J-A23034-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CONNIE BARLOW,                             :
                                               :
                       Appellant               :      No. 1793 WDA 2018

      Appeal from the Judgment of Sentence Entered November 19, 2018
               in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0015831-2017

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 21, 2019

        Connie Barlow (“Barlow”) appeals from the judgment of sentence

entered following her convictions of one count of theft by deception, and three

counts of forgery.1 We affirm.

        In its Opinion, the trial court set forth the relevant factual background

as follows:

              [In February 2017, Barlow] was a member of the Hill District
        Federal Credit Union (“Credit Union”). The Credit Union is located
        in the Hill District section of the City of Pittsburgh[,] where the
        average income of its members is roughly $16,000 to $20,000 per
        year.   Accordingly, when a member makes a deposit over
        $2,000.00, Richard Witherspoon [“Witherspoon”], the chief
        executive officer of the [C]redit [U]nion, is notified so that he may
        monitor such deposits.

              On February 6, 2017, [Barlow] made three check deposits
        into one of the accounts she held at the Credit Union[,] totaling
____________________________________________


1   See 18 Pa.C.S.A. §§ 3922(a)(1), 4101(a)(3).
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      $6,417.90. On February 10, 2017, [Barlow] withdrew $4,600.00
      from this account. Shortly thereafter, [Barlow] made transfers in
      the amounts of $200.00 and $1,400.00 from the account and
      moved the remaining money into another account she held with
      the Credit Union. [Barlow] made these withdrawals and transfers
      prior to the checks “clearing.”     On February 14, 2017, []
      Witherspoon learned that the checks were fraudulent.

            [] Witherspoon tried, without success, to contact [Barlow]
      on many occasions in an attempt to resolve the situation. [Barlow]
      alleges the checks were mailed to her as a result of work she
      performed through her business, AWB Remodel and Renovations.
      [Barlow] alleges the work performed was the result of three
      separate, local jobs in the neighborhoods of Mount Lebanon,
      Ambridge and South Park.          However, the three checks for
      payment for those jobs originated, without any credible
      explanation, out of Santa Ana, California; Vienna, Virginia; and
      Colquill, Georgia.      Furthermore, Detective Brittany Miles
      [(“Detective Miles”)] testified that she was never able to contact
      any of the alleged signatories/distributors of the checks.

            Following [Barlow’s] trial, she was sentenced to two years
      [of] probation at each count[,] to run concurrently. On December
      19, 2018, [Barlow] filed a [timely] Notice of Appeal, and on
      January 25, 2019, [she] filed her [Pa.R.A.P. 1925(b)] Concise
      Statement of Matters Complained of on Appeal.

Trial Court Opinion, 2/27/19, at 1-2.

      On appeal, Barlow raises the following questions for our review:

      [1.] Under Pennsylvania’s forgery statute, the Commonwealth
      must show that a writing has been unlawfully altered or presents
      a writing that wrongly purports to be authorized by another. []
      Witherspoon failed to identify why the three checks cashed by []
      Barlow with the Credit Union ultimately bounced. Given the
      absence of testimony that the checks were defective, did the
      Commonwealth present sufficient evidence to find [that] each of
      the three checks cashed by [] Barlow were forged?

      [2.] In part, Pennsylvania’s forgery statute requires an intent to
      defraud another by uttering a writing known to be forged. Did the
      Commonwealth present sufficient evidence of intent[,] given the
      lack of unusual or suspicious actions by [] Barlow and her


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J-A23034-19


      consistent explanations that she received the three checks for
      work done through her business?

      [3.] Pennsylvania’s theft by deception statute is premised on the
      creation or reinforcement of a false impression. [] Witherspoon
      failed to identify why the three checks cashed by [] Barlow with
      the Credit Union ultimately bounced. Given the absence of
      testimony that the checks were defective, did the Commonwealth
      present sufficient evidence to establish that any of the three
      checks created or reinforced a false impression?

      [4.] In part, Pennsylvania’s theft by deception statute requires an
      intent to obtain or withhold property of another by deception. Did
      the Commonwealth present sufficient evidence of intent[,] given
      the lack of unusual or suspicious actions by [] Barlow and her
      consistent explanations that she received the three checks for
      work done through her business?

      [5.] Whether [] Witherspoon’s testimony concerning fraudulent
      banking transactions went beyond the scope of his admitted
      expertise in banking regulations or credit union operation?

Brief for Appellant at 6 (issues reordered). We will address Barlow’s first four

issues together, as they all challenge the sufficiency of the evidence

supporting her convictions.

      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

             [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

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      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      In her first issue, Barlow alleges that the evidence was insufficient to

prove that the checks that she had deposited were forged.        See Brief for

Appellant at 19-22. Barlow argues that (1) the Commonwealth did not present

testimony from the check issuers; (2) Witherspoon testified that he could not

remember whether the checks were returned as fraudulent because the check

issuers had insufficient funds, or for some other reason; and (3) the

photocopies of the checks submitted at trial did not contain any markings

indicating that they were returned as fraudulent. Id. at 20-21. According to

Barlow, there are numerous, non-fraudulent reasons why the checks could

have been returned, and the Commonwealth’s evidence at trial did not

foreclose those possibilities. Id. at 21.

      In her second issue, Barlow alleges that the evidence was insufficient to

prove that she knew the checks were forged, and that she intended to deceive

the Credit Union. Id. at 25-31. Barlow argues that her testimony, that she

had legitimately received the checks in exchange to work, was uncontradicted

at trial by the Commonwealth. Id. at 25. According to Barlow, her actions,

following her deposit of the checks, and the fact that the checks originated

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from out-of-state banks, do not prove that she knew the checks were forged.

Id. at 27-31.

      Section 4101(a) 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 or injury
      to be perpetrated by anyone, the actor:

         (1) alters any writing of another without his authority;

         (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).     “We may look to the totality of the defendant’s

conduct to infer fraudulent intent.    Circumstantial evidence is sufficient to

establish the defendant’s knowledge that the document is a forgery.”

Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019).

      In its Opinion, the trial court concisely addressed Barlow’s first two

claims as follows:

             [Regarding Barlow’s first claim,] Witherspoon testified as to
      what occurs when a check is deposited with the Credit Union and
      the process by which the check is then cleared by the
      corresponding bank. In this instance, the checks deposited by
      [Barlow] were sent by the Credit Union to PNC Bank for clearance.
      PNC Bank returned the check to the Credit Union indicating that
      the checks were fraudulent. Additionally, Detective [] Miles
      testified that she was unable to contact any of the alleged
      distributors of the checks. … Therefore, based upon the totality of
      the circumstances, this [c]ourt believes the Commonwealth has


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J-A23034-19


        carried [its] burden in proving that the checks deposited by
        [Barlow] were altered and/or unauthorized by another.

               … [Regarding Barlow’s second claim,] Witherspoon testified
        that out-of-state checks take additional processing time for
        clearance. Additionally, [] Witherspoon explained the federal
        regulation known as Regulation CC[,2] which requires the credit
        union to make deposited funds available to the depositor unless a
        financial institution has some apprehension about the check that
        has been deposited. More specifically, pursuant to Regulation CC,
        the Credit Union is required to make the funds available before
        clearance from a financial institution. This [c]ourt does not find it
        a coincidence that [Barlow] deposited three fraudulent out-of-
        state checks into her account with the Credit Union only to
        withdraw the majority of that money days later. Furthermore,
        [Barlow] shortly thereafter transferred the funds into a separate
        account. Additionally, this [c]ourt did not find [Barlow’s]
        testimony with respect to how she came into possession of the
        checks or the work she allegedly performed in exchange for the
        checks credible or persuasive. This [c]ourt was unpersuaded by
        [Barlow’s] claims that she performed work for three individuals
        locally and received three out-of-state checks for payment of that
        work[— t]hree out-of-state checks which were all deposited on
        the same day, and which were all returned by the bank after
        undergoing a clearance process as fraudulent. Furthermore, []
        Witherspoon testified that he contacted [Barlow] several times to
        inquire about the deposits and attempt to resolve the issue, all of
        which proved to be unfruitful. Accordingly, this [c]ourt found that
        [Barlow] knew the checks were fraudulent and/or deposited the
        checks with the intent to defraud the Credit Union.

Trial Court Opinion, 2/27/19, at 4-5 (footnote added). The record supports

the trial court’s findings in this regard.       We therefore agree with the trial

court’s sound rationale and determination, and affirm on this basis in rejecting

Barlow’s first and second claims. See id.




____________________________________________


2   See 12 C.F.R. §§ 229.1-229.60.

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      In her third claim, Barlow alleges that the evidence was insufficient to

prove that she had created or reinforced a false impression to support her

conviction for theft by deception. See Brief for Appellant at 22-24. Similar

to her argument regarding her conviction for fraud, Barlow argues that there

was no evidence establishing that the checks were fraudulent.          Id. at 23.

According to Barlow, without evidence that the checks were fraudulent, the

evidence was insufficient to prove that she had created or reinforced a false

impression. Id. at 23-24.

      In her fourth claim, Barlow alleges that the evidence was insufficient to

prove that she had intentionally deceived the Credit Union, to support her

conviction for theft by deception. Id. at 31-36. Barlow argues that the checks

contained no facial defects indicating that the checks were invalid, and her

actions following her deposit of the checks does not prove she knew the checks

were invalid. Id. at 33-36.

      Section 3922(a)(1) states that

      [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[.]

18 Pa.C.S.A. § 3922(a)(1). “Deception occurs when that person creates or

reinforces   a   false   impression   regarding   the   value    of   property….”



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Commonwealth v. Fisher, 682 A.2d 811, 813 (Pa. Super. 1996). “To obtain

a conviction of theft by deception, the Commonwealth must demonstrate the

presence of a false impression and that the victim relied on that impression.”

Commonwealth v. Thomas, 684 A.2d 1085, 1086 (Pa. Super. 1996).

      In its Opinion, the trial court concisely addressed Barlow’s third and

fourth claims as follows:

            [Barlow] testified on her own behalf as to how she came into
      possession of the three fraudulent checks. [Barlow’s] testimony
      was neither persuasive nor credible. [Barlow] was unable to
      provide consistent details, names or addresses for the people she
      allegedly did the work for in exchange for these fraudulent checks.
      [] Witherspoon testified that he contacted [Barlow] the day after
      the checks were deposited to inquire where she obtained such a
      large deposit. The story [Barlow] gave that day to [] Witherspoon
      changed at a later date. [] Witherspoon testified that he contacted
      [Barlow] several times regarding the fraudulent checks in an
      attempt to resolve the issue, but [Barlow] never returned the
      money she withdrew after being advised the checks she had
      deposited were fraudulent. The Commonwealth also presented
      testimony from Detective [] Miles who testified that she was
      unable to contact the alleged distributors of the checks during the
      course of her investigation into this matter.

Trial Court Opinion, 2/27/19, at 3. The trial court found that this claim lacked

merit.   See id. at 6.   We agree with the trial court’s sound rationale and

determination, and affirm on this basis in rejecting Barlow’s third and fourth

claims. See id.

      In her fifth claim, Barlow alleges that the trial court erred in permitting

Witherspoon to give expert testimony on fraudulent banking schemes. See

Brief for Appellant at 37-40. Barlow argues that this testimony was beyond

Witherspoon’s area of expertise.      Id. at 38-40. Barlow points out that

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Witherspoon was admitted as an expert in “banking regulations or credit union

operation.” Id. According to Barlow, the Commonwealth failed to establish

how Witherspoon’s expertise in “banking regulations or credit union operation”

made him an expert on fraudulent banking schemes. Id.

      In its Opinion, the trial court concisely addressed Barlow’s fifth claim as

follows:

             [] Witherspoon testified at [] trial as to his 30 plus years’
      experience with the Credit Union and the experience he has had
      with members withdrawing money from deposited checks before
      the checks clear. [] Witherspoon testified that, in his experience,
      there can be several reasons why a check deposited by a member
      may not pass the clearance process, such as a check returned for
      insufficient funds, someone made an error in their checkbook[,]
      or the distributor of the check stopped payment on the check.
      Additionally, [] Witherspoon explained that he has observed
      members come to the Credit Union to deposit checks which they
      received in the mail with a letter stating they won a sweepstakes.
      Furthermore, [] Witherspoon testified that, in his experience,
      when a check has been returned as counterfeit, oftentimes it
      means that someone got ahold of another’s bank information
      and/or checks. That person sends the checks to multiple people in
      hopes that they will deposit the check. [] Witherspoon testified
      that he has copies of letters that are sent to individuals. The
      letters are sent with the counterfeit checks and request that the
      depositor send back a nominal amount of money as a “processing
      fee[.”] [] Witherspoon testified within his scope of expertise as
      well as within the scope of his experience working at the Credit
      Union for the past 30 years. Accordingly, [Barlow’s] fifth issue is
      without merit.

Trial Court Opinion, 2/27/19, at 5-6. We agree with the trial court’s sound

rationale and determination, and affirm on this basis in rejecting Barlow’s fifth

claim. See id.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2019




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