J-S35007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

AMINA MERRIWEATHER

                            Appellant                         No. 2970 EDA 2014


          Appeal from the Judgment of Sentence September 22, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010585-2013


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                              FILED SEPTEMBER 30, 2015

        Appellant, Amina Merriweather, appeals from the September 22, 2014

aggregate judgment of sentence of two years’ probation, imposed following

her conviction at a bench trial of forgery, theft by unlawful taking, receiving

movable property, and bad checks.1 After careful consideration, we affirm.

        We summarize the history of this case as follows.                   By criminal

complaint dated April 12, 2013, Detective Dank Andrews, of the Northeast

Detectives Division of the Philadelphia Police Department, charged Appellant

with the aforesaid crimes and securing execution of documents by



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A.       §§    4101(a)(1),        3921(a),    3925(a),   and   4105(a)(1),
respectively.
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deception.2     The charges were based on events that occurred in January

2013, related to Appellant’s employment as a home health aide by

Complainant, Marie Furey.         Following a preliminary hearing held on August

20, 2013, all the charges, except the securing execution of documents by

deception charge, were bound over to the Court of Common Pleas.

Following Appellant’s waiver of her right to a jury trial, a bench trial was held

on September 22, 2014.

        The trial court summarized the facts of the case as elicited from

testimony at trial as follows.

                    Marie Furey testified that Appellant was hired
              in 2012 as a nursing aid, to assist her husband with
              daily tasks, including getting him dressed and
              helping with meals. In January of 2013, Mrs. Furey
              became aware of an irregularity with her PNC Bank
              checking account, and upon investigation with her
              bank, discovered two checks that she did not write.
              Mrs. Furey and her husband were joint owners of the
              account and Mrs. Furey testified that her husband
              was not capable of writing checks. Check Number
              251 was written for the date of January 7, 2013, and
              Check Number 273 was written for the date of
              January 14, 2013. Both checks were written to
              Amina Merriweather, and both checks were written
              for the amount of four hundred eighty-four dollars.
              Mrs. Furey denied that the checks were in her
              handwriting.

                    Mrs. Furey testified that her checkbook was
              kept in an unlocked buffet cabinet in her dining
              room. No other checks were missing other than
              Checks 251 and 273.        Mrs. Furey testified that
              Appellant did contact her by phone, denying that she
____________________________________________
2
    18 Pa.C.S.A. § 4114.


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            had taken the checks, and offering to return the
            missing amount.

                  Mrs. Furey identified a legitimate check, Check
            Number 227, which was signed by herself, made to
            Amina Merriweather for four hundred eighty-four
            dollars, and dated January 15, 2013.

                  There was a stipulation by and between
            counsel that Appellant cashed Checks 251 and 273
            at the PNC Bank located a 6855 Frankford Avenue.
            There was also a stipulation that Appellant’s mother
            would testify as to Appellant’s reputation in the
            community as being law-abiding and honest.

                   Appellant testified that she was given Checks
            251 and 273 by Marie Furey in the normal course of
            business as a private employee, and that she had
            worked during the weeks in question. [Appellant]
            testified that she was turned away from the Furey’s
            home by their son in mid-January, 2013, and told
            that she was no longer needed. [Appellant] denied
            that she ever contacted the Fureys on the telephone
            after her employment was terminated. In viewing
            the documentary evidence, th[e trial] court found
            that Checks 251 and 273 were markedly different
            from Check 227 in terms of handwriting, spelling,
            and style.

Trial Court Opinion, 12/12/14, at 2-3.

      At the conclusion of the trial, the trial court found Appellant guilty of

all charges. The trial court immediately sentenced Appellant to two years’

concurrent probation on each count. Appellant did not file a post-sentence

motion. On October 3, 2014, Appellant filed a timely notice of appeal. In

response to the trial court’s order, Appellant filed a timely concise statement

of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate




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Procedure 1925(b).        The trial court issued its Rule 1925(a) opinion on

December 12, 2014.

      On appeal, Appellant raises the following issue for our review.

              Whether the evidence was insufficeint [sic] to
              support a conviction of forgery, theft, receiving
              stolen property and bad checks?

Appellant’s Brief at 3.

      Our review of a challenge to the sufficiency of the evidence is bound

by the following standard and scope of review.              “A claim impugning the

sufficiency   of   the    evidence   presents   us   with    a   question   of   law.”

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

              The standard we apply in reviewing the sufficiency of
              the evidence is 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. In applying the above
              test, we may not weigh the evidence and substitute
              our judgment for the fact-finder. In addition, we
              note that the 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.            The
              Commonwealth may sustain its burden of proving
              every element of the crime beyond a reasonable
              doubt by means of wholly circumstantial evidence.
              Moreover, in applying the above test, the entire
              record must be evaluated and all evidence actually
              received must be considered. Finally, the [finder] of
              fact while passing upon the credibility of witnesses

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            and the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013). “This standard of

deference is not altered in cases involving a bench trial, because the

province of a trial judge sitting without a jury is to do what a jury is required

to do.” Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008)

(internal quotation marks and citation omitted), appeal denied, 964 A.2d

894 (Pa. 2009).

            However, the inferences must flow from facts and
            circumstances proven in the record, and must be of
            such volume and quality as to overcome the
            presumption of innocence and satisfy the [finder of
            fact] of an accused’s guilt beyond a reasonable
            doubt. The trier of fact cannot base a conviction on
            conjecture and speculation and a verdict which is
            premised on suspicion will fail even under the limited
            scrutiny of appellate review.

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 102 (Pa. 2014).

      We note initially that “[i]n order to preserve a challenge to the

sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement

must state with specificity the element or elements upon which the appellant

alleges that the evidence was insufficient.”    Commonwealth v. Garland,

63 A.3d 339, 344 (Pa. Super. 2013) (citation omitted).         Instantly, rather

than identifying the specific elements of the particular charges at issue in




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her Rule 1925(b) statement, Appellant merely recites a version of the

evidence she deems warrants a contrary verdict.

                     1.    The evidence was insufficient to find
              [A]ppellant guilty of forgery, theft, receiving stolen
              property[,] and bad checks where [A]ppellant
              worked as a nursing assistant for complainant’s
              husband in their home. Complainant had written
              checks in the past to [A]ppellant for services
              rendered. Appellant usually received a check once
              per week for her work from complainant. Appellant
              testified that she had worked the prior weekend that
              is why she got two checks in one week. The checks
              and signature on checks looked similar to other
              checks complainant had written and/or other checks
              complainant had drafted had not been submitted to
              the court and admitted into evidence for a
              comparison with the alleged forged checks.

Appellant’s Concise Statement of Errors complained of on Appeal, 11/25/14,

at 1.

        Appellant’s   statement   actually   addresses   the   credibility   of   the

witnesses and the weight of the evidence. See Commonwealth v. Yong, -

--A.3d---, 2015 WL 4366472 at *10 n.9 (Pa. Super. 2015) (holding that a

challenge to credibility and the volume and quality of the evidence is a

challenge to the weight of the evidence and must be preserved as such).

“[A] weight of the evidence claim must be preserved either in a post-

sentence motion, by a written motion before sentencing, or orally prior to

sentencing.    Pa.R.Crim.P. 607.    Failure to properly preserve the claim will

result in waiver, even if the trial court addresses the issue in its [Rule

1925(a)] opinion.” Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.


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Super. 2014) (some citations omitted). Instantly, Appellant did not preserve

a challenge to the weight of the evidence by filing a post-sentence motion.

Accordingly, Appellant has waived any challenge to the weight of the

evidence.

      Nevertheless, even if Appellant’s sufficiency claim were properly

preserved, we conclude her arguments are without merit.             The forgery

statute provides as follows.

            § 4101. Forgery


            (a) Offense defined.--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:

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

                                         …

18 Pa.C.S.A. §4101(a)(1). “Thus, the Commonwealth must prove that there

was a false writing, that the instrument was capable of deceiving, and that

the defendant intended to defraud.” Commonwealth v. Fisher, 682 A.2d

811, 815 (Pa. Super. 1996), appeal denied, 687 A.2d 386 (Pa. 1996).

      Appellant claims the evidence was insufficient to prove that the subject

checks were forged because the Commonwealth “never introduced a

document with Mrs. Furey’s handwriting that was authenticated by her for

comparison with the alleged forged checks.”             Appellant’s Brief at 9.

However, Mrs. Furey specifically testified that she did not make out the

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subject checks and testified that Appellant had access to the blank checks,

the checks were made out to Appellant, and the checks were cashed by

Appellant.     Trial Court Opinion, 12/12/14, at 2.           Additionally, Appellant

herself offered into evidence a valid check signed by Mrs. Furey, check

number 227, and the trial court “found that Checks 251 and 273 were

markedly different from Check 227 in terms of handwriting, spelling, and

style.”   Id. at 3.     Appellant cites no authority that comparison evidence

between disputed writings are required to prove one of those writings is a

forgery or that such a comparison document must be offered by the

Commonwealth as opposed to the defense, and we find none. Accordingly,

we conclude Appellant’s sufficiency challenge to her forgery conviction is

meritless.3

       Appellant, in challenging the sufficiency of the evidence supporting the

bad checks charge, asserts “[t]here was no evidence that payment was

refused by the drawee for lack of funds. The facts of this case do not make

out the elements of bad checks.”               Appellant’s Brief at 10.   The statute

provides as follows.

              § 4105. Bad checks

____________________________________________
3
  As Appellant links her sufficiency challenge to the theft and receiving stolen
property charges to her argument challenging the forgery charge, we
conclude it is also meritless. See Appellant’s Brief at 10. “If there is
insufficient evidence to find Appellant guilty of forgery then the evidence
must be insufficient to find Appellant guilty of theft and receiving stolen
property ….” Id.


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             (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.

                                                 …

18 Pa.C.S.A. § 4105.          Here, the trial court found that Appellant “pass[ed]

two checks for the payment of money, knowing that the checks would not be

honored by the drawee.”           Trial Court Opinion, 12/12/14, at 4.          There is

nothing in the statute that limits the reason a check may not be honored to

there being insufficient funds.       To the contrary, the fact a check is forged

also serves as a ground to refuse to honor a check.                     Accordingly, we

conclude the evidence was sufficient in this case to sustain Appellant’s

conviction for bad checks.

      In   light   of   the    foregoing,   we       conclude   that   Appellant’s   issue

challenging the sufficiency of the evidence underlying her convictions is

waived and, alternatively, without merit. We therefore affirm the September

22, 2014 judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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