J-S13010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT
                                                             OF PENNSYLVANIA
                             Appellee

                        v.

    JERMAINE L. MARTIN

                             Appellant                      No. 1361 MDA 2019


           Appeal from the Judgment of Sentence Entered May 3, 2019
                 In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0000442-2016


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                                    FILED JULY 13, 2020

        Appellant, Jermain L. Martin, appeals from the May 3, 2019 judgment

of    sentence   imposing     an   aggregate   six   to    twenty-three   months   of

incarceration followed by five years of probation for theft by unlawful taking.1

We affirm.

        The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

              Between October of 2014 and August of 2015, [Appellant]
        was the board president of the Wilson Junior Soccer Club (WJSC),
        a nonprofit organization for youth soccer in Berks County. The
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3921. Appellant’s conviction for theft by deception, 18
Pa.C.S.A. § 3922, merged for sentencing purposes. In a companion case,
Appellant pled guilty to theft of leased property, 18 Pa.C.S.A. § 3932. The
trial court imposed sentence for that offense in the same May 3, 2019
proceeding. We review that sentence at 1362 MDA 2019.
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         main account of the WJSC was at the National Penn Bank. The
         all-volunteer board of the WJSC decided to open a second bank
         account at Citizens Bank for purposes of easier access to funds for
         WSJC expenses, specifically its fall tournament. One debit card
         for the Citizens Bank account was mailed to the WSJC secretary
         Kristin Zary who made some small purchases for the fall
         tournament and then turned the card over to [Appellant] and
         never saw it again.       All the members of the board had
         authorization to withdraw funds for WJSC expenses at Citizens
         Bank. On August 3, 2015, when Jeff Blankenbiller, second vice
         president and organizer of the WJSC Fall Classic Tournament went
         to access funds, the balance appeared to be significantly lower
         than expected. He called the first vice president, Jim Woods,
         regarding his discovery, which showed a series of withdrawals of
         large amounts of cash in July, varying between $800 and $2,500.
         He alerted [Appellant] as well as Ms. Zary. Ms. Zary looked at the
         withdrawals and attempted to identify deposits and the specific
         purposes for the withdrawal. There appeared to be no explanation
         for WJSC expenses for many of the withdrawals. At WJSC board
         meetings, [Appellant] gave treasurer’s reports which became
         increasingly vague as the withdrawals became larger and more
         frequent. [Appellant] systematically was transferring money from
         the larger National Penn account to the less secure Citizens Bank
         and then making withdrawals either utilizing the debit card which
         required no signature or without the debit card but using his
         signature. The teller remembered [Appellant] being the one
         making multiple and large withdrawals from the children’s soccer
         account.      [Appellant] met with police and acknowledged
         possession of the debit card and making the withdrawals but
         claimed they were for WJSC purposes, which were ultimately
         unable to be verified as legitimate. Ultimately, there were
         approximately 44 withdrawals ranging from $35 to $6,000 for a
         total of $48,789.76 taken from the WJSC account.

Trial Court Opinion, 11/27/19, at 4-5.

         The jury returned a guilty verdict on February 1, 2019, after a four-day

trial.   In addition to the sentence described above, the trial court ordered

Appellant to make $48,789.76 in restitution. Appellant filed a timely post-

sentence sentence motion challenging the weight and sufficiency of the



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evidence, and seeking modification of sentence. The trial court denied relief,

and this timely appeal followed. On appeal, Appellant challenges the weight

and sufficiency of the evidence in support of his convictions for theft by

unlawful taking and theft by deception.

      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). “This standard is equally applicable to cases

where the evidence is circumstantial rather than direct so long as the

combination of the evidence links the accused to the crime beyond a

reasonable doubt.” Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.

Super. 2012). “Although a conviction must be based on “more than mere

suspicion or conjecture, the Commonwealth need not establish guilt to a

mathematical certainty.” Id.

      A person is guilty if theft by unlawful taking where “he unlawfully takes,

or exercises unlawful control over, movable property of another with intent to

deprive him thereof.”     18 Pa.C.S.A. § 3921(a).       Appellant argues the

Commonwealth produced insufficient evidence that Appellant took the money



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and/or that he took it with intent to deprive the WJSC of money. In particular,

Appellant argues the evidence against him was insufficient because, among

other things, there was no video footage of his alleged teller and ATM

withdrawals; the evidence of his transactions was limited to the testimony of

one teller; all three of the WJSC board members were authorized to use access

its bank accounts; no forensic accounting was done; Appellant’s lifestyle did

not change; and the Commonwealth produced no evidence of the whereabouts

of the missing money. Appellant’s Brief at 14.

      Appellant’s argument ignores two crucial components of our standard of

review. First, the Commonwealth can prove its case with wholly circumstantial

evidence. Second, we must view the evidence in a light most favorable to the

Commonwealth as verdict winner. The evidence before us, viewed in a light

most favorable to the Commonwealth, establishes that Appellant was in

possession of the WJSC’s debit card for its Citizens Bank account, with which

Appellant could withdraw money without a signature. Kristin Zary, the WJSC’s

secretary, gave Appellant the card shortly after opening the account and never

received it back. N.T. Trial, 1/29/19 – 2/1/19, at 193-95. James Woods and

Jeffrey Blankebiller, the other board members, never had the card. Id. at

150-51, 193. The Citizens Bank account was opened at Appellant’s suggestion

so that the WJSC could pay bills more quickly during a tournament.         The

evidence also establishes that a Citizens Bank teller recognized Appellant as

the person who repeatedly appeared at the bank to withdraw funds from the


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WJSC account. Id. at 310-11. During the period of the teller’s observations,

large amounts of money were withdrawn from the WJSC’s account that did

not correspond with any WJSC expenses. Id. at 195-96; 314-24.

      Disbursements from the National Penn Bank account required board

approval and two signatures.          Id. at 79, 101.   Appellant nonetheless

persuaded another WJSC board member to authorize transfers from the

WJSC’s National Penn Bank account to its Citizens Bank account, falsely

representing that these transfers had board approval. Id. at 150.

      Thus, the evidence establishes that Appellant had access to the WJSC’s

account, that he was repeatedly seen making withdrawals from the account,

that his withdrawals did not correspond to any legitimate WJSC expense, and

that he gave misleading accounts of the reasons for the withdrawals. This

evidence, read in a light most favorable to the Commonwealth as verdict

winner, establishes that Appellant took money from the WJSC with the intent

to deprive the WJSC of that money. Thus, we reject Appellant’s argument as

to the sufficiency of the evidence.

      Appellant also challenges the sufficiency of the evidence in support of

his conviction for theft by deception. The Pennsylvania 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

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     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.

           (b) Exception.--The term “deceive” does not, however,
     include falsity as to matters having no pecuniary significance, or
     puffing by statements unlikely to deceive ordinary persons in the
     group addressed.

18 Pa.C.S.A. § 3922.

     Appellant argues that the Commonwealth failed to prove he created a

false impression to gain access to the WJSC’s funds. “A person is guilty of

theft by deception if he intentionally obtains property from another by

deception. The Commonwealth must prove that the victim relied upon the

false impression.”   Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa.

Super. 2000), appeal denied, 766 A.2d 1246 (Pa. 2000).

     Appellant’s argument for this conviction is limited to a single paragraph,

in which he fails to include any supporting law or citations to the record.

Appellant’s Brief at 32. Therefore, he has waived his challenge to theft by

deception. Pa.R.A.P. 2119(b), (c); Commonwealth v. Hernandez, 39 A.3d

406, 412 (Pa. Super. 2012), 63 A.3d 1244 (Pa. 2013). In any event, the

record reveals that Appellant presented various National Penn Bank checks to

another board member to obtain a second signature, representing that WJSC’s


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board had approved the check when it had not.           Thus, Appellant used

deception to obtain funds from the WJSC’s National Penn Bank account.

     For the foregoing reasons, Appellant’s sufficiency of the evidence

arguments fail.

     Next, Appellant claims the trial court abused its discretion in denying

Appellant’s motion for a new trial based on the weight of the evidence.

            A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Rather, the
     role of the trial judge is to determine that notwithstanding all the
     facts, certain facts are so clearly of greater weight that to ignore
     them or to give them equal weight with all the facts is to deny
     justice. It has often been stated that a new trial should be
     awarded when the jury’s verdict is so contrary to the evidence as
     to shock one’s sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.

           An appellate court’s standard of review when presented with
     a weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

            Appellate review of a weight claim is a review of the exercise
     of discretion, not of the underlying question of whether the verdict
     is against the weight of the evidence. Because the trial judge has
     had the opportunity to hear and see the evidence presented, an
     appellate court will give the gravest consideration to the findings
     and reasons advanced by the trial judge when reviewing a trial
     court’s determination that the verdict is against the weight of the
     evidence. One of the least assailable reasons for granting or
     denying a new trial is the lower court’s conviction that the verdict
     was or was not against the weight of the evidence and that a new
     trial should be granted in the interest of justice.




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Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (emphasis in

original).

        Here, Appellant notes that the eyewitness teller did not identify specific

transactions Appellant made. He also notes that the testimony of other board

members was inconstant as to how the WJSC handled its financial statements.

Appellant also notes that there is no evidence as to where the missing money

went.

        As we explained in response to Appellant’s sufficiency of the evidence

arguments, the Commonwealth produced a substantial body of incriminating

circumstantial evidence. The Commonwealth did not need to establish what

Appellant did with the money. The Commonwealth only needed to prove that

he took it (in some instances under false pretenses) and did not use it for

WJSC expenses. We discern no abuse of discretion in the trial court’s finding

that the jury’s verdict was not contrary to the weight of the evidence.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/13/2020




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