J-S65039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GREGORY C. SHAMBERGER                    :
                                          :
                   Appellant              :   No. 1604 MDA 2017

        Appeal from the Judgment of Sentence Entered May 15, 2017
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0004642-2016


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:            FILED: JANUARY 29, 2019

      Gregory C. Shamberger appeals the judgment of sentence entered on

May 15, 2017. Shamberger challenges the sufficiency of the evidence, the

discretionary aspects of his sentence, and the introduction of testimony from

a witness. We affirm in part and vacate in part.

      The trial court aptly summarized the facts and procedural history of this

case as follows:

            At 2:41 p.m. on August 22, 2016, [] Shamberger, and
      Kendra Scott entered the lobby of Fox Berkshire movie theater, a
      multiplex movie theater located in Wyomissing, Berks County,
      Pennsylvania. Fox Berkshire has eight screens. Screening rooms
      1 and 2 are located to the left of the box office, and rooms 3
      through 8 are located to the right. On that date, the nationally-
      released movie Sausage Party was playing at Fox Berkshire at
      2:45 p.m. in one of the screening rooms numbered 3 through 8.

            Later that day, Rosemary Grill and her mother arrived at
      Fox Berkshire and attended the 4:00 p.m. screening of Ben-Hur
      in screening room 2. Ms. Grill brought a purse with her to Fox
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     Berkshire. Ms. Grill’s wallet was inside the purse when she entered
     screening room 2. Among other things, the wallet contained two
     credit cards and one debit card issued to Ms. Grill. Ms. Grill and
     her mother were the only two people in screening room 2 at the
     start of the movie, and they sat in the first two seats of the second
     row from the back, with Ms. Grill’s mother on the aisle. Ms. Grill
     placed her purse on the floor next to her chair (toward the center
     of the row), reclined her chair, and settled in for the movie.

             At 4:08 p.m. (four minutes after the start of Ben-Hur),
     [Shamberger] and Kendra Scott walked through the lobby of Fox
     Berkshire moving from the direction of screens 3-8 toward
     screening rooms 1 and 2. Around 4:15 p.m., a woman walked into
     the showing of Ben-Hur and sat two or three seats away from Ms.
     Grill in the same row. The woman left the room about 20 minutes
     later and did not return.

           A short time later, [Shamberger] drove a white Chevy
     Impala, with Scott in the passenger seat, to a gas pump at the
     “Friendly Foo Mart” Exxon gas station in Wyomissing. He got out
     of the vehicle at Exxon. Scott did not exit the vehicle at Exxon.
     Ms. Grill’s Bank of America (American Express) credit card was
     used at Exxon to make a purchase in the amount of $34.00.
     [Shamberger] got back into the vehicle and he and Scott left
     Exxon.

            At 5:23 p.m., Scott entered Best Buy in Wyomissing. Five
     minutes later, at 5:28 p.m., [Shamberger] entered the same Best
     Buy. At 5:32 p.m. Ms. Grill’s BB&T Bank (Visa) debit card was
     used at Best Buy register 051 to purchase a MacBook Pro in the
     amount of $2,151.78. Less than three minutes later, at 5:34 p.m.,
     Ms. Grill’s Citibank (MasterCard) credit card was used at the same
     register to purchase an iMac desktop computer in the amount of
     $2,316.09. [Shamberger] exited the Best Buy after the iMac
     desktop computer was purchased, and he did not return.
     [Shamberger] carried two items as he exited Best Buy. At 5:47
     p.m., Scott used Ms. Grill’s Bank of America (American Express)
     credit card at Best Buy register 060 to purchase a Samsung
     television in the amount of $1,483.99. Scott exited Best Buy with
     the television at 5:48 p.m.

           At 6:21 p.m., Scott used Ms. Grill’s BB&T Bank (Visa) debit
     card at Target register 114 to purchase an iPad and protective
     case in the amount of $826.78. A minute later, at 6:22 p.m., Scott

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     used Ms. Grill’s Citibank (MasterCard) credit card at the same
     register to purchase an iPad in the amount of $794.99.

           Two days later, on August 24, 2016, [Shamberger] and
     Scott were back at Fox Berkshire movie theater. At 7:09 p.m.,
     Scott purchased tickets to see the movie Sausage Party, which
     was again playing in one of the screening rooms 3-8. On that date,
     Ben-Hur was again playing in screening room 2. A Fox Berkshire
     employee recognized [Shamberger] and Scott and contacted
     Wyomissing police after Scott purchased the tickets. Wyomissing
     police arrived, reviewed surveillance video, and told the employee
     to pull [Shamberger] and Scott out of Sausage Party. As the
     employee and police exited the box office into the lobby at 7:31
     p.m., they saw [Shamberger] and Scot entering the lobby through
     the door for screening rooms 1 and 2. Officer Moyer of Wyomissing
     Police and another officer approached [Shamberger] and Scott
     and asked to talk.

            [Shamberger] and Scott were separated and Officer Moyer
     questioned [Shamberger]. [Shamberger] told Officer Moyer that
     his name was Gregory Clemmens, and had an address on Jackson
     Street in Philadelphia. Officer Moyer could not verify the
     information provided by [Shamberger] and, at that time, Officer
     Moyer placed [Shamberger] in handcuffs and informed him that
     he was under official investigation. After informing [Shamberger]
     that he was under investigation for theft, Officer Moyer asked
     [Shamberger] for his name three or four times, and each time
     [Shamberger] stated Gregory Clemmens. Wyomissing Police
     proceeded to investigate the parking lot of Fox Berkshire and
     observed the same white, Chevy impala seen on surveillance at
     Exxon from August 22, 2016. A search of the vehicle revealed
     official paperwork from the City of Philadelphia addressed to []
     Shamberger inside the glove compartment.

           Following a two-day jury trial (April 19-20, 2017),
     [Shamberger] was convicted by a jury of three counts of access
     device fraud, three counts of conspiracy to commit access device
     fraud, and one count of false identification to law enforcement
     authorities. On May 15, 2017, the court sentenced [Shamberger]
     to, inter alia, an aggregate term of 42 to 120 months’
     imprisonment (with 265 days’ credit for time served).
     [Shamberger] filed a timely post-sentence motion on May 24,
     201[7] requesting judgment of acquittal, arrest of judgment, a
     new trial, and modification of his sentence. The post-sentence

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     motion was denied by operation of law on October 16, 2017, and
     this direct appeal followed.

Trial Court Opinion (“TCO”), filed June 25, 2018, at 1-4 (citations to record

and footnotes omitted).

     On appeal, Shamberger asks us to review the following issues:

     1. Whether the evidence presented at trial is sufficient to sustain
        the guilty verdict(s) for Access Device Fraud where the
        Commonwealth failed to establish, beyond a reasonable doubt,
        that [Shamberger] had utilized the stolen credit cards thereby
        committing the crime of Access Device Fraud.

     2. Whether the evidence presented at trial is sufficient to sustain
        the guilty verdict(s) for Access Device Fraud based on
        accomplice liability where the Commonwealth failed to
        establish, beyond a reasonable doubt, that [Shamberger] acted
        with the intent to promote or facilitate the crime of Access
        Device Fraud, that he agreed to aid in the commission of the
        crime of Access Device Fraud, or that he did aid in the
        commission of the crime of Access Device Fraud.

     3. Whether the evidence presented at trial is sufficient to sustain
        the guilty verdict(s) for Conspiracy to Commit Access Device
        Fraud where the Commonwealth failed to establish, beyond a
        reasonable doubt, that [Shamberger] entered into an
        agreement with Kendra Scott to commit the crime of Access
        Device Fraud.

     4. Whether the evidence presented at trial is sufficient to sustain
        the guilty verdict for False Identification to Law Enforcement
        Authorities where the Commonwealth failed to establish,
        beyond a reasonable doubt, that [Shamberger] was advised
        that he was under investigation prior to providing information
        to police.

     5. Whether the trial court erred and abused its discretion by
        allowing Sergeant Grim to testify about his recollection of the
        contents of a Best Buy surveillance video, where that footage
        was never provided to defense counsel and was not played for
        the jury.


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      6. Whether the trial court erred by imposing three separate
         sentences for conspiracy where all the evidence related to a
         single alleged conspiracy.

      7. Whether the trial court abused its discretion by sentencing
         [Shamberger] in the aggravated range for each of the first six
         counts of the Information, without considering the requisite
         sentencing factors and without noting aggravating factors on
         the record.

Shamberger’s Br. at 2-3.


SUFFICIENCY OF EVIDENCE

      When reviewing a challenge to the sufficiency of the evidence, we ask

“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.”

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc)

(citation omitted). Our standard of review is de novo and our scope of review

is plenary. See Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa.Super.

2018).

ACCESS DEVICE FRAUD

      Shamberger maintains that there was insufficient evidence to sustain

his access device fraud conviction because (1) it only showed that he was

present or nearby when his co-conspirator was using the victim’s credit cards

and (2) there was no evidence of his intent to commit the crimes committed

by his co-conspirator. See Shamberger’s Br. at 15, 17.




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      The Commonwealth sufficiently proves the crime of access device fraud

when it establishes that the defendant: “Use[d] an access device to obtain or

in an attempt to obtain property or services with knowledge that . . . the

access device was issued to another person who has not authorized its use.”

18 Pa.C.S.A. 4106(a)(1)(ii). An access device is defined as:


      Any card, including but not limited to, a credit card, debit card and
      automated teller machine card, plate, code, account number,
      personal identification number or other means of account access
      that can be used alone or in conjunction with another access
      device to obtain money, goods, services or anything else of value
      or that can be used to transfer funds.

18 Pa.C.S.A. 4106(d).


      Viewing the facts in the light most favorable to the Commonwealth as

verdict winner, the evidence established that a short time after the victim saw

a woman leave the theater room where she was watching a film:


      [Shamberger] drove a white Chevy Impala, with Scott in the
      passenger seat, to a gas pump at the “Friendly Food Mart” Exxon
      gas station in Wyomissing. He got out of the vehicle at Exxon.
      Scott did not exit the vehicle.

      [Shamberger] used [the victim’s] Bank of America (American
      Express) card to obtain only $34.00 worth of gas at Exxon and
      that Scott used the same card to obtain $1,483.99 worth of
      merchandise at Best Buy.

                                      ***

      The Commonwealth produced direct video and documentary
      evidence that [Shamberger] used the [victim’s] BB&T Bank (Visa)
      debit card to obtain $2,151.78 in merchandise at Best Buy, and
      the [victim’s] Citibank (Mastercard) credit card to obtain
      $2,316.09 in merchandise at Best Buy.



                                      -6-
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                                      ***

      Evidence produced at trial further demonstrated that in each case
      of access device fraud, [Shamberger] used the card first, and
      thereafter, Scott used the card at a different location.

TCO at 2, 7-8. This evidence was sufficient to sustain the conviction for access

device fraud because it showed that Shamberger used the victim’s debit and

credit cards to purchase merchandise and he was not authorized to do so.


ACCOMPLICE LIABILITY


      Next, Shamberger maintains that “there was no evidence that [he] had

the specific intent to promote or facilitate the commission of any of the crimes

committed by Kendrea Scott, much less evidence relating [to] each and every

one.” Shamberger’s Br. at 17.


      To satisfy its burden to prove the defendant guilty of being an

accomplice to the crime, the Commonwealth must show that: (1) “the

defendant intended to aid or promote the underlying offense” and (2) “the

defendant actively participated in the crime by soliciting, aiding, or agreeing

to aid the principal.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.

2004).


      Here, Shamberger aided Scott in using the victim’s credit and debit

cards to purchase merchandise and gas for his vehicle. Following his purchase

of gas at the Exxon, he and Scott purchased items at the Best Buy including

a Samsung television and iMac desktop computer. The reasonable inference


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is that Shamberger used his vehicle to get to Best Buy and then stored those

purchases in that same vehicle, thereby actively participating and aiding in

the crime. This claim is meritless and no relief is due.


CONSPIRACY


      Shamberger maintains that because there was no evidence “regarding

any agreement between [Shamberger] and his alleged co-conspirator,” the

evidence was insufficient to sustain the conspiracy conviction. Shamberger’s

Br. at 19


      To prove a criminal conspiracy, the Commonwealth must establish that

the defendant: “(1) entered an agreement to commit or aid in an unlawful act

with another person or persons, (2) with a shared criminal intent and, (3) an

overt act was done in furtherance of the conspiracy.” Commonwealth v.

Chambers, 188 A.3d 400, 410 (Pa. 2018) (citation omitted). “Once the

conspiracy is established beyond a reasonable doubt, a conspirator can be

convicted of both the conspiracy and the substantive offense that served as

the illicit objective of the conspiracy.” Id. The existence of an agreement is

“rarely proven with direct evidence.” Id. An agreement may be inferred from

many circumstances including but not limited to:


      [T]he relation between the parties, knowledge of and participation
      in the crime, and the circumstances and conduct of the parties
      surrounding the criminal episode. These factors may coalesce to
      establish a conspiratorial agreement beyond a reasonable doubt
      where one fact alone might fail.


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Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.Super. 2005) (quoting

Commonwealth v. Jones, 874 A.2d 108, 121-22 (Pa.Super. 2005)).

     Here, the evidence established that there was some form of relationship

between Shamberger and Scott as they were seen entering the theater

together on two separate occasions. Additionally, while there was no direct

testimony that Shamberger agreed to conspire with Scott, his actions are a

clear indication of his agreement to further the conspiracy. The facts in the

light most favorable to the Commonwealth as verdict winner established that

after Scott stole the victim’s wallet, she and Shamberger proceeded to the

Exxon gas station where Shamberger used one of the victim’s cards that was

in her wallet. Additionally, when police approached Shamberger, he lied about

his name, his address, and about his mode of transportation to the theater

that day. All of these facts were sufficient to sustain his conviction for

conspiracy.

FALSE IDENTIFICATION TO LAW ENFORCEMENT

     Shamberger maintains there is insufficient evidence to sustain the

conviction because Officer Moyer did not advise him that he was under

investigation prior to asking for his name and address. He maintains that

Commonwealth v. Kitchen, 181 A.3d 337, 345 (Pa.Super. 2018) (en banc),

requires us to vacate this conviction. We disagree. The Court in Kitchen held:

     In order to sustain a conviction for False ID, the Commonwealth
     must prove that the individual was told by police that he or she
     was under investigation, and that must occur prior to the
     individual’s presentment of false identity information.


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Kitchen, 181 A.3d at 345 (emphasis in original).

      Officer Moyer did not initially inform Shamberger that he was the subject

of an investigation. However, when Officer Moyer informed Shamberger that

he was under investigation, Shamberger continued to provide the same false

name “three or four times.” TCO at 11. Thus, Shamberger “furnished law

enforcement authorities with false information after being informed by the law

enforcement officer that he was the subject of an official investigation of a

violation of law.” See In re D.S., 39 A.3d 968, 947 (Pa. 2012); contra.

Commonwealth v. Barnes, 14 A.3d 128, 131-32 (Pa.Super. 2011) (stating

it is not illegal to give false identification to law enforcement where officer

claimed the subject of the investigation was false identification to an officer

after defendant gave same false name multiple times to officer).

ADMISSION OF EVIDENCE

      Next, Shamberger argues that “the Commonwealth should not have

been permitted to present evidence relating to video surveillance footage

allegedly from Best Buy” showing [Shamberger] “entering and then leaving

the store with items in his hands.” Shamberger’s Br. at 23. He maintains that

“[t]he officer’s attempt to testify about the contents of a video not produced

at trial was barred by the best evidence rule because ‘whatever knowledge he

possessed was gained form [sic] his viewing of the videotape. Thus, the

original video tape should have been produced.’” Id. at 24 (citing

Commonwealth v. Lewis, 623 A.2d 355, 358 (Pa.Super. 1993)).




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      We review a trial court’s ruling on the admissibility of evidence for an

abuse of discretion. See Commonwealth v. Belknap, 105 A.3d 7, 9-10

(Pa.Super. 2014). We give deference to the trial court’s decisions regarding

the admissibility of evidence. Id. An abuse of discretion is a ruling where there

is an “overriding or misapplication of the law, or the exercise of judgment that

is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id. at 10.

      The best evidence rule provides: “An original writing, recording, or

photograph is required in order to prove its content unless these rules, other

rules prescribed by the Supreme Court, or a statute provides otherwise.”

Pa.R.E. 1002. Rule 1002 however “is subject to the exceptions found in Rule

1004:”

      Rule 1004. Admissibility of Other Evidence of Content:

      An original is not required and other evidence of the content of a
      writing, recording, or photograph is admissible if:

             (a)   all the originals are lost or destroyed, and not by the
                   proponent acting in bad faith;

             (b)   an original cannot be obtained by any available
                   judicial process;

             (c)   the party against whom the original would be offered
                   had control of the original; was at that time put on
                   notice, by pleadings or otherwise, that the original
                   would be a subject of proof at the trial or hearing; and
                   fails to produce it at the trial or hearing; or

             (d)   the writing, record, or photograph is not closely
                   related to a controlling issue.


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Commonwealth       v.   Green,   162   A.3d   509,   518   (Pa.Super.   2017).

Additionally, Rule 1002 only applies “if the Commonwealth must prove the

contents of the writing, recording, or photograph to establish the elements of

its case.” Id.

      Here, the trial court concluded that “even without Sergeant Grim’s

testimony that he observed [Shamberger] entering and exiting Best Buy, the

Commonwealth produced ample evidence” to prove its case such as the

receipts from the Best Buy where the victim’s cards were used. TCO at 13.We

agree and conclude that the video surveillance was not essential to establish

the elements of the Commonwealth’s case. While there was no testimony

outside of the video that Shamberger was physically seen at the Best Buy, the

facts viewed in the light most favorable to the Commonwealth give rise to the

inference that either Scott or Shamberger used the victim’s cards at the Best

Buy. Whether Shamberger or Scott used the credit cards to purchase the

merchandise, the act of purchasing those items is attributed to both of them

because of the charge of conspiracy. See Chambers, 188 A.3d at 410.

Therefore, we conclude that the best evidence rule did not apply in this case.

DISCRETIONARY ASPECTS OF SENTENCE

      Shamberger also challenges the discretionary aspects of his sentence.

Before we address the merits of this claim, we must engage in a four-factor

analysis to determine whether: (1) the appeal is timely; (2) the issues




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presented were properly preserved; (3) the brief satisfies Pa.R.A.P. 2119(f);1

and (4) a substantial question is presented. See Commonwealth v.

Radecki, 180 A.3d 441, 467 (Pa.Super. 2018) (citing Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).

       Shamberger’s appeal is timely, he preserved the sentencing issue

presented, his brief complies with Rule 2119(f), and he presents a substantial

question. He maintains that the trial court imposed an aggravated sentence

“without enumerating aggravating factors on the record,” which raises a

substantial question. See Commonwealth v. Booze, 953 A.2d 1263, 1278

(Pa.Super. 2008).

       The certified record belies Shamberger’s argument that the trial court

failed to place the aggravating factors of this case on the record. The court

stated:

       [T]his [c]ourt noted, and stated on the record at the sentencing
       hearing, that [Shamberger] has a 35-year history of committing
       crimes against innocent victims. That history, as reflected in his
       pre-sentence report, includes multiple criminal acts constituting
       Access Device Fraud. Such behavior, despite previous stints in
       prison and the birth of a child, demonstrate that society needs to
       be protected from [Shamberger]. Therefore, a sentence was
       imposed to protect the community from [Shamberger’s] criminal
       behavior, as well as to protect [Shamberger] from his own self-
       destructive behavior. Ultimately, incarceration is necessary for


____________________________________________


1 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).


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      [Shamberger] and is clearly warranted given his prior record score
      of 5.

TCO at 17. The record before us supports the trial court’s decision to impose

an aggravated sentence and we conclude that it did not abuse its discretion.


IMPOSITION OF MULTIPLE SENTENCES FOR SINGLE ACT OF CONSPIRACY

      Shamberger    argues that    if any    conspiracy was established, it

“constitutes a single offense,” and therefore the trial court erred by imposing

sentence on three separate counts of conspiracy. We agree and the

Commonwealth as well the trial court concedes the same. The facts of this

case establish that Shamberger’s conduct was “the object of a ‘continuous

conspiratorial relationship.’” Commonwealth v. Davis, 704 A.2d 650, 654

(Pa.Super. 1997) (citing 18 Pa.C.S.A. 903(c)). Therefore, the court could not

impose a sentence for each count of conspiracy. Id. at 654-55. Thus, we

vacate two counts of the three counts of conspiracy. However, because the

trial court imposed a concurrent sentence for the conspiracy convictions,

remand is not necessary. See TCO at 16; (“the [c]ourt sentenced him to 21

months to 5 years for Count 4 (Conspiracy to Commit Access Device Fraud)

and ran the sentences for the two additional Conspiracy to Commit Access

Device Fraud counts”); see also Commonwealth v. Thur, 906 A.2d 552,

569 (Pa.Super. 2006) (“if our decision does not alter the overall [sentencing]

scheme, there is no need for a remand”).




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      Judgment of sentence for conspiracy counts five and six vacated;

judgment of sentence for remaining count of conspiracy, all counts of access

device fraud, and false identification to law enforcement authorities affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/29/2019




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