J-S27009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WILLIAM JOSEPH DUNN, JR.                :
                                         :
                   Appellant             :   No. 3049 EDA 2017

           Appeal from the Judgment of Sentence March 28, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0002656-2016


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 28, 2018

     William Joseph Dunn, Jr. (“Appellant”) appeals nunc pro tunc from the

judgment of sentence entered on March 28, 2017, in the Court of Common

Pleas of Chester County. We affirm.

     This case arose from Appellant signing the name of his ex-wife,

Jacqueline Sutton Dunn (“Ms. Dunn”), to a mortgage modification document

without her permission and submitting the document to CitiMortgage. Upon

learning of Appellant’s actions, Ms. Dunn filed a private criminal complaint,

and Appellant was charged with forgery and related offenses.     Following a

two-day trial, a jury found Appellant guilty of Forgery-unauthorized writing;

Forgery-uttering a known forged writing; Identity Theft; and Tampering with
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Records or Identification.1 The trial court sentenced Appellant on March 28,

2017, to incarceration for an aggregate term of seven days to twelve months,

followed by one year of probation. Appellant filed a timely notice of appeal,

but this Court dismissed the appeal for failure to comply with Pa.R.A.P. 3517

(Docketing Statement). Order, 5/26/17. Appellant filed a petition under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, which resulted

in the reinstatement of his direct appeal rights.      PCRA Petition, 8/24/17;

Order, 8/29/17.       Appellant filed a timely notice of appeal nunc pro tunc;

Appellant and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents the following questions for our review:

       I.     Whether the evidence presented at trial was insufficient to
              support convictions on the counts charging forgery?

       II.    Whether the trial court erred in denying Appellant’s request
              to charge the jury on the necessity defense of “greater harm
              or evil?”

Appellant’s Brief at 5.

       Appellant first claims that “the Commonwealth failed to present

sufficient evidence that Appellant acted with the intent to defraud or injure

anyone, or with knowledge that he was facilitating a fraud or injury.”

Appellant’s Brief at 9. Specifically, Appellant contends, “the Commonwealth

failed to present evidence that Ms. Dunn suffered any financial loss or harm

as a result of Appellant’s actions.” Id. at 10.


____________________________________________


1   18 Pa.C.S. §§ 4101(a)(2), 4101(a)(3), 4120(a), and 4104(a), respectively.

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         In response, the Commonwealth asserts that, contrary to Appellant’s

claim, Ms. Dunn did suffer harm:          “After [Appellant] forged Ms. Dunn’s

signature, Ms. Dunn tried to get preapproved for a mortgage to purchase

property. Ms. Dunn was denied that loan, in part, due to the mortgage debt

[for] which [Appellant] fraudulently committed her to being responsible. . . .”

Commonwealth’s Brief at 11–12. Additionally, the Commonwealth submits

that “[Appellant] conveniently ignores the other victim in the case,

CitiMortgage. . . . CitiMortgage believed two people agreed to be responsible

for the debt when Ms. Dunn never agreed to accept such responsibility.” Id.

at 11.

         In reviewing the sufficiency of the evidence, we consider:

         [w]hether[,] 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 trier of fact while passing upon the
         credibility of witnesses and the weight of the evidence produced,
         is free to believe all, part or none of the evidence.




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Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super. 2017) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)) (original

internal brackets omitted).

      The statute regarding forgery provides, in relevant part, 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:

                                          * * *

           (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. § 4101(a). To establish the crime of forgery, 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) (citing Commonwealth v.

Dietterick, 631 A.2d 1347, 1352 (Pa. Super. 1993)). “By its plain language,

the statute requires only that the act be committed with ‘intent to defraud or

injure,’   not   that   the   defendant    have   succeeded   in   his   endeavor.”

Commonwealth v. Shamberger, 788 A.2d 408, 413 (Pa. Super. 2001)

(citing Commonwealth v. Sheaffer, 23 A.2d 215, 219 (Pa. Super. 1941)).

Intent to defraud is an essential element of forgery.         Commonwealth v.

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Leber, 802 A.2d 648, 651 (Pa. Super. 2002) (citing Dietterick, 631 A.2d

1347).

      The trial court disposed of Appellant’s sufficiency claim with the following

analysis:

            [Appellant] admitted to the facts that he purposely signed
      Ms. Dunn’s name to the mortgage modification document without
      her permission and submitted the document to CitiMortgage to
      obtain the modification. This document resulted in binding Ms.
      Dunn and [Appellant] to pay the principle amount of $186,902.15
      plus interest over 40 years.          [Appellant] argues that the
      Commonwealth failed to establish that [Appellant] acted “with the
      specific ‘intent to defraud or injure.’”

            [Appellant] focuses on the intent to defraud language in the
      statute, but ignores [the] fact that the statu[t]e contains further
      language regarding mens rea. Specifically, the statute states that
      “a person is guilty of forgery if, with intent to defraud or injure
      anyone, or with knowledge that he is facilitating a fraud….” 18
      Pa.C.S.A. § 4101(a) (emphasis added). There is no question that
      [Appellant] knew that he was facilitating the fraud by signing Ms.
      Dunn’s name to the document and submitting it to CitiMortgage.
      Accordingly, this element is satisfied.

            Turning to the issue of intent, we examined case law with
      regard to this issue. In the case of Commonwealth v. Ryan, the
      defendant had argued that the Commonwealth failed to present
      any evidence showing that he intended to defraud or injure the
      Econo Lodge, the only victim listed in the information. 909 A.2d
      839, 845 (Pa.Super. 2006). The Ryan court determined that “in
      order to be found guilty of forgery under Section 4101(a)(3), Ryan
      must have intended to defraud or injure someone, or acted with
      the knowledge that he was facilitating such a fraud or injury.” Id.
      The Ryan court found that the evidence in that case indicated that
      Ryan, in order to secure his final payment, presented an altered
      permit to Econo Lodge to convince it that the township had
      inspected and approved his work. Id. The Ryan court held that
      “a jury could conclude from such evidence that, in forging the
      permit, Ryan had a fraudulent intent.” Id.




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              Similarly, in the case at hand, in order to secure the loan
       modification, [Appellant] signed Ms. Dunn’s name without her
       permission and presented that document to CitiMortgage. It is
       abundantly clear that the jury concluded from such evidence that
       in doing so, [Appellant] had a fraudulent intent. Therefore,
       [Appellant’s] argument on appeal that the evidence was
       insufficient to support his forgery conviction[s] is without merit ….

Trial Court Opinion, 12/15/17, at 21–22.2

       Upon review of the evidence admitted at trial in the light most favorable

to the Commonwealth, we conclude there was sufficient evidence to enable

the jury to find there was a false writing, that the instrument was capable of

deceiving, and that Appellant intended to defraud CitiMortgage by signing Ms.

Dunn’s name on the mortgage modification document without her authority.

Fortson, 165 A.3d at 14; Fisher, 682 A.2d at 815. Appellant’s assertion that

no one was actually harmed by his actions is irrelevant, as intent to defraud

is sufficient to establish forgery. Shamberger, 788 A.2d at 413; Leber, 802

A.2d at 651.       His assertion is also inaccurate, as both Ms. Dunn and

CitiMortgage were harmed by his forgery. Thus, Appellant’s first issue does

not warrant relief.

       Appellant’s second claim is that the trial court erred in denying his

request for a jury charge on the defense of necessity. Appellant’s Brief at 12.




____________________________________________


2  We correct the trial court’s statement that the jury found Appellant guilty
under subsections (a)(1) and (a)(3) of the forgery statute, 18 Pa.C.S. § 4101.
Trial Court Opinion, 12/15/17, at 20. The jury found Appellant guilty under
subsections (a)(2) and (a)(3). Verdict Sheet, 1/25/17, at ¶ 1.

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According to Appellant, signing Ms. Dunn’s name to the mortgage modification

was necessary to save his home from a pending foreclosure action. Id. at 15.

      The Commonwealth responds, “[T]he evidence established that there

were other options [Appellant] could pursue, yet he chose not to pursue them.

Thus, the requested jury instruction was inapplicable and the trial court

properly refused to provide it to the jury.” Commonwealth’s Brief at 16.

      When evaluating the propriety of jury instructions:

      this Court will look to the instructions as a whole, and not simply
      isolated portions, to determine if the instructions were improper.
      We further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury for
      its consideration. Only where there is an abuse of discretion or an
      inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).

Additionally, “jury instructions regarding particular crimes or defenses are not

warranted where the facts of the case do not support those instructions.”

Commonwealth v. Washington, 692 A.2d 1024, 1028 (Pa. 1997).

      The Pennsylvania Crimes Code defines justification as follows:

      (a) General rule.--Conduct which the actor believes to be
      necessary to avoid a harm or evil to himself or to another is
      justifiable if:

         (1) the harm or evil sought to be avoided by such conduct
         is greater than that sought to be prevented by the law
         defining the offense charged;

         (2) neither this title nor other law defining the offense
         provides exceptions or defenses dealing with the specific
         situation involved; and

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         (3) a legislative purpose to exclude the justification claimed
         does not otherwise plainly appear.

18 Pa.C.S. § 503. The elements of a successful justification defense include

the following:

      (1)   that the actor was faced with a clear and imminent harm,
            not one which is debatable or speculative;

      (2)   that the actor could reasonably expect that the actor’s
            actions would be effective in avoiding this greater harm[;]

      (3)   that there is no legal alternative which will be effective in
            abating the harm; and,

      (4)   that the Legislature has not acted to preclude the defense
            by a clear and deliberate choice regarding the values at
            issue.

Commonwealth v. Manera, 827 A.2d 482, 484 (Pa. 2003) (quoting

Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985)).

      “When there is evidence to support the defense, it is for the trier of fact

to pass upon that evidence and improper for the trial judge to exclude such

consideration by refusing the charge.”      Commonwealth v. Clouser, 998

A.2d 656, 658 (Pa. Super. 2010) (quoting Commonwealth v. DeMarco, 809

A.2d 256, 260–261 (Pa. 2002)). However:

      [a]s with any offer of proof, it is essential that the offer meet a
      minimum standard as to each element of the defense so that if a
      jury finds it to be true, it would support the affirmative defense—
      here that of necessity. This threshold requirement is fashioned to
      conserve the resources required in conducting jury trials by
      limiting evidence in a trial to that directed at the elements of the
      crime or at affirmative defenses raised by the defendant. Where
      the proffered evidence supporting one element of the defense is
      insufficient to sustain the defense, even if believed, the trial court

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      has the right to deny use of the defense and not burden the jury
      with testimony supporting other elements of the defense.

Id. at 659 (quoting Capitolo). The burden is on the defendant to proffer

sufficient evidence to be entitled to a jury instruction on justification. Id. See

also Manera, 827 A.2d at 485 n.7 (“Because justification is an affirmative

defense, the defendant has the burden of asserting an appropriate offer of

proof in order to be entitled to a jury instruction on justification.”).

      The trial court addressed this claim of error as follows:

      [Appellant] specifically requested the following to be charged to
      the jury:

      “PA.SSCrim.J. I. 9.503 Justification is a defense if the defendant
      reasonably believed that his actions were necessary to avoid harm
      or an evil to himself that was or would have been greater than the
      crime with which he was charged.” (Defendant’s Requested Jury
      Instructions, filed January 23, 2017.)

           First, it must be noted that the language set forth by
      [Appellant] as the Standard Jury Instruction 9.503 is not accurate.
      ...

            This standard instruction addresses the use of deadly and
      non-deadly force in the defense of property. That is not applicable
      to the facts in the case at hand. This court believes [Appellant]
      meant to reference justification generally under the crimes code
      in 18 Pa.C.S.A. § 503, with no standard Jury Instruction. The
      Commonwealth objected to [Appellant’s] proposed justification
      defense.

                                      * * *

            [Appellant] had failed to meet the minimum standard as to
      each element of the justification defense and, therefore, it was
      proper for the court to not charge the jury on justification.
      Specifically, [Appellant] was not faced with clear and imminent
      harm, [Appellant’s] actions did not avoid a greater harm and there


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     was a legal alternative which would have been effective in abating
     the harm.

            The basis of [Appellant’s] argument for the justification
     defense is that he believed that Ms. Dunn had an obligation to
     help him obtain the loan modification, his home was in foreclosure
     proceedings, he did not want to lose the house[,] and he did not
     want to go into bankruptcy proceedings again. [Appellant] asserts
     that his actions of signing Ms. Dunn’s name to the document and
     submitting it to CitiMortgage in order to get the loan modification
     did not injure anyone. He argues that he was justified in
     committing the fraud. We disagree.

           As the evidence establishe[d], [Appellant] testified that
     losing the property to foreclosure was not imminent because he
     could have tied up the foreclosure in litigation for years. The
     evidence also established that there were other legal alternatives
     to forging Ms. Dunn’s name. [Appellant] testified that Mr. Claffy
     and Mr. Hanson advised him of his options. [Appellant] admitted
     to rejecting these options, including another bankruptcy. He
     opted to commit the crime of forgery in order to do things his way,
     because Ms. Dunn would not “help” him.

            [Appellant] failed to recognize that Ms. Dunn was under no
     obligation to help him. They had been divorced since 2010. He
     failed to fulfill the divorce property settlement terms by removing
     her name from the mortgage by April 30, 2013. Ms. Dunn
     remained obligated under that loan for years beyond that date.
     [Appellant’s] failure to pay the mortgage as ordered in the
     property settlement agreement . . . actually put Ms. Dunn in a
     position of having her credit rating negatively affected with a
     foreclosure. Ms. Dunn had an absolute right to not sign the
     proposed loan modification document[] because it would have
     bound her to a new 40 year mortgage with a higher principal
     amount. Ms. Dunn had a right not to sign it even if it was for
     better terms. She had a right of free choice, whether or not
     [Appellant] agreed with it.

            [Appellant’s] actions did not avoid a greater harm. His
     illegal actions selfishly only helped him to proceed in the manner
     in which he wanted. Having failed to meet the elements of the
     justification defense, the court properly denied his request to
     charge the jury on said defense. . . .


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Trial Court Opinion, 12/15/17, at 32, 34, 38–40 (footnote omitted).

      Upon review of the jury instructions and Appellant’s proffer in support

of necessity, we conclude that the facts of the case did not support a jury

instruction on the justification defense. Washington, 692 A.2d at 1028. In

reaching this conclusion, we rely on the well-reasoned opinion of the trial court

set forth above. Thus, Appellant’s second issue does not warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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