J-S08032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
MARQUES CURRY                             :           No. 1049 WDA 2015

                     Appeal from the Order June 16, 2015
               in the Court of Common Pleas of Fayette County,
              Criminal Division, No(s): CP-26-CR-0000066-2015

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 24, 2016

      The Commonwealth of Pennsylvania appeals from the Order granting

the pretrial Petition for Habeas Corpus relief filed by Marques Curry

(“Curry”), and dismissing the charges against him. We affirm.

      The trial court set forth the relevant factual background of this case as

follows:

            In October 2014, Lyn[] Furbee [“Furbee”], the victim in
      this case, began to notice suspicious charges on her debit
      card.[1] In particular, [] Furbee noted a charge on her bank
      statement [from] the Uniontown Super 8 motel for $333.15.
      The debit was for room charges from October 1, 2014 through
      October 3, 2014. She did not use the card or authorize the
      charge at the Super 8. Likewise, she did not authorize a charge
      of $82.84 for [a separate] hotel room from October 1, 2014
      through October 2, 2014[,] at the Budget Inn in Belle Vernon.
      At the time, [the debit/credit card itself] was not stolen, but
      [Furbee] had not given permission to any other individuals to
      use the card.


1
  We observe that the record is unclear as to whether the card in question is
a debit or credit card. Accordingly, we will hereinafter refer to the card as
the “debit/credit card.”
J-S08032-16



              Officer Michael Bittner [“Officer Bittner”] of the Uniontown
        Police Department investigated the unauthorized activity on
        [the] debit[/credit] card. In [Officer Bittner’s] investigation, he
        learned that the [debit/credit] card was used at both the Super 8
        and Budget Inn. [Curry’s] name was on registration forms at
        both hotels. In addition, [Curry] signed his own name on the
        registration at the Super 8. Surveillance photos from the Super
        8 confirmed [that Curry] checked into the hotel on October 1,
        2014.

              Subsequently, Officer Bittner spoke to [Curry] at the
        Fayette County Prison. During the interview, [Curry] advised
        that he had an arrangement with Herbert Sumey [“Sumey”]
        regarding the hotel rooms. [] Sumey is the father of one of
        Furbee’s grandchildren. [Curry informed Officer Bittner that
        Curry had] needed a place to stay, since his girlfriend had kicked
        him out of his residence. [] Sumey then offered to make a
        reservation at the Super 8 for [Curry] with [“Sumey’s”] debit
        card in exchange for cash. [Curry] stated [] he believed [that]
        the card used to make the reservations belonged to Sumey.
        After checking out of the Super 8, Sumey and [Curry] again
        arranged for Sumey to reserve a room at the Budget Inn with
        the card in exchange for cash. [Curry] gave Sumey $150 total
        for the rooms.

Opinion and Order, 6/16/15, at 1-2 (footnote added; citations to record

omitted).2

        In October 2014, the Commonwealth charged Curry with two counts

each of access device fraud and theft by deception, and one count of

receiving stolen property.3    The charges were bound over for trial after a

preliminary hearing before a magistrate.        In April 2015, Curry filed the

2
  Furbee additionally testified at   the hearing on Curry’s Omnibus Pretrial
Motion seeking habeas corpus         relief (hereinafter “the Habeas Corpus
Petition”) that there was a total    of approximately $1,300 in unauthorized
charges placed on the debit/credit   card. N.T., 5/28/15, at 7.
3
    18 Pa.C.S.A. §§ 4106(a)(1)(ii), 3922(a)(1), 3925(a).

                                    -2-
J-S08032-16

Habeas   Corpus    Petition,   seeking   dismissal   of   the   charges   for   the

Commonwealth’s failure to establish a prima facie case. On May 28, 2015,

the trial court conducted a hearing on the Habeas Corpus Petition, at which

Furbee and Officer Bittner testified.

      By an Order dated June 16, 2015, the trial court granted the Habeas

Corpus Petition, and dismissed the charges against Curry, finding that the

Commonwealth had failed to establish a prima facie case.          The trial court

ruled that the Commonwealth had failed to prove beyond a reasonable doubt

the intent element of all three of the offenses of which Curry was charged,

as there was no evidence that Curry knew that the debit/credit card

information that was used to pay for his hotel rooms was stolen.

      The Commonwealth timely filed a Notice of Appeal,4 followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of

on Appeal.

      The Commonwealth now presents the following issue for our review:

“Whether the [trial c]ourt erred in granting [Curry’s Habeas Corpus Petition]

when the Commonwealth established a prima facie case of access device

fraud, theft by deception, and receiving stolen property[,] in that [Curry]

knowingly obtained the property of another without authorization and is




4
  In its Notice of Appeal, the Commonwealth properly certified that the trial
court’s ruling would substantially hinder the prosecution and terminate its
case against Curry. See Pa.R.A.P. 311(d).

                                   -3-
J-S08032-16

culpable as an accomplice[?]”        Brief for the Commonwealth at 1 (some

capitalization omitted).5

        Our standard and scope of review is as follows:

        When reviewing a trial court’s decision to grant a habeas corpus
        petition, we will not reverse the trial court’s decision absent a
        manifest abuse of discretion. In order to constitute an abuse of
        discretion, the record must disclose that the trial court exercised
        manifestly unreasonable judgment or based its decision on ill
        will, bias or prejudice. Furthermore, our scope of review is
        limited to determining whether the Commonwealth has
        established a prima facie case.

Commonwealth v. Heckman, 66 A.3d 765, 768 (Pa. Super. 2013)

(citation omitted).

        A prima facie case consists of evidence, read in the light most
        favorable to the Commonwealth, that sufficiently establishes
        both the commission of a crime and that the accused is probably
        the perpetrator of that crime. The Commonwealth need not
        prove the defendant’s guilt beyond a reasonable doubt. Rather,
        the Commonwealth must show sufficient probable cause that the
        defendant committed the offense, and the evidence should be
        such that if presented at trial, and accepted as true, the judge
        would be warranted in allowing the case to go to the jury.

        In determining the presence or absence of a prima facie case,
        inferences reasonably drawn from the evidence of record that
        would support a verdict of guilty are to be given effect, but
        suspicion and conjecture are not evidence and are unacceptable
        as such.

Commonwealth v. Keller, 823 A.2d 1004, 1010-11 (Pa. Super. 2003)

(citations and quotation marks omitted).         “[W]here the Commonwealth’s

case relies solely upon a tenuous inference to establish a material element of

the charge, it has failed to meet its burden of showing that the crime

5
    We note that Curry did not file a brief on appeal.

                                    -4-
J-S08032-16

charged was committed.” Commonwealth v. Wojdak, 466 A.2d 991, 997

(Pa. 1983) (emphasis in original).

      The Crimes Code provides, in relevant part, that that a person

commits access device fraud if he “uses an access device to obtain or in an

attempt to obtain property or services with knowledge that[] … the access

device was issued to another person who has not authorized its use[.]” 18

Pa.C.S.A. § 4106(a)(1)(ii) (emphasis added).

      A person is guilty of theft by deception “if he intentionally obtains or

withholds property of another by deception.          A person deceives if he

intentionally[] creates or reinforces a false impression, including false

impressions[,] as to law, value, intention or other state of mind ….”        Id.

§ 3922(a)(1) (emphasis added; paragraph break and numbering omitted).

      Finally, the Crimes Code provides that “[a] person is guilty of

[receiving stolen property] if he intentionally receives, retains, or disposes of

movable property of another knowing that it has been stolen, or believing

that it has probably been stolen, unless the property is received, retained, or

disposed with intent to restore it to the owner.” Id. § 3925(a) (emphasis

added).

      All three of the above-mentioned offenses include an intent element,

requiring that the accused act either intentionally or knowingly.       See id.

§ 302(b)(1) and (2) (defining the relevant kinds of culpability); see also

Commonwealth v. Young, 35 A.3d 54, 62-63 (Pa. Super. 2011)



                                   -5-
J-S08032-16

(recognizing the intent required for convictions of access device fraud, theft

by unlawful taking and receiving stolen property, in a case concerning

double jeopardy implications).

      The Commonwealth argues that, contrary to the trial court’s ruling, the

evidence, viewed in the light most favorable to the Commonwealth,

established that Curry knew that the debit/credit card information that

Sumey used to pay for Curry’s hotel rooms was stolen.       See Brief for the

Commonwealth at 6.       The Commonwealth challenges Curry’s assertion to

the contrary:

      [Curry] states that he entered a deal with Sumey to trade cash
      for a room reservation. This begs the question, if Sumey had a
      valid [debit/]credit card, why could he not simply take out a cash
      advance rather than entering into this deal with [Curry?]
      Furthermore, [Curry’s] statement reveals that he paid only
      $150.00 [] ($80 initial payment and a further $70 at a later
      date) on a bill that was over $300.

Id.   Additionally, the Commonwealth asserts that the following language

from Young, supra, though dicta, is instructive to this case:       “[A]ccess

device fraud does not necessitate proof of theft or unlawful control over

movable property of another. Although access device fraud often involves

theft of movable property, theft is not a necessary element because the

statute prohibits mere unauthorized use of an access device.”     Young, 35

A.3d at 62.     Relying on Young, the Commonwealth asserts that “[i]n the

case at hand, though [Curry] did not physically take the [debit/]credit card,




                                 -6-
J-S08032-16

he can still be found guilty of access device fraud for the hotel rooms.” Brief

for the Commonwealth at 5.

      In its Opinion and Order granting the Habeas Corpus Petition, the trial

court addressed the Commonwealth’s claims as follows:

            The incontrovertible testimony at the [] hearing on [the
      Habeas Corpus Petition] was that [] Sumey and [Curry] had an
      arrangement whereby Sumey would use “his card” to reserve
      hotel rooms for [Curry], and [Curry] would pay Sumey back in
      cash. However, what the [trial c]ourt did not hear was any
      further evidence about whether [Curry] actually knew Sumey’s
      use of the card was unauthorized. As the record now stands,
      Sumey professed the card to be his and [Curry] was not aware
      of anything to the contrary. [Curry] was never in possession of
      the card, but rather, Sumey called in the card number to the
      hotels on both occasions. In fact, [Curry] signed his own name
      on both hotel registries, which lends credibility to the argument
      that [Curry] believed he very well had Sumey’s authorization to
      use the card.

            [The trial court is] certainly not oblivious to the
      questionable nature of the agreement between Sumey and
      [Curry]. … [T]he Commonwealth sensibly points out that if
      Sumey did in fact have a valid [debit/]credit card and was in
      need of cash, why did he need [Curry] to obtain a cash
      advance[?] The point is further puzzling when considering [that]
      Sumey communicated to [Curry] that the card was a debit card,
      and if rightfully his, Sumey could have obtained cash on his own.

             Yet, the [trial c]ourt cannot make assumptions in favor of
      the Commonwealth as a substitute for the existence of an
      essential element of the crimes. The Commonwealth points the
      [c]ourt towards dicta contained in [] Young[, supra,] as
      support for its case.       …    Even though [Curry] may have
      benefitted by obtaining stolen property, the hotel rooms, a
      reasonable possibility is that he did not know he could not use
      the card. Indeed, the testimony at the [] hearing on [the
      Habeas Corpus Petition] never established whether [Curry] was
      ever aware he was not permitted to use the card.             The
      Commonwealth did not call [] Sumey or another witness with
      first-hand knowledge to elaborate on the actual agreement


                                  -7-
J-S08032-16

      between Sumey and [Curry]. … Furbee[] testified she did not
      know [Curry] and did not speak to [] Sumey about any charges
      on the card. Instead, the only testimony offered as to [Curry’s]
      intent was regarding Officer Bittner’s interview with [Curry],
      where [Curry] stated [that] he believed the card belonged to
      Sumey. Because these crimes all require the Commonwealth to
      prove [Curry’s] knowledge[, but] the Commonwealth was unable
      to do so, we must … grant [the Habeas Corpus Petition].

Opinion and Order, 6/16/15, at 4-6 (citations to record omitted).

      We determine that the trial court’s foregoing analysis is supported by

the law and the record, and agree with the court’s ruling that the

Commonwealth failed to establish a prima facie case against Curry.        The

Commonwealth’s case relies upon a tenuous inference to establish the intent

element of the crimes for which Curry was charged. See Wojdak, 466 A.2d

at 1001-02 (holding that the Commonwealth had failed to establish a prima

facie case against the defendant for criminal conspiracy to commit theft by

deception, where there was not a sufficient showing of the defendant’s

criminal intent).   Thus, the trial court properly exercised its discretion in

granting the Habeas Corpus Petition for the Commonwealth’s failure to

establish a prima facie case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2016


                                  -8-
