J-S09024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ADAM PEARSON

                            Appellant                 No. 3661 EDA 2015


        Appeal from the Judgment of Sentence Entered August 13, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0006686-2014


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 23, 2017

        Appellant, Adam Pearson, appeals from the August 31, 2015 judgment

of sentence imposing concurrent sentences of 48 months of probation for

theft by unlawful taking, theft by deception, and forgery.1 We affirm in part

and vacate in part.

        The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion:

              On December 7, 2013, [Appellant] went to the Check and
        Cash Express at 227 West Lehigh Avenue where he presented to
        the teller a check for $3,500.00 purportedly issued to him from
        his former employer, SarahCare Home Health Agency. The
        check was dated December 7, 2013 and had the word
        “Commission” printed in the memo line. Since the teller lacked
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A. §§ 3921, 3922, and 4101, respectively. The trial court
imposed no further penalty for bad checks (18 Pa.C.S.A. § 4105).
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     enough cash on hand, the teller consulted Debbie Pastrana. Ms.
     Pastrana is the cash-checking agent at Check and Cash Express
     responsible for keeping and maintaining the records of the
     business. Ms. Pastrana then came to the window with the
     money and cashed the check for Mr. Pearson. Check and Cash
     Express had contacted SarahCare in the past to verify checks
     issued to [Appellant]. Ms. Pastrana testified that she did not call
     to verify the $3,500.00 check because [Appellant] was a regular
     customer who had previously cashed checks issued to him by
     SarahCare without issue. Also, the signature, routing number,
     and account number on the check matched previous checks. A
     few days after cashing the check, Ms. Pastrana received
     information from First Trust Bank that the $3,500.00 check had
     been returned unpaid.

            Arsen Ustayev, the owner of SarahCare, testified that
     [Appellant] was employed as a home health aide with SarahCare
     from June 2013 until November 22, 2013. Mr. Ustayev stated
     that [Appellant] was not employed in a position where he would
     receive any bonuses or any other form of special compensation
     such as commission.       The last check SarahCare issued to
     [Appellant] was numbered 18313 dated November 29, 2013.
     The memo line of that check sated, “Pay Period: 11/09/2013—
     11/22/2013. Mr. Ustayev also compared the $3,500.00 check to
     the valid check from November 29, 2013. Unlike the previous
     checks issued to [Appellant] by SarahCare, the $3,500.00 check
     did not have the phone number for SarahCare printed on it, nor
     did it contain the usual instruction “Check Cashing Stores Must
     Call to Verify.” The $3,500.00 check was also completely out of
     sequence with the valid check dated November 29, 2013.

Trial Court Opinion, 5/25/2016, at 1-2.

     The trial court found Appellant guilty of the aforementioned offenses

after an April 7, 2015 bench trial.   The trial court imposed sentence on

August 13, 2015 and Appellant filed a timely post-sentence motion on




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August 24, 2015.2         The trial court denied the post-sentence motion on

November 18, 2015, and Appellant filed this timely appeal on December 4,

2015.

        Appellant raises four assertions of error:

              1. Was not the evidence insufficient to sustain
                 [Appellant’s] conviction for forgery insofar as the
                 Commonwealth failed to establish that [Appellant] knew
                 the check he possessed was fraudulent, where he
                 merely presented a payroll check at the check cashing
                 store at which he was a regular customer and at which
                 he had previously cashed numerous checks made out
                 by the same employer, and exhibited no suspicious
                 behavior?

              2. Was not the evidence insufficient to support
                 [Appellant’s] convictions for theft by unlawful taking
                 and theft by deception where the Commonwealth failed
                 to prove either that [Appellant] intended to deprive
                 anyone of any money or that he intentionally obtained
                 or withheld property of another by deception, where he
                 merely presented a payroll check at the check cashing
                 store at which he was a regular customer and at which
                 he had previously cashed numerous checks made out
                 by the same employer?

              3. Was not the evidence insufficient to establish
                 [Appellant’s] guilt of passing bad checks where there
                 was no evidence that [Appellant] knew the check would
                 not be honored, as he presented a facially valid check
                 to a check cashing agency where he was a regular
                 customer and at which he had previously cashed
                 numerous payroll checks made out by the same
                 employer?


____________________________________________


2
   The motion was timely because the tenth and final day in the filing period
fell on Sunday August 23, 2015.



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              4. Did not the trial court err as a matter of law and impose
                 an illegal sentence by sentencing [Appellant] on both
                 theft by unlawful taking and theft by deception, charges
                 that merge for sentencing purposes?

Appellant’s Brief at 3-4.

       Appellant’s first three assertions of error challenge the sufficiency of

the evidence in support of forgery, theft by unlawful taking/theft by

deception, and passing bad checks. Our standard of review is well settled:

             When evaluating a sufficiency claim, our standard is
       whether, viewing all the evidence and reasonable inferences in
       the light most favorable to the Commonwealth, the factfinder
       reasonably could have determined that each element of the
       crime was established beyond a reasonable doubt. This Court
       considers all the evidence admitted, without regard to any claim
       that some of the evidence was wrongly allowed. We do not
       weigh the evidence or make credibility determinations.
       Moreover, any doubts concerning a defendant’s guilt were to be
       resolved by the factfinder unless the evidence was so weak and
       inconclusive that no probability of fact could be drawn from that
       evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011).

       Appellant argues the evidence in support of his forgery3 conviction was

insufficient because mere possession of a forged check is not sufficient to

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3
    The Crimes Code defines forgery as follows:

       (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;
(Footnote Continued Next Page)


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establish intent to defraud. Commonwealth v. Gibson, 416 A.2d 543, 545

(Pa. Super. 1979).          Appellant argues the Commonwealth produced no

evidence to establish that he knew the check was forged.

      Appellant argues that Gibson is “on all fours” with the instant case

and requires us to vacate his forgery conviction. Appellant’s Brief at 16. In

Gibson, the defendant attempted to cash a check written on the personal

account of Elsworth Kutz. Kutz testified that he did not sign the check and

that some of his checks were missing. Id. at 544. The defendant had no

previous connection with Kutz.             Id.    This Court concluded that Kutz’s

testimony—that he did not sign the check and that some of his checks were

missing—did not support an inference that the defendant signed the check

or knew it was forged. Id. at 544-45. “The evidence just as easily supports

an inference that [the defendant] found the check or received it from

someone else.”     Id at 545.        The circumstances did not demonstrate guilt,




                       _______________________
(Footnote Continued)

      (2) makes, completes, executes, authenticates, issues or
      transfers any writing so that it purports to be the act of another
      who did not authorize that act, or to have been executed at a
      time or place or in a numbered sequence other than was in fact
      the case, or to be a copy of an original when no such original
      existed; or

      (3) utters any writing which he knows to be forged in a manner
      specified in paragraphs (1) or (2) of this subsection.

18 Pa.C.S.A. § 4101(a).



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inasmuch as there was no prior connection between the defendant and Kutz.

Id.

       We conclude that Gibson is distinguishable. Appellant was cashing a

check from his former employer, not a private individual with whom he had

no prior relationship. As explained above, the record reveals that SarahCare

no longer employed Appellant as of, December 7, 2013, the date of the

disputed check. Appellant received his final payroll check from SarahCare on

November 29, 2013 for the pay period that concluded on November 22,

2013. Further, the memo line on the disputed check indicated a commission

payment, but Appellant earned no commission from SarahCare. Finally, we

observe that $3,500.00 was approximately ten times the amount of

Appellant’s biweekly paycheck.         N.T. Trial 4/7/15, at 51.   Instantly, unlike

Gibson, the record contains ample circumstantial evidence establishing

Appellant’s knowledge that the check was forged. Appellant’s first argument

lacks merit.

       Next, Appellant argues the Commonwealth failed to produce sufficient

evidence of his guilty of theft by unlawful taking and theft by deception.4


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4
    The Crimes Code defines theft by unlawful taking as follows:

       (a) Movable property.--A person is guilty of theft if he
       unlawfully takes, or exercises unlawful control over, movable
       property of another with intent to deprive him thereof.

(Footnote Continued Next Page)


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Appellant argues the Commonwealth failed to prove he acted with the intent

to deprive or deceive. Appellant notes that SarahCare personnel other than

Mr. Ustayev could have issued the check to Appellant.              This argument

ignores the fact that Appellant’s employment at SarahCare ended before he

received the disputed check.             Appellant also ignores the fact that the

disputed check was out of sequence, and that it omitted the instruction for

check cashing stores to call and verify.          SarahCare included the call and

                       _______________________
(Footnote Continued)

      (b) Immovable property.--A person is guilty of theft if he
      unlawfully transfers, or exercises unlawful control over,
      immovable property of another or any interest therein with
      intent to benefit himself or another not entitled thereto.

18 Pa.C.S.A. § 3921.

      The Crimes Code defines theft by deception as follows:

      (a) Offense defined.--A person is guilty of theft if he
      intentionally obtains or withholds property of another by
      deception. A person deceives if he intentionally:

      (1) creates or reinforces a false impression, including false
      impressions as to law, value, intention or other state of mind;
      but deception as to a person’s intention to perform a promise
      shall not be inferred from the fact alone that he did not
      subsequently perform the promise;

      (2) prevents another from acquiring information which would
      affect his judgment of a transaction; or

      (3) fails to correct a false impression which the deceiver
      previously created or reinforced, or which the deceiver knows to
      be influencing another to whom he stands in a fiduciary or
      confidential relationship.

18 Pa.C.S.A. § 3922(a).



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verify instruction on all of its checks.         Finally, Appellant ignores evidence

that   he   did   not    receive    commissions      from   SarahCare.    Sufficient

circumstantial evidence establishes that Appellant cashed the disputed check

knowing that he was not entitled to the funds. Appellant’s argument fails.

       Next, Appellant argues the Commonwealth failed to produce sufficient

evidence to convict him of passing bad checks.5              Once again, Appellant

challenges the mens rea element, arguing that the Commonwealth failed to

prove Appellant presented the disputed check knowing it would not be

honored.     Once again, we rely on the substantial circumstantial evidence

supporting Appellant’s conviction. In particular, Appellant presented a check

purportedly for a commission when Appellant earned no commissions from

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5
    The Crimes Code defines bad checks 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.

18 Pa.C.S.A. § 4105(a).



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SarahCare.       Appellant presented the check after his employment with

SarahCare ended and after he received his final payroll check, and the check

was out of sequence and did not expressly require verification from a check-

cashing      store.     Drawing      reasonable        inferences     in   favor    of   the

Commonwealth, as we must, we conclude the record contains sufficient

evidence in support of his bad checks conviction.

        Finally, Appellant argues that his convictions for theft by unlawful

taking and theft by deception merge for sentencing purposes.6                      The trial

court    and    the    Commonwealth            correctly   concede     this   point.      In

Commonwealth v. Goins, 867 A.2d 526, 530-31 (Pa. Super. 2004), this

Court concluded that theft by unlawful taking is a lesser-included offense of

theft by deception.        Accordingly, we vacate the sentence for theft by

unlawful taking.

        As   noted    above,   the   trial     court   imposed      concurrent     four-year

probationary sentences for forgery, theft by unlawful taking, and theft by

deception.     Vacating one of three identical concurrent sentences does not

disturb the trial court’s sentencing scheme. We therefore need not remand

for resentencing.



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6
  Appellant did not raise this issue in his post-sentence motion, but merger
implicates the legality of a sentence and therefore is not waivable.
Commonwealth v. Robinson, 931 A.2d 15, 20 (Pa. Super. 2007).



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      Judgment    of   sentence   affirmed   in   part   and   vacated   in   part.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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