J. A17045/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
INDIGA CEARRA DAVIS,                      :         No. 3546 EDA 2019
                                          :
                         Appellant        :


      Appeal from the Judgment of Sentence Entered November 15, 2019,
                in the Court of Common Pleas of Chester County
                Criminal Division at No. CP-15-CR-0001092-2019


BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 20, 2020

        Indiga Cearra Davis appeals from the November 15, 2019 judgment of

sentence entered by the Court of Common Pleas of Chester County following

her conviction of one count of forgery—unauthorized act in writing,1 following

a bench trial. The trial court sentenced appellant to, inter alia, three years’

probation. After careful review, we affirm.

        The following facts can be gleaned from the certified record: Appellant

pled guilty to two counts of forgery—unauthorized act in writing and one count

of theft by unlawful taking at No. CP-15-CR-0001015-2018.                During

sentencing, appellant provided the trial court with a character reference letter

purportedly written by Ona Lingyte and Donyetta Stevens. While the letter




1   18 Pa.C.S.A. § 4101(a)(2).
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was neither marked nor admitted into evidence, the letter was read by the

trial judge, Chester County President Judge Jacqueline C. Cody.        Neither

Lingyte nor Stevens wrote a character reference letter for appellant, nor did

they authorize anyone to write a character reference letter on their behalf.

            The letter [at issue] sp[oke] very well of [appellant.]
            When it came time to impose [appellant’s] sentence,
            Judge Cody stated that she absolutely considered the
            letter as a factor at sentencing. When asked to
            explain her consideration of the letter, Judge Cody
            responded as follows:

                  Part of the reason that this letter was so
                  important in this particular case is
                  because the victim in the case I was
                  sentencing [appellant] on was a prior
                  employer.     And the prior employer
                  thought [appellant] had done such a great
                  job, and at the same time she was
                  stealing from them. And when I got this
                  letter, I was impressed with what this
                  person allegedly was saying, that
                  [appellant] was a star there, and talked
                  about what a good job she was doing.

                  And it sounded to me like based on the
                  letter that she had reported everything
                  that had happened before, and they
                  thought that she was wonderful and I
                  believed it was coming from an employer.
                  I didn’t know that it was made up and it
                  was a lie. That would have made a big
                  difference in my decision in this case. I
                  believe that the Commonwealth was
                  asking for significantly more time than I
                  sentenced [appellant] to. And this letter
                  was a big part of that because I want
                  people to succeed after they take
                  responsibility for their crimes.

            [Notes of testimony, 9/6/19 at 20-21.]


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            ....

            Judge Cody further testified that had she not received
            this letter with the glowing report from a current
            employer, it may have potentially impacted the
            sentence.

            On cross-examination, she testified that at the
            sentencing hearing she found it troubling that
            [appellant] did not tell her new employer about her
            pending charges when she attained the job. In both
            of her positions, [appellant] used her talent in working
            with children and since Judge Cody believed the letter
            was from an employer, she took that into
            consideration.

            Judge Cody was made aware on August 9, 2018 that
            the letter was not written by the people whose names
            were on the letter. She and Peter Jurs received a
            letter via email about the fraudulent letter from
            prosecutor Michelle Frei. Judge Cody did not seek a
            direct contempt of court proceeding against
            [appellant]. She allowed the Commonwealth to make
            the decision as to how they wanted to proceed. She
            did not take or initiate any action.

            . . . Judge Cody stated that she considered everything
            that was offered at the [sentencing] hearing in
            consideration of the sentence and that the sentence is
            “consistent with some of the good things that you’re
            doing, and what I hope will be good things that you
            do in the future.” At the sentencing hearing at which
            the fraudulent letter was offered, [appellant] stated
            that “I have worked really hard in being an honest and
            loving person, and changing my life around for my son
            and for my new born coming soon.”

Trial court opinion, 2/5/20 at 5-7.

      The   Commonwealth      subsequently     charged    appellant    with   the

aforementioned offense.    Following a bench trial, the trial court convicted



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appellant.   The trial court imposed sentence on November 15, 2019.         On

December 12, 2019, appellant timely filed a notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 5, 2020.

      Appellant raises the following issue for our review:

             Was there sufficient evidence to prove [appellant]
             intended to defraud or injure another when, at a
             sentencing hearing in another case, she presented a
             letter of character reference purportedly written by
             two former employers who did not authorize the
             writing?

Appellant’s brief at 1.

             In reviewing a challenge to the sufficiency of the
             evidence, our standard of review is as follows:

                   As a general matter, our standard of
                   review of sufficiency claims requires that
                   we evaluate the record in the light most
                   favorable to the verdict winner giving the
                   prosecution the benefit of all reasonable
                   inferences to be drawn from the evidence.
                   Evidence will be deemed sufficient to
                   support the verdict when it establishes
                   each material element of the crime
                   charged and the commission thereof by
                   the accused, beyond a reasonable doubt.
                   Nevertheless, the Commonwealth need
                   not establish guilt to a mathematical
                   certainty.      Any doubt about the
                   defendant’s guilt is to be resolved by 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.



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                 The Commonwealth may sustain its
                 burden by means of wholly circumstantial
                 evidence. Accordingly, [t]he fact that the
                 evidence establishing a defendant’s
                 participation in a crime is circumstantial
                 does not preclude a conviction where the
                 evidence coupled with the reasonable
                 inferences drawn therefrom overcomes
                 the     presumption      of      innocence.
                 Significantly, we may not substitute our
                 judgment for that of the fact finder; thus,
                 so long as the evidence adduced,
                 accepted in the light most favorable to the
                 Commonwealth,         demonstrates      the
                 respective elements of a defendant’s
                 crimes beyond a reasonable doubt, the
                 appellant’s convictions will be upheld.

           Commonwealth v. Franklin, 69 A.3d 719, 722-23
           (Pa.Super. 2013) (internal quotations and citations
           omitted).   Importantly, “the [fact finder], which
           passes upon the weight and credibility of each
           witness’s testimony, is free to believe all, part, or
           none of the evidence.”         Commonwealth v.
           Ramtahal, [], 33 A.3d 602, 607 ([Pa.] 2011).

Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).

     The Crimes Code defines forgery—unauthorized act in writing as follows:

           A person is guilty of forgery if, with intent to defraud
           or injure anyone, or with knowledge that [s]he is
           facilitating a fraud or injury to be perpetrated by
           anyone, the actor . . . . makes, completes, executes,
           authenticates, issues or transfers any writing so that
           it purports to be the act of another who did not
           authorize the act . . .

18 Pa.C.S.A. § 4101(a)(2) (formatting altered; emphasis added).

     Here, appellant contends that the Commonwealth failed to introduce

sufficient evidence that established beyond a reasonable doubt that appellant



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acted with the intent to defraud or injure anyone. (Appellant’s brief at 5.)

Specifically, appellant argues that, “the reasonable inference drawn from [her]

action is that she sought leniency for herself. This intent does not equal an

intent to defraud or injure [the trial court].”        (Id.)     As noted by the

Commonwealth, appellant does not offer any argument as to whether the

Commonwealth established beyond a reasonable doubt that appellant acted

“with the knowledge that [s]he is facilitating a fraud . . . to be perpetrated by

anyone[.]”   (Commonwealth’s brief at 15, citing 42 Pa.C.S.A. § 4101(a)

(emphasis omitted). See also Commonwealth v. Ryan, 909 A.2d 839, 845

(Pa.Super. 2006).)

       We find Commonwealth v. Orie, 88 A.3d 983 (Pa.Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014), to be persuasive here. In Orie, the

Commonwealth charged the defendant—a then-state senator—with multiple

offenses related to allegations of the defendant’s legislative staff members’

engaging in political campaign work. Id. at 990. The defendant’s first trial

ended in a mistrial following the discovery during jury deliberations of altered

defense exhibits that were admitted by the trial court. Id. at 990-991, see

also   Commonwealth        v.   Orie,   33    A.3d   17,    19   (Pa.Super.   2011)

(per curiam),    appeal    denied,      32    A.3d   1195    (Pa.   2011).     The




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Commonwealth subsequently charged the defendant with, inter alia, two

counts of forgery—uttering a forged writing.2

      Following her second trial, a jury convicted the defendant of, inter alia,

both forgery counts. The defendant appealed to this court, challenging the

sufficiency of the evidence. Orie, 88 A.3d at 1013. This court affirmed the

defendant’s convictions, relying in part on the trial court’s Rule 1925(a)

opinion:

            The alterations in the documents were beneficial to
            [the defendant’s] case. Clearly, [the defendant] had
            an interest in offering into evidence the documents
            that were at least, in part, exculpatory.

Id. at 1015 (citation omitted).

      Here, as noted above, appellant admits that the “reasonable inference

drawn from [her] action is that she sought leniency for herself.” (Appellant’s

brief at 5.) Put another way, the document at issue was, much like the altered

defense exhibits in Orie, beneficial to appellant’s case, and appellant had an

interest in offering the document to the trial court during her sentencing

hearing. Indeed, as noted by the trial court, “[i]t is abundantly clear that

Judge Cody relied on that letter when sentencing [appellant.]          There is

absolutely no question that [appellant] meant for [Judge Cody] to see her in




2 18 Pa.C.S.A. § 4101(a)(3). While appellant in the instant case has been
convicted of forgery at Section 4101(a)(2), both offenses require the actor to
act, “with intent to defraud or injure anyone, or with knowledge that he is
facilitating a fraud or injury to be perpetrated by anyone[.]” 18 Pa.C.S.A.
§ 4101(a).


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a positive light to potentially influence her sentence.” (Trial court opinion,

2/5/20 at 9; see also notes of testimony, 9/6/19 at 20-21.)

      For these reasons, we find that the Commonwealth has established the

elements of forgery beyond a reasonable doubt and appellant’s sufficiency of

the evidence claim is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2020




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