J. S58011/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
RUTH E. GETTEL,                           :          No. 533 MDA 2017
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, March 2, 2017,
                 in the Court of Common Pleas of Perry County
               Criminal Division at No. CP-50-CR-0000413-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 07, 2017

        Ruth E. Gettel appeals from the March 2, 2017 aggregate judgment of

sentence of 1 to 12 months’ imprisonment, to be followed by 9 months’

probation, imposed after a jury found her guilty of insurance fraud and false

reports to law enforcement authorities.1 After careful review, we affirm the

judgment of sentence.

        The trial court summarized the relevant facts of this case as follows:

                     [On November 26, 2014, a]t approximately
              3:40 a.m. [Pennsylvania State Police] Trooper
              Sarah Rhinehart responded to a vehicle crash and
              fire on Spinning Wheel Road in Watts Township.
              Arriving on scene, Trooper Rhinehart observed a
              sedan engulfed in flames.      After running the
              registration, Trooper Rhinehart was able to
              determine the vehicle belonged to [a]ppellant. On
              December 1, 201[4], Trooper Rhinehart got in touch

1   18 Pa.C.S.A. §§ 4117(a)(2) and 4906(b)(1), respectively.
J. S58011/17


           with [a]ppellant and an interview was set for
           December      5,   201[4].       Appellant    informed
           Trooper Rhinehart that the vehicle in question was
           stolen and that she did not have any information
           concerning what happened after it was parked.
           Appellant later supplied Trooper Rhinehart with all of
           her insurance information and then filed a claim with
           Safe Auto, her insurance provider. In a subsequent
           interview, held several months later, [a]ppellant
           informed Trooper Rhinehart that she was not
           completely honest in the first interview. Appellant
           informed Trooper Rhinehart that she knew who took
           the vehicle and the person’s name was Chad. When
           Trooper    Rhinehart     called   Stephanie    Foster[,
           appellant’s friend,] to get the contact information on
           Chad, Stephanie informed the Trooper that the only
           people at her residence that night w[ere] herself,
           [a]ppellant,     and     her     now      ex-boyfriend.
           Trooper Rhinehart eventually picked [a]ppellant up
           on a warrant at Harrisburg Area Community College.
           When [a]ppellant was picked up on the warrant, she
           informed Trooper Rhinehart that the information
           regarding Chad was not true.

Trial court opinion, 6/2/17 at 1-2 (citations to notes of testimony and

footnotes omitted).2

     Appellant was subsequently charged with insurance fraud and false

reports to law enforcement authorities in connection with this incident. On

January 24, 2017, appellant proceeded to a jury trial and was found guilty of

all charges. As noted, appellant was sentenced to an aggregate term of 1 to

12 months’ imprisonment, to be followed by 9 months’ probation, on

March 2, 2017. On March 6, 2017, appellant filed a post-sentence motion


2 We note that the trial court’s June 2, 2017 opinion does not contain
pagination; for the ease of our discussion, we have assigned each page a
corresponding number.


                                    -2-
J. S58011/17


for reconsideration of her sentence, which was denied by the trial court on

March 17, 2017. This timely appeal followed.3

      On appeal, appellant raises the following issues for our review:

            I.    Was the evidence concerning the charge of
                  Insurance Fraud insufficient as a matter of law
                  where the Commonwealth presented no
                  evidence of (1) [a]ppellant’s intent to defraud
                  the insurer OR (2) materiality of any false
                  statements?

            II.   Did the trial court abuse its discretion when
                  sentencing    [a]ppellant    to    a  term of
                  imprisonment after interpreting [a]ppellant’s
                  silence at sentencing as lack of remorse?

Appellant’s brief at 3-4.

      We begin by addressing appellant’s claim that there was insufficient

evidence to sustain her conviction for insurance fraud because the

Commonwealth failed to prove she intended to defraud Safe Auto or made

any materially false statements. (Id. at 14, 16.) Preliminarily, we note that

appellant’s Rule 1925(b) statement fails to specify the elements of insurance

fraud that she believes the Commonwealth failed to prove.      (See “Concise

Statement,” 4/27/17 at ¶ 1; certified record no. 33.) Accordingly, we could

find this claim waived. See Commonwealth v. Williams, 959 A.2d 1252,




3 On March 24, 2017, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 25 days. On April 26, 2017, the trial court granted
appellant’s request for an extension of time to file her Rule 1925(b)
statement.    On April 27, 2017, appellant filed a timely Rule 1925(b)
statement. The trial court filed its Rule 1925(a) opinion on June 2, 2017.


                                    -3-
J. S58011/17


1257–1258 (Pa.Super. 2008) (finding waiver of appellant’s sufficiency of

evidence claim where he failed to specify in his Rule 1925(b) statement the

elements   of   particular   crime   not   proven   by   the   Commonwealth).

Nonetheless, given the trial court’s examination of this issue in its opinion,

we elect to dispose of it on the merits.

                  In reviewing the sufficiency of the evidence,
            we must determine whether the evidence admitted
            at trial and all reasonable inferences drawn
            therefrom, viewed in the light most favorable to the
            Commonwealth as verdict winner, is sufficient to
            prove every element of the offense beyond a
            reasonable doubt. As an appellate court, we may
            not re-weigh the evidence and substitute our
            judgment for that of the fact-finder. Any question of
            doubt is for the fact-finder unless the evidence is so
            weak and inconclusive that as a matter of law no
            probability of fact can be drawn from the combined
            circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009)

(citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

      A person is guilty of insurance fraud when she:

            knowingly and with the intent to defraud any insurer
            or self-insured, presents or causes to be presented
            to any insurer or self-insured any statement forming
            a part of, or in support of, a claim that contains any
            false,    incomplete    or   misleading    information
            concerning any fact or thing material to the claim.

18 Pa.C.S.A. § 4117(a)(2). A person acts “knowingly” when “[s]he is aware

that it is practically certain that h[er] conduct will cause such a result.”

18 Pa.C.S.A. § 302(b)(2)(ii). Likewise, a person acts “intentionally” when “it

is h[er] conscious object to engage in conduct of that nature or to cause


                                      -4-
J. S58011/17


such a result.”   Id. § 302(b)(1)(i). Lastly, Section 4117 defines the term

“statement,” in part, as “[a]ny oral or written presentation or other evidence

of loss, injury or expense, including, but not limited to, any notice,

statement, proof of loss, bill of lading, receipt for payment, invoice, account,

estimate of property damages, bill for services, . . . or computer-generated

documents.” 18 Pa.C.S.A. § 4117(i).

      Viewing     the   evidence   in   the   light   most   favorable    to   the

Commonwealth, the verdict winner, we find that there was sufficient

evidence to support appellant’s conviction for insurance fraud. The evidence

introduced at trial established that appellant knowingly made three false

statements4 to Trooper Rhinehart during the course of her investigation into

appellant’s vehicle, which was found crashed into a tree and engulfed in

flames in the early morning hours of November 26, 2014.                  (Notes of

testimony, 1/24/17 at 32-33, 45, 55.) That same day, appellant submitted

an insurance claim with Safe Auto in the amount of $9,599 on the basis her


4 Specifically, on December 5, 2014, appellant informed Trooper Rhinehart
that her vehicle had been stolen after she had parked it outside her sister’s
house and that she was unaware of who had taken it. (Notes of testimony,
1/24/17 at 36-38.) During a subsequent interview several months later,
appellant informed Trooper Rhinehart that she had lied during their initial
discussion and that an individual named “Chad” who was staying with her
and Stephanie Foster that evening had taken it. (Id. at 47.) Foster,
however, testified at trial that the only people at her residence that evening
were herself, her then-boyfriend, Sean Painter, and appellant, and she did
not know the “Chad” appellant was referring to. (Id. at 93-95.) After
appellant was picked up on an outstanding warrant, she informed
Trooper Rhinehart that her statement regarding Chad was not true. (Id. at
60.)


                                        -5-
J. S58011/17


vehicle was “stolen” and “subsequently burned as a result of an accident[,]”

knowing full well that this was untrue. (Id. at 42, 78, 86.) Thereafter, on

January 5, 2015, appellant submitted a notarized theft affidavit to Safe Auto.

(Id. at 84.)   Carey Latsha, an investigator with Safe Auto, testified that

Safe Auto has not paid the claim. (Id. at 86, 89.)

      Clearly, the requisite intent to commit insurance fraud may be inferred

from the surrounding circumstances; namely, appellant’s conduct during the

course of Trooper Rhinehart’s investigation and her submission of an

insurance   claim   based     upon    this   fabricated   narrative.     See,   e.g.,

Commonwealth v. Sanchez, 848 A.2d 977 (Pa.Super. 2004) (defendant

had intent to commit insurance fraud when he signed forms in support of a

claim even though he knew that the car in question was not insured at the

time of the accident).    Moreover, although Section 4117 does not provide

guidance on the meaning of the word “material,” the statute does not

require   an   insuree   to   cause    actual    injury   to   the   insurer.   See

Commonwealth v. Pozza, 750 A.2d 889, 894 (Pa.Super. 2000) (stating,

“[i]n the [insurance fraud] statute there is no requirement that the

transference of the insurer’s property must take place before a crime occurs.

Rather, the mere submission of any false statement done knowingly and

with intent to defraud is sufficient to violate the statute.”).        Based on the

foregoing, we find that appellant’s claim that there was sufficient evidence to

sustain her conviction for insurance fraud must fail.



                                        -6-
J. S58011/17


        We now turn to appellant’s claim that “the trial court abuse[d] its

discretion when sentencing [a]ppellant to a term of imprisonment after

interpreting [her] silence as a lack of remorse[.]”    (Appellant’s brief at 4,

20.)

        Our standard of review in assessing whether a trial court has erred in

fashioning a sentence is well settled.

             Sentencing is a matter vested in the sound discretion
             of the sentencing judge, and a sentence will not be
             disturbed on appeal absent a manifest abuse of
             discretion. In this context, an abuse of discretion is
             not shown merely by an error in judgment. Rather,
             [a]ppellant must establish, by reference to the
             record, that the sentencing court ignored or
             misapplied the law, exercised its judgment for
             reasons of partiality, prejudice, bias or ill will, or
             arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

        Where an appellant challenges the discretionary aspects of her

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of her sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:

             (1) whether the appeal is timely; (2) whether
             appellant preserved his issue; (3) whether
             appellant’s brief includes a concise statement of the
             reasons relied upon for allowance of appeal with
             respect to the discretionary aspects of sentence; and


                                     -7-
J. S58011/17


            (4) whether the concise statement raises a
            substantial question that the sentence is appropriate
            under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Here, the record reveals that appellant filed a timely notice of appeal

on March 23, 2017.     Appellant also preserved her discretionary aspects of

sentencing claim in her March 6, 2017 post-sentence motion. Contrary to

the Commonwealth’s contention, appellant included a statement in her brief

that comports with the requirements of Pa.R.A.P. 2119(f). (See appellant’s

brief at 10-13; Commonwealth’s brief at 6.)          Accordingly, we must

determine whether appellant has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”    Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).    “A substantial question exists only when appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

      Relying, in part, on Commonwealth v. Bowen, 975 A.2d 1120

(Pa.Super. 2009), appellant contends in her Rule 2119(f) statement that the



                                    -8-
J. S58011/17


trial court sentenced her to imprisonment, in lieu of probation, after

impermissibly interpreting her silence during sentencing as a lack of

remorse. (Appellant’s brief at 11-13.) This court has long recognized that

“a claim that a sentence is excessive because the trial court relied on an

impermissible factor raises a substantial question.” Allen, 24 A.3d at 1064-

1065; see also Bowen, 975 A.2d at 1122 (defendant’s contention that his

sentence “was based on an unconstitutional factor . . . raises a substantial

question for our review”). Accordingly, we proceed to consider the merits of

appellant’s discretionary sentencing claim.

      Herein, we find particularly instructive the Bowen decision upon which

appellant relies.   Bowen involved a defendant who elected not to testify

during trial and continued to remain silent at sentencing. Id. at 1121. The

trial court imposed a standard-range sentence for simple assault and a

consecutive, aggravated-range sentence for terroristic threats.       Id.   As

justification for the aggravated-range sentence, the trial court cited

defendant’s poor employment history, long history of recidivism, the victim’s

emotional trauma, and his failure to show any remorse, even after the jury’s

decision. Id. at 1121–1122. On appeal, a panel of this court disapproved of

the trial court’s “consider[ation of the] defendant’s silence at sentencing as

indicative of his failure to take responsibility for the crimes of which he was

convicted.” Id. at 1121.




                                     -9-
J. S58011/17


      The Bowen court emphasized that although it is “appropriate for a

trial court to consider a defendant’s lack of remorse as a factor at

sentencing, provided that it is specifically considered in relation to protection

of the public, the gravity of the offense, and the defendant’s rehabilitative

needs[,]” a defendant’s silence “may not be the sole factor in determining

a defendant’s lack of remorse[.]”      Id. at 1125, 1127 (emphasis added).

However, the Bowen court ultimately concluded that a remand for

resentencing was not necessary, given the trial court’s consideration of

multiple other factors in imposing an “individualized sentence.” Id. at 1127-

1128, citing Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa.Super.

2006) (finding that even if the trial court considered an inappropriate factor

at sentencing, “the court offered significant other support for sentencing in

excess of the guidelines in this case”), appeal denied, 906 A.2d 542 (Pa.

2006).

      Instantly, the trial court sentenced appellant to an aggregate term of 1

to 12 months’ imprisonment, to be followed by 9 months’ probation, which

was within the standard-range of the Sentencing Guidelines.             Prior to

imposing sentence, the trial court made the following comments at the

March 2, 2017 sentencing hearing:

                 All right, [appellant], what I am going to tell
            you about this case and what, I guess, bothered me
            about it from your end is you had so many
            opportunities to step in to [sic] this process.
            Meanwhile, this investigation went on [for] months
            and months and months, and the story changed. At


                                     - 10 -
J. S58011/17


            least what came out at trial, the story changed
            multiple times.  And at any point in there the
            madness could have been stopped.

                  I say the madness.      The whole story, the
            continuing investigation, the story changing,
            et cetera; at any point throughout that process, by
            a dash of honesty, and that never happened.

                 I am also disappointed today that you had
            nothing to say. No remorse, no apologies, you
            name it.

Notes of testimony, 3/2/17 at 3-4 (emphasis added).

      Like Bowen, the record reveals that the trial court did not rely solely

on appellant’s lack of remorse or silence in fashioning her sentence.

Additionally, the trial court was in possession of a presentence investigation

(“PSI”) report and clearly considered it. (See notes of testimony, 3/2/17 at

2; see also trial court opinion, 6/2/17 at 6.) Where the trial court has the

benefit of a PSI report, “we shall . . . presume that the sentencing judge was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014). And similar to

Bowen, although the trial court briefly expressed its disappointment that

appellant failed to apologize at sentencing, “[t]he record is unclear . . . as to

how much of a factor [a]ppellant’s silence was in the [trial] court’s finding of




                                     - 11 -
J. S58011/17


lack of remorse.”    Bowen, 975 A.2d at 1127.5     Accordingly, we conclude

that appellant’s challenge to the discretionary aspects of her sentence must

fail.

        For all the foregoing reasons, we affirm appellant’s March 2, 2017

judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/7/2017




5 Notably, the trial court stated in its June 2, 2017 opinion that appellant’s
silence and lack of remorse “had no influence on the sentence for which
[a]ppellant received.” (Trial court opinion, 6/2/17 at 6.)


                                    - 12 -
