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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA


                       v.

MICHELLE LONG

                             Appellant                        No. 621 MDA 2015


              Appeal from the Judgment of Sentence March 18, 2015
                In the Court of Common Pleas of Lebanon County
               Criminal Division at No(s): CP-38-CR-0001656-2014


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                            FILED DECEMBER 15, 2015

        Appellant, Michelle Long, appeals from the judgment of sentence

entered after she was convicted of various crimes arising from her

presentation of a forged commercial lease at an arbitration hearing.              Long

argues that the conviction should be overturned as she believes that no

evidence was presented to prove that she knew the lease was forged. In the

alternative, she contends that the trial court erred in allowing the

Commonwealth to correct the criminal information to identify the date of the

arbitration    hearing      in   2009,   as    opposed   to    original   information’s

identification of the same date in 2014.          We conclude that none of Long’s

issues on appeal merit relief, and therefore affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Long leased a commercial property from Eleftherios and Theodora

Lagonis.   The lease document was signed by each of the three parties.

Eventually, a dispute arose between Long and the Lagonises over the term

of the lease. Long contended that the lease ended on March 1, 2009, while

the Lagonises believed that the lease ended on October 31, 2009.

      The Lagonises filed a complaint against Long, seeking payment of rent

from March, 2009 through October 2009.        An arbitration hearing on the

complaint was held on November 9, 2009.       At this hearing, the Lagonises

presented a copy of the lease that indicated that the lease would end on

October 31, 2009, and that Long would be responsible for paying utilities to

the leased property. In contrast, Long presented a copy of the lease that

indicated the lease would end on March 1, 2009, and also lacking the

provision regarding utilities. The arbitrators found in favor of the Lagonises

and awarded them $28,498.79 in damages.

      In May 2014, the Commonwealth of Pennsylvania charged Long with

one count of forgery based upon her actions at the arbitration hearing. The

criminal complaint filed against Long identified the date that Long offered

the forgery as November 9, 2009.          However, the criminal information

subsequently filed by the Commonwealth initially indicated that the date of

the offense was November 9, 2014.

      At trial, the Commonwealth presented evidence that the copy of the

lease proffered by Long misspelled Eleftherios’s name, had improperly


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aligned margins on the first page, and lacked the final provision regarding

utilities.   Furthermore, the Commonwealth presented the testimony of the

Lagonises’ daughter, Nicolletta, who admitted to authoring the lease based

upon a template used by her father’s lawyer.       The Lagonises’ copy of the

lease spelled Eleftherios’s name correctly, had proper margins on the first

page, and contained the final provision regarding utilities.

       The jury convicted Long of forgery, and the trial court sentenced her to

a term of probation of two years.        The trial court denied Long’s post-

sentence motions, and this timely appeal followed.

       On appeal, Long raises four issues for our review.      However, issues

one and two are related, while issue four is merely a slight variation of her

argument on issue three. We will address Long’s claims in order.

       In her first issue on appeal, Long argues that the evidence at trial was

insufficient to support her conviction for knowingly presenting a forged

document. In reviewing a challenge to the sufficiency of the evidence, “[w]e

must determine whether the evidence admitted at trial, and all reasonable

inferences derived therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, support all of the elements of the offense

beyond a reasonable doubt.”     Commonwealth v. Cooper, 941 A.2d 655,

662 (Pa. 2007) (citation omitted).     Our scope of review is plenary.    See

Commonwealth v. Weston, 749 A.2d 458, 460 n.8 (Pa. 2000). We may

not weigh the evidence and substitute our judgment for the fact-finder’s, as


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the fact-finder solely determines the credibility of witnesses and is free to

believe all, part or none of the evidence submitted. See Cooper, 941 A.2d

at 662.    The Commonwealth may sustain its burden of proving every

element of an offense by means of wholly circumstantial evidence.          See

Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013).

      Long was convicted of knowingly presenting a forged document with

the intent to defraud another person. See 18 Pa.C.S.A. § 4101(3). Long

contends that the evidence at trial was insufficient to establish that she

knew the lease she proffered at the arbitration hearing was a forgery.       In

support, Long properly notes that the mere fact that she possessed the

forged lease was not sufficient to establish that she knew it was forged. See

Commonwealth v. Gibson, 416 A.2d 543, 545 (Pa. Super. 1979).

      However, the fact that the defendant knew a document was forged can

be established by purely circumstantial evidence. See Commonwealth v.

Orie, 88 A.3d 983, 1015 (Pa. Super. 2014). In Orie, this Court found the

evidence sufficient to sustain a finding of knowledge that a document was

forged based upon evidence that the document had been in the sole control

of the defendant prior to trial, a stipulation that her attorney had not altered

the document, that the alterations in the forged document were beneficial to

the defendant’s case, and that the defendant authenticated the document at

trial. See id.




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      Here, Long admitted that she gave the forged lease to her attorney in

preparation for the arbitration hearing.     See N.T., Trial , 2/5/15, at 118.

Long’s attorney at the arbitration, David Warner, Esquire, testified that he

argued that the forged lease was the true and correct lease during the

arbitration hearing. See id., at 75. Attorney Warner further testified that

the forged lease was the document he received from Long prior to trial. See

id., at 81.   Finally, Attorney Warner testified that the forged lease was

beneficial to Long’s case prior to and at the arbitration hearing. See id., at

79. Therefore, under Orie, the evidence was sufficient to allow the jury to

infer that Long knew the lease was forged when she submitted it to the

arbitration panel. Long’s first argument on appeal therefore merits no relief.

      Next, Long argues that her conviction for forgery was against the

weight of the evidence. Our standard of review applicable to a challenge to

the weight of the evidence, is as follows.

      [A] verdict is against the weight of the evidence only when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice. It is well established that a weight of the
      evidence claim is addressed to the discretion of the trial court. …
      The role of the trial court is to determine that notwithstanding all
      the evidence, 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. A motion for a 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; thus the trial
      court is under no obligation to view the evidence in the light
      most favorable to the verdict winner.

      Significantly, in a challenge to the weight of the evidence, the
      function of an appellate court … is to review the trial court’s
      exercise of discretion based upon a review of the record, rather


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      than to consider de novo the underlying question of the weight
      of the evidence. In determining whether this standard has been
      met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion. It is for this reason that the trial court’s
      denial of a motion for a new trial based on a weight of the
      evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

citations and quotation marks omitted).

      In addressing Long’s claim that the verdict was against the weight of

the evidence, the trial court provided the following reasoning.

      The Commonwealth presented the testimony of [Mr. Lagonis,]
      Mrs. Lagonis, and Nicolletta Lagonis …           All three witnesses
      testified that it [is] their practice to set the lease term on all of
      their leased properties for two (2) years. They also testified that
      there were differences between the original lease agreement
      that they presented at arbitration and the one Defendant
      presented. For instance, on the first page of Defendant’s lease
      agreement, [Mr. Lagonis’s] name is misspelled, the margins are
      inconsistent, the addendum on the signature page is missing,
      [Mr. Lagonis’s] signature is not consistent with his signature,
      and the lease mentions a two (2) year lease term in other
      sections. The dates were also inconsistent with the business
      practice of [Mr. Lagonis.] The leases always start on the first of
      the month and end on the last day of the month.

      … Attorney David Warner … also testified. Attorney Warner was
      Defendant’s lawyer in the civil suit and represented her at the
      arbitration hearing. He testified Defendant provided him with
      the lease agreement for the arbitration hearing. He had not
      seen the agreement prior to receiving Defendant’s copy.
      Detective Keith Ulrich … of the Lebanon City Police Department,
      testified that [Mr. Lagonis] brought the alleged forged document
      to the police sometime after the arbitration hearing. Detective
      Ulrich informed [Mr. Lagonis] the he would not receive monetary
      compensation for bringing criminal charges against Defendant.
      Detective Ulrich spoke with Defendant during his investigation



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      and she told him that the Lagonis family had planted the altered
      lease in her office.

      The Commonwealth also presented the Lagonis’s original lease
      agreement and the copy of a lease agreement that Defendant
      presented at the arbitration hearing to the jury. The jury was
      able to look at both leases and determine if they believed one of
      the two to be forged. While Defendant testified that she did not
      make any changes to the document that she presented as the
      lease agreement, the jury was able to take all of the evidence
      presented and weight it how they saw fit. The jury’s verdict was
      not “so contrary to the evidence as to shock one’s sense of
      justice.”

Trial Court Opinion, 5/13/15, at 5-6.   After an independent review of the

transcripts and record, we cannot conclude that the trial court’s reasoning

constitutes an abuse of discretion. Long’s second issue on appeal therefore

merits no relief.

      In her third issue on appeal, Long argues that the trial court erred in

permitting the Commonwealth to amend, after the close of its case, the filed

criminal information.    As noted above, the initial criminal information

indicated that Long presented the forged lease at an arbitration hearing on

November 9, 2014. The correct date of the alleged offense was November

9, 2009, and all the Commonwealth’s evidence pertained to that date.

Furthermore, the criminal complaint filed against Long correctly identified

the date of the crime.

      After the close of the Commonwealth’s case, Long moved for a

judgment of acquittal based upon the discrepancy between the information

and the evidence at trial. The trial court took the motion under advisement,


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and proceeded to hear Long’s case in defense. At the close of all testimony,

Long again moved for acquittal on these grounds. This time, the trial court

denied the motion and permitted, over Long’s objection, the Commonwealth

to amend the information.

      Long argues that the modification of the information after the close of

evidence   violated   the   Pennsylvania    Rules   of   Criminal   Procedure.

Pennsylvania Rule of Criminal Procedure 564 empowers the trial court to

permit amendment of an information “when there is a defect in form, the

description of the offense(s), the description of any person or any property,

or the date charged, provided the information as amended does not charge

an additional or different offense.” Pa.R.Crim.P. 564.     Moreover, “[u]pon

amendment, the court may grant such postponement of trial or other relief

as is necessary in the interests of justice.” Id. “[T]he purpose of Rule 564 is

to ensure that a defendant is fully apprised of the charges, and to avoid

prejudice by prohibiting the last minute addition of alleged criminal acts of

which the defendant is uninformed.” Commonwealth v. Sinclair, 897 A.2d

1218, 1221 (Pa. Super. 2006). “[O]ur courts apply the rule with an eye

toward its underlying purposes and with a commitment to do justice rather

than be bound by a literal or narrow reading of the procedural rules.”

Commonwealth v. Grekis, 601 A.2d 1284, 1288 (Pa. Super. 1992).

      The factors the trial court must consider in determining whether an

amendment is prejudicial are:


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          (1) whether the amendment changes the factual scenario
          supporting the charges; (2) whether the amendment
          adds new facts previously unknown to the defendant; (3)
          whether the entire factual scenario was developed during
          a preliminary hearing; (4) whether the description of the
          charges changed with the amendment; (5) whether a
          change in defense strategy was necessitated by the
          amendment; and (6) whether the timing of the
          Commonwealth’s request for amendment allowed for
          ample notice and preparation.

Id. (citation omitted).

      Long argues that the trial court’s order allowing an amendment of the

information “prejudiced Appellant’s ability to prepare a defense” due to the

timing of the amendment. Appellant’s Brief, at 17. However, Long does not

specify how she would have changed defense strategy or how she was

actually surprised by the evidence presented at trial. Absent such specifics,

we must conclude that Long has failed to establish that the amendment

caused her any undue prejudice.      Long’s third issue on appeal therefore

merits no relief.

      In her final issue, Long recasts her argument against the modification

of the information in the form of a claim that the information was

constitutionally infirm. Specifically, Long claims that her due process rights

were violated by the failure of the information to provide reasonable

certainty as to the time, place, and circumstances of the charges alleged.

Once again, we conclude that the trial court correctly determined that Long

was not surprised by the evidence the Commonwealth presented at trial. As




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such, she had notice of the allegations against her. Thus, there was no due

process violation, and Long’s final issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015




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