J-A30015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
DOMINIQUE WILLIAM GREEN                  :
                                         :
                    Appellant            :   No. 1024 WDA 2016

           Appeal from the Judgment of Sentence June 20, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0013385-2015


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 23, 2018

      Dominique W. Green appeals from the judgment of sentence of two

years probation and restitution, imposed following his conviction of forgery

for uttering a forged writing. After careful review, we reverse.

      The pertinent facts underlying Appellant’s conviction are as follows. On

August 3, 2015, Appellant cashed a check, which was payable to him in the

amount of $467.21, and purportedly issued by St. Moritz Labor Services, a

temporary staffing company.       However, the check was one of eighteen

checks payable to eighteen different payees that were duplicates of lawfully

issued checks. Appellant never worked for St. Moritz and had no affiliation

with that entity.

      The company discovered the eighteen fraudulent checks in mid-to-late

August of 2015, and Leslie Schattauer, President of St. Moritz initiated a
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fraudulent-check investigation with the assistance of Officer Terry Bradford

of the Whitehall Police Department. During the course of the investigation,

Officer Bradford contacted Appellant and asked to speak to him regarding a

check that was cashed.       The officer testified at the non-jury trial that

Appellant responded, “[I] only did it once.” N.T. Non-Jury Trial, 6/20/16, at

27. After Officer Bradford advised Appellant of his Miranda rights, Appellant

told the officer that he cashed the check at K-Mart because he needed

money to pay off fines. Appellant continued that he did not know where the

check came from or who sent the check; it came in the mail. N.T. Non-Jury

Trial, 6/20/16, at 29-30. Appellant confirmed that he never worked for St.

Moritz and admitted that he did not have any reason to receive a check from

that entity.

      At a preliminary hearing on October 27, 2015, the Magistrate Judge

found that the Commonwealth had made out a prima facie case on the

forgery charge, but dismissed charges of access device fraud and bad

checks. On December 14, 2015, the Commonwealth filed a criminal

information charging Appellant with forgery in violation of 18 Pa.C.S. §

4101(a)(3), uttering a forged instrument. Appellant filed a petition for writ

of habeas corpus on January 11, 2016, to which the Commonwealth filed a

response.      A hearing on the habeas corpus motion was held immediately

before the June 20, 2016 non-jury trial, and relief was denied. The case

proceeded to trial, and the court found Appellant guilty of forgery under §


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4101(a)(3). Appellant was sentenced to probation and restitution, following

which he filed a timely post-sentence motion. When his motion was denied,

Appellant appealed. The trial court directed him to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, he complied, and the

trial court authored its Rule 1925(a) opinion.

      Appellant presents one issue for our review:

      I.    To sustain a conviction for forgery requires showing the
            accused had either (1) an intent to defraud or injure; or
            (2) knowledge that he is facilitating a fraud or injury.
            Where Appellant was shown to be one of many who
            possessed a check from a source that he had no
            connection with or awareness of, and he negotiated the
            same for his benefit, was the evidence insufficient to prove
            that Appellant possessed the requisite mens rea to be
            convicted of forgery?

Appellant’s brief at 4.

      Appellant argues that there was insufficient evidence of the requisite

criminal intent to sustain the guilty verdict on the charge of forgery. In

support    of   his   position,   Appellant   cites   this   Court’s   decision   in

Commonwealth v. Gibson, 416 A.2d 543 (Pa.Super. 1979), which held

that mere possession of a forged check was not sufficient to support a

forgery conviction. The Commonwealth counters that the evidence herein

was sufficient to sustain the forgery conviction as intent to injure or defraud

could be inferred by the totality of the circumstances.

      Our standard of review when considering a challenge to the sufficiency

of the evidence is:


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

Commonwealth v. Gause, 164 A.3d 532, 540-541 (Pa.Super. 2017)

(citations and quotation marks omitted).

     The law is well settled that:

     [g]uilty knowledge (like all culpable mental states) may be
     proved by circumstantial evidence. Often, intent cannot be
     proven directly but must be inferred from examination of the
     facts and circumstance of the case. When examining the totality
     of the circumstances to determine if there is sufficient evidence
     from which a jury could infer the requisite mens rea, we must,
     as with any sufficiency analysis, examine all record evidence and
     all reasonable inferences therefrom.

Commonwealth v. Newton, 994 A.2d 1127, 1132 (Pa.Super. 2010)

(citations omitted); see also Commonwealth v. Myer, 489 A.2d 900, 904

(Pa.Super. 1985) (“We may look to the totality of the defendant’s conduct to

infer fraudulent intent.”) (quoting Commonwealth v. Bollinger, 418 A.2d

320, 324 (Pa.Super. 1979)).


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       Appellant was charged with forgery under 18 Pa.C.S. § 4101(a)(3),

which provides:

       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;

       (2)    Makes, completes, executes, authenticates, issues or
              transfers any writing so that it purports to be the act of
              another who did not authorize the 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. § 4101(a) (emphases added). Thus, the statute requires that a

defendant utter1 a writing he knew to be forged with intent to defraud or

with knowledge that he is facilitating a fraud being perpetrated by another.

       Appellant contends that there was no proof that he knew the check

was a forgery. He analogizes the facts herein to those in Gibson, supra,

and    maintains     that    Gibson      controls.   In   Gibson,   the   defendant

unsuccessfully attempted to cash a personal check, payable to cash, that

was endorsed by another person. This Court held that the defendant could

____________________________________________


1 “Utter” is defined as “[t]o put or send (a document) into circulation; esp.,
to circulate (a forged note) as if genuine <she uttered a counterfeit $50 bill
at the grocery store>.” Black’s Law Dictionary (10th ed. 2014).



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not be found guilty of forgery under 18 Pa.C.S. § 4101(a)(3), because the

evidence did not prove that he endorsed the check or that he knew that the

check was forged.    The Commonwealth established that the payor of the

check was missing some checks, and that the payor did not sign the check

that was made payable to cash. This Court held that these two facts did not

support the inference that the defendant signed the check or knew it was

forged.   We stated, “[t]he evidence just as easily supported the inference

that [the defendant] found the check or received it from someone else.”

Gibson, supra at 545.

      Appellant argued herein that, although he endorsed the back of the

fraudulent check that was payable to him and negotiated it when he knew he

was not entitled to the funds, there was no proof that he knew the check

was a forgery. He contends that, as in Gibson, one cannot reasonably infer

knowledge that a check is forged from mere possession of a forged check.

      The evidence that the check was a forgery was uncontroverted. Leslie

Schattauer testified that, “[t]here was a series of checks that were

fraudulently using the check numbers that were drawn currently and

accurately.”   N.T. Non-Jury Trial, 6/20/16, at 18.   She explained that the

formatting and signatures on the checks were not consistent with the

company’s legitimately issued checks. Id.        In addition, some checks

contained incorrect bank information and the amounts payable on the

checks were significantly higher than St. Moritz’s typical payroll checks. Id.


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at 18-19. In each case, the payees, including Appellant, were unknown to

St. Moritz. Id. at 19-20. Ms. Schattauer testified that the only characteristic

of the check at issue that was consistent with checks legitimately issued by

St. Moritz was the routing number; the signature and all other formatting

components of the check were inconsistent. Id. at 20-21.

       Although Ms. Schattauer could readily discern that her company’s

check was a forgery, the issue is whether the Commonwealth proved that

Appellant knew that he was facilitating a fraud by uttering a forged writing.

The trial court, sitting as factfinder, based its finding of guilt on the

appearance of the check:2

       If you look at the check, it’s pre-typed, and someone handwrote
       in Dominique Green. . . . Isn’t it peculiar that the stolen check3
       also has all of his information on it as opposed to just a name. It
       is sent. There was some planning involved, that it would have
       his name, his address, apartment number, zip code.

N.T. Non-Jury Trial, 6/20/16, at 36-37. In finding Appellant guilty, the trial

court concluded:

       if there’s no connection, I do not believe this check came in that
       name. I took a look. You negotiated a $467 check that you know
       you have no right to. You are either . . . going to harm St.
____________________________________________


2 Unfortunately, although the check was admitted into evidence, neither the
original nor a photocopy was placed in the certified record. Hence, we have
no check to review.

3 There was no evidence that the check was stolen. Ms. Schattauer testified
that the fraudulent checks bore numbers that were duplicative of duly-issued
checks, some contained the actual routing number, but that the formatting
and signatures on the forged checks were different than the real checks.



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      Moritz, who owns the account, or you are going to harm K-Mart,
      who cashes the check. . . . The detail on this check, the
      Defendant’s statement I only did it once, in my view indicates
      that he had awareness that this was not a check that was
      legitimate. There was some preplanning to put the Defendant’s
      complete information on the check, albeit in the wrong place if
      you look at the format.

Id. at 43.

      In its Rule 1925(a) opinion, the trial court stated the following: “The

evidence adduced at trial amply supported the defendant’s conviction. . . .

The evidence clearly established that the defendant knew the check wasn’t

legitimate and that he uttered a forged check purporting to appear as

though it was authorized by St. Moritz when it was not.” Trial Court Opinion,

6/23/17, at 4.    The trial court did not credit Appellant’s claim that he

innocently received the check in the mail.        Moreover, with respect to

Appellant’s statement to Officer Bradford that he “only did it once,” the trial

court said, “I don’t agree that it necessarily means I knew seventeen other

checks were done. It may be he was saying, I only did this once as in why, I

didn’t do that much, but it does -- the interpretation is that he understood

his conduct to be not legitimate.” N.T. Non-Jury Trial, 6/20/16, at 39.

      The Commonwealth argues that Appellant’s negotiation of the check

when he knew he had no right to the money was sufficient to permit a

reasonable inference from the totality of the circumstances that he intended

to defraud. We do not disagree. The evidence supported the finding that

Appellant knew he was defrauding St. Moritz when he cashed the check and


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received funds to which he was not entitled. Appellant may very well be

guilty of theft. The Commonwealth also correctly reads § 4101(a)(3) as

proscribing the utterance of any writing that is known to be forged, but cites

Ms. Schattauer’s testimony that the check was forged as satisfying that

knowledge element.        With that, we disagree.       The Commonwealth had to

prove beyond a reasonable doubt that Appellant, not Ms. Schattauer, knew

that the check was forged in order to convict him under 18 Pa.C.S. §

4101(a)(3).        Indeed, that was our holding in Gibson, supra.              The

Commonwealth must establish not only that the check was forged, but that

Appellant knew it was forged.

       We find that any inference that Appellant knew the check was a

forgery could not fairly be drawn from the evidence.                Ms. Schattauer

recognized that the check was a forgery due to her experience with payroll

checks as the President of St. Moritz.            She also testified that employees

would recognize the difference between a duly-issued payroll check and the

forged check because they would be familiar with the appearance of St.

Moritz checks after receiving one.4            N.T. Non-Jury Trial, 6/20/16, at 23.

However, the evidence was uncontroverted that Appellant never worked for

St. Moritz or received a genuine St. Moritz payroll check. Since he had no

____________________________________________


4 The Commonwealth did not introduce into evidence a genuine St. Moritz
payroll check for purposes of comparison.        The only evidence of the
appearance of a real check is Ms. Schattauer’s verbal description.



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familiarity with a legitimate check, one cannot reasonably infer that he

would have known simply by looking at the check that it was a forgery.

       The trial court did not believe Appellant’s statement to police that he

received the check in the mail, and cited that fact as the basis for inferring

Appellant’s intent to defraud.           There was no evidence, however, that

Appellant forged the check himself or that he inserted his own name on the

check as payee.5 Also absent was any proof that he had a connection to one

or more of the other people who cashed similar checks. Nor do we find it

reasonable to infer from Appellant’s possession of a check to which he was

not entitled that he forged the check or made it payable to himself, which is

what the factfinder concluded.           For these reasons, we find the evidence

insufficient to support the forgery conviction.

       Judgment of sentence reversed. Case remanded for discharge of

Appellant. Jurisdiction relinquished.


       Judge Stabile joins the memorandum.


       President Judge Emeritus Ford Elliott files a dissenting memorandum.




____________________________________________


5 The trial court, sitting as factfinder, offered no opinion whether the
handwritten endorsement on the back of the check was similar in
appearance to the handwritten payee’s name.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2018




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