J-S09024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAM PEARSON
Appellant No. 3661 EDA 2015
Appeal from the Judgment of Sentence Entered August 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006686-2014
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 23, 2017
Appellant, Adam Pearson, appeals from the August 31, 2015 judgment
of sentence imposing concurrent sentences of 48 months of probation for
theft by unlawful taking, theft by deception, and forgery.1 We affirm in part
and vacate in part.
The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion:
On December 7, 2013, [Appellant] went to the Check and
Cash Express at 227 West Lehigh Avenue where he presented to
the teller a check for $3,500.00 purportedly issued to him from
his former employer, SarahCare Home Health Agency. The
check was dated December 7, 2013 and had the word
“Commission” printed in the memo line. Since the teller lacked
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3921, 3922, and 4101, respectively. The trial court
imposed no further penalty for bad checks (18 Pa.C.S.A. § 4105).
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enough cash on hand, the teller consulted Debbie Pastrana. Ms.
Pastrana is the cash-checking agent at Check and Cash Express
responsible for keeping and maintaining the records of the
business. Ms. Pastrana then came to the window with the
money and cashed the check for Mr. Pearson. Check and Cash
Express had contacted SarahCare in the past to verify checks
issued to [Appellant]. Ms. Pastrana testified that she did not call
to verify the $3,500.00 check because [Appellant] was a regular
customer who had previously cashed checks issued to him by
SarahCare without issue. Also, the signature, routing number,
and account number on the check matched previous checks. A
few days after cashing the check, Ms. Pastrana received
information from First Trust Bank that the $3,500.00 check had
been returned unpaid.
Arsen Ustayev, the owner of SarahCare, testified that
[Appellant] was employed as a home health aide with SarahCare
from June 2013 until November 22, 2013. Mr. Ustayev stated
that [Appellant] was not employed in a position where he would
receive any bonuses or any other form of special compensation
such as commission. The last check SarahCare issued to
[Appellant] was numbered 18313 dated November 29, 2013.
The memo line of that check sated, “Pay Period: 11/09/2013—
11/22/2013. Mr. Ustayev also compared the $3,500.00 check to
the valid check from November 29, 2013. Unlike the previous
checks issued to [Appellant] by SarahCare, the $3,500.00 check
did not have the phone number for SarahCare printed on it, nor
did it contain the usual instruction “Check Cashing Stores Must
Call to Verify.” The $3,500.00 check was also completely out of
sequence with the valid check dated November 29, 2013.
Trial Court Opinion, 5/25/2016, at 1-2.
The trial court found Appellant guilty of the aforementioned offenses
after an April 7, 2015 bench trial. The trial court imposed sentence on
August 13, 2015 and Appellant filed a timely post-sentence motion on
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August 24, 2015.2 The trial court denied the post-sentence motion on
November 18, 2015, and Appellant filed this timely appeal on December 4,
2015.
Appellant raises four assertions of error:
1. Was not the evidence insufficient to sustain
[Appellant’s] conviction for forgery insofar as the
Commonwealth failed to establish that [Appellant] knew
the check he possessed was fraudulent, where he
merely presented a payroll check at the check cashing
store at which he was a regular customer and at which
he had previously cashed numerous checks made out
by the same employer, and exhibited no suspicious
behavior?
2. Was not the evidence insufficient to support
[Appellant’s] convictions for theft by unlawful taking
and theft by deception where the Commonwealth failed
to prove either that [Appellant] intended to deprive
anyone of any money or that he intentionally obtained
or withheld property of another by deception, where he
merely presented a payroll check at the check cashing
store at which he was a regular customer and at which
he had previously cashed numerous checks made out
by the same employer?
3. Was not the evidence insufficient to establish
[Appellant’s] guilt of passing bad checks where there
was no evidence that [Appellant] knew the check would
not be honored, as he presented a facially valid check
to a check cashing agency where he was a regular
customer and at which he had previously cashed
numerous payroll checks made out by the same
employer?
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2
The motion was timely because the tenth and final day in the filing period
fell on Sunday August 23, 2015.
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4. Did not the trial court err as a matter of law and impose
an illegal sentence by sentencing [Appellant] on both
theft by unlawful taking and theft by deception, charges
that merge for sentencing purposes?
Appellant’s Brief at 3-4.
Appellant’s first three assertions of error challenge the sufficiency of
the evidence in support of forgery, theft by unlawful taking/theft by
deception, and passing bad checks. Our standard of review is well settled:
When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in
the light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the
crime was established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to any claim
that some of the evidence was wrongly allowed. We do not
weigh the evidence or make credibility determinations.
Moreover, any doubts concerning a defendant’s guilt were to be
resolved by the factfinder unless the evidence was so weak and
inconclusive that no probability of fact could be drawn from that
evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796 (Pa. 2011).
Appellant argues the evidence in support of his forgery3 conviction was
insufficient because mere possession of a forged check is not sufficient to
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3
The Crimes Code defines forgery as follows:
(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;
(Footnote Continued Next Page)
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establish intent to defraud. Commonwealth v. Gibson, 416 A.2d 543, 545
(Pa. Super. 1979). Appellant argues the Commonwealth produced no
evidence to establish that he knew the check was forged.
Appellant argues that Gibson is “on all fours” with the instant case
and requires us to vacate his forgery conviction. Appellant’s Brief at 16. In
Gibson, the defendant attempted to cash a check written on the personal
account of Elsworth Kutz. Kutz testified that he did not sign the check and
that some of his checks were missing. Id. at 544. The defendant had no
previous connection with Kutz. Id. This Court concluded that Kutz’s
testimony—that he did not sign the check and that some of his checks were
missing—did not support an inference that the defendant signed the check
or knew it was forged. Id. at 544-45. “The evidence just as easily supports
an inference that [the defendant] found the check or received it from
someone else.” Id at 545. The circumstances did not demonstrate guilt,
_______________________
(Footnote Continued)
(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; or
(3) utters any writing which he knows to be forged in a manner
specified in paragraphs (1) or (2) of this subsection.
18 Pa.C.S.A. § 4101(a).
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inasmuch as there was no prior connection between the defendant and Kutz.
Id.
We conclude that Gibson is distinguishable. Appellant was cashing a
check from his former employer, not a private individual with whom he had
no prior relationship. As explained above, the record reveals that SarahCare
no longer employed Appellant as of, December 7, 2013, the date of the
disputed check. Appellant received his final payroll check from SarahCare on
November 29, 2013 for the pay period that concluded on November 22,
2013. Further, the memo line on the disputed check indicated a commission
payment, but Appellant earned no commission from SarahCare. Finally, we
observe that $3,500.00 was approximately ten times the amount of
Appellant’s biweekly paycheck. N.T. Trial 4/7/15, at 51. Instantly, unlike
Gibson, the record contains ample circumstantial evidence establishing
Appellant’s knowledge that the check was forged. Appellant’s first argument
lacks merit.
Next, Appellant argues the Commonwealth failed to produce sufficient
evidence of his guilty of theft by unlawful taking and theft by deception.4
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4
The Crimes Code defines theft by unlawful taking as follows:
(a) Movable property.--A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.
(Footnote Continued Next Page)
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Appellant argues the Commonwealth failed to prove he acted with the intent
to deprive or deceive. Appellant notes that SarahCare personnel other than
Mr. Ustayev could have issued the check to Appellant. This argument
ignores the fact that Appellant’s employment at SarahCare ended before he
received the disputed check. Appellant also ignores the fact that the
disputed check was out of sequence, and that it omitted the instruction for
check cashing stores to call and verify. SarahCare included the call and
_______________________
(Footnote Continued)
(b) Immovable property.--A person is guilty of theft if he
unlawfully transfers, or exercises unlawful control over,
immovable property of another or any interest therein with
intent to benefit himself or another not entitled thereto.
18 Pa.C.S.A. § 3921.
The Crimes Code defines theft by deception as follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind;
but deception as to a person’s intention to perform a promise
shall not be inferred from the fact alone that he did not
subsequently perform the promise;
(2) prevents another from acquiring information which would
affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver knows to
be influencing another to whom he stands in a fiduciary or
confidential relationship.
18 Pa.C.S.A. § 3922(a).
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verify instruction on all of its checks. Finally, Appellant ignores evidence
that he did not receive commissions from SarahCare. Sufficient
circumstantial evidence establishes that Appellant cashed the disputed check
knowing that he was not entitled to the funds. Appellant’s argument fails.
Next, Appellant argues the Commonwealth failed to produce sufficient
evidence to convict him of passing bad checks.5 Once again, Appellant
challenges the mens rea element, arguing that the Commonwealth failed to
prove Appellant presented the disputed check knowing it would not be
honored. Once again, we rely on the substantial circumstantial evidence
supporting Appellant’s conviction. In particular, Appellant presented a check
purportedly for a commission when Appellant earned no commissions from
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5
The Crimes Code defines bad checks 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.
18 Pa.C.S.A. § 4105(a).
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SarahCare. Appellant presented the check after his employment with
SarahCare ended and after he received his final payroll check, and the check
was out of sequence and did not expressly require verification from a check-
cashing store. Drawing reasonable inferences in favor of the
Commonwealth, as we must, we conclude the record contains sufficient
evidence in support of his bad checks conviction.
Finally, Appellant argues that his convictions for theft by unlawful
taking and theft by deception merge for sentencing purposes.6 The trial
court and the Commonwealth correctly concede this point. In
Commonwealth v. Goins, 867 A.2d 526, 530-31 (Pa. Super. 2004), this
Court concluded that theft by unlawful taking is a lesser-included offense of
theft by deception. Accordingly, we vacate the sentence for theft by
unlawful taking.
As noted above, the trial court imposed concurrent four-year
probationary sentences for forgery, theft by unlawful taking, and theft by
deception. Vacating one of three identical concurrent sentences does not
disturb the trial court’s sentencing scheme. We therefore need not remand
for resentencing.
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6
Appellant did not raise this issue in his post-sentence motion, but merger
implicates the legality of a sentence and therefore is not waivable.
Commonwealth v. Robinson, 931 A.2d 15, 20 (Pa. Super. 2007).
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Judgment of sentence affirmed in part and vacated in part.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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