J-S30002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FLORENCIA NIETO-VIDES,

                            Appellant                No. 1797 MDA 2016


            Appeal from the Judgment of Sentence March 25, 2016
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000097-2015


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 21, 2017

       Appellant, Florencia Nieto-Vides, appeals from the judgment of

sentence1 entered following her conviction by a jury of one count each of

forgery, attempted forgery, conspiracy to commit forgery, attempted theft

by deception, and conspiracy to commit theft by deception.2 We affirm.



____________________________________________


1
  Appellant incorrectly asserts that this is an appeal from the denial of post-
sentence motions. Where post-sentence motions are filed, the appeal is
properly from the judgment of sentence made final by the denial of the post-
sentence motions. Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1
(Pa. Super. 2010).
2
  18 Pa.C.S. §§ 4101; 901 and 4101; 903 and 4101; 901 and 3922; and
903 and 3922; respectively. While Appellant was convicted of one forgery
count, she had been charged with thirty counts of forgery. Information,
2/23/15, at Counts 3–32.
J-S30002-17


      We summarize the facts of the case as follows: On December 23,

2014, Appellant attempted to purchase apples and a bag of potato chips with

a   $100   bill   at   Redner’s   Market    (“Redner’s”),    a   grocery   store   in

Fredericksburg, Pennsylvania.      N.T., 3/9/16, at 6, 11, 14.         Pursuant to

Redner’s store policy, employees verify the legitimacy of all fifty and one-

hundred-dollar bills by running them through the store’s fraud scanners. Id.

at 10–11. When the scanner detects problems with a bill, the scanner ejects

the bill and displays an error code.        Id. at 10.      An employee informed

Redner’s manager, Jason Krick, earlier that day that the scanner had

rejected a bill tendered by an unidentified individual.          Id. at 16.    That

individual left the store to obtain other money, but never returned to the

store. Id. at 16–17.

      Mr. Krick ran the $100 bill tendered by Appellant through the store’s

scanner and received an error code. N.T., 3/9/16, at 12. He then ran the

bill through the store’s second scanner and again received an error code.

Id. Mr. Krick testified at trial that he ran Appellant’s $100 bill through both

machines approximately a dozen times, and each time the respective

scanner displayed an error code.      Id.    Mr. Krick also testified that the bill

looked unusual; Appellant’s bill “did not change colors in the corners,” even

though most bills “typically go from green to dark black,” and it displayed a

different watermark. Id. at 16. Mr. Krick stated that Appellant’s $100 bill

looked similar to the bill obtained from the unknown individual earlier in the


                                      -2-
J-S30002-17


day. Id. at 16–17. Both bills were admitted into evidence at trial. Id. at

17–18.

      Mr. Krick, in accordance with store policy, telephoned the Pennsylvania

State Police and then informed Appellant of his concern.      N.T., 3/9/16, at

18–19.     While Appellant initially presented by herself, two men later

identified as Roberto Corona-Gavilan and Candido Munoz joined her while

Mr. Krick explained the actions he had undertaken. Id. at 13–14, 20, 25.

Appellant provided Mr. Krick with her address and telephone number and

told him to contact her “when everything was okay.”       Id. at 20.   At that

point, Appellant was “trying to leave the store,” but ultimately did not leave.

Id.    During trial, Mr. Krick described Appellant initially as “quiet and

subdued” while she waited for the police. Id. at 19.

      Pennsylvania State Trooper John Huffstutler arrived in response to Mr.

Krick’s call.   N.T., 3/9/16, at 24. Trooper Huffstutler searched Appellant’s

purse and found a $100 bill that was “almost identical” to the bill Appellant

had attempted to use earlier. Id. at 26–27. The purse also held $873 in

smaller bills. Id. at 28. Trooper Huffstutler then obtained a search warrant

for the white Ford Excursion in which Appellant and her two companions

were travelling. Id. at 30. Inside the vehicle was a black backpack which

held women’s toiletries and a cigarette box containing eighteen $100 bills.

Id. at 30–32, 42–43. In addition, the black backpack held $1,827 in smaller




                                     -3-
J-S30002-17


currency. Id. at 35. Some of the $100 bills found in the black backpack

had identical serial numbers. Id. at 30.

      Trooper Huffstutler additionally testified to the existence of over thirty

shopping bags in the car.     N.T., 3/9/16, at 37.    The shopping bags held

“mostly female items” from stores at the Premium Outlets in Tannersville

and the Harrisburg East Mall. Id. at 43–44. Photo identifications obtained

by Trooper Huffstutler identified Appellant and the two men as residents of

Brooklyn, New York. Id. at 45–46.

      On July 8, 2015, Appellant was charged in relation to the incident at

Redner’s.   A jury trial was held on March 9, 2016.       The Commonwealth

originally sought to hold Appellant culpable for forgery in connection with the

items in the shopping bags found in the Ford Excursion; however, the trial

court granted Appellant’s motion for acquittal regarding those charges after

the   evidence   presented   by   the   Commonwealth      failed   to   establish

conclusively that Appellant used counterfeit bills to purchase the items.

N.T., 3/9/16, at 48–54. With respect to the bill passed at Redner’s, the jury

returned a guilty verdict as described supra but acquitted Appellant of theft

by deception.

      The trial court ordered a presentence investigation report.           N.T.,

3/9/16, at 76. On May 25, 2016, the trial court sentenced Appellant to an

aggregate sentence of twelve months of probation and ordered her to pay

costs, fines, and restitution.    Appellant filed post-sentence motions on


                                     -4-
J-S30002-17


May 31, 2016, challenging the sufficiency of the evidence and contending

that the jury’s verdict was against the weight of the evidence.        The trial

court denied the post-sentence motions on October 11, 2016, Appellant

timely appealed.    Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      Whether [Appellant’s] motion for a judgement [sic] of acquittal
      should be granted due to the Commonwealth’s failure to present
      sufficient evidence that the subject currency was counterfeit,
      that [Appellant] was aware of the forgery and that she conspired
      with two males at the Market?

      Whether the jury’s verdicts were against the weight of the
      evidence?

Appellant’s Brief at 4.

      Appellant first argues that the evidence presented at trial was

insufficient to support the jury verdict.   Specifically, Appellant asserts that

the Commonwealth failed to prove: (a) the $100 bill tendered by Appellant

was counterfeit; (b) Appellant knew the bill was counterfeit; and (c)

Appellant conspired with Corona-Gavilan and Munoz to pass the counterfeit

bill. Appellant’s Brief at 10–12. We address these three sub-parts together.

      Our standard of review for the sufficiency of the evidence is well

settled:

      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,

                                     -5-
J-S30002-17


      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.

Commonwealth v. Mucci, 143 A.3d 399, 408–409 (Pa. Super. 2016),

appeal denied, __ A.3d __, 2017 WL 1337940, 701 MAL 2016 (Pa. April 11,

2017) (quoting Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa.

Super. 2010)).

      The relevant statute, in pertinent part, provides 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: (3)

utters any writing which he knows to be forged.” 18 Pa.C.S. § 4101(a)(3).

Appellant argues that the Commonwealth failed to prove beyond a

reasonable doubt that the bill was counterfeit because the Commonwealth

did not present expert testimony regarding the operation of the scanner or

the significance of the matching serial numbers.      Appellant’s Brief at 10.

Expert testimony was required, according to Appellant, because Mr. Krick

was not able to describe how the scanner detects counterfeit bills and,


                                     -6-
J-S30002-17


ostensibly, whether the scanner may be misled to identify legitimate bills as

fraudulent.   Id.   Appellant additionally maintains that insufficient evidence

exists to establish her knowledge of the counterfeit bills as evidenced by the

fact that she gave her contact information to Mr. Krick and waited at the

store for the police. Id. at 10–11.

      Finally, Appellant challenges the existence of sufficient evidence to

establish a conspiracy among Appellant and the two men. Appellant’s Brief

at 11–12. Pennsylvania law provides that a person is guilty of conspiracy “if

with the intent of promoting or facilitating its commission he: (1) agrees

with such other person or persons that they or one or more of them will

engage in conduct which constitutes such crime or an attempt or solicitation

to commit such crime.” 18 Pa.C.S. § 903(a)(1). Appellant asserts there is

no evidence in the record to support the jury’s conclusion that Appellant was

travelling with the two men. Appellant’s Brief at 12.

      The Commonwealth responds that expert testimony was unnecessary

herein because the conclusion inferred from the scanner’s rejection of the

bill was reinforced by both Mr. Krick’s description of the bill’s irregularities

and the surrounding circumstances.      Commonwealth’s Brief at 9–10.       The

Commonwealth then maintains that due to Mr. Krick’s testimony that

Appellant tried to leave the store, the jury was permitted to infer that

attempting to leave the store, carrying a large amount of cash, and

secreting cash in an empty cigarette box are consistent with knowing


                                      -7-
J-S30002-17


involvement. Id. at 10–11. Finally, the Commonwealth refutes Appellant’s

challenge to the conspiracy verdict with Trooper Huffstutler’s testimony that

Appellant indeed was travelling with the two men and the threesome’s photo

identifications, which establish that Appellant, Corona-Gavilan, and Munoz all

reside in Brooklyn, New York. Id. at 11–12.

      The trial court agreed with the Commonwealth on each of Appellant’s

challenges.   Trial Court Opinion, 10/12/16, at 7–11.         The trial court

concluded that expert testimony was not required as a matter of law, and it

supported its conclusion with citation to unpublished memoranda wherein

this Court adhered to the judgment of laypersons or police officers to

establish the counterfeit nature of currency. Id. at 7–8. Moreover, the trial

court noted that both Mr. Krick and Trooper Huffstutler immediately

determined that the bills were counterfeit, and the jurors themselves were

able to inspect the bills before returning a verdict. Id. at 9. The trial court

also agreed with the Commonwealth that the evidence established both

Appellant’s knowledge that the $100 bill was counterfeit and Appellant’s

participation in the conspiracy. Id. at 9–11.

      Our review of the record compels our conclusion that the trial court’s

denial of Appellant’s sufficiency claim was proper. Viewing the evidence in

the light most favorable to the Commonwealth as the verdict winner, we find

sufficient evidence to support the conclusions that the bill Appellant passed




                                     -8-
J-S30002-17


was counterfeit, that Appellant knew the bill was counterfeit, and that she

conspired with Corona-Gavilan and Munoz to pass counterfeit currency.

      As a preliminary matter, we reject Appellant’s proposition that the

Commonwealth must proffer expert testimony to support the inference that

a bill rejected by two scanners is counterfeit.     As noted above, wholly

circumstantial evidence is sufficient to support a jury verdict.    Mucci, 143

A.3d at 409. Thus, whether the Commonwealth has met its burden without

expert testimony is a determination within the province of the jury. The jury

was entitled to find, absent a concrete confirmation that the $100 bill was

counterfeit, that the Commonwealth had presented sufficient circumstantial

evidence to prove beyond a reasonable doubt that the currency was

counterfeit.

      Here, the circumstantial evidence offered by the Commonwealth to

prove the $100 bill was counterfeit was sufficient.       In addition to the

scanners’ error codes, Mr. Krick testified that the bill’s color and watermark

were different from the hundreds of other bills that he had handled. N.T.,

3/9/16, at 15.   The surrounding circumstances, including the similar $100

bill in Appellant’s purse and the large amount of cash found in Appellant’s

purse and the Ford Excursion, further support the conclusion that the $100

bill tendered by Appellant at Redner’s was counterfeit.            Because the

Commonwealth “need not preclude every possibility of innocence,” Mucci,

143 A.3d at 409, we conclude that sufficient circumstantial evidence


                                    -9-
J-S30002-17


supports the trial court’s denial of Appellant’s post-sentence motion with

respect to the jury finding that the $100 bill was counterfeit.

      We likewise conclude that the record supports the determination that

Appellant knew the $100 bill was counterfeit. While Appellant underscores

the fact that she remained at the store when the police arrived, Mr. Krick

testified at trial that Appellant originally had attempted to leave the store.

We may not “substitute our judgment for the fact-finder.” Mucci, 143 A.3d

at 409. The jury, “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.” Id. In viewing the evidence in the light most favorable to the

Commonwealth, we will not disturb the creditability determinations of the

jury where a basis for the determination is found in the record.         N.T.,

3/9/16, at 14, 20, 26, 32, 43.

      Here, Appellant attempted to pay for an eleven-dollar purchase with a

$100 bill, despite access to smaller currency amounting to $873. When the

$100 bill was found to be fraudulent, Appellant sought to leave the scene.

Further, Appellant was plausibly linked to the black backpack containing

women’s toiletries because she was the only woman in the group, and

Trooper Huffstutler testified that the bills found within the backpack were

“the same, or substantially the same” as both the $100 bill used by

Appellant at Redner’s and the $100 bill found in Appellant’s purse.      N.T.,




                                     - 10 -
J-S30002-17


3/9/16, at 34. Thus, the facts in the record support a finding of knowledge,

as required for a forgery conviction.

      Finally, we conclude that the trial court’s findings of fact with respect

to the conspiracy verdict are supported by the record.        While Appellant

waited for the police, she was joined by two men, one in the store and one

outside of the store. N.T., 3/9/16, at 13–14. The man inside tried to leave

the store with her.    Id. at 13–14, 20.      Trooper Huffstutler obtained a

warrant to search the Ford Excursion based on his understanding that the

vehicle was connected to the incident with Appellant’s $100 bill. Id. at 30.

Trooper Huffstutler’s inference that the three were travelling together is

supported by the group’s respective photo identifications, which establish

that Appellant and both men reside in the same out-of-state location. Thus,

the record evidence supports the jury’s conclusion that three Brooklyn

residents, in the same grocery store in central Pennsylvania, had travelled

there together in the same vehicle.        Because the jury rationally linked

Appellant to the Ford Excursion, the jury was entitled to infer that she was

the owner of the black backpack, given that the backpack contained

women’s toiletries and Appellant was the only woman in the group. Thus,

the record provides a basis for the trial court to uphold the jury’s conclusion

that Appellant acted pursuant to an agreement with Corona-Gavilan and

Munoz to pass the $100 bill at Redner’s.




                                    - 11 -
J-S30002-17


      Appellant’s second challenge is to the trial court’s denial of her weight-

of-the-evidence claim. Appellant’s Brief at 12–13. We have held that “[a]

motion for new trial on the grounds that the verdict is contrary to the weight

of the evidence, concedes that there is sufficient evidence to sustain the

verdict.”   Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super.

2016) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000)). Our Supreme Court has described the standard applied to a weight-

of-the-evidence claim as follows:

      The decision to grant or deny a motion for a new trial based
      upon a claim that the verdict is against the weight of the
      evidence is within the sound discretion of the trial court. Thus,
      “the function of an appellate court on appeal is to review the trial
      court’s exercise of discretion based upon a review of the record,
      rather than to consider de novo the underlying question of the
      weight of the evidence.” An appellate court may not overturn
      the trial court’s decision unless the trial court “palpably abused
      its discretion in ruling on the weight claim.”          Further, in
      reviewing a challenge to the weight of the evidence, a verdict
      will be overturned only if it is “so contrary to the evidence as to
      shock one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal

citations omitted).   A trial court’s determination that a verdict was not

against the interest of justice is “[o]ne of the least assailable reasons” for

denying a new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529

(Pa. Super. 2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055

(Pa. 2013)). A verdict is against the weight of the evidence where “certain

facts are so clearly of greater weight that to ignore them or to give them

equal weight with all the facts is to deny justice.”      Commonwealth v.

                                     - 12 -
J-S30002-17


Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (quoting Widmer, 744 A.2d at

751–752).

      We observe that Appellant’s weight-of-the-evidence argument merely

rehashes her claims regarding the sufficiency of the evidence.       Evidence

presented by Appellant neither supports the possibility that the $100 bill was

legitimate nor raises questions regarding the testimony of Mr. Krick and

Trooper Huffstutler. Upon our review of the record, we agree with the trial

court that as the ultimate fact-finder, the jury properly weighed the

evidence. We discern no abuse of discretion by the trial court in concluding

that the verdict was not against the weight of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2017




                                    - 13 -
