J-S25007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

REBECCA FREY

                            Appellant               No. 1742 MDA 2013


             Appeal from the Judgment of Sentence June 26, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0005515-2012


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 12, 2014

       Rebecca Frey appeals from the judgment of sentence entered June 26,

2013, in the York County Court of Common Pleas. On May 15, 2013, a jury

convicted Frey of three counts of theft by unlawful taking, three counts of

theft by deception, and two counts of forgery.1     Frey was sentenced to a

term of 60 days to 23 months’ incarceration.      Contemporaneous with this

appeal, Frey’s counsel has filed a petition to withdraw from representation

and an Anders brief.         See Anders v. California, 386 U.S. 738 (1967);

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).               Counsel’s

Anders brief raises numerous challenges to the sufficiency and weight of the


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1
    18 Pa.C.S. §§ 3921(a), 3922(a)(1), and 4101(a)(2), respectively.
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evidence, as well as the admissibility of the evidence. For the reasons set

forth below, we affirm, and grant counsel’s petition to withdraw.

      The trial court set forth the facts and procedural history as follows:

             The affidavit alleged that [Frey], as an employee of Fulton
      Bank[] had[,] over the course of several months, taken money
      from a depositor’s account. On January 17, 2012, Nancy Dietz,
      a customer of Fulton Bank, discovered $2,000.00 had been
      withdrawn from her account.          The transaction occurred on
      November 25, 2011 and Mrs. Dietz signed an Affidavit indicating
      that the signature for that withdrawal was not hers. Another
      transaction completed in June of 2011 showed a withdrawal of
      $5,200.00 from Mrs. Dietz’s account signed for by Kelli Nelson,
      another depositor with Fulton Bank. Kelli Nelson and Nancy
      Dietz did not know each other. The same teller, Rebecca Frey,
      had completed both transactions. On February 10, 2012, Frey’s
      teller work indicated that a $3,800.00 deposit was made and
      then cancelled and that $2,800.00 of that money was missing.
      Frey was terminated and on April 4, 2012, Fulton Bank
      representatives met with the affiant to file the criminal charges.

            An Information was filed on August 21, 2012 adding some
      counts and amending others to account for the three (3)
      separate transactions. Counts 1 and 2 were amended to Theft
      by Unlawful Taking as to the $5,200.00; Counts 4 and 5, Theft
      by Unlawful Taking, were added as to the $2,000.00 and
      $2,800.00 respectively; Counts 6 and 7, Theft by Deception,
      were added as to the $2,000.00 and $2,800.00 respectively;
      Count 3, Forgery, was amended as to Nancy Dietz; and, Count
      8, Forgery, was added as to Kelli Nelson.

             At [Frey]’s pre-trial conference on October 18, 2012, the
      case was listed for trial in the December 2012 term of trials.
      Trial was continued twice and began on May 13, 2013. The jury
      returned with a verdict of guilty on all counts on May 15, 2013.
      [Frey] was sentenced on June 26, 2013 to 60 days to 23 months
      incarceration in York County Prison concurrent on all counts.

            On July 11, 2013 [Frey] filed a Petition for Relief under the
      Post-Conviction Relief Act arguing that her counsel was
      ineffective for failing to file a post-sentence motion and/or
      appeal as she had requested. On that same date, [Frey]’s trial

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       counsel filed a Praecipe withdrawing as [Frey]’s counsel. We
       held a hearing on July 23, 2013 and permitted counsel to
       withdraw and directing that [Frey] apply for a public defender.
       We stayed [Frey]’s report date and granted her petition for bail
       pending appeal.

             [Frey] filed a post-sentence motion on July 25, 2013 and a
       hearing was held on August 27, 2013. We entered an Order at
       the hearing denying [Frey]’s Motion[.]

Trial Court Opinion, 12/3/2013, at 2-4. This appeal followed.2

       When     direct   appeal     counsel    files   a   petition   to   withdraw    and

accompanying Anders brief, we must first examine the request to withdraw

before   addressing      any   of   the   substantive      issues     raised   on   appeal.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). Here,

our review of the record reveals that counsel has substantially complied with

the requirements for withdrawal outlined in Anders, supra, and its

progeny.3 Moreover, the record contains no additional correspondence from

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2
    On October 4, 2013, the trial court ordered Frey to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Frey filed a concise statement on October 25, 2013. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on December 3, 2013.
3
   Previously, we found counsel’s Anders brief deficient for failing to identify
Frey as a recipient on the certificate of service pursuant to Pa.R.A.P. 121. As
a result, on April 2, 2014, we remanded for re-filing of a proper Anders
brief or advocate’s brief. Two days later, counsel filed an amended petition
for leave to withdraw, in which he identified Frey in the certificate of service.
He also stated his belief that the appeal is wholly frivolous, filed the brief
pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009), furnished a copy of the Anders brief to Frey and advised
Frey of her right to retain new counsel or proceed pro se. Commonwealth
v. Ferguson, 761 A.2d 613, 616 (Pa. Super. 2000).



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Frey.    Accordingly, we will proceed to examine the record and make an

independent determination of whether the appeal is wholly frivolous.

        We review this appeal on the basis of the issues identified in the

Anders brief:

        1. Whether the guilty verdict is against the sufficiency of the
        evidence because the Commonwealth failed to prove how [Frey]
        had access to the vault when its own witness testified that
        access to the vault was obtained only through two authorized
        individuals at the same time?

        2. Whether the guilty verdict is against the weight of the
        evidence because the Commonwealth failed to prove how [Frey]
        had access to the vault when its own witness testified that
        access to the vault was obtained only through two authorized
        individuals at the same time?

        3. Whether the guilty verdict is against the sufficiency of the
        evidence because the Commonwealth failed to prove that the
        forged signatures were [Frey]’s handwriting?

        4. Whether the guilty verdict is against the weight of the
        evidence because the Commonwealth failed to prove that the
        forged signatures were [Frey]’s handwriting?

        5.    Whether the Commonwealth failed to lay a sufficient
        foundation pursuant to Pa.R.E. 901 that any of the witnesses
        called at trial were sufficiently familiar with [Frey]’s handwriting
        so that the jury could properly consider the appropriate weight
        to give the documentary evidence of forgery?

        6. Whether the Commonwealth presented sufficient evidence of
        forgery when it failed to present expert testimony on
        handwriting analysis in order to establish that another person’s
        forged signature matches the handwriting of a defendant?

        7. Whether a conviction for Theft by Deception or Theft by
        Unlawful Taking may stand when there is insufficient evidence to
        prove beyond a reasonable doubt an underlying Forgery charge,
        which is the only way the thefts could occur?


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Anders Brief at 5.

      In Frey’s first argument, she claims there is insufficient evidence to

support her convictions because the Commonwealth failed to prove how she

had access to the bank vault when Kyle Hughes, the bank’s branch manager,

testified that access to the vault was obtained only through two authorized

individuals at the same time. Specifically, she states:

             The Commonwealth’s case is circumstantial, strung
      together by various inferences drawn from cash-in and cash-out
      (or lack thereof) tickets run on Ms. Frey’s teller number (001) at
      the bank. Yet, there was no direct evidence, either through
      witness testimony or presentation of bank surveillance footage
      showing Ms. Frey removing money from the bank. Further,
      tellers were only allowed to have so much money in their
      drawers before they either had to sell it to the vault or another
      teller. The vault was a “dual control” system that required two
      individuals with keys to enter. Ms. Frey was alleged to have
      stolen $5,200.00 from the bank. The bank requires tellers to
      “prove” their drawers every day. Despite these safety controls
      built-in to the bank’s daily routine, the jury convicted Ms. Frey of
      Forgery, Theft by Deception, and Theft by Unlawful Taking.

Anders Brief at 14.

      Our review of a challenge to the sufficiency of the evidence is well-

settled:

      A claim challenging the sufficiency of the evidence presents a
      question of law.    Commonwealth v. Widmer, 560 Pa. 308,
      744 A.2d 745, 751 (2000). We must determine “whether the
      evidence is sufficient to prove every element of the crime
      beyond a reasonable doubt.” Commonwealth v. Hughes, 521
      Pa. 423, 555 A.2d 1264, 1267 (1989). We “must view evidence
      in the light most favorable to the Commonwealth as the verdict
      winner, and accept as true all evidence and all reasonable
      inferences therefrom upon which, if believed, the fact finder
      properly could have based its verdict.” Id.


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     Our Supreme Court has instructed:

        [T]he facts and circumstances established by the
        Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant’s guilt may
        be resolved by the fact-finder unless the evidence is so
        weak and inconclusive that as a matter of law no
        probability of fact may be drawn from the combined
        circumstances. Moreover, in applying the above test, the
        entire record must be evaluated and all evidence actually
        received must be considered. Finally, the trier of fact
        while passing upon the credibility of witnesses and the
        weight of the evidence produced, is free to believe all, part
        or none of the evidence.

     Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
     1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).

     Here, the trial court found there was sufficient evidence to support her

convictions as aptly stated in its trial court memorandum.      SeeTrial Court

Opinion, 12/3/2013, at 6-12.

     Viewing    this   evidence   in   the   light   most   favorable   to   the

Commonwealth, and drawing all reasonable inferences therefrom, we agree

with the trial court’s determination. Frey attempts to argue that because the

Commonwealth did not demonstrate that she accessed the bank’s vault,

there was insufficient evidence to prove that she removed the money from

the bank. However, this argument ignores the fact it was never alleged that

Frey needed to have access to the vault. Rather, these numerous incidents

involved Frey using the bank’s “cash withdrawal” and “cash in” tickets to

procure over $10,000 in cash from her teller drawer, none of which Frey

rightfully owned. Moreover, while Frey alleges that tellers were only allowed

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to have so much money in their drawer at a time before they had to sell that

money to a different bank teller or to the vault, that exact amount of money

was never specified at trial.4 As such, one could reasonably infer that the

certain funds were in her drawer to steal.          Therefore, we conclude the

Commonwealth presented sufficient circumstantial evidence from which the

trial court could reasonably infer that Frey committed theft by unlawful

taking, theft by deception, and forgery.         Accordingly, her first argument

fails.

         Next, Frey claims that the verdict was against the weight of the

evidence because, again, the Commonwealth failed to prove that she had

access to the vault when Kyle Hughes, the bank’s branch manager, testified

that access to the vault was obtained only through two authorized

individuals at the same time.         Anders Brief at 14.5   Moreover, she states

while the Commonwealth “presented evidence through a ‘paper trial [sic]’ of

transaction[s] from Ms. Frey’s teller number (001) along with an inactive

teller number (005),” Frey “alleged that she made an error and used the
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4
  See N.T., 5/13/2013, at 162-163 ([Defense counsel:] Before I show you
this, it’s true that each teller’s only allowed to have so much money in their
drawer at a time, right? [Hughes:] Correct. [Defense counsel:] So if they
have more than that, they have to sell that money to a different drawer or
to the vault; correct? [Hughes:] Correct.”).
5
   Frey properly preserved her challenge to the weight of the evidence by
raising it in a post-sentence motion, which was filed on July 25, 2013. See
Pa.R.Crim.P. 607(A).




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wrong account number (of Ms. Dietz) when providing funds to Ms. Nelson.”

Id. at 15.

      Appellate review of a weight of the evidence claim is well-established:

      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in
      favor of acquittal that a guilty verdict shocks one’s sense of
      justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 744
      A.2d 745, 751–52 (2000); Commonwealth v. Champney, 574
      Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, an
      appellate court does not substitute its judgment for the finder of
      fact and consider the underlying question of whether the verdict
      is against the weight of the evidence, but, rather, determines
      only whether the trial court abused its discretion in making its
      determination. Widmer, 560 Pa. at 321–22, 744 A.2d at 753;
      Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (U.S. 2014).

      Here, Frey’s weight of the evidence claim is a rehash of her sufficiency

challenge. She fails to explain how the verdict was against the weight of the

evidence, or in what way the trial court abused its discretion in denying her

weight claim.   Rather, her argument consists only of a restatement that

accessing the vault was necessary to demonstrate that she stole the money.

We conclude the court did not abuse its discretion in denying Frey a new trial

based on her weight of the evidence claim. Frey asks this Court to reweigh

the evidence and give the greatest weight to her own testimony. We decline

to do so. As our Supreme Court has made clear, we may not reweigh the




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evidence and substitute our judgment for the trial court’s decision.            See

Lyons, supra. Therefore, Frey’s weight claim fails.

      In Frey’s third and fourth arguments, which we will address together,

she contends there is insufficient evidence to support her convictions and

the   verdict    was   against   the   weight   of   the   evidence   because   the

Commonwealth failed to prove that the forged signatures were in her

handwriting. Anders Brief at 16. With respect to her sufficiency claim, she

states:

            [T]he jury was provided with a withdrawal slip with
      competent testimony from Mrs. Dietz that she did not sign the
      documents. Mrs. Dietz, however, admitted that she signed her
      signature differently on several of the documents. Ms. Nelson
      also indicated that the handwriting on another completed
      withdrawal slips was not hers. The jury was provided with
      documents, including an Affidavit of Forgery, in which Ms. Frey
      admitted she had competed at least portions of them. The
      Commonwealth provided no expert testimony on handwriting
      analysis regarding the similarities between Ms. Frey’s
      handwriting and the suspected documents.

Id. at 17.      With regard to her weight claim, Frey restates her sufficiency

argument and asserts the verdict shocks the conscience. Id. at 17-18. Frey

concludes the court erred in denying her post-sentence motion and argues

that expert testimony was required in order for there to be sufficient

evidence to convict her of forgery. Id. at 18.

      Keeping our standards of review in mind, we note the trial court relies

on Commonwealth v. Winegrad, 180 A. 160 (Pa. Super. 1935), in finding

that expert testimony was not required to prove the authenticity of the


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handwriting on the forged documents. See Trial Court Opinion, 12/3/2013,

at 12-13. In Winegrad, this Court held:

       Expert testimony to determine the authenticity of disputed
       writings may be helpful, but it is not usually indispensable.
       Letters concededly signed by [the defendant] were offered in
       evidence. A jury has the right to compare authenticated writings
       with alleged forged writings, and to use their own judgment in
       deciding whether they were made by the same party: Groff v.
       Groff et al., 209 Pa. 603, 612, 59 A. 65.

Winegrad, 180 A. at 161.           See also Commonwealth v. Gipe, 84 A.2d

366, 367 (Pa. Super. 1951). Moreover, “[t]he trier of fact determines the

genuineness of a signature.” Levy v. Lenenberg, 795 A.2d 419, 423 (Pa.

Super. 2002), citing 42 Pa.C.S. § 6111(d).6

       Here, the trial court found the following:

             [Frey]   said   that   her    signature    appeared   on
       Commonwealth’s Exhibit 7, the Affidavit of Forgery. Nancy Dietz
       authenticated her signature on the Affidavit of Forgery. Kelli
       Nelson authenticated her signature on checks she had written.
       The jury was able to compare the signatures to the signatures
       on the forged documents, the $2,000.00 withdrawal slip and the
       $5,200.00 withdrawal slip. Obviously, the jury concluded that
       the signature on the forged withdrawal slips was made by
       [Frey].

Trial Court Opinion, 12/3/2013, at 13 (record citations omitted).



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6
   Section 6111(d) states: “Jury question. -- The opinions of the witnesses
to handwriting being submitted as competent testimony to the jury, the final
determination as to whether any particular handwriting is genuine or
simulated shall remain, as heretofore, a question for the jury on all the
evidence submitted.” 42 Pa.C.S. § 6111(d).



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      We agree with the trial court’s determination. Pursuant to Winegrad,

supra, expert testimony was not required to prove the documents were

forged.   The jury, sitting as the fact-finder, was free to believe Dietz and

Nelson, and to not believe Frey. Moreover, the jury was permitted use their

own judgment in deciding whether the signatures were made by Dietz and

Nelson, or Frey.   Therefore, Frey’s second attack on the sufficiency of the

evidence fails. Furthermore, with respect to her weight claim, we conclude

the court did not abuse its discretion in denying Frey a new trial. Frey again

asks this Court to reweigh the evidence and, we decline to do so.

Accordingly, her third and fourth claims fail.

      Next, Frey argues the Commonwealth failed to lay a sufficient

foundation pursuant to Pennsylvania Rule of Evidence 901 because none of

the witnesses called at trial were sufficiently familiar with her handwriting so

that the jury could properly consider the appropriate weight to give the

documentary evidence of forgery.       Anders Brief at 19.     Specifically, she

asserts that no foundation was laid before Hughes testified that he

recognized or was familiar with Frey’s handwriting. Id.

      Our standard of review regarding evidentiary issues is as follows:

      With regard to evidentiary challenges, it is well established that
      “[t]he admissibility of evidence is at the discretion of the trial
      court and only a showing of an abuse of that discretion, and
      resulting prejudice, constitutes reversible error. An abuse of
      discretion is not merely an error of judgment, but is rather the
      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

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      record. Furthermore, if in reaching a conclusion the trial court
      overrides or misapplies the law, discretion is then abused and it
      is the duty of the appellate court to correct the error.”

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation

omitted).

      Rule 901, which governs authenticating or identifying evidence,

provides, in relevant part:

      (a) In General. To satisfy the requirement of authenticating or
      identifying an item of evidence, the proponent must produce
      evidence sufficient to support a finding that the item is what the
      proponent claims it is.

      (b) Examples. The following are examples only--not a complete
      list--of evidence that satisfies the requirement:

                                        …

      (2) Nonexpert Opinion about Handwriting. A nonexpert’s opinion
      that handwriting is genuine, based on a familiarity with it that
      was not acquired for the current litigation.

Pa.R.E. 901(a), (b)(2) (italics in original).

      Initially, we note the alleged improper evidence regarding Hughes’s

testimony (that he recognized Frey’s handwriting), which Frey cites to in her

brief, actually came out during defense counsel’s cross-examination of

Hughes, and not during the Commonwealth’s examination of the witness.

See N.T., 5/13/2013, at 164 (“[Defense counsel:] But from this ticket are

you able to tell who completed that ticket? [Hughes:] I can recognize the

handwriting, yes.”); see also Anders Brief at 19. Moreover, Hughes never




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actually identifies whose handwriting he recognized.7          Lastly, as the trial

court noted in its Rule 1925(a) opinion, Frey “authenticated her own

handwriting and signature on the various documents.            No other testimony

was needed as [Frey] is most familiar with her own handwriting.”              Trial

Court Opinion, 12/3/2013, at 13-14.            See also N.T., 5/13/2013, at 224.

Therefore, Frey’s argument that the Commonwealth failed to lay a sufficient

foundation pursuant to Rule 901 is without merit, and the trial court did not

abuse its discretion in admitting the evidence.

       In Frey’s penultimate issue, she claims there was insufficient evidence

to support her forgery conviction because the court failed to present expert

testimony analysis in order to establish that another person’s forged

signature matches her own handwriting.             Anders Brief at 20. As we have

stated above, pursuant to Winegrad, supra, no expert testimony was

required to prove the documents were forged. See also Pa.R.E. 901(b); 42

Pa.C.S. § 6111(d).       The two victims and Frey all testified with respect to

their own handwriting, which is permissible under Rule 901. Therefore, this

issue lacks merit.
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7
   Additionally, we note that “[o]ne can testify that he or she is familiar with
a signature ‘from having conducted a correspondence with him.’” Morgan
v. First Pennsylvania Bank, 541 A.2d 380, 383 (Pa. Super. 1988) (citation
omitted) (concluding “trial court did not err in allowing the bank manager to
testify concerning [a client]’s signature on the signature card as she was
acquainted with the signature.”). Here, Hughes had worked with Frey for a
number of years at the bank and therefore, it would have been permissible
for him to testify regarding his familiarity with her handwriting.



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      Lastly, Frey argues that her convictions for theft by unlawful taking

and theft by deception may not stand because there was insufficient

evidence to convict her of forgery.    Anders Brief at 20.    She states that

without the forgery, the thefts could not have occurred.     Id.   As the trial

court properly notes:

      The Commonwealth presented several exhibits of [Frey]’s
      handwriting which were authenticated by [Frey] as being her
      handwriting. The Commonwealth also presented the testimony
      of Nancy Dietz and Kelli Nelson, who both testified that they did
      not sign the withdrawal slips that were at issue. Along with the
      testimony of Kyle Hughes and the other documentary evidence,
      the evidence was sufficient to conclude that [Frey] had forged
      the signatures of Nancy Dietz and Kelli Nelson.

Trial Court Opinion, 12/3/2013, at 14-15. We find the trial court properly

disposes of this issue and therefore, we need not address it further.

      As mandated by law, we have independently reviewed the record and

agree with counsel that the appeal is wholly frivolous. See Commonwealth

v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).             For the foregoing

reasons, we grant counsel’s motion to withdraw from representation and

affirm the judgment of sentence.

      Judgment of sentence affirmed.         Counsel’s motion to withdraw

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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