J-A10029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ISHMIR RA                                  :
                                               :
                       Appellant               :   No. 4040 EDA 2017

          Appeal from the Judgment of Sentence September 25, 2017
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007935-2016


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED MAY 29, 2019

        Ishmir Ra appeals from the judgment of sentence imposed on

September 25, 2017, in the Court of Common Pleas of Delaware County,

following his jury convictions of one count each of access device fraud and

fleeing or attempting to elude a police officer.1 On appeal, Ra claims that the

evidence was insufficient to sustain his conviction for access device fraud. For

the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter from

the trial court’s August 9, 2018 opinion and our independent review of the

certified record.    On March 1, 2014, Ra attempted to use a credit card to

purchase a carton of cigarettes from a Wawa in Havertown, Delaware County,

____________________________________________


1   18 Pa.C.S.A. § 4106(a)(1)(i) and 75 Pa.C.S.A. § 3733(a), respectively.
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but the credit card, along with several other credit cards, were declined. N.T.

Trial, 8/16/2017, at 31-34. Michael Anthony Bahnatka, the assistant manager

of the store, testified that Ra’s name was on the credit card and the signature

on the back of the card matched that on Ra’s driver’s license but Bahnatka

could not get the card through. Id. at 33-36, 47. Bahnatka, who had received

training in credit card fraud, became suspicious that the card might be

fraudulent and asked Ra for another form of payment. Id. at 37. Ra fled the

store; Bahnatka recorded information about Ra’s vehicle and immediately

contacted police. Id.

      Officer Corey Watkins, of the Haverford Township Police Department,

responded to the call and spotted Ra’s vehicle. Id. at 66-67. When Officer

Watkins activated his lights and sirens, Ra sped away. Id. at 68. A chase

ensued; Officer Watkins was able to approach Ra’s vehicle when he stopped

at an intersection but when Officer Watkins got within ten feet of the vehicle,

Ra drove around him and continued to flee at a high rate of speed. Id. at 67-

80.   Officer Watkins observed Ra throw various items out of his windows,

which he later established were credit cards. Id. at 80-81. Officer Watkins

believed that the credit cards were fraudulent because seven of the nine

retrieved cards had identical or similar user authorizations, security numbers,

and bank information, which often did not match the bank information on the

front of the card. Id. at 80-91.




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       On August 16, 2017, the jury convicted Ra of the above-mentioned

offenses, but acquitted him of two other counts of access device fraud. On

September 25, 2017, the trial court sentenced Ra to 30 to 84 months’

imprisonment for fleeing and eluding. The court did not impose any additional

sentence for access device fraud. Ra filed a post-sentence motion, which the

court denied on November 14, 2017. The instant, timely appeal followed.2

       In his only issue on appeal, Ra claims that the evidence was insufficient

to sustain his conviction for access device fraud because “the Commonwealth

failed to present any evidence that the credit card used by [Ra] to purchase a

carton of cigarettes was counterfeit, altered or incomplete.” Ra’s Brief at 10.

We disagree.

       Our standard of review of a sufficiency claim is well settled:

       Our standard for evaluating sufficiency of the evidence is whether
       the evidence, viewed in the light most favorable to the
       Commonwealth [as verdict winner], is sufficient to enable a
       reasonable [factfinder] to find every element of the crime beyond
       a reasonable doubt. [T]he entire trial record must be evaluated
       and all evidence actually received must be considered, whether or
       not the trial court’s rulings thereon were correct. Moreover, [t]he
       Commonwealth may sustain its burden of proving every element
       of the crime beyond a reasonable doubt by means of wholly
       circumstantial evidence. Finally, the trier of fact, while passing
       upon the credibility of witnesses and the weight to be afforded the
       evidence produced, is free to believe all, part or none of the
       evidence.



____________________________________________


2 In response to the trial court’s order, Ra filed a timely concise statement of
errors complained of on appeal on January 10, 2018. On August 9, 2018, the
trial court issued an opinion.

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Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

      An individual 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 is counterfeit, altered or incomplete[.]”       18 Pa.C.S.A. §

4106(a)(1)(i). The finder of fact may infer consciousness of guilt from the

circumstances surrounding flight. Commonwealth v. Johnson, 838 A.2d

663, 681 (Pa. 2003) (citation omitted), cert. denied, 543 U.S. 1008 (2004).

      Initially, we note that Ra has failed to provide any legal support for his

claim that the evidence was insufficient to sustain his conviction for access

device fraud. Ra’s Brief, at 11-13. Moreover, his argument is based, in its

entirety, on viewing the facts in the light most favorable to himself, and, in

some instances, on clear misstatements of the evidence. See id.

      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, see Shull, supra at 844, our review of the evidence

confirms that Ra attempted to use several credit cards while trying to buy a

carton of cigarettes at Wawa. This satisfies the first element.

      There was also sufficient circumstantial evidence to show that the cards

were fraudulent. Namely, Mr. Bahnatka testified that, based upon his training,

he was aware that individuals using fraudulent credit cards often attempt to

buy cigarettes.   N.T. Trial, 8/16/2017, at 36-37.        The testimonial and

videotape evidence showed that Ra tried to use several credit cards; he tried


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one in particular several times, but all were declined, and Mr. Bahnaka, using

a different register, was still unable to complete the purchase. Id. at 33, 36,

44-46. The cards recovered by Officer Watkins after Ra flung them out the

window of his car bore indicia of fraud; seven of the nine cards had identical

or similar user authorizations, security numbers, and bank information. Id.

at 80-91. Moreover, the bank information on the back of the cards did not

match bank information on the front of the cards. Id.

      Lastly, Ra’s actions showed his knowledge that the cards were

fraudulent. When Mr. Bahnatka asked him for another form of payment, Ra

abruptly left the store. Id. at 36-37. Moreover, when Ra became aware that

Officer Watkins was trying to make a motor vehicle stop, he fled, flinging credit

cards through the window, while driving recklessly at a high rate of speed and

eluding the police. Id. at 68-81.

      Thus, this evidence was sufficient to sustain Ra’s conviction for access

device fraud. See 18 Pa.C.S.A. § 4106(a)(1)(i); Johnson, supra at 681;

Shull, supra 844. Ra’s claim fails.

      In light of the foregoing, Ra is not entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/29/19




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