J-E03008-18

                                  2019 PA Super 17

 COMMONWEALTH OF PENNSYLVANIA                 :        IN THE SUPERIOR COURT OF
                                              :             PENNSYLVANIA
                                              :
              v.                              :
                                              :
                                              :
 DOMINIQUE WILLIAM GREEN                      :
                                              :
                      Appellant               :        No. 1024 WDA 2016

           Appeal from the Judgment of Sentence June 20, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0013385-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.


DISSENTING OPINION BY BOWES, J.:                          FILED JANUARY 23, 2019

      My colleagues make a strong case in support of Appellant’s guilt of theft.

However, he was charged with forgery, and the Commonwealth’s proof of that

offense fell short. While I agree that the Commonwealth proved that Appellant

intended to defraud St. Moritz by cashing a forged check and obtaining funds

to which he was not entitled, it failed to prove the second element of forgery:

that he uttered the check with knowledge that the check was forged in a

manner    specified     by   statute.   See       18    Pa.C.S.   §4101(a)(3).   The

Commonwealth’s proof that the check was forged does not satisfy its burden

of proving that Appellant knew the check was forged. Since, in my view, the

evidence was legally insufficient to support the forgery conviction, I

respectfully dissent.
J-E03008-18


      The evidence revealed that in mid-to-late August of 2015, St. Moritz

discovered that eighteen fraudulent checks were drawn on its payroll account.

The company president, Leslie Schattauer, initiated a fraudulent-check

investigation with the assistance of Officer Terry Bradford of the Whitehall

Police Department. During the course of the investigation, Officer Bradford

contacted Appellant and asked to speak to him regarding a check that was

cashed bearing his name.      The officer testified at the non-jury trial that

Appellant volunteered, “[I] only did it once.” N.T. Non-Jury Trial, 6/20/16, at

27. The officer testified further that, after he advised Appellant of his Miranda

rights, Appellant told the officer that he cashed the check at K-Mart because

he needed money to pay off fines. Appellant continued that he did not know

where the check came from or who sent the check; it came in the mail. Id.,

at 29-30.   Appellant confirmed that he never worked for St. Moritz and

admitted that he did not have any reason to receive a check from that entity.

      Ms. Schattauer testified that the check herein was one of “a series of

checks that were fraudulently using the check numbers that were drawn

currently and accurately.”    Id. at 18.    In addition, the fraudulent checks

contained the same routing numbers as genuine company checks. However,

she explained that the formatting and signatures on the checks were not

consistent with the company’s legitimately issued checks. Id. at 20-21. In

addition, the amounts payable on the checks were significantly higher than




                                      -2-
J-E03008-18


St. Moritz’s typical payroll checks and the payees were unknown to St. Moritz.1

Id. at 18-20. Ms. Schattauer stated that she recognized the check was a

forgery because of her experience with company checks; she posited that

employees would notice the difference between a duly-issued payroll check

and the forged check because they would have received the former.2 Id. at

23. Thus, while the Commonwealth proved that the check cashed by Appellant

was a forgery, one could reasonably infer from Ms. Schattauer’s testimony

that it was not an obvious forgery unless one was familiar with real St. Moritz

checks.3

       Ms. Schattauer confirmed Appellant’s statement to police that he had no

connection to St. Moritz.        Nonetheless, he endorsed the check payable to

himself purportedly drawn on St. Moritz’s payroll account and cashed it. No

____________________________________________


1 The certified record has been supplemented with a copy of the check. The
only handwriting on the check is the endorsement “Dominique Green” on the
reverse side of the check. The line for the name of the payee is blank. The
typewritten name and address of Dominique Green appears on the front of
the check below the amount payable, not on the line designated for the payee.

2 The Commonwealth did not introduce into evidence a genuine St. Moritz
payroll check for purposes of comparison.        The only evidence of the
appearance of a real check is Ms. Schattauer’s verbal description.

3 I submit that since the Commonwealth’s evidence established that persons
familiar with St. Moritz checks would recognize the check herein as a forgery,
but that Appellant had no connection to St. Moritz, it is unreasonable to infer
that he would have known it was a forgery simply by looking at the check
absent evidence that he created the forged check. Furthermore, the use of
check numbers duplicating duly-issued checks, as well as the proper routing
number, suggests that the forger had some familiarity with St. Moritz checks.



                                           -3-
J-E03008-18


one would dispute that Appellant’s negotiation of the check, when he knew he

had no right to the money, constituted theft, and evidenced an intent to

defraud St. Moritz. However, Appellant was charged with forgery pursuant to

18 Pa.C.S. §4101(a)(3), which requires proof that he uttered a writing that

he knew to be forged. See §4101(a)(3) (“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 in a manner specified in

paragraphs (1) or (2) of this subsection.”).4 Thus, the Commonwealth had to

prove beyond a reasonable doubt not only that the check was forged, and that

Appellant intended to defraud, but that he uttered it knowing it was forged in

a manner defined in either subsections (1) or (2). There was no evidence that

Appellant uttered it knowing that it had been altered, made, issued, or

transferred by someone without the authority to do so.



____________________________________________


4  Under subsection (3), the Commonwealth must show that the defendant
uttered the instrument knowing it to be forged in a manner specified in either
subsection (1) and (2):

       (1)    alters any writing of another without his authority;

       (2)  makes, completes, executes, authenticates, issues or
            transfers any writing so that it purports to be the act of
            another who did not authorize that act, or to have been
            executed at a time or place or in a numbered sequence other
            than was in fact the case, or to be a copy of an original when
            no such original existed; . . .
18 Pa.C.S. § 4101.

                                           -4-
J-E03008-18


       Appellant relied upon our decision in Commonwealth v. Gibson, 416

A.2d 543 (Pa.Super. 1979), in support of his contention that evidence that

one possessed and tried to negotiate a forged check alone was not sufficient

to support a forgery conviction. Gibson attempted to cash a $150 personal

check made payable to cash, which was ostensibly signed and endorsed by

Elsworth Kutz. Mr. Kutz testified at trial, however, that some of his checks

were missing and that he had not written a $150 check, thus establishing that

the check was forged. We held that Kutz’s testimony that he had not written

the check, and that some of his checks were missing, together with evidence

the check was in Gibson’s possession, did not justify the conclusion that

Gibson forged it or knew it was forged.

       I am unpersuaded by the Majority’s attempt to distinguish Gibson on

the basis that it involved a forged personal check made payable to cash.

Appellant’s possession of a forged company payroll check bearing his name

and address simply does not permit a reasonable inference that he created

the forged check, or that he knew the check was forged in a manner specified

in the statute.5

       The sufficiency of the evidence is a question of law. On appeal, we are

tasked with determining “whether the evidence admitted at trial, and all

reasonable inferences drawn therefrom, viewed in the light most favorable to


____________________________________________


5 The Commonwealth offered no evidence linking Appellant to any of the other
seventeen people who cashed similar checks.

                                           -5-
J-E03008-18


the Commonwealth as the verdict winner, were sufficient to prove every

element     of      the   offense    charged     beyond   a   reasonable   doubt.”

Commonwealth v. Williams, 176 A.3d 298, 305 (Pa.Super. 2017).

Although we may not reweigh the evidence, we must scrutinize the record to

determine whether the evidence was sufficient, if believed, to prove every

element of the offense charged.           In my view, the Commonwealth did not

introduce even circumstantial evidence that Appellant negotiated the check

with knowledge that it was a forged in the manner outlined by the statute.

His conviction rested on the fact that the check was an actual forgery, which

is insufficient.6    Without such evidence, I believe the forgery conviction is

infirm.

       For these reasons, I respectfully dissent. I would vacate the conviction

and discharge Appellant.

      President Judge Emeritus Bender and Judge Stabile join the Dissenting
Opinion.




____________________________________________


6 The majority appears to apply strict liability to §4101(a)(3), and reads it as
saying “utters any writing that is forged in a manner specified . . .” as opposed
to “utters any writing which he knows to be forged in a manner specified in
paragraphs (1) or (2).”

                                           -6-
