set July 14,
2014 as the deadline, and Wilkerson timely filed a concise statement on that
date. In accordance with Pa.R.A.P. 1925(a), the PCRA court issued an
opinion in support of its order on July 28, 2014.
Wilkerson raises the following issue for our review:
Did the trial [c]ourt err in dismissing the PCRA [p]etition for
[i]neffective [a]ssistance of [c]ounsel?
Brief for Wilkerson at 4.
Our standard of review for the dismissal of a PCRA petition is well-
settled. “In reviewing the denial of PCRA relief, we examine whether the
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3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA court’s determination is supported by the record and free of legal
error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal
quotation marks and citation omitted). “The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Regarding the
granting of an evidentiary hearing on a PCRA petition:
Where a PCRA petition does not raise a genuine issue of material
fact, the reviewing court is not required to hold an evidentiary
hearing on the petition. Thus, to entitle himself to a hearing, an
appellant must raise an issue of fact, which, if resolved in his
favor, would justify relief.
Commonwealth v. Simpson, 66 A.3d 253, 260-61 (Pa. 2013) (internal
quotation marks, bracketed material, and citations omitted).
To prevail on a claim of ineffective assistance of counsel, “the
petitioner must show: that the underlying legal claim has arguable merit;
that counsel had no reasonable basis for his or her action or omission; and
that the petitioner suffered prejudice as a result.” Commonwealth v.
Bardo, 105 A.3d 678, 684 (Pa. 2014) (citation omitted). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014) (citation
omitted). Regarding appellate review of a claim of ineffectiveness, “[a]
court is not required to analyze the elements of an ineffectiveness claim in
any particular order of priority; instead, if a claim fails under any necessary
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element of the ineffectiveness test, the court may proceed to that element
first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations
omitted).
Wilkerson was convicted of one count of bad checks in violation of
18 Pa.C.S. § 4105. In addition to the elements of the offense, which require
the issuer’s knowledge that the check will not be paid, the statute provides a
number of presumptions from which the fact-finder may infer that the issuer
possessed such knowledge. 18 Pa.C.S. § 4105(b). These presumptions
played an important role in Wilkerson’s trial and are central to the
arguments that he advanced in his PCRA petition. The crime of bad checks
is defined, in pertinent part, as follows:
(a) Offense defined.—
(1) 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.
(2) A person commits an offense if he, knowing that it will
not be honored by the drawee, issues or passes a check or
similar sight order for the payment of money when the
drawee is located within this Commonwealth. A violation
of this paragraph shall occur without regard to whether the
location of the issuance or passing of the check or similar
sight order is within or outside of this Commonwealth. It
shall be no defense to a violation of this section that some
or all of the acts constituting the offense occurred outside
of this Commonwealth.
(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:
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(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
(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.
18 Pa.C.S. § 4105.
Wilkerson argues that his trial counsel was ineffective for failing to
conduct a reasonable investigation into the bank account activity associated
with the check in question. Brief for Wilkerson at 9-19. Specifically,
Wilkerson suggests that “[h]ad counsel investigated the history of the bank
records, he would have found that the check . . . was never presented to the
dealership’s bank for payment; thus it was impossible for the check to be
returned.” Id. at 10. Therefore, Wilkerson argues, the statutory
presumptions should not have applied to his circumstances because he was
not provided notice that payment on his check had been refused. Wilkerson
suggests that, because the bank records would have corroborated his
version of the events, they would have confirmed his defense and negated
the intent element of the crime of bad checks. Wilkerson argues that his
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counsel’s failure to acquire these records constituted ineffective assistance of
counsel, and thus the PCRA court erred in dismissing his petition without a
hearing. We disagree.
Because we conclude that counsel’s acquisition and presentation of the
bank records would not have created a reasonable likelihood that the result
of the trial would have been different, we begin and end our analysis with
the “prejudice” prong of the ineffectiveness claim. See Tharp, 101 A.3d at
747. “Respecting prejudice, we employ the Strickland4 actual prejudice
test, which requires a showing of a reasonable probability that the outcome
of the proceeding would have been different but for counsel’s constitutionally
deficient performance.” Commonwealth v. Daniels, 104 A.3d 267, 281
(Pa. 2014). “[A] reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.” Spotz, 84 A.3d at
312 (citation omitted).
At the outset, we note that Wilkerson has not provided the bank
records that he claims his attorney should have acquired, so we cannot be
certain of their contents.5 Wilkerson claims that “the bank records would
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4
See Strickland v. Washington, 466 U.S. 668 (1984).
5
For the purpose of our prejudice analysis, we are assuming, arguendo,
that the bank records would have contained the information that Wilkerson
suggests. However, we note that Wilkerson’s failure to present the bank
records before this Court raises doubts about whether we could determine
that his claim has arguable merit. Regardless, because we conclude that
(Footnote Continued Next Page)
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have shown that the check presented at trial was never deposited or cashed;
therefore, there was no way that the dealership provided notice to Wilkerson
as they claimed.” Brief for Wilkerson at 17. This argument is somewhat
curious, because Wilkerson introduced the dealership’s deposit slip into
evidence at trial for the purpose of demonstrating the length of time
between the transaction and the dealership’s attempt to deposit the check.
Wilkerson passed the check on September 18, 2009, and the dealership
attempted to deposit the check on September 28, 2009.
Wilkerson suggests that his counsel should have obtained both
Wilkerson’s and the dealership’s bank records. Brief for Wilkerson at 12.
We cannot understand what benefit Wilkerson would have received from the
presentation of his own bank records. Wilkerson’s bank records likely would
have shown merely that Wilkerson’s account had been closed, which is a fact
not in dispute. Wilson admitted at trial that the account had been closed at
the time of the transaction. N.T., 8/8/2011, at 110. Moreover, the fact that
Wilkerson’s account was closed was an essential component of his “mistake”
defense. The dealership’s bank records, by contrast, potentially would have
shown that there were no attempts to deposit Wilkerson’s check until
September 28, 2009. While the length of time between the transaction and
the attempted deposit may have cast doubt upon Mielke’s recollection of the
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(Footnote Continued)
Wilkerson did not suffer prejudice from his trial counsel’s omission, we need
not address the arguable merit element of Wilkerson’s ineffectiveness claim.
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events, it is ultimately not of consequence. Even if the dealership’s bank
records supported Wilkerson’s narrative, they do not bear upon the
determinative question of whether Wilkerson knew that he was passing the
check on a closed account at the time of the transaction.
The Commonwealth contends that presentation of the bank records
would have been needlessly cumulative of the other evidence presented by
the defense. Brief for Commonwealth at 9-10. We define cumulative
evidence as “additional evidence of the same character as existing evidence
and that supports a fact established by the existing evidence.”
Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa. Super. 2012). Again,
because the records are not before this Court, we cannot be certain of their
contents, but we infer that the bank records could have been stronger
evidence than the deposit slip. The deposit slip accounts only for one
attempt to deposit the check, on one day, at one time. The bank records
potentially could have accounted for all of the other time between the
transaction and the date reflected on the deposit slip. Undeniably, the bank
records, had they been produced, would be better characterized as
“corroborative” evidence, which is “[e]vidence that strengthens or bolsters
existing evidence.” Id. Despite the bank records’ potential for
corroborating the evidence of the deposit slip, we are confident that the
presentation of the bank records would not have changed the outcome of
the verdict. The records merely would have supported a proposition already
suggested by other evidence and, more importantly, they would not have
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been probative of the ultimate factual determination—Wilkerson’s knowledge
at the time of the transaction.
The parties have argued at length about the applicability of the
statutory presumptions, which provide that the issuer may be presumed to
know that a check will not be paid if payment was refused by the drawee
due to the absence of an account or the lack of sufficient funds. 18 Pa.C.S.
§ 4105(b)(1) (emphasis added). As noted in the statute, “[n]otice of refusal
may be given to the issuer orally or in writing by any person.” Id. Viewing
the evidence in the light most favorable to the Commonwealth as the
prevailing party at trial, as we must, Mielke’s testimony established that he
orally provided Wilkerson with notice that payment on the check was
refused. As we noted in affirming Wilkerson’s conviction on direct appeal:
[Mielke] testified that the dealership presented the check to the
bank and it was not honored. The jury could justifiably conclude
from this testimony alone that the dealership presented the
check to its own bank, Wachovia Bank, which in turn presented
it to Bank of America, the drawee bank, and that Bank of
America refused to honor the check. Thus, the evidence was
sufficient to support a conviction for bad checks.
Wilkerson, No. 3325 EDA 2011, slip op. at 15. We understand that, if the
bank records were able to demonstrate conclusively that there was no
attempt by the dealership to deposit the check in the days following the
transaction, then those records possibly would have detracted from the
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credibility of Mielke’s testimony and bolstered Wilkerson’s narrative.6
However, the defense presented three witnesses that contradicted Mielke’s
testimony, in addition to the deposit slip which shows the date of the
attempted deposit, which was several days after Mielke claimed.
Nevertheless, the jury credited the Commonwealth’s version of the facts.
We discern no reason to believe that a piece of documentary evidence,
which would have been merely corroborative of the evidence of the deposit
slip, would undermine confidence in the outcome of that verdict.
Furthermore, it is significant that Wilkerson testified that he knew that
the account had been closed for eight or nine months prior to the
transaction. N.T., 8/8/2011, at 110. Therefore, Wilkerson possessed actual
knowledge that the check could not be honored. As the Commonwealth
notes, “[r]egardless of whether [notice] came from the dealership on
September 19, the dealership on September 28, or from his own knowledge
that he wrote the check on a closed account, the check could not clear, and
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6
We note, however, that the prosecution established on cross-
examination of the dealership’s finance manager that the dealership
previously utilized a verification system for checks, whereby they could
determine the validity of a check without attempting to deposit it. N.T.,
8/8/2011, at 91. This fact suggests that the dealership could have received
notice that the check would not be honored without conducting any activity
that would reflect on its bank records. The jury could have concluded from
this fact that Mielke’s testimony that he received notice from the
management that the check would not clear was derived from the use of the
verification system, and not from an attempt to deposit the check into the
dealership’s bank account.
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[Wilkerson] never made good.” Brief for Commonwealth at 8. Wilkerson’s
admission is all the more significant when considering the court’s jury
instruction on the statute’s requirements, which included the following:
[E]vidence has been presented in this case that [Wilkerson] had
no open account with drawee, the bank, at the time the check
was issued. If you are satisfied beyond a reasonable doubt that
this was the stated fact, you may find that [Wilkerson] knew that
the check would not be paid.
N.T., 8/9/2011, at 54. While this instruction may be somewhat of an
oversimplification of the knowledge requirement, Wilkerson has never
challenged the legal accuracy of this instruction. Regardless, the jurors were
instructed to find that Wilkerson met the knowledge requirement if they
were satisfied that the bank account was closed, which is a fact that they
heard directly from Wilkerson.
There is no dispute that Wilkerson’s bank account was closed at the
time of the transaction, and there is no doubt that the check that he passed
would not clear. Wilkerson’s only defense was that he lacked the requisite
intent because his passing of the check was an accident. Wilkerson cogently
presented this theory to the jury, and the jury rejected it wholesale. The
bank records would not have affected the ultimate question of whether the
passing of the check was an accident. Therefore, we conclude that there is
no reasonable probability that the bank records’ presentation at trial would
have changed the outcome of the verdict; thus, his trial counsel’s failure to
acquire the bank records did not prejudice Wilkerson. Because Wilkerson
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has failed to demonstrate prejudice, his ineffectiveness claim is without
merit, and we need not consider the remaining elements of the claim. See
Tharp, 101 A.3d at 747. Furthermore, because Wilkerson did not raise an
issue of fact, which, if resolved in his favor, would justify relief, the PCRA
court did not err in dismissing Wilkerson’s petition without a hearing. See
Simpson, 66 A.3d at 260-61.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2015
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