J-S35007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AMINA MERRIWEATHER
Appellant No. 2970 EDA 2014
Appeal from the Judgment of Sentence September 22, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010585-2013
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 30, 2015
Appellant, Amina Merriweather, appeals from the September 22, 2014
aggregate judgment of sentence of two years’ probation, imposed following
her conviction at a bench trial of forgery, theft by unlawful taking, receiving
movable property, and bad checks.1 After careful consideration, we affirm.
We summarize the history of this case as follows. By criminal
complaint dated April 12, 2013, Detective Dank Andrews, of the Northeast
Detectives Division of the Philadelphia Police Department, charged Appellant
with the aforesaid crimes and securing execution of documents by
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 4101(a)(1), 3921(a), 3925(a), and 4105(a)(1),
respectively.
J-S35007-15
deception.2 The charges were based on events that occurred in January
2013, related to Appellant’s employment as a home health aide by
Complainant, Marie Furey. Following a preliminary hearing held on August
20, 2013, all the charges, except the securing execution of documents by
deception charge, were bound over to the Court of Common Pleas.
Following Appellant’s waiver of her right to a jury trial, a bench trial was held
on September 22, 2014.
The trial court summarized the facts of the case as elicited from
testimony at trial as follows.
Marie Furey testified that Appellant was hired
in 2012 as a nursing aid, to assist her husband with
daily tasks, including getting him dressed and
helping with meals. In January of 2013, Mrs. Furey
became aware of an irregularity with her PNC Bank
checking account, and upon investigation with her
bank, discovered two checks that she did not write.
Mrs. Furey and her husband were joint owners of the
account and Mrs. Furey testified that her husband
was not capable of writing checks. Check Number
251 was written for the date of January 7, 2013, and
Check Number 273 was written for the date of
January 14, 2013. Both checks were written to
Amina Merriweather, and both checks were written
for the amount of four hundred eighty-four dollars.
Mrs. Furey denied that the checks were in her
handwriting.
Mrs. Furey testified that her checkbook was
kept in an unlocked buffet cabinet in her dining
room. No other checks were missing other than
Checks 251 and 273. Mrs. Furey testified that
Appellant did contact her by phone, denying that she
____________________________________________
2
18 Pa.C.S.A. § 4114.
-2-
J-S35007-15
had taken the checks, and offering to return the
missing amount.
Mrs. Furey identified a legitimate check, Check
Number 227, which was signed by herself, made to
Amina Merriweather for four hundred eighty-four
dollars, and dated January 15, 2013.
There was a stipulation by and between
counsel that Appellant cashed Checks 251 and 273
at the PNC Bank located a 6855 Frankford Avenue.
There was also a stipulation that Appellant’s mother
would testify as to Appellant’s reputation in the
community as being law-abiding and honest.
Appellant testified that she was given Checks
251 and 273 by Marie Furey in the normal course of
business as a private employee, and that she had
worked during the weeks in question. [Appellant]
testified that she was turned away from the Furey’s
home by their son in mid-January, 2013, and told
that she was no longer needed. [Appellant] denied
that she ever contacted the Fureys on the telephone
after her employment was terminated. In viewing
the documentary evidence, th[e trial] court found
that Checks 251 and 273 were markedly different
from Check 227 in terms of handwriting, spelling,
and style.
Trial Court Opinion, 12/12/14, at 2-3.
At the conclusion of the trial, the trial court found Appellant guilty of
all charges. The trial court immediately sentenced Appellant to two years’
concurrent probation on each count. Appellant did not file a post-sentence
motion. On October 3, 2014, Appellant filed a timely notice of appeal. In
response to the trial court’s order, Appellant filed a timely concise statement
of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
-3-
J-S35007-15
Procedure 1925(b). The trial court issued its Rule 1925(a) opinion on
December 12, 2014.
On appeal, Appellant raises the following issue for our review.
Whether the evidence was insufficeint [sic] to
support a conviction of forgery, theft, receiving
stolen property and bad checks?
Appellant’s Brief at 3.
Our review of a challenge to the sufficiency of the evidence is bound
by the following standard and scope of review. “A claim impugning the
sufficiency of the evidence presents us with a question of law.”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
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
defendant’s guilt may be resolved by the fact-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 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 all evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses
-4-
J-S35007-15
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)
(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013). “This standard of
deference is not altered in cases involving a bench trial, because the
province of a trial judge sitting without a jury is to do what a jury is required
to do.” Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008)
(internal quotation marks and citation omitted), appeal denied, 964 A.2d
894 (Pa. 2009).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of
such volume and quality as to overcome the
presumption of innocence and satisfy the [finder of
fact] of an accused’s guilt beyond a reasonable
doubt. The trier of fact cannot base a conviction on
conjecture and speculation and a verdict which is
premised on suspicion will fail even under the limited
scrutiny of appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation
omitted), appeal denied, 101 A.3d 102 (Pa. 2014).
We note initially that “[i]n order to preserve a challenge to the
sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.” Commonwealth v. Garland,
63 A.3d 339, 344 (Pa. Super. 2013) (citation omitted). Instantly, rather
than identifying the specific elements of the particular charges at issue in
-5-
J-S35007-15
her Rule 1925(b) statement, Appellant merely recites a version of the
evidence she deems warrants a contrary verdict.
1. The evidence was insufficient to find
[A]ppellant guilty of forgery, theft, receiving stolen
property[,] and bad checks where [A]ppellant
worked as a nursing assistant for complainant’s
husband in their home. Complainant had written
checks in the past to [A]ppellant for services
rendered. Appellant usually received a check once
per week for her work from complainant. Appellant
testified that she had worked the prior weekend that
is why she got two checks in one week. The checks
and signature on checks looked similar to other
checks complainant had written and/or other checks
complainant had drafted had not been submitted to
the court and admitted into evidence for a
comparison with the alleged forged checks.
Appellant’s Concise Statement of Errors complained of on Appeal, 11/25/14,
at 1.
Appellant’s statement actually addresses the credibility of the
witnesses and the weight of the evidence. See Commonwealth v. Yong, -
--A.3d---, 2015 WL 4366472 at *10 n.9 (Pa. Super. 2015) (holding that a
challenge to credibility and the volume and quality of the evidence is a
challenge to the weight of the evidence and must be preserved as such).
“[A] weight of the evidence claim 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. Failure to properly preserve the claim will
result in waiver, even if the trial court addresses the issue in its [Rule
1925(a)] opinion.” Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.
-6-
J-S35007-15
Super. 2014) (some citations omitted). Instantly, Appellant did not preserve
a challenge to the weight of the evidence by filing a post-sentence motion.
Accordingly, Appellant has waived any challenge to the weight of the
evidence.
Nevertheless, even if Appellant’s sufficiency claim were properly
preserved, we conclude her arguments are without merit. The forgery
statute provides as follows.
§ 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:
(1) alters any writing of another without his
authority;
…
18 Pa.C.S.A. §4101(a)(1). “Thus, the Commonwealth must prove that there
was a false writing, that the instrument was capable of deceiving, and that
the defendant intended to defraud.” Commonwealth v. Fisher, 682 A.2d
811, 815 (Pa. Super. 1996), appeal denied, 687 A.2d 386 (Pa. 1996).
Appellant claims the evidence was insufficient to prove that the subject
checks were forged because the Commonwealth “never introduced a
document with Mrs. Furey’s handwriting that was authenticated by her for
comparison with the alleged forged checks.” Appellant’s Brief at 9.
However, Mrs. Furey specifically testified that she did not make out the
-7-
J-S35007-15
subject checks and testified that Appellant had access to the blank checks,
the checks were made out to Appellant, and the checks were cashed by
Appellant. Trial Court Opinion, 12/12/14, at 2. Additionally, Appellant
herself offered into evidence a valid check signed by Mrs. Furey, check
number 227, and the trial court “found that Checks 251 and 273 were
markedly different from Check 227 in terms of handwriting, spelling, and
style.” Id. at 3. Appellant cites no authority that comparison evidence
between disputed writings are required to prove one of those writings is a
forgery or that such a comparison document must be offered by the
Commonwealth as opposed to the defense, and we find none. Accordingly,
we conclude Appellant’s sufficiency challenge to her forgery conviction is
meritless.3
Appellant, in challenging the sufficiency of the evidence supporting the
bad checks charge, asserts “[t]here was no evidence that payment was
refused by the drawee for lack of funds. The facts of this case do not make
out the elements of bad checks.” Appellant’s Brief at 10. The statute
provides as follows.
§ 4105. Bad checks
____________________________________________
3
As Appellant links her sufficiency challenge to the theft and receiving stolen
property charges to her argument challenging the forgery charge, we
conclude it is also meritless. See Appellant’s Brief at 10. “If there is
insufficient evidence to find Appellant guilty of forgery then the evidence
must be insufficient to find Appellant guilty of theft and receiving stolen
property ….” Id.
-8-
J-S35007-15
(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.
…
18 Pa.C.S.A. § 4105. Here, the trial court found that Appellant “pass[ed]
two checks for the payment of money, knowing that the checks would not be
honored by the drawee.” Trial Court Opinion, 12/12/14, at 4. There is
nothing in the statute that limits the reason a check may not be honored to
there being insufficient funds. To the contrary, the fact a check is forged
also serves as a ground to refuse to honor a check. Accordingly, we
conclude the evidence was sufficient in this case to sustain Appellant’s
conviction for bad checks.
In light of the foregoing, we conclude that Appellant’s issue
challenging the sufficiency of the evidence underlying her convictions is
waived and, alternatively, without merit. We therefore affirm the September
22, 2014 judgment of sentence.
Judgment of sentence affirmed.
-9-
J-S35007-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
- 10 -
Com. v. Merriweather, A.
Combined Opinion