J. A29005/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
BARBARA JEAN DAVIS,                        :         No. 1878 WDA 2014
                                           :
                          Appellant        :


           Appeal from the Judgment of Sentence, October 23, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0012544-2013


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 07, 2016

        Barbara Jean Davis appeals from the judgment of sentence following

her conviction in the Court of Common Pleas, Criminal Division, Allegheny

County, of theft by unlawful taking1 and access device fraud.2

        The facts as found by the trial court are as follows:

                    Appellant was employed from 2007 until 2013
              as the caregiver of Geno Bussler and Lois Bussler.
              The Busslers hired their first caretaker after
              Geno Bussler broke his hip in a serious vehicle
              accident in September 2004.     Geno Bussler was
              confined to a motorchair and required assistance
              with showering and dressing. Lois Bussler required
              assistance due to blindness, tremors, and bipolar
              disorder.   Appellant also prepared meals for the
              Busslers.


1
    18 Pa.C.S.A. § 3921(a).
2
    18 Pa.C.S.A. § 4106(a)(1).
J. A29005/15


                As part of her caregiving duties with the
          Busslers, Appellant had authority to use the
          Bussler[s’] bank card to purchase groceries and do
          other shopping for the Busslers. On occasion the
          Busslers lent money to Appellant and she was
          expected to repay the borrowed amount into their
          bank account. Appellant did not have authorization
          to withdraw funds from the Bussler[s’] account
          without their prior approval.

                 Appellant took Lois Bussler to the Rivers
          Casino twice.       While there Appellant called
          Geno Bussler for permission to withdraw $500 for
          Lois to use for gambling. Geno authorized Appellant
          to withdraw $500 on both of those occasions for
          Lois’s use. Appellant called Geno Bussler on a third
          occasion requesting to borrow $500 for her personal
          gambling use at a casino, which Geno authorized.
          On a fourth occasion, Geno Bussler called Appellant
          while she was at a casino, and she told Geno that
          she had already withdrawn $500 from his account
          without first asking permission. The Busslers never
          gave Appellant unlimited permission to withdraw
          money from their bank accounts; they only
          authorized withdrawals for gambling at a casino on
          those three occasions, and did not challenge her
          withdrawal on the fourth occasion.

                In January 2013, the Busslers contacted
          Detective Alan Ballo of the Allegheny County District
          Attorney’s Office when they noticed that their bank
          accounts were significantly lower than they should
          have been, noting that they suspected Appellant of
          withdrawing money from their accounts for
          gambling. Investigators examined the Bussler[s’]
          bank accounts from December 2009-January 2013,
          and found dozens of withdrawals from five different
          casinos totaling $34,591.[Footnote 11] [Footnote 12]
          Detective Ballo cross-referenced the withdrawal
          dates with dates when Appellant used her player’s
          card at each casino.       From January 1, 2009-
          January 31, 2013, Appellant had losses of $56,000
          at Rivers Casino and $26,000 at Meadows Casino.



                                  -2-
J. A29005/15


                  [Footnote 11] Appellant withdrew money
                  from the Bussler[s’] account at Rivers
                  Casino,     Mountaineer   Casino,  The
                  Meadows, Wheeling Island, and Atlantic
                  City, New Jersey.        Commonwealth
                  Exhibits 5, 6.

                  [Footnote 12] The amount of possible
                  cash deposit withdrawals and authorized
                  casino withdrawals was deducted from
                  this amount in determining restitution.
                  See also Commonwealth Post-Sentence
                  Motion Exhibit 1.

Trial court opinion, 4/16/15 at 4-6 (internal citations omitted).

      Appellant was arrested and charged with one count of theft by

unlawful taking, two counts of forgery, two counts of access device fraud,

two counts of insurance fraud, two counts of theft by deception, two counts

of tampering with records, two counts of securing execution of documents

by deception, and one count of theft by failure to make required disposition

of funds received.

      Appellant proceeded to a non-jury trial on March 3, 2014, and May 5,

2014, at the conclusion of which appellant was found guilty of one count of

theft by unlawful taking and one count of access device fraud.      She was

found not guilty of the remaining counts.

      Appellant filed a motion in arrest of judgment on August 1, 2014. On

August 6, 2014, appellant was sentenced to two consecutive four-year

periods of probation. She was ordered to pay restitution in the amount of

$25,738. On August 18, 2014, appellant filed a motion to reduce restitution.



                                     -3-
J. A29005/15


A hearing was held on October 20, 2014. The motion was partially granted

on October 23, 2014, and the amount of restitution owed was reduced to

$20,621.   On this same date, the trial court denied appellant’s motion in

arrest of judgment. On appeal, she raises the following issues:

            I.     Whether the evidence is sufficient to support a
                   conviction for Theft by Unlawful Taking?

            II.    Whether the evidence is sufficient to support a
                   conviction for Access Device Fraud?

Appellant’s brief at 4.

                   The standard we apply in reviewing the
            sufficiency of the evidence 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 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 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.




                                     -4-
J. A29005/15


Commonwealth v. Nypaver, 69 A.2d 708, 714 (Pa.Super. 2013) (citations

omitted). Further, since the trial judge was sitting as fact-finder, this court

defers to the trial judge’s credibility determinations as the trial judge

observes the witnesses’ demeanor firsthand.     Commonwealth v. Holton,

906 A.2d 1246, 1250 (Pa.Super. 2006).

      The trial judge, the Honorable Edward J. Borkowski, has provided a

well-reasoned discussion in support of the verdict. (See trial court opinion,

7/10/15 at 8-12 (explaining the elements of the crimes; the legal standard

for sufficiency of the evidence; finding the evidence sufficient to establish

the offenses of theft by unlawful deception and access device fraud and a

course of conduct where credible testimony showed appellant obtained

$20,621 by using the victim’s bank cards to make unauthorized withdrawals

from their bank accounts, without permission, on dozens of occasions to

support appellant’s out-of-control gambling habit).) Accordingly, we adopt

the decision of the trial court as dispositive of the issues raised in this

appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/7/2016



                                     -5-
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          IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                                         PENNSYLVANIA

    COMMONWEALTH OF PENNSYLVANIA,                               CRIMINAL DIVISION

      APPELLEE                                          CC NO.: 201312544

                  V.

    BARBARA JEAN DA VIS,

          APPELLANT.



                                              OPINION

    BORKOWSKI, J.



                                   PROCEDURAL HISTORY

          Appellant was charged by criminal information (CC 201312544)                     with one

count of theft by unlawful taking, 1 two counts of forgery,' two counts of access

device fraud," two counts of insurance fraud,4 two counts of theft by deception,'

two counts of insurance fraud,6 two counts of tampering with records;' two counts




1
    18 Pa. C.S. § 3921(a).
2
    18 Pa. C.S. § 410l(a)(3).
3
    18 Pa. C.S. § 4106(a)(l).
4
    18 Pa. C.S. § 4117(a)(2). These charges were withdrawn prior to trial.
5
    18 Pa. C.S. § 3922(a)(l).
6
    18 Pa. C.S. § 4117(b)(4).
7
    18 Pa. C.S. 6 4104(a).


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    of securing execution of documents by deception,8 and one count of theft by failure

    to make required disposition of funds received.9

           Appellant proceeded to a nonjury trial on March 3, 2014, and May 5, 2014,

    at the conclusion    of which Appellant was found guilty of one count of theft by

    unlawful taking and one count of access device fraud; she was found not guilty of

    the remaining counts.

          Appellant filed a motion in arrest of judgment on August 1, 2014, which was

denied by the Trial Court on August 6, 2014.

          On August 6, 2014, Appellant was sentenced by the Trial Court to the

following:

          Count one: theft by unlawful taking - four years probation;

          Count four:      access device     fraud - four years probation       to be served

consecutive to the period of probation imposed at count one.

          Appellant was ordered to pay restitution in the amount of $25,738.

          On August 18, 2014, Appellant filed a motion to reduce restitution,         a hearing

was held on October 20, 2014, and the motion was partially granted on October 23,

2014, reducing the amount of restitution           owed to $20,621. Appellant filed a timely

notice of appeal.




8
    18 Pa. C.S. § 4114. These charges were withdrawn prior to trial.
918
       Pa. C.S. § 3927(a). This charge was not held for court.


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           In Appellant's    Concise Statement of Matters Complained             of on Appeal,

 Appellant claimed that:

           l. The evidence is insufficient to support her conviction of Theft by
              Unlawful Taking (18 Pa. C.S. § 3921(a)).
           2. The evidence is insufficient to support her conviction of Access
              Device Fraud (18 Pa. C.S. § 4106).

 In its 1925(a) Opinion, the Trial Court found that given the lack of specificity

 engendered by Appellant's claims, the Trial Court could not address thern.l" Trial

 Court Opinion, April 13, 2015, p.6.

          On May 22, 2015, Appellant filed a Motion to Remand for Filing of

Amended Rule 1925(b) Statement.             On June 9, 2015, the Superior Court granted

Appellant's motion and remanded the record to the Trial Court for a period not to

exceed forty days. On June 16, 2015, Appellant timely filed her Amended 1925(b)

Statement. This opinion follows.

                         STATEMENT OF ERRORS ON APPEAL

          Appellant's   claims are set forth below exactly as Appellant presented them

in her Amended Statement of Matters Complained of on Appeal:

          1. The evidence is insufficient to support her conviction of
             Theft by Unlawful Takfog (18 Pa. C.S. § 3921(a)) in the
             following particulars:
                 a. No witness could establish any instance where
                    money or property was stolen;



10
     See Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008).


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                                                           Circulated 12/16/2015 02:22 PM




 b. No witness testified that Defendant took money
      or property of another with the intent to deprive
      them thereof;
 c. Lois       Bussler    specifically   testified  that
      Defendant did not take anything from her or
      take anything that was hers (March 3, 2014
      Transcript, p. 31);
d. Geno Bussler testified that he did not know
      whether there was any time that Defendant took
     money from his account and did not pay him
     back (March 3, 20J 4 Transcript, p. 81) and did
      not know of any specific time that Ms. Davis
     did not give back the money (id, p. 83);
e. Detective Alan Ballo testified that he did not
     know of any occasion where the Defendant
     took money from the Busslers and did not pay
     them back. (March 3, 2014 Transcript, p. 121).
f. With regard to the wedding rings which were
     alleged to have been purchased by Ms. Davis
    with the Busslers' funds, it is noted that no
     witness actually testified that Ms. Davis
     purchased wedding rings for herself with the
    Busslers' funds, Geno Bussler did testify that
    she purchased wedding rings for "two thousand
    five some dollars." (March 3, 2014 Transcript
    43). Later, he testified it was a little over
    $2,600. (id., p. 63). However, the Busslers
    account records indicate that the only purchase
    of wedding rings was in 2010. (see Exhibit C to
    Defendant's Motion in Arrest of Judgment).
    Mr. Bussler admitted           that he purchased
    wedding bands for himself and his wife in
    2010, and that Ms. Davis' marriage was in
    2011. (id., 61-2). Detective Ballo testified that
    there was only one wedding ring transaction
    and that was in August of 2010 for $1,800.00.
    (id., p. 110, 121). Detective Ballo also agreed
    that the transaction could very well have been
    to purchase the Bussler's rings. (id., p. 121).



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           2. The evidence is insufficient to support her conviction of
              Access Device Fraud (18 Pa. C.S. § 4106) in the following
              particulars:
                 a. No witness testified as to any specific instance
                     where Ms. Davis used the Buss le rs' A TM card
                     without authorization;
                 b. The fact that the Busslers testified that they did
                    not give Ms. Davis blanket authorization to use
                     their cards in any way she please does not
                    support a conclusion that she used the cards
                    without authorization.
                 c. The only specific references in the record to the
                    times that Ms. Davis used the Busslers' ATM
                    cards are to times when she specifically did
                    have authority to use the cards,
                 d. Although logically it may be inferred that from
                    Geno Bussler 's testimony that he authorized
                    withdrawals only four times, his testimony in
                    fact was that Ms. Davis would call him "once in
                    a while" and ask if she could borrow money,
                    and that it was "probably" more than three or
                    four times, and that when she did so, he would
                    check his bank account, and sometimes say yes,
                    she could borrow the money, and that he
                    "probably" authorized the use of the ATM card
                    more than three or four times. (March 3, 2014
                    Transcript, pp. 71-72).

                                     FINDINGS OF FACT

          Appellant was employed from 2007 until 2013 as the caregiver of Geno

Bussler and Lois Bussler. (T.T. 16, 24, 37; T.T.(II) 24).11 The Busslers required

significant assistance after Geno Bussler broke his hip in a serious vehicle accident

in September 2004. Geno Bussler was confined to a rnotorchair and required

11
     The designation "T.T." followed by numerals refers to Trial Transcript, March 3, 2014. The
designation "T.T.(Il)" followed by numerals refers to Trial Transcript (cont.), May 5, 2014.

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 assistance    with showering and dressing. Lois Bussler required assistance due to

 blindness,    tremors, and bipolar disorder. As their primary caregiver, Appellant

 assisted the Busslers with everyday activities. (T.T. 15, 38, 54).

         As part of her caregiving duties with the Busslers, Appellant had authority to

 use the Busslcr 's bank card to purchase groceries and do other shopping for the

 Busslers.    (T.T. 25, 34, 39). On occasion the Busslers lent money to Appellant and

she was expected to repay the borrowed amount into their bank account. Appellant

did not have authorization to withdraw funds from the Bussler's account without

their prior approval. (T.T. 17-18, 33, 40-42, 71-72; T.T.(II) 26).

        Appellant took Lois Bussler to the Rivers         Casino twice. While there

Appellant called Geno Bussler for permission to withdraw $500 for Lois to use for

gambling. Geno authorized Appellant to withdraw $500 on both of those occasions

for Lois's use. Appellant called Geno Bussler on a third occasion requesting to

borrow $500 for her personal gambling use at a casino, which Geno authorized. On

a fourth occasion, Geno Bussler called Appellant while she was at a casino, and

she told Geno that she had already withdrawn $500 from his account without first

asking permission.     The Busslers never gave Appellant unlimited          permission to

withdraw money from their bank accounts; they only authorized withdrawals                  for

gambling      at a casino on those three occasions,      and did      not   challenge     her

withdrawal on the fourth occasion. (T.T. 19, 23, 44-45, 67, 85).



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          In January   2013, the Busslers     contacted     Detective     Alan     Balla of the

 Allegheny County District Attorney's        Office when they noticed that their bank

 accounts were significantly      lower than they should have been, noting that they

 suspected Appellant      of withdrawing money from their accounts for gambling.

(T.T.     100-102).    Investigators   examined   the     Bussler's     bank     accounts    from

December 2009-January         2013, and found dozens of withdrawals             at five different

casinos totaling $34,591.12     (T.T. 104-107).13 Detective Balla cross-referenced the

withdrawal dates with dates when Appellant used her player's card at each casino.

(T.T. 106). From January 1, 2009-January 31, 2013, Appellant had losses of

$56,000 at Rivers Casino and $26,000 at Meadows Casino. (T.T. 92-93). Appellant

was arrested and charged as noted hereinabove.

                                       DISCUSSION

         Appellant alleges that the evidence is insufficient to support her convictions

of theft by unlawful taking and access device fraud. These claims are without

merit.

         The standard of review for sufficiency         of the evidence        claims has been

stated thusly:


12
   Appellant withdrew money from the Bussler's bank account at Rivers Casino, Mountaineer
Casino, The Meadows, Wheeling Island, and Atlantic City, New Jersey. Commonwealth
Exhibits 5, 6.
13
   The amount of possible cash deposit withdrawals and authorized casino withdrawals was
deducted from this amount in determining restitution. (T.T. 104-107); Commonwealth Post-
Sentence Motion Exhibit 1.

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          The standard we apply when reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted al 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 Jaw 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. Gray, 867 A.2d 560, 567 (Pa. Super. 2005).

                                             A.

      A person commits theft by unlawful taking if she "unlawfully takes, or

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

him   thereof." 18 Pa. C.S. § 3921(a). Appellant specifically alleges that the

evidence was insufficient to support her conviction         of theft by unlawful taking

based on the argument that no witness could specify an instance when the

Appellant took money from them. Appellant's argument relies on isolated out-of-

context     statements   by Lois Bussler, Geno Bussler, and Detective           Ballo that

Appellant tortures into      perceived uncertainty, while the entirety of the record

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     clearly     indicates   otherwise.    The direct and circumstantial           evidence      clearly

     establishes Geno Bussler's explicit or tacit approval for four withdrawals from the

     account, totaling $2000. However, the Busslers'              testimony,      as well as that of

     Detective Ballo, establish         dozens of other unauthorized         withdrawals      from the

     Bussler's    account that coincide with Appellant's          visits    to, and losses at, local

 casinos. It is well-established           that any crime, including       theft by unlawful taking,

 may be proven by wholly circumstantial evidence. See Gray, 867 A.2d at 567;

 Commonwealth v. Haines, 442 A.2d 757, 759-760 (Pa. Super. 1982). The various

 statements/testimony          which Appellant isolates and now argues in this sufficiency

 claim were taken into account in evaluating credibility; the totality of the evidence

found to be credible by the fact-finder established a series of thefts totaling over

$20,000 by Appellant to support an out of control gambling habit. (T.T. 17-19, 23,

33, 40-42, 44-45, 67, 71- 72, 85, 92-93, 104-107; T.T.(II) 26). This evidence was

sufficient to establish         that Appellant committed        the crime of theft by unlawful

taking.        See Commonwealth v. Thomas, 684 A.2d 1085, 1086-1088                       (Pa. Super.

1996) (evidence sufficient to support conviction              for theft by unlawful taking where

defendant was permitted             to withdraw      money from account for certain business

expenditures,          but    instead     withdrew    money     for    personal     expenditures)."

Appellant's claim is without merit.


14
     In her claim at l(t), Appellant devotes a long paragraph detailing a claim of error on a charge

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                                                 B.

           A person commits access device fraud if she "uses an access device to obtain

 [ ... ] property or services with knowledge that: the access device was issued to

 another     person who has not authorized its use." 18 Pa. C.S. § 4106(a)(l)(ii).

 Appellant's      argument     again    challenges      the   conviction     by    attacking      the

circumstantial     evidence in this case. The Busslers inability to cite a specific

instance when they witnessed Appellant use their bank card without authorization

does not mean that Appellant cannot be convicted of access device fraud. The

entirety of the record establishes beyond a reasonable doubt that Appellant was

permitted to use the Bussler's bank card for caregiving expenditures, but was not

authorized to use the bank card for personal expenses without prior approval. In

spite of that restriction, Appellant withdrew              money from the Bussler's            bank

accounts using their bank card on dozens of occasions, without their knowledge

and permission,     for the purpose of personal gambling at several casinos. (T.T. 17-

19, 23, 33, 40-42, 44-45, 67, 71-72, 85, 92-93, 104-107; T.T.(II) 26). This evidence

was sufficient to establish that Appellant committed the crime of access device

fraud.

         Further, Appellant's argument that the evidence was insufficient to establish

access device fraud because Geno Bussler stated that he occasionaJJy permitted



of which she was acquitted, consequently, the Trial Court will not address it.

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     Appellant to borrow money is without merit. The amounts here were not loans, but

     rather unauthorized withdrawals        to fuel Appellant's gambling        habit. The Trial

 Court      found   that    Appellant     accessed   the Bussler's     bank     account      without

 permission or knowledge when she withdrew money from the casino ATMs for her

 personal     gambling.15        That Appellant had permission        to withdraw       money      on

 occasion does not negate the evidence of record that Appellant withdrew money

 from the Bussler 's account for personal gambling at area casinos on dozens of

occasions without the Bussler 's knowledge or permission. See, supra, pp. 9-11.

Appellant's claim is without merit.

                                          CONCLUSION

          Based upon the foregoing, the judgment of sentence imposed by this Court

should be affirmed.


                                                      By the Court,


DATE:~1.,(                 ,o,   i.01t;


                                                     Edward J. Borkowski




15
  In determining Appellant's amount of restitution owed, the Trial Court deducted the four
casino withdrawals that were authorized/unchallenged, and also gave Appellant the benefit of the
doubt in deducting the amount of possible cash withdrawals that Appellant may have been
authorized to make. (T.T. 104-107); Commonwealth Post-Sentence Motion Exhibit 1.

                                                                                                   l2
