J-A26035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JAMES LONG

                            Appellant                   No. 26 MDA 2015


         Appeal from the Judgment of Sentence of December 3, 2014
               In the Court of Common Pleas of Berks County
             Criminal Division at No.: CP-06-CR-0003611-2014


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                         FILED NOVEMBER 06, 2015

       Michael James Long appeals his December 3, 2014 judgment of

sentence. We affirm.

       The trial court summarized the procedural and factual history of this

case as follows:

       On or about January 15, 2014, Amber Godbee discovered seven
       fraudulent purchases had been made on her Lowe’s Visa credit
       card after receiving her [] credit card statement. Ms. Godbee
       testified at trial that the last time she personally used the credit
       card herself was on December 18, 2013. The fraudulent charges
       on her statement occurred between December 20, 2013 and
       January 1, 2014. The purchases were made on Ms. Godbee’s
       credit card at the Lowe’s in Spring Township, Berks County,
       Pennsylvania.

       In the first week of January 2014, Ms. Godbee and [Long] broke
       off their engagement. On January 8, 2014, Ms. Godbee obtained
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*
       Retired Senior Judge assigned to the Superior Court.
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       a Protection from Abuse Order[1] against her ex[-]fiancé, [Long].
       After the breakup, while going through the items left at her
       residence by [Long,] Ms. Godbee discovered several credit card
       receipts from December 20, 2013, and January 1, 2014. Ms.
       Godbee confirmed that she did not give [Long] permission to use
       her credit card on December 20, 2013 nor did she give him
       permission to use the credit card on January 1, 2014.

       Once the Lowe’s credit card statement was received by Ms.
       Godbee she immediately notified the Lowe’s credit card
       company. The credit card company canceled Ms. Godbee’s
       credit card and issued Ms. Godbee a new one. After notifying
       the credit card company, Ms. Godbee contacted the Spring
       Township Police Department to report the fraudulent purchases
       made on her credit card.

       As part of the investigation, Detective Matthew Hlavac notified
       the Lowe’s loss prevention center concerning the fraudulent
       purchases made on Ms. Godbee’s credit card. [Craig] Dublin,
       the loss prevention manager for the Sinking Spring Lowe’s, was
       able to locate surveillance video of the transactions that took
       place on January 1, 2014. In the still photographs made from
       the surveillance video, [Long] was identified as purchasing the
       power tools listed on January 1, 2014, by Ms. Godbee.

Trial Court Opinion (“T.C.O.”), 2/11/2015, at 2-3.

       Following a jury trial on December 3, 2014, Long was convicted of

access device fraud, theft by unlawful taking or disposition, receiving stolen

property, and identity theft.2 The jury acquitted Long of forgery.3 On that

same day, the trial court sentenced Long to thirty months to seven years’

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1
       See 23 Pa.C.S. § 6101, et seq.
2
     18 Pa.C.S.        §§    4106(a)(1)(ii),     3921(a),   3925(a),   and   4120(a),
respectively.
3
       18 Pa.C.S. § 4101(a)(2).



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imprisonment for access device fraud, and one to five years’ imprisonment

for theft by unlawful taking, which the trial court imposed concurrently. On

January 2, 2015, Long filed a notice of appeal. On January 6, 2015, the trial

court ordered Long to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Long timely complied.4 On February

11, 2015, the trial court filed a Pa.R.A.P. 1925(a) opinion.

       Long raises two issues for our consideration:

       I.     Whether the evidence admitted at trial was insufficient to
              support the conviction for the charge of identity theft?

       II.    Whether the trial court committed prejudicial error in
              denying the admission into evidence of defense exhibits
              demonstrating examples of [Long’s] signature?

Brief for Long at 7.

       Long’s first issue challenges the sufficiency of evidence to prove him

guilty of identity theft.     When examining a challenge to the sufficiency of

evidence:

       [t]he standard we apply . . . 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
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4
      The trial court’s concise statement order initially was distributed to the
incorrect attorney. On February 4, 2014, the trial court provided Long’s
counsel with a copy of the order. See T.C.O. at 2.



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      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.

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

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

      A person is guilty of identity theft “if he possesses or uses, through

any means, identifying information of another person without the consent of

that other person to further any unlawful purpose.” 18 Pa.C.S. § 4120(a).

Long focuses upon the “identifying information” element of the offense, and

alleges that the Commonwealth did not prove beyond a reasonable doubt

that he used Ms. Goodbee’s “identifying information,” only her credit card.

However, the statute clearly defines identifying information to include:

      [a]ny document, photographic, pictorial or computer image of
      another person, or any fact used to establish identity, including,
      but not limited to, a name, birth date, Social Security number,
      driver’s license number, nondriver governmental identification
      number, telephone number, checking account number, savings
      account number, student identification number, employee or
      payroll number or electronic signature.

18 Pa.C.S. § 4120(f).     The statute then defines the term “document” as

follows:

      Any writing, including, but not limited to, birth certificate, Social
      Security card, driver’s license, nondriver government-issue
      identification card, baptismal certificate, access device card,

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       employee identification card, school identification card or other
       identifying information recorded by any other method, including,
       but not limited to, information stored on any computer,
       computer disc, computer printout, computer system, or part
       thereof, or by any other mechanical or electronic means.

Id. (emphasis added).

       In his brief, Long asserts that “he has not committed identity theft,

because he never claimed to be Ms. Godbee or use her identity in any way,

he used her credit card.        And he used it without authorization.”   Brief for

Long at 10 (capitalization modified for clarity).      It is apparent that Long

either has incorrectly interpreted the identity theft statute, or has not read it

in its entirety.     The statute unambiguously provides that “access device

cards” are documents that constitute identifying information.5 Thus, one can

be convicted of identity theft if there is sufficient evidence to demonstrate

beyond a reasonable doubt that he or she used another’s credit card without

authorization to further an unlawful purpose.

       Viewing the evidence in light most favorable to the Commonwealth,

there was sufficient evidence to enable the jury to find Long guilty of identity


____________________________________________


5
      See also 18 Pa.C.S. § 4106(d), which defines “access device” to
include:
      Any card, including, but not limited to, a credit card, debit card
      and automated teller machine card, plate, code, account
      number, personal identification number or other means of
      account access that can be used alone or in conjunction with
      another access device to obtain money, goods, services or
      anything else of value or that can be used to transfer funds.



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theft.     The Commonwealth presented two witnesses and photographic

evidence that tied Long to the credit card usage on the dates in question.

Ms. Goodbee testified that she did not authorize the purchases made using

her Lowe’s credit card on December 20, 2013 and January 1, 2014. Notes of

Testimony (“N.T”), 12/2/2014, at 5-6, 14-15. She testified that Long had

access to her purse, but that she never gave him permission to use her

credit card.     Id. at 11-12, 14-15.       Mr. Dublin testified that the store’s

surveillance    cameras     captured   Long    purchasing   items      at   Lowe’s   on

December       20,   2013   and   January     1,   2014.    Id.   at   55-57.        The

Commonwealth also introduced the receipts from those unauthorized

purchases. Id. at 54-57. Accordingly, there was ample evidence to support

the jury’s conclusion that Long used Ms. Goodbee’s identifying information

(i.e. her credit card) without her consent.

         Long also appeals the trial court’s denial of his request to enter

evidence of his signature.        At trial, Long requested that the court take

judicial notice of a subpoena that he had allegedly signed prior to trial. Long

stated that his desire was to “move [the document] into evidence and have

the jury review it.” N.T. at 82. Long argued that, because the document

was part of the discovery materials received from the Commonwealth in this

case, the signature undisputedly was Long’s. The trial court refused to take

judicial notice of the document, or of the signature. The trial court explained

that a witness would need to testify in order to “connect the dots” and to

establish that the signature was Long’s. Id.

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      Long argues that the trial court’s decision not to take judicial notice of

the subpoena amounts to a reversible error. In his brief, Long states that, if

the jury would have seen his signature, they would have realized that Long

signed his own name on the Lowe’s receipts and that he “was not attempting

to pass his signature off as that of another.” Brief for Long at 21. He also

contends that this evidence would discredit Ms. Godbee because she testified

that she did not recognize the signature on the Lowe’s receipt as Long’s.

      Our standard of review of challenges to the admissibility of evidence is

well settled:

      Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. Admissibility depends on
      relevance and probative value. Evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a
      fact at issue more or less probable or supports a reasonable
      inference or presumption regarding a material fact.

      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(citation omitted).

      Pursuant to the Pennsylvania Rules of Evidence, “[t]he court may

judicially notice a fact that is not subject to reasonable dispute because it

can be accurately and readily determined from sources whose accuracy

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cannot reasonably be questioned.”               Pa.R.E. 201(b)(2).     Judicial notice is

intended        to     avoid    the   formal   introduction   of   evidence   in   limited

circumstances where the fact sought to be proven is so well established that

it is considered common knowledge.6 See Kinley v. Bierly, 876 A.2d 419,

421 (Pa. Super. 2005).

       Neither the subpoena, nor the signature contained thereon, were

“facts” that are not subject to reasonable dispute. “The doctrine of judicial

notice cannot be invoked to cover evidentiary gaps of a party who has failed

to meet a burden of proof.” Commonwealth v. Story, 440 A.2d 488, 496

(Pa. 1981) (citation omitted).            Here, Long was attempting to use judicial

notice to overcome the evidentiary burden of establishing the authenticity of

the subpoena. Long sought to have the trial court take judicial notice of the

entire document, and then submit that document to the jury as an exhibit.

However, merely invoking the phrase “judicial notice” does not permit a

litigant   to        sidestep   the   requirement    that   documentary    evidence    be

authenticated.          See Pa.R.E. 901; Commonwealth v. Brooks, 508 A.2d

316, 318 (Pa. Super. 1986) (“A document may be authenticated by direct

proof, such as the testimony of a witness who saw the author sign the

document, acknowledgment of execution by the signer, admission of
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6
     For example, a trial court may take judicial notice of the county in
which a town or city is located or the location of a road or highway.
Commonwealth v. Varner, 401 A.2d 1235, 1236 (Pa. Super. 1979);
Commonwealth v. Sestina, 546 A.2d 109, 112 (Pa. Super. 1988).



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J-A26035-15



authenticity by an adverse party, or proof that the document or its signature

is in the purported author’s handwriting.”). Indeed, the express purpose of

the doctrine of judicial notice is to avoid the formal introduction of evidence.

Kinley, supra. Long’s attempted use of judicial notice was misplaced, and

the trial court did not err in refusing to take judicial notice of the subpoena.

       In any event, the evidence that Long sought to admit was irrelevant.

Long told the trial judge he was attempting to enter evidence of his

signature to prove that he had not “pretended to be [Ms. Godbee].” N.T. at

68.7 Long does not dispute that he used Ms. Godbee’s access device card

without her permission, but he argues that, because he did not sign her

name, he did not commit identity theft. Again, Long makes his misreading

of the identity theft statute apparent.          Even if the trial court had taken

judicial notice of Long’s signature, it would have done little to change to the

verdict because, pursuant to the statute, it is of no consequence whose

name Long signed on the Lowe’s receipt.

       Judgment of sentence affirmed.

____________________________________________


7
       In his brief, Long changes his primary reason for entering the
document from his argument at trial. He now submits that the signatures
would have served to discredit Ms. Goodbee, as she testified that she did not
recognize the signature on the receipt as Long’s. However, Ms. Godbee also
testified that, when she had previously seen Long’s signature, it was his full
name. N.T. at 28, 33 Long only signed the Lowe’s receipt using his initials.
Therefore, even if Long had raised and preserved this argument, it is without
merit because the evidence in no way compels the conclusion that Ms.
Goodbee was an incredible witness.



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J-A26035-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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