J-S08023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MICHAEL WILKERSON

                        Appellant                   No. 1786 EDA 2014


                Appeal from the PCRA Order of May 22, 2014
           In the Court of Common Pleas of Montgomery County
             Criminal Division at No.: CP-46-CR-0006001-2010


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 13, 2015

     Michael Wilkerson appeals the May 22, 2014 order denying his petition

for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

46, without a hearing. We affirm.

     Upon review of Wilkerson’s direct appeal, a previous panel of this

Court summarized the factual history of this case as follows:

     On September 18, 2009, [Wilkerson] gave a salesman for Fort
     Washington Mercedes Benz a check for $111,000[.00] in
     payment for a Mercedes Benz S550 automobile. Following the
     transaction, [Wilkerson] left the dealership with the car. After a
     number of days, the salesman was notified that the check had
     not cleared the bank. In fact, the account upon which the check
     was drawn had been closed for eight months. The salesman
     contacted [Wilkerson,] who explained that he had had a
     disagreement with his wife, and she had taken money out of the
     account. The salesman had previously sold cars to [Wilkerson]
     and was familiar with both him and his wife. Over the next few
     weeks, the salesman attempted to offer other options to
     [Wilkerson], such as paying part of the purchase price and
     financing the rest. Nonetheless, although [Wilkerson] promised
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     to come to the dealership with a replacement check, [Wilkerson]
     did nothing and did not immediately return the car. Ultimately,
     the police were contacted.

     Approximately three weeks after the purchase, [Wilkerson]
     returned the car, but merely left the car’s keys and books on the
     counter at the dealership and left without resolving the matter.
     Obviously, the value of the automobile was greatly diminished.
     The salesman later learned that [Wilkerson] had been trying to
     trade the vehicle with a Lexus car dealer. Also[,] a witness from
     West Chester Jaguar-Land Rover testified that [Wilkerson] tried
     to sell the vehicle to that dealership for $115,000[.00].

     A criminal complaint [charging Wilkerson with one count of bad
     checks in violation of 18 Pa.C.S. § 4105] was filed against
     [Wilkerson]    on    December     29,    2009.       Despite   the
     Commonwealth’s       due    diligence[,]   [Wilkerson]     avoided
     apprehension until he was arrested on August 2, 2010. The trial
     court listed and relisted [Wilkerson’s] trial for several dates in
     2011[,] including February 14, March 7, and March 14.
     Ultimately, in May 2011, because of trial docket congestion,
     [Wilkerson’s] trial was delayed until August. [Wilkerson’s] trial
     commenced on August 8, 2011.

Commonwealth v. Wilkerson, No. 3325 EDA 2011, slip op. at 1-3 (Pa.

Super. Oct. 31, 2012) (footnote omitted).

     Wilkerson premised his defense upon his claims that he mistakenly

issued the check on a closed account, and that he believed that the check

was connected to an active account that contained sufficient funds.

Wilkerson claimed that he learned of his mistake shortly after the

transaction, and that he promptly contacted the salesperson to inform him of

the mistake and to instruct the dealership to not attempt to deposit the

check.   Wilkerson stated that, during these discussions, he communicated

his intent to deliver a replacement check.     His subsequent attempts to

correct the error, Wilkerson claimed, were frustrated by his wife, who

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removed money from the active account because of her anger about the

purchase.     Having found no acceptable means of compensating the

dealership, Wilkerson returned the vehicle, but did not reimburse the

dealership for the depreciation incurred during the time that the vehicle was

in his possession.

      In support of his “mistake” defense, Wilkerson testified on his own

behalf and presented the corroborating testimony of the investigating officer,

the dealership’s manager, and the dealership’s finance manager.           The

defense also presented physical evidence of Wilkerson’s driver’s license, his

insurance card, the affidavit of probable cause, and a deposit slip from

Wachovia Bank, which showed the date on which the dealership attempted

to deposit the check at issue.

      The Commonwealth presented the testimony of the salesperson, Fred

Mielke, who testified that Wilkerson did not contact him to inform him of the

mistake, but rather that he sought out Wilkerson after he learned that

Wilkerson’s bank would not honor the check.          Mielke stated that the

dealership’s management told him several days after the sale that

Wilkerson’s check would not clear.    Regarding the dealership’s attempt to

deposit the check, Mielke stated that “[w]e would have cashed it probably

the next day after the transaction, it would have been deposited into the

bank.” Notes of Testimony (“N.T.”), 8/8/2011, at 47. Mielke testified that

he provided Wilkerson with numerous options to remedy the situation, but

that Wilkerson was unwilling or unable to compensate the dealership.

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Furthermore, the Commonwealth presented the testimony of the chief

operating officer for a different luxury car dealership, who stated that

Wilkerson had attempted to trade or sell the vehicle to that dealership.

       In its rebuttal case, the Commonwealth also introduced, by stipulation,

Wilkerson’s prior convictions for theft by deception1 and forgery.2 The trial

court instructed the jury on the presumptions contained in the bad checks

statute, telling the jurors that, if they were satisfied with the fact that

Wilkerson’s account was closed at the time of the transaction, then they

could infer that Wilkerson possessed the requisite knowledge for purposes of

the bad checks statute. See N.T., 8/9/2011, at 54, 63.

       Following a two-day jury trial, Wilkerson was convicted of bad checks.

On October 21, 2011, the trial court sentenced Wilkerson to one-and-one-

half to seven years’ incarceration. On October 31, 2012, this Court affirmed

Wilkerson’s judgment of sentence. Wilkerson filed a Petition for Allowance of

Appeal with the Pennsylvania Supreme Court, which was denied on October

29, 2013.      On January 15, 2014, Wilkerson timely filed a pro se PCRA

petition, wherein he alleged that his trial counsel was ineffective for failing to

investigate and acquire the bank records associated with the check.

Wilkerson subsequently was appointed new counsel for the purposes of his


____________________________________________


1
       18 Pa.C.S. § 3922.
2
       18 Pa.C.S. § 4101.



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PCRA petition, but that attorney sought leave to withdraw from the

representation, and filed a Turner/Finley3 “no-merit” letter on April 22,

2014. On April 24, 2014, the PCRA court issued Wilkerson a notice of intent

to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907, and

Wilkerson filed a response on May 13, 2014. On May 22, 2014, the PCRA

court issued a final order dismissing Wilkerson’s petition.

        Wilkerson timely filed a pro se notice of appeal on June 17, 2014. On

June 19, 2014, the PCRA court directed Wilkerson to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Because

Wilkerson retained new counsel, the PCRA court granted Wilkerson an

extension of time to file the concise statement. The PCRA court set July 14,

2014 as the deadline, and Wilkerson timely filed a concise statement on that

date.      In accordance with Pa.R.A.P. 1925(a), the PCRA court issued an

opinion in support of its order on July 28, 2014.

        Wilkerson raises the following issue for our review:

        Did the trial [c]ourt err in dismissing the PCRA [p]etition for
        [i]neffective [a]ssistance of [c]ounsel?

Brief for Wilkerson at 4.

        Our standard of review for the dismissal of a PCRA petition is well-

settled.    “In reviewing the denial of PCRA relief, we examine whether the

____________________________________________


3
    Commonwealth v.       Turner,   544    A.2d   927    (Pa.  1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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PCRA court’s determination is supported by the record and free of legal

error.”   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal

quotation marks and citation omitted). “The scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).       Regarding the

granting of an evidentiary hearing on a PCRA petition:

      Where a PCRA petition does not raise a genuine issue of material
      fact, the reviewing court is not required to hold an evidentiary
      hearing on the petition. Thus, to entitle himself to a hearing, an
      appellant must raise an issue of fact, which, if resolved in his
      favor, would justify relief.

Commonwealth v. Simpson, 66 A.3d 253, 260-61 (Pa. 2013) (internal

quotation marks, bracketed material, and citations omitted).

      To prevail on a claim of ineffective assistance of counsel, “the

petitioner must show: that the underlying legal claim has arguable merit;

that counsel had no reasonable basis for his or her action or omission; and

that the petitioner suffered prejudice as a result.”     Commonwealth v.

Bardo, 105 A.3d 678, 684 (Pa. 2014) (citation omitted).          “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014) (citation

omitted).   Regarding appellate review of a claim of ineffectiveness, “[a]

court is not required to analyze the elements of an ineffectiveness claim in

any particular order of priority; instead, if a claim fails under any necessary



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element of the ineffectiveness test, the court may proceed to that element

first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).

      Wilkerson was convicted of one count of bad checks in violation of

18 Pa.C.S. § 4105. In addition to the elements of the offense, which require

the issuer’s knowledge that the check will not be paid, the statute provides a

number of presumptions from which the fact-finder may infer that the issuer

possessed such knowledge.        18 Pa.C.S. § 4105(b).   These presumptions

played an important role in Wilkerson’s trial and are central to the

arguments that he advanced in his PCRA petition. The crime of bad checks

is defined, in pertinent part, as follows:

      (a) Offense defined.—

         (1) A person commits an offense if he issues or passes a
         check or similar sight order for the payment of money,
         knowing that it will not be honored by the drawee.

         (2) A person commits an offense if he, knowing that it will
         not be honored by the drawee, issues or passes a check or
         similar sight order for the payment of money when the
         drawee is located within this Commonwealth. A violation
         of this paragraph shall occur without regard to whether the
         location of the issuance or passing of the check or similar
         sight order is within or outside of this Commonwealth. It
         shall be no defense to a violation of this section that some
         or all of the acts constituting the offense occurred outside
         of this Commonwealth.

      (b) Presumptions.—For the purposes of this section as well as
      in any prosecution for theft committed by means of a bad check,
      the following shall apply:




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        (1) An issuer is presumed to know that the check or order
        (other than a post-dated check or order) would not be
        paid, if:

        (i) payment was refused because the issuer had no such
        account with the drawee at the time the check or order
        was issued; or

        (ii) payment was refused by the drawee for lack of funds,
        upon presentation within 30 days after issue, and the
        issuer failed to make good within ten days after receiving
        notice of that refusal.

        Notice of refusal may be given to the issuer orally or in
        writing by any person. Proof that notice was sent by
        registered or certified mail, regardless of whether a receipt
        was requested or returned, to the address printed on the
        check or, if none, then to the issuer’s last known address,
        shall raise a presumption that the notice was received.

18 Pa.C.S. § 4105.

     Wilkerson argues that his trial counsel was ineffective for failing to

conduct a reasonable investigation into the bank account activity associated

with the check in question.     Brief for Wilkerson at 9-19.      Specifically,

Wilkerson suggests that “[h]ad counsel investigated the history of the bank

records, he would have found that the check . . . was never presented to the

dealership’s bank for payment; thus it was impossible for the check to be

returned.”    Id. at 10.      Therefore, Wilkerson argues, the statutory

presumptions should not have applied to his circumstances because he was

not provided notice that payment on his check had been refused. Wilkerson

suggests that, because the bank records would have corroborated his

version of the events, they would have confirmed his defense and negated

the intent element of the crime of bad checks.     Wilkerson argues that his


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counsel’s failure to acquire these records constituted ineffective assistance of

counsel, and thus the PCRA court erred in dismissing his petition without a

hearing. We disagree.

       Because we conclude that counsel’s acquisition and presentation of the

bank records would not have created a reasonable likelihood that the result

of the trial would have been different, we begin and end our analysis with

the “prejudice” prong of the ineffectiveness claim. See Tharp, 101 A.3d at

747.    “Respecting prejudice, we employ the Strickland4 actual prejudice

test, which requires a showing of a reasonable probability that the outcome

of the proceeding would have been different but for counsel’s constitutionally

deficient performance.”       Commonwealth v. Daniels, 104 A.3d 267, 281

(Pa. 2014). “[A] reasonable probability is a probability that is sufficient to

undermine confidence in the outcome of the proceeding.” Spotz, 84 A.3d at

312 (citation omitted).

       At the outset, we note that Wilkerson has not provided the bank

records that he claims his attorney should have acquired, so we cannot be

certain of their contents.5       Wilkerson claims that “the bank records would

____________________________________________


4
       See Strickland v. Washington, 466 U.S. 668 (1984).
5
      For the purpose of our prejudice analysis, we are assuming, arguendo,
that the bank records would have contained the information that Wilkerson
suggests. However, we note that Wilkerson’s failure to present the bank
records before this Court raises doubts about whether we could determine
that his claim has arguable merit. Regardless, because we conclude that
(Footnote Continued Next Page)


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have shown that the check presented at trial was never deposited or cashed;

therefore, there was no way that the dealership provided notice to Wilkerson

as they claimed.”       Brief for Wilkerson at 17.   This argument is somewhat

curious, because Wilkerson introduced the dealership’s deposit slip into

evidence at trial for the purpose of demonstrating the length of time

between the transaction and the dealership’s attempt to deposit the check.

Wilkerson passed the check on September 18, 2009, and the dealership

attempted to deposit the check on September 28, 2009.

      Wilkerson suggests that his counsel should have obtained both

Wilkerson’s and the dealership’s bank records.        Brief for Wilkerson at 12.

We cannot understand what benefit Wilkerson would have received from the

presentation of his own bank records. Wilkerson’s bank records likely would

have shown merely that Wilkerson’s account had been closed, which is a fact

not in dispute. Wilson admitted at trial that the account had been closed at

the time of the transaction. N.T., 8/8/2011, at 110. Moreover, the fact that

Wilkerson’s account was closed was an essential component of his “mistake”

defense. The dealership’s bank records, by contrast, potentially would have

shown that there were no attempts to deposit Wilkerson’s check until

September 28, 2009. While the length of time between the transaction and

the attempted deposit may have cast doubt upon Mielke’s recollection of the

                       _______________________
(Footnote Continued)

Wilkerson did not suffer prejudice from his trial counsel’s omission, we need
not address the arguable merit element of Wilkerson’s ineffectiveness claim.



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events, it is ultimately not of consequence.       Even if the dealership’s bank

records supported Wilkerson’s narrative, they do not bear upon the

determinative question of whether Wilkerson knew that he was passing the

check on a closed account at the time of the transaction.

      The Commonwealth contends that presentation of the bank records

would have been needlessly cumulative of the other evidence presented by

the defense.    Brief for Commonwealth at 9-10.               We define cumulative

evidence as “additional evidence of the same character as existing evidence

and   that   supports   a   fact   established     by   the     existing   evidence.”

Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa. Super. 2012). Again,

because the records are not before this Court, we cannot be certain of their

contents, but we infer that the bank records could have been stronger

evidence than the deposit slip.       The deposit slip accounts only for one

attempt to deposit the check, on one day, at one time. The bank records

potentially could have accounted for all of the other time between the

transaction and the date reflected on the deposit slip. Undeniably, the bank

records, had they been produced, would be better characterized as

“corroborative” evidence, which is “[e]vidence that strengthens or bolsters

existing   evidence.”   Id.        Despite   the   bank   records’     potential   for

corroborating the evidence of the deposit slip, we are confident that the

presentation of the bank records would not have changed the outcome of

the verdict. The records merely would have supported a proposition already

suggested by other evidence and, more importantly, they would not have

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been probative of the ultimate factual determination—Wilkerson’s knowledge

at the time of the transaction.

      The parties have argued at length about the applicability of the

statutory presumptions, which provide that the issuer may be presumed to

know that a check will not be paid if payment was refused by the drawee

due to the absence of an account or the lack of sufficient funds. 18 Pa.C.S.

§ 4105(b)(1) (emphasis added). As noted in the statute, “[n]otice of refusal

may be given to the issuer orally or in writing by any person.” Id. Viewing

the evidence in the light most favorable to the Commonwealth as the

prevailing party at trial, as we must, Mielke’s testimony established that he

orally provided Wilkerson with notice that payment on the check was

refused. As we noted in affirming Wilkerson’s conviction on direct appeal:

      [Mielke] testified that the dealership presented the check to the
      bank and it was not honored. The jury could justifiably conclude
      from this testimony alone that the dealership presented the
      check to its own bank, Wachovia Bank, which in turn presented
      it to Bank of America, the drawee bank, and that Bank of
      America refused to honor the check. Thus, the evidence was
      sufficient to support a conviction for bad checks.

Wilkerson, No. 3325 EDA 2011, slip op. at 15. We understand that, if the

bank records were able to demonstrate conclusively that there was no

attempt by the dealership to deposit the check in the days following the

transaction, then those records possibly would have detracted from the




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credibility of Mielke’s testimony and bolstered Wilkerson’s narrative.6

However, the defense presented three witnesses that contradicted Mielke’s

testimony, in addition to the deposit slip which shows the date of the

attempted     deposit,     which    was    several   days   after   Mielke   claimed.

Nevertheless, the jury credited the Commonwealth’s version of the facts.

We discern no reason to believe that a piece of documentary evidence,

which would have been merely corroborative of the evidence of the deposit

slip, would undermine confidence in the outcome of that verdict.

       Furthermore, it is significant that Wilkerson testified that he knew that

the account had been closed for eight or nine months prior to the

transaction. N.T., 8/8/2011, at 110. Therefore, Wilkerson possessed actual

knowledge that the check could not be honored.              As the Commonwealth

notes, “[r]egardless of whether [notice] came from the dealership on

September 19, the dealership on September 28, or from his own knowledge

that he wrote the check on a closed account, the check could not clear, and

____________________________________________


6
       We note, however, that the prosecution established on cross-
examination of the dealership’s finance manager that the dealership
previously utilized a verification system for checks, whereby they could
determine the validity of a check without attempting to deposit it. N.T.,
8/8/2011, at 91. This fact suggests that the dealership could have received
notice that the check would not be honored without conducting any activity
that would reflect on its bank records. The jury could have concluded from
this fact that Mielke’s testimony that he received notice from the
management that the check would not clear was derived from the use of the
verification system, and not from an attempt to deposit the check into the
dealership’s bank account.



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[Wilkerson] never made good.” Brief for Commonwealth at 8. Wilkerson’s

admission is all the more significant when considering the court’s jury

instruction on the statute’s requirements, which included the following:

      [E]vidence has been presented in this case that [Wilkerson] had
      no open account with drawee, the bank, at the time the check
      was issued. If you are satisfied beyond a reasonable doubt that
      this was the stated fact, you may find that [Wilkerson] knew that
      the check would not be paid.

N.T., 8/9/2011, at 54.     While this instruction may be somewhat of an

oversimplification of the knowledge requirement, Wilkerson has never

challenged the legal accuracy of this instruction. Regardless, the jurors were

instructed to find that Wilkerson met the knowledge requirement if they

were satisfied that the bank account was closed, which is a fact that they

heard directly from Wilkerson.

      There is no dispute that Wilkerson’s bank account was closed at the

time of the transaction, and there is no doubt that the check that he passed

would not clear. Wilkerson’s only defense was that he lacked the requisite

intent because his passing of the check was an accident. Wilkerson cogently

presented this theory to the jury, and the jury rejected it wholesale.     The

bank records would not have affected the ultimate question of whether the

passing of the check was an accident. Therefore, we conclude that there is

no reasonable probability that the bank records’ presentation at trial would

have changed the outcome of the verdict; thus, his trial counsel’s failure to

acquire the bank records did not prejudice Wilkerson.     Because Wilkerson



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has failed to demonstrate prejudice, his ineffectiveness claim is without

merit, and we need not consider the remaining elements of the claim. See

Tharp, 101 A.3d at 747. Furthermore, because Wilkerson did not raise an

issue of fact, which, if resolved in his favor, would justify relief, the PCRA

court did not err in dismissing Wilkerson’s petition without a hearing. See

Simpson, 66 A.3d at 260-61.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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