J-A16008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

VINCENT THORNTON,

                            Appellee                     No. 371 EDA 2014


                    Appeal from the Order December 19, 2013
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0015216-2012


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

MEMORANDUM BY PLATT, J.:                              FILED JUNE 24, 2015

        The Commonwealth appeals from the trial court order that granted

Appellee, Vincent Thornton’s, motion for arrest of judgment; vacated his

bench conviction of insurance fraud;1 and entered a verdict of not guilty.

We vacate the order and remand for proceedings consistent with this

decision.

        We take the following facts from the trial court’s opinion and our

independent review of the record.              Appellee purchased a counterfeit

American Independent Insurance Company (AIIC) auto insurance card from

a body shop in South Philadelphia that indicated he had insurance until
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4117(a)(1).
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March 27, 2012. Appellee presented the counterfeit card to Ivanette Marrow

at 11th Street Auto Sales, who relied on it to register and transfer title on his

vehicle.

      In early 2012, police impounded Appellee’s car, and on March 23,

2012, Appellee attempted to retrieve it from the police impound lot.          He

presented the counterfeit AIIC insurance card and other documentation to

the assigned officer, Sergeant John Dietz.     Consistent with usual practice,

Sergeant Dietz contacted the insurance company to verify the policy. AIIC

informed Sergeant Dietz that the policy was invalid, he noted in the police

paperwork that Appellee had provided false documentation, and he told him

to return with a valid insurance card.

      Three days later, on March 26, Appellee purchased a valid insurance

policy with AIIC and coverage commenced immediately.           Using the newly

issued card, Appellee retrieved his car from the impound lot. His insurance

coverage lapsed thirty days later when Appellee failed to make any

payments.

      Detective Robert Stansfield of the Insurance Fraud Unit of the

Philadelphia Police Department reviewed the police file, insurance company

records, and Pennsylvania Department of Transportation documents. Based

on his review, he obtained a warrant for Appellee’s arrest. On December 31,

2012, the Commonwealth filed an information against Appellee for insurance

fraud and forgery.


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     On September 9, 2013, Appellee’s one-day bench trial commenced.

The Commonwealth presented the testimony of Sergeant Dietz, Detective

Stansfield, Ms. Marrow, Ms. Marrow’s supervisor, Germaine Lewis, and

insurance underwriter Dorraina McQueen.        Appellee testified on his own

behalf and stated he was unaware that he had purchased a counterfeit

insurance card. The trial court convicted Appellee of insurance fraud, found

him not guilty of forgery, and scheduled sentencing for November 6, 2013.

On November 6, 2013, Appellee filed a memorandum in support of his oral

motion for extraordinary relief in the form of arrest of judgment, arguing

that the verdict should be overturned because it was against the weight of

the evidence, and that the evidence was insufficient.         Sentencing was

continued at Appellee’s request until December 19, 2013. On December 19,

2013, the court held a hearing on Appellee’s motion before imposing

sentence.   At the hearing, Appellee’s counsel presented new evidence

regarding Appellee’s “mental capacity.” (N.T. Hearing, 12/19/13, at 16; see

id. at 10-11). Based on this new evidence, the court found:

            All right. I do take the opportunity to review my notes
     that I took during the trial. And I have been presented with the
     evidence by the defense attorney today with regard to
     [Appellee’s] mental capacity . . . . And I think that maybe he
     didn’t have the criminal intent or the capacity to have committed
     the crime that I found him guilty of . . . . And . . . he also had
     character evidence at trial.

           So based on all that, I am going to grant [Appellee’s]
     motion for extraordinary relief . . . and the guilty verdict is going
     to be vacated.


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(Id. at 16).2

       The Commonwealth timely appealed on Tuesday, January 21, 2014,3

and filed a Rule 1925(b) statement on March 3, 2014, before ordered to do

so by the trial court.      See Pa.R.A.P. 1925(b).    On May 8, 2014, the trial

court issued an order directing the Commonwealth to file a Rule 1925(b)

statement. The Commonwealth again filed the statement on May 15, 2014,

pursuant to the court’s order.         The court filed a Rule 1925(a) opinion on

January 20, 2015. See Pa.R.A.P. 1925(a).

       The Commonwealth raises one issue for this Court’s review:

            Did the [trial] court err in arresting judgment on
       [Appellee’s] conviction for insurance fraud under 18 Pa.C.S. §
       4117(a)(1) where the evidence was sufficient to establish that
       he knowingly presented a counterfeit insurance card at a police
       impound lot in an attempt to retrieve his car, and presented the
       same counterfeit card to obtain registration for his car?

(Commonwealth’s Brief, at 1).

       The Commonwealth contends that “[a]fter reweighing the evidence,

the trial court granted [Appellee’s] motion to arrest judgment. Because the
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2
 On December 20, 2013, Appellee filed a motion for reconsideration of the
motion for extraordinary relief in which he acknowledged that the trial court
“may [have been] without power to reweigh evidence and issue a verdict of
not guilty[.]” (See Motion for Reconsideration, 12/20/13, at unnumbered
page 1 ¶ 5). Appellee requested that the court vacate the December 19,
2013 order and grant him a new trial. (See id. at unnumbered page 2).
The motion was denied by operation of law.


3
 The deadline for filing the appeal was on a Saturday and the following
Monday was a federal holiday. See 1 Pa.C.S.A. § 1908.



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evidence was sufficient to sustain his convictions, the arrest of judgment

was contrary to the law and therefore must be vacated.” (Id. at 7). We are

constrained to agree.

      It is well-settled that:

      For purposes of appellate review,

                  In passing upon such a motion [in arrest of
            judgment], the sufficiency of the evidence must be
            evaluated upon the entire trial record. All of the
            evidence must be read in the light most favorable to
            the Commonwealth and it is entitled to all reasonable
            inferences arising therefrom. The effect of such a
            motion is to admit all the facts which the
            Commonwealth’s evidence tends to prove.

Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super. 2011), appeal

denied, 42 A.3d 292 (Pa. 2012) (citation omitted).               Further, “when

considering a motion for an arrest of judgment, the trial judge cannot alter

the verdict based upon a redetermination of credibility or a re-evaluation of

the evidence.” Id. (citation omitted). Indeed, “at the post-verdict stage of

the proceedings, the trial court is limited to rectifying trial errors, and cannot

make a redetermination of credibility and weight of the evidence.”            Id.

(citation and internal quotation marks omitted).

            Thus, a post-verdict court may not reweigh the evidence
      and change its mind . . . . Although a post-verdict judge may
      question a verdict, his discretionary powers are limited to a
      determination of whether the evidence was sufficient to uphold
      the original verdict, and he may not alter the original verdict and
      substitute a new one. The trial court’s verdict must be accorded
      the same legal effect as a jury verdict. Post-trial, the court
      cannot re-deliberate as it is no longer the fact finder.


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Id. (citations omitted).

        Here, at the hearing on Appellee’s motion, the trial court found that

“after careful review of the record, post-trial, the evidence of [the insurance

fraud] charge was insufficient and inconclusive that [A]ppellee had acted

knowingly and with the intent to defraud.” (Trial Court Opinion, 1/20/15, at

unnumbered pages 4-5; see also N.T. Hearing, 12/19/13, at 16).               We

disagree.

        Although a conviction of insurance fraud4 requires an intent to defraud,

we are reminded that “[r]are is the occasion when a party lays bare his or

her subjective intent[.]” Commonwealth v. Parker, 104 A.3d 17, 24 (Pa.

Super. 2014) (citation omitted).

               An intent is a subjective frame of mind, it is of necessity
        difficult of direct proof[.] We must look to all the evidence to
        establish intent, including, but not limited to, [Appellee’s]
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4
    Section 4117, insurance fraud, provides, in pertinent part, that:

        (a) Offense defined.─A person commits an offense if the
        person does any of the following:

              (1) Knowingly and with the intent to defraud a State or
        local government agency files, presents or causes to be filed
        with or presented to the government agency a document that
        contains false, incomplete or misleading information concerning
        any fact or thing material to the agency’s determination in
        approving or disapproving a motor vehicle insurance rate filing, a
        motor vehicle insurance transaction or other motor vehicle
        insurance action which is required or filed in response to an
        agency’s request.

18 Pa.C.S.A. § 4117(a)(1).



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      conduct as it appeared to his eyes [.] Intent can be proven by
      direct or circumstantial evidence; it may be inferred from acts or
      conduct or from the attendant circumstances.

Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006) (citation

omitted).

      In this case, Appellee obtained a counterfeit insurance card in South

Philadelphia and presented it to an auto tags agency in order to register and

transfer title on his car.   (See N.T. Trial, 9/09/13, at 23-28, 55-58, 61).

After police impounded his vehicle months later, Appellee attempted to

retrieve it by presenting Sergeant Dietz with the counterfeit card. (See id.

at 12-13). When Sergeant Dietz contacted the insurance company, he was

told that Appellee’s insurance card was not valid. (See id. at 12-13, 56).

Sergeant Dietz noted in the paperwork that Appellee provided false

documentation, and told him to return with evidence of valid insurance.

(See id. at 14-15). Three days later, Appellee purchased a valid policy and

retrieved his car from the impound lot. (See id. at 16-17, 56). However,

Appellee did not pay his insurance premium, and the policy was cancelled

thirty days later. (See id. at 56, 58).

      We conclude that, viewing the above evidence in the light most

favorable to the Commonwealth, “it may be inferred from [Appellee’s] acts

or conduct or from the attendant circumstances” that he intended to commit

insurance fraud.     Lewis, supra at 564; see also 18 Pa.C.S.A. §

4117(a)(1); Parker, supra at 24.          Further, the trial court abused its


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discretion when it “alter[ed] the verdict based upon a redetermination of

credibility or a re-evaluation of the evidence” and granted Appellee’s motion

for arrest of judgment.5         Robinson, supra at 94.   Accordingly, we are

constrained to vacate the trial court’s order granting Appellee’s motion and

entering a verdict of not guilty. We remand for the re-entry of Appellant’s

guilty verdict and for sentencing.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2015




____________________________________________


5
  We also conclude that the court erred in considering evidence outside the
trial record in making its decision. (See N.T. Hearing, 12/19/13, at 16)
(considering new evidence of Appellee’s mental capacity and ability to
perform mathematical calculations “or whatever”). It is well-settled that,
when deciding a motion for arrest of judgment, “the evidence must be
evaluated upon the entire trial record.” Robinson, supra at 94 (citation
omitted; emphasis added); see also Commonwealth v. Meadows, 369
A.2d 1266, 1268 (Pa. 1977) (same); Commonwealth v. Melechio, 658
A.2d 1385, 1387 (Pa. Super. 1995) (same).



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