J-S75016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PATRICIA E. GADALETA

                            Appellant                      No. 49 EDA 2014


          Appeal from the Judgment of Sentence November 22, 2013
               In the Court of Common Pleas of Carbon County
             Criminal Division at No(s): CP-13-CR-0000746-2010


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JANUARY 16, 2015

        Patricia E. Gadaleta appeals from her judgment of sentence, imposed

by the Court of Common Pleas of Carbon County, following Gadaleta’s

convictions for theft by deception,1 receiving stolen property,2 and two

counts of issuing a bad check.3 Upon review, we affirm Gadaleta’s judgment

of sentence based on the opinion of the Honorable Joseph J. Matika.

        In July 2010, Gadaleta contacted Cheri Conway, a dog breeder, to

inquire about purchasing a dog.                Using the pseudonym Meg Kippler,


____________________________________________


1
    18 Pa.C.S. § 3922(a)(1).
2
    18 Pa.C.S. § 3925(a).
3
    18 Pa.C.S. § 4105(a)(1).
J-S75016-14



Gadaleta negotiated the purchase of two Labrador retrievers4 from Conway

for the price of $5,018.00.5 Gadaleta signed the agreement of sale as Meg

Kippler and returned it to Conway. After Conway received two bad checks

from Gadaleta, she notified her local police, who in turn contacted the

Pennsylvania      State   Police    in   Leighton.      On   September    23,    2010,

Pennsylvania State Trooper Nicolas De La Iglesia obtained and executed a

search warrant at Gadaleta’s residence.

       While searching Gadaleta’s home, Trooper De La Iglesia found the two

dogs and their shipping crates as well as the agreement of sale signed by

“Meg Kippler.” The Trooper also found FedEx shipment slips with the name

“Kippler” on them in addition to email correspondences between “Kippler”

and Conway.

       On    September      9,   2013,    the    jury   convicted   Gadaleta    of   the

aforementioned offenses.           On November 22, 2013, the court sentenced

Gadaleta to 12 to 24 months’ incarceration, followed by one year of

probation. This timely appeal followed.

       On appeal, Gadaleta presents the following issues for our review:

            1. Did the court err in allowing testimony over objection
               concerning the contents of the cell phones received from
____________________________________________


4
 Gadaleta agreed to purchase Romeo, a yellow Labrador retriever, and
Winston, a chocolate Labrador retriever. Both dogs were micro-chipped.
5
  This price included the two dogs, airfare to ship the dogs from Sacramento
to Philadelphia, two new shipping crates, and health certificates.



                                           -2-
J-S75016-14


            Anthony Gadaleta       months    after   the   search   of   the
            residence?

         2. Is the verdict contrary to the law in that there was no
            evidence connecting the person known to the victim as
            Meg Kippler with Patricia Gadaleta?

         3. Is the verdict contrary to the law in that there is absolutely
            no evidence the party that issued the checks with
            insufficient funds was Patricia Gadaleta?

         4. Is the verdict contrary to the law in that there is absolutely
            no evidence the email address referenced in the
            communications between seller and buyer was that of
            Patricia Gadaleta?

Brief of Appellant, at 7.

      Gadaleta’s first issue on appeal implicates the admissibility of

evidence. Our standard of review is as follows:

      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. 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 record.

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003) (citations

and quotations omitted).

      Gadaleta’s remaining issues challenge the sufficiency of the evidence

sustaining her convictions.    Our standard of review for sufficiency of the

evidence claims is well settled:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every


                                      -3-
J-S75016-14


      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations

omitted).

      We have reviewed the record on appeal and the relevant law, and find

that the well-reasoned opinion of Judge Matika thoroughly, comprehensively

and correctly disposes of the issues Gadaleta raises on appeal. Specifically,

the trial court did not abuse its discretion when it admitted testimony

regarding the contents of Gadaleta’s cell phones because the evidence of

calls placed to Conway was relevant to establishing who placed the calls to

Conway. See Pa.R.E. 401. Additionally, the evidence connecting Gadaleta

to the identity of “Meg Kippler” was overwhelming. Accordingly, we affirm

based on Judge Matika’s opinion. Counsel is directed to attach a copy of the

trial court opinion in the event of further proceedings in this matter.

      Judgment of sentence affirmed.




                                      -4-
J-S75016-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




                          -5-
                                                                                  Circulated 12/30/2014 08:40 AM




                 COURT OF



COMMONWEALTH OF PENNSYLVANIA

               vs.                                      No. 746 CR 2010

PATRICIA E. GADALErA,                              :
             Defendant/Appellant

Jean A. Bngler, Esquire                                  Counsel for Commonwealth
                                                        Assistant District Attorney
Kent D. Watkins, Esquire                                 Counsel for Defendant


                                        MEMORANDUM OPINION

Matika, J. - March             13 , 2014

        On September 10, 2013, a jury found the Defendant, Patricia

E.    Gadaleta,          guilty of one count              of   theft    by deception,1         one

count of receiving stolen property,2 and two counts of issuing a
                 3
bad     check.            After a       pre-sentence investigation was prepared,

this Court           imposed a          total sentence upon the Defendant of not

less than twelve               month~     nor more than twenty-four months in a

state correctional               institution,          followed    by one   year of         state

probation.               The   Defendant     did       receive    one   hundred    sixty-nine

days credit against her sentence for time already served.

        Subsequently,           Defendant appealed the jury verdict.                         This

memorandum opinion is submitted in accordance with Pennsylvania

1   1B Pa.C.S.A.     §   3922(a)(1).

118 Pa.C .S.A.       §   3925(a).
                                               APPENDIX B
l 18 Pa.C.S.A.       §   4105{a) (1).


                                            [FM-1l-14]
                                                   1
                                                                                  Circulated 12/30/2014 08:40 AM




Rule        of Appe l late    Procedure         1925 (a) .      For     the    reasons       stated

be l ow t     this    Court    requests         the    Honorable        Superior       Court     to

affirm the judgment of sentence .

                     FACTUAL AND PROCEDURAL BACKGROUND

        On     September      10   1    2013,     Defendant       was     found       guilty     of

intentionally obtaining the · property of Kevin and Cheri Conway,

more        specifically      two       male     Labrador       dogs     and    two     shipping

crates, by intentional ly creating the false impression that she

was    an     individual by the name of Meg Kippler.                           Defendant was

also found guilty of two counts of issuing a bad check in the

amounts        of    five    thousand         forty    dollars     ($5,040.00)         and     five

thousand one hundred ninety dol lars ($5,190.00), respectively.

        The     evidenced      proffered          at    trial     establish       that        Cheri

Conway,        (hereinafter "Conway"), owned ·a nd operated a kennel from

which she breed and Bold dogs.                     (N.T. 9/9/13 at 86-87).               In July

of 2010,        Conway was      contac~ed,        via telephone,          by an individual

identifying herself as Meg Kippler in regards to purchasing a

Labrador        retriever. 4           This     individual,       Meg    Rippler,      informed

Conway that her and her husband Ron wanted a family pet that was

already housebroken and about a year old.                             rd. at 88 - 89.        After

various        phone    calls          and    email    correspondences           between        the

parties ,       Defendant,      th:rough        the    use   of    the    identity       of    Meg

4 At all times relevant to this matter, the Defendant communicated with Conway
under the false perception that she, the Defendant, ~a6 ao individual by the
name of Meg Xippler.

                                             [J;M-1l-14]
                                                  2
                                                                                           Circulated 12/30/2014 08:40 AM




Kippler,         agreed       to        purchase         from    Conway     a       male      chocolate

Labrador       retriever           named        Winston     and    a   yellow        male      Labrador

retriever named Romeo for the price of two thousand dollars per

retriever.            Id. at 91, 94.

        Upon      reaching             an     oral   agreement,        Conway         prepared            and

emailed the Defendant the agreement of sale.                                    The agreement of

sale was between Conway and                          "Meg and/or Ron Kippler"                   with an

email    address of 1265chase®gmail.com.                            Add! tionally,           the sales

contract included the purchase price for the two dogs of five

thousand eighteen dollars                       ($5 , 018.00),5 along with a description

of the dogs, and their respective micro - chip numbers.

        Conway        testified             that . her    standard     practice        in      breeding

dogs    was      to    place       a    micro-chip under            the     skin     of      the     dog's

shoulder.         Id.    at 92.              This micro-chip is permanently imbedded

in     the    dog      and     it       operates         similarly     to       a    scanner         at     a

supermarket.            Id.    Each micro-chip is assigned a certain number

that     on ly        correlates             with    that       micro-chip.           Id.       at        93.

Moreover, Conway stated. that she placed a micro-chip in each of

the    subject        dogs    involved in this                  litigation with the yellow

Labrador retriever having a micro-chip number of 012769333.                                               and

the male chocolate Labrador ret.riever having a micro-chip number



S Conway arrived at a  total amount of five thousand eighteen dollars baaed
upon the cost of each dog, the coat of airfare, two new Shipping crates, and
health certificates.  (N".T. 9/9/13 at 97).
                                                                                          Circulated 12/30/2014 08:40 AM




of 045259601.          Id~      at 96-97.6"

        After    receiving           the   agreement         of     sale,         Defendant       signed

said agreement           ae     "Meg Kippler",             Bcanned       it   I    and emailed the

agreement back to Conway.                     Per the terms of                    the agreement of

sale,    Defendant        was        required    to    tender payment,                   by way of a

cashier's or certified check, before Conway would ship the dogs

and crates.           (N. T .    9/9/13 at      99).        However , Conway stated that

she never rece i ved said payment.                          Id.     at   101.            As a    result,

Conway contacted Defendant to arrange an alternative method of

payment    as    it     was      already orchestrated that                        the    two    Labrador

retrievers       would          be    shipped,        via    air I       from           Sacramento      to

Philadelphi a      in two "days.              Id.     at    102 .        A day later,             Conway

received a personal check from Defendant . 7                              The check was made

payable to Conway in the amount of five thousand forty dollars

($5,040 . 00) •

        The Commonwealth proffered a copy of the $5 . 040 . 00 check at

trial.     In the upper left-hand corner                     of     the check was a sticker

that read:      ~Kipple r ,      Waterford, New            Jer8ey.~



, conway test ified chat the micro-chip number is also referred to as an ~ AVID
number".

7 Conway received this check late Saturday afternoon after her bank, Sterling
Bank was closed for the day .      Since Conway' B drive to Sacramento Airport
wou l d take her five hou rs, Dbe had to leave early Monday morning before her
bank would open, thus Conway test i f i ed she did not have a chance to deposit
tbe check before shipping the two dogs in the Shipping crates.      (N.T. 9/9/13
at 101).

I At tbe trial, Conway was perplexed 88 to why this check was written out for
five r.housand · forty dollars when t.he agreed purchase price was for t:lve
thousand eighteen dollars.

                                           [FM-1l-14 )
                                               4
                                                                                  Circulated 12/30/2014 08:40 AM




        Upon      returning     home        from   Sacramento,           Conway      tried       to

deposit the check but was informed by her bank,                              Sterling Bank,

that there were insufficient funds in the account to cover ,t he

check.      Id.    at 104.      Conway thereafter contacted Defendant who

agreed to send a cashier's check,                    by way of FedEx,               overnight;

however,       Conway      never      received      said     check .          Id.      at    106.

Accordingly, Conway contacted Defendant again who aSBured Conway

that she would send a personal check via FedEx.                              This check was

sent to and received by Conway' a bank,                      however it was sent to

her bank's branch in Spokane,                  Washington. 9        The check was made

payable    to Conway in             the amount of         five   thousand one hundred

ninety dollars ($5,190.00) .                Like the previous check tendered by

Defendant,        this    aecond check was          also     not    honored based upon

insufficient funds in the account.                   Id. at 108.

        Thereafter,       the   Bank       sent    this    second      check      to    Conway.

This check was           admitted into evidence by                 the      Commonwealth        as

"Commonweal th' s        Exhibi t    6."      The printed writing in the upper

left-hand corner of the check was covered with yellow "whi te-

out."     Conway testified that upon receipt of the check, she held

the check up to a window with a bright light shining through and

was able to read the printed writing .covered up by the "white-

out."      She     deciphered        the     printed      writing      to    say:      "Anthony


9 Conway testified that her "home" bank branch was located in Or egon .                      (N. T.
9/9/13 at 108).

                                           (FM-11-14]
                                               5
                                                                                       Circulated 12/30/2014 08:40 AM




Gadaleta, Pohopoco Drive, Lehighton, pennsylvania."lo

         Subsequently ,        Conway went          to her      local     police department

who      in     turn      contacted      the        Pennsylvania         State          Police        in

Lehighton,          and    more    specifically,          Pennsylvania           State        Trooper

Nicolas De La Iglesia.               After receiving the information supplied

to him by Conway, Trooper De La                      Igle~ia,     (hereafter "Trooper"),

obtained        a      search     warrant       and       executed       this          warrant        at

Defendant' 9        residence on September                23,   2010 .         (N.T .       9/9/13    at

136) .        The Trooper brought a micr.o -chip scanner to Defendant' s

residence, located at 974 Pohopoco Drive, Franklin Township, for

the purpose of trying to find the two Labrador retrievers.                                           Id.

at 137.

         When    the      Trooper executed          the    search warrant          I   11    the    only

person present            at   the residence,          besides      the police,              was     the

Defendant.          The Trooper accordingly approached the Defendant and

informed her that he h ad a search warrant and is looking for two

dogs from Oregon .              Id . at 139 .       Despite t h e Defendant inSisting

that     the    dogs       were   not   at     her    property,          the     Trooper           began

scanning all           the dogs      located        on the property.                   The    Trooper

began his search for the dogs in t he kennels located outside of


10 Conway did seate ehat she never received payment for the ewo Labrador
retrievers and two shipping crates. (N.T . 9/9/13 at 112).

11 The Trooper testified that he was not alone when be executed the searcb
warrant as Corporal Gross, Trooper Patrick Finn, Corporal Kathleen Tamerantz,
and the Chief Police of Franklin Township Thomas Beltz were also present::. at
Defendant's residence.  (N.T. 9/9/13 at 137).

                                         [FM- 1l-14)
                                                6
                                                                              Circulated 12/30/2014 08:40 AM




the    residence.          Eventually.         the    Trooper     found   a        chocolate

Labrador retriever inside             the      building and ran        the micro-chip

scanner over the back shoulder area of the dog.                              Id.    at 140 .

The    micro-chip number of           this         chocolate ·L abrador matched            the

number Conway provided the Trooper for                      the chocolate Labrador

Conway sent to Defendant, that being 045259601.                      Id. at 141.12

       After   finding      the chocolate            Labrador,    the Trooper walked

outside with the dog and informed the other officers                                that    he

found one of the dogs.           Id.      at 141-42.        Upon hearing this,             the

Defendant      led   the    Trooper       to   the    yellow     Labrador,     which       the

Trooper   confirmed        through    a     positiv~      micro-chip match as              the

other Labrador in question. 1 ]

       Thereafter,     Defendant       informed        the Trooper that            the call

name for the chocolate Labrador was Winston,                       and Romeo for the

yellow Labrador retriever.                (N . T.    9/9/13 at 146).      Further,         the

Defendant directed the Trooper to the shipping crates for each

dog.

       The Trooper testified that subsequent to finding the dogs

and shipping crates.          he entered Defendant's reSidence and went

to her office in the den.             Id . at 148 .       In the top drawer of the

12 The Trooper also took a picture of  the micro-chip scanner depicting the
micro-chip number. This picture was admitted into evidence as Commonwealth's
Exhibit 9 .
II As the Trooper did with the chocolat~ Labrador,  the Troop~r took a picture
of the micro - chip scanner that showed that the micra-Chip number matched the
number Conway provided the Trooper for the yellow Labrador .              (See,
Commonwealth's Exh. 10).

                                      [nf-ll-141
                                               7
                                                                           Circulated 12/30/2014 08:40 AM




desk inside the office,             the :rrooper found FedEx shipment slips

with    the    name   "Kippler"      inscribed      on   them. U      Moreover ,        the

Trooper       discovered    email     correspondences        from    the     Defendant,

under the pretense of Meg Kippler, addressed to Conway herself,ls

Further, the Trooper found a deposit slip for an account in the

name of Defendant' s       hus~and,    Anthony Gadaleta.            Id. at 153.         The

account number of the deposit slip matched the account number of

the    two     personal    checks     Conway     received     from     Defendant          as

payment for the dogs.

       Lastly,     the    Trooper    stated    he    found    the    sales      contract

between Conway and Defendant              in Defendant's desk,              along with

U The Trooper found three FedEx shipment air bills dated August 6, 2010,
Au']Ust 18, 2010, and August 24, 2010, respectively.   The shipment bills had
the sender' a name as "Meg Kippler" or "Kippler" and Conway as the recipient
for two of the packages and Sterling Savings Bank in spokane, Washington as
the recipient of the third package.  (N.T. 9/9/13 at 155-56).

U Commonwealth's exhibit 15 is an email dated July 30, 2010, from Conway sent
to the email addreas ' of 1265chase@gm;J.il.com.              This email address of
l265chasecigmaiLcom is the email addreSS listed for "Meg Kippler n in the
agreement of sale .    See, Common.....ealth's EXb. 4.     The email is titled: "Guess
you and Ron have decided yes???" . The email was verified as being sent by
Conway herself as the email address of the sender was forlabs@centurytel.net,
which is Conway's email address.           (N .T . 9/9/13 at 90).      In this email,
addressed to KMeg~, conway setG forth all the relevant information the
Defendant would need in order eo retrieve the two Labrador dogs at
Philadelphia . Airport.   Additionally, this email reiterates the total cost of
the dogs and how payment must be made.             Lastly, the email ends with "Best,
Cheri" and Conway's phone number.
    The Commonwealth a160 admitted into evidence another email found in
Defendant's desk, labeled Conunonwealth's exhibit 20 .              This email, dated
August 24, 2010, is from Conway, a9 evidenced by the email address of
forlabs®Centurytel.net, and the ceClplent is "apple N with a corresponding
email address of 1265chase@mail.com.             The contents of this email are in
regards to Conway not receiving the payment sent via FedEx.                  The email
contains a FedEx tracking number, 848489106264, which is the tracking number
for the Fedex shipment bill found on Defendant'G desk, labeled Commonwealth's
exhibit 18.
    Below this email is the original message from "apple N , with an email
addreL'lS of 1265chase~ail. com, to Conway regarding the FedEx shipment of.
payment. Said email is signed "Ron.-

                                      [FM-1l-14j
                                          8
                                                                                      Circulated 12/30/2014 08:40 AM




documents relating to the dogs themselves, namely their pedigree

and medical records.                   Ld. at 158.

        At    trial,        the    Commonwealth            also    called         Defendant's      ex-

husband,      Anthony Gadaleta who                   testified that           only he       and the

Defendant resided in the residence during the timeframe at issue

in   this         case.         (N. T.    9/10/13         at   24)."         Moreover,       Anthony

Gadaleta asserted               that he had no involvement with Defendant's

breeding          business,        and     where        the    Trooper       found     the      FedEx

shipment bills and email correspondences was Defendant's private

office,       an    office        he     never     used.        Id.    at    25-26.        Further,

Anthony       Gadaleta          avowed     that      he    never      entered       into   a    sales

contract with Conway I                 nor ever heard of her before this criminal

case.

        Further I         Mr.   Gadaleta acknowledged                 that   the deposit         slip

found in Defendant's desk was a deposit slip from a bank account

he had with First Commonweal th Bank: and the account number of

this deposit slip corresponded to the account number on the two

personal checks Conway received as payment for the two dogs and

shipping      crates,             However,       Anthony Gadaleta            asserted      that     he

never authored these checks nor authorized anyone to issue these

checks       on    his      behalf.          Id.     at    29-30.17          In    addition,      the


!6 During the timeframe at issue in this case Defendant and Anthony Gadaleta
were married; however, subsequently their marriage dissolved.

17 Anthony Oadaleta also stilted that                Defendant's sister lives in Waterford.
New Jersey.        (N.T. 9/10/13 at 40).           The sticker placed in the upper left-hand

                                             [FM-11-14]
                                                    9
                                                                                  Circulated 12/30/2014 08:40 AM




signature on the two checks at issue are not the signatures of

Anthony    Gadaleta            as     stated       by        him     and     supported          by

Commonwealth's exhibit 25, which                  ~B    a copy of Anthony's Gadaleta

driver's license depicting his true signature.

      Lastly,      Anthony           Gadaleta      stated           that     subsequent         to

Defendant's      arrest        in    this     matter     he    found       six   cell     phones

around Defendant's        desk~        When Anthony Gadaleta met with Trooper

De   La .Iglesia    on        March    17,     2011,    he     turned over         these     cell

phones to the Trooper.                Thereafter , the Trooper applied for and

received a search warrant to examine the contents of the phones.

On one of the cell phones              t~e    Trooper discovered a phone number,

labeled as an outgoing call, made to a phone number belonging to

Conway.

      As   a    result         of     the      investigation          conducted         by    the

Commonwealth,      a     criminal            complaint        was    filed       against      the

Defendant on August 24,               2010.      The Defendant was charged with

one count of theft by               ~eceptlon,     one count of receiving stolen

property, and two counts of issuing a bad check.                                 A jury trial

began on September 9,               2013,    and after hearing the above stated

evidence, a jury found the Defendant guilty on all charges.

      Thereafter,         a     pre-sentence            investigation            report       was

ordered.       Upon completion of this report,                       the Court sentenced



of the first check Conway received from Defendant, the check in the amount of
$5,040 . 00, listed Meg Kippler's address Waterford, New Jersey.

                                        [EM-ll-14 )
                                            10
                                                                                   Circulated 12/30/2014 08:40 AM




Defendant on November 22, 2013,                  to a total sentence of not less

than twelve months nor more than twenty-four months in a state

correctional institution, followed by one year of probation.

       Subsequently,      on December 16,            2013, Defendant appealed her

judgment    of    sentence        with     her      Concise      Statement          of    Matters

Complained of on Appea l being filed on January 6, 2014 .                                  In her

Concise Statement,            Defendan"t     raises four issues.                   These issues

are:

       1) That    the    court       erred    in     allowing      testimony          over
         objection concerning the contents of the cell phones
         received        from     Anthony      Gadaleta       months         after       the
         search of the residence;
       2) That the verdict           is contrary to law in that there
         was no evidence" connecting the person known to the
         victim as Meg Kipler (sic) with Patricia Gadaleta;
       3) That the verdict is contrary to law in that there is
         absolute        no    evidence       the    party       that        iesued      the
         checks         with      insufficient           funds         was     Patricia
         Gada l etai and
       4) That   the     verdict      is     contrary to         the    law in        that
         there    is absolutely no evidence the                        email       address
         referenced in the communications between seller and
         buyer was that of the defendant Patricia Gadaleta.
         The     party        with    that       email     address           was     never
         identified.

 The Court will address these issues according l y.

                                      DISCUSSION

       In evaluating Defendant's issues raised on appeal, three of

                                         [FM-11-14]
                                              11
                                                                               Circulated 12/30/2014 08:40 AM




the     four   issues presented are         of      the    same    legal       issue,      that

being challenges to the sufficiency of the evidence presented by

the     Commonwealth.     Accordingly,         the     Court      will    address        these

three     issues    together after        first     undertaking          the    merits,       or

lack thereof, of Defendant's first issue raised on appeal.

     I . ADMI SSION OF TES'rIMONY

        Defendant's first issue raised on appeal contends that the

Court erred in allowing testimony,                  over Defendant ' s           obj ection,

regarding the contents of certain cell phones received by the

Trooper from Anthony Gadaleta months after executing the search

warrant .      Anthony Gadaleta testified that on March 17/                         2011,     he

met with Trooper De La Iglesia at his and Defendant's residence.

At    this meeting,     Anthony Gadaleta handed the Trooper six cell

phones that he found around Defendant's desk.                       Moreover, Anthony

Gadaleta asserted       that   none of         these      cell    phones belonged             to

him .

        The Trooper ,   upon receiving           the cell phones I             placed them

into a sealed envelope.           Thereafter he applied for and obtained

a search warrant in an effort to ascertain certain information

that may be on the phones.           In examining the dialed calls of one

of the phones the Trooper found a call was placed to Conway.

        Defendant'S     Concise     Statement          informs      the        Court      that

Defendant      is   challenging     the    admissibility           of     the     testimony

regarding the cell phones .          In evaluating this iSBue, the Court

                                    [ FM-1l-1 4 ]
                                          12
                                                                                    Circulated 12/30/2014 08:40 AM




finds      itself         speculating          as    to     the     specific        nature         of

Defendant's         appeal .           The     Court       is     unsure    if     Defendant's

objection to the testimony of the cell phone is founded upon a

chain of custody issue,                foundation or lack thereof                 a~ument,        or

if Defendant is claiming that the testimony about the cell phone

was irrelevant and thus should have been prohibited.

         The courts have previously addressed the effect of a                                    "too

general" concise statement.                    ~When      the trial court has to guess

what issues an appellant is appealing,                            that is not enough for

meaningful        review. "        Commonwealth v.              Butler,    756    A.2d     55,    57

(Pa.     Super.     Ct.      2000) (brackets         and    quotation       marks     omitted).

"When an appellant               fails    adequately        to identify in a              concise

manner     the     issues     sought      to    be pursued         on appeal,        the     trial

court is impeded in its preparation of a legal analysis which is

pertinent to those issues."                    In    re Estate of Daubert, 757 A.2d

962,     963     (Pa.    Super.    Ct.       2000)         In other words,           a   concise

statement which is too vague to allow the court to identify the

issue     raised        on   appeal      is    the     functional         equivalent       of     no

concise statement at all.

         Since Defendant has appealed the testimony in general as it

relates to the ce ll phones,                   this Court is left conjecturing as

to the specific· nature of the exact issue Defendant is raising

on     appeal.          Consequently,         this   Court       finds     that    Defendant's

fi rst    issued        raised    in     her    Concise         Statement    too     vague       and

                                          ["'-11-14]
                                                13
                                                                                  Circulated 12/30/2014 08:40 AM




therefore should be deemed waived.

       Notwithstanding such,              and if     the Honorabl e Superior Court

finds Defendant was specific enough in her Concise Statement,

the Appellate Court should still dismiss Defendant's first issue

raised based upon a lack of merit .                      During the trial,           the Court

conducted    sidebar       conversations            with      the    Assistant         District

Attorney and Defense Counsel in regards to the cell phones.                                    For

purposes of      this appeal,             the Court surmises that Defendant is

appealing    the      admission of          the    cell    phones        based upon         three

legal principles :        relevancy,         foundation,         and chain of custody.

The Court will address each issue accordingly .

       The   standard          of     review        on     the      challenge          of      the

admissibility of evidence is as follows:

       Admission of evidence is within the sound discretion
       of the trial court ano. will be reversed only upon a
       showing that the trial court clearly abused its
       discretion.   Admissibility depends on relevance and
       probative value.  Bvidence is relevant if it logically
       tends to establish a material fact in the case, tends
       to make a fact at issue more or less probable or
       supports    a reasonable    inference  or  presumption
       regarding a material fact .
Commonwealth     v.     Levanduski,         907    A. 2d 3,      13-14    (pa .    Super.      Ct.

2006) (quoting     Commonweal t h v. Drumheller , 570 Pa. 117, 808 A.2d

893,   904   ( 2002),     certi o rari       denied,       539    U.S.     919,     123     S.ct.

2284. 156 L . Ed.2d 137 (2003».

       Defendant's      relevancy          and    foundation        objections       at     trial

were    grounded        upon        the     same     argument,           that     being        the


                                          [FM-1l-1 4 ]
                                             14
                                                                                            Circulated 12/30/2014 08:40 AM




Commonwealth            cannot      establish         that     the       cell   phones           found    by

Anthony Gadaleta belonged to the Defendant.                                     Moreover,         Defense

Counsel argued to the Court that the Commonwealth cannot prove

that Defendant made any of the dialed calls.

       Pennsylvania                Rule       of      Evidence            901       mandates           that

authentication is required prior to the admission of evidence.

Pa.R.E.         901.         The   proponent          of    the    evidence         must         introduce

sufficient evidence that the matter is what it purports to be.

In    re   F.P.,       B78    A.2d       91   (Pa.    Super.       Ct.     2005).       Pennsylvania

Rule       of        Evidence       901       also     states        that       the     foundational

requirement of authentication or identification is satisfied by

evidence         sufficient         to    support       a    finding        that      the    matter       in

question is what its proponent claims.                               Pa.R.E.       901(a).         When a

party offers evidence contending either expressly or impliedly

that the evidence is connected with a person, place,                                          thing,      or

event, the party must provided evidence sufficient to support a

finding         of    the    contended connection.                   Commonwealth           v.    Hudson,

414    A.2d      1381       (Pa.    1980).           Evidence      can be       authenticated by

circumstantial evidence.                      Commonwealth         v.    Collins,      957 A.2d 237

(Pa. 200B).

       In matters            of    authentication,            if     the    court      finds       enough

support in the record to cause a                            reasonable person to believe

that the evidence is what it purports to be,                                    Pennsylvania Rule

of Evidence 901 is satisfied and the weight to be given to the

                                               [FM-l1-14]
                                                  15
                                                                                       Circulated 12/30/2014 08:40 AM




evidence is left to the jury.                    Commonwealth v. Nally, 138 A. 836

(Pa.     1927);     Commonwealth         v.    Pollock,          606    A.2d    sao     (Pa.      Super.

Ct. 1992).

       The      Commonwealth,       in        establishing          a    foundation        that       the

cel l phones were those of the Defendant, proffered the testimony

of   Anthony        Gadaleta.       Mr. ' Gadaleta               testified       that     after       the

Defendant was arrested he found the cell phones in Defendant' s

office       and    more    specifically          around           Defendant's          desk       area.

Moreover, Anthony Gadaleta asserted that none of the ce l l phones

were     his       nor     did     he     ever        use        any     of     these       phones. 18

Additionally,         it was stated by Anthony Gadaleta that the only

persons to have access' to Defendant's off ice was the De fendant

and himself,         although he         never used              that office .          Based upon

such     test imony ,       the    Court        found        a     proper        foundation          was

established by the Commonwealth.

       Consequently, the Court disagreed wi th Defendant's argument

that     such      testimony      regarding       the       cell       phones    was     irrelevant

because      the     jury could only speculate                     as    to     who    placed such

calls.       By     establishing that            the    cell phones belonged to                      the

Defendant and that only oefendant had access to said phones,                                           it

was within the           jury's province to             infer that Defendant placed

those calls.          The fact . that the Commonwealth could not present



11 Anthony Gadalcta statcd hc only had onc cell phone, which was                          L:i~d   to h i s
employment.

                                          [""-11 -14 ]
                                                 16
                                                                                Circulated 12/30/2014 08:40 AM




direct evidence demonst:!:'ating that Defendant placed the call to

Conway or the fact that the cell phones were turned over to the

Trooper months after the police executed the search warrant go

to the weight of the testimony, not its admissibility .

       After f i nding    that      the       Commonwealth established a                  proper

foundation    to    authenticate          and    identify      the    cell      phones,      the

Court also ruled that the testimony regarding these cell phones

was   relevant.      Evidence       is relevant          if    it    logically t ends to

establish a material fact i n the case , tends to make a fact at

issue more or less probable, or supports a reasonable inference

or    presumption     regarding           a     material      fact.          Pa.R . E .     401;

Commonwealth v.      Lesko,       15 A·.3d 345      CPa . 2011).          The crux of the

Commonwealth'   8   case was        establishing         that       Meg   Kippler     was     in

reality the Defendant.            A phone call made to Conway herself f r om

a cell phone found in Defendant's personal office that only her

and Anthony       Gadaleta    had     access       to,     along     with Mr.       Gadaleta

asserting    that   he   never used t h at           cell phone f         are    facts      that

assists       the        Commonwealth              in         establishing,               albeit

circumstantially, that the Defendant portrayed herself to Conway

a8   Meg Kippler.

       Notwithstanding that          evidence might            be    relevant,      evidence

can be inadmis9ible          if    such evidence           is unfairly prejudicial .

Pennsylvania Rule of Evidence 403 states that relevant evidence

may be excluded "if its probative value is outweighed by .

                                      [FM-ll-14]
                                         17
                                                                                 Circulated 12/30/2014 08:40 AM




unfair prejudice .               "      Pa.R.E. 403(a}.              Defendant argued at

trial that permitting the testimony about the cell phones would

be   unfairly prejudicial            due      to     the    speculative        nature of        the

testimony.        As just stated above,                this Court did not               find the

testimony     regarding    the        cell         phones     to    be    speculative;          the

phones were found in Defendant's "personal office where only she

and Anthony Gadaleta had access.                     Additionaily, Anthony Gadaleta

avowed     that    he   never        us"e d     the        cell    phones       he    found      at

Defendant's desk.         Although this Court does                       not disagree with

Defendant's claim that such testimony may be prejudicial, as the

Court    would presume     any evidence offered by                        the    Commonwealth

would be prej udicial to a defendant,                       the Court does not concur

with     Defendant's     assertion            that     the    testimony         was     unfairly

prejudicial such that t 'he probative value was outweighed by the

prejudicial       nature of the         testimony.            Consequently,           the Court

ruled that such testimony was relevant and perm4tted.

        Defendant's     other    objection             at    trial       to    the    testimony

regarding     the cell    phones "being permitted was                         founded    upon a

chain of custody objection.                   The     "chain of custody" rule comes

from    the   principle    that       real         evidence       must    be    authenticated

prior to its admission into evidence.                             UGI Utilities,        Inc.     v.

Unemployment      Compensation        Board          of Review,       851      A.2d   240      (Pa.

Cmwlth . Ct. 2004).       The rationale for this threshold requirement

is the need to establish that the item to be introduced is what

                                       [FM-1l-14]
                                               18
                                                                                     Circulated 12/30/2014 08:40 AM




it     purports     to    be.         The     ultimate . question              is    whether       the

authenticat i on         testimony       is     sufficiently            complete       so     as    co

persuade the court that it is improbable that the original item

has     been    exchanged        with    another      or    altered           in    any     material

aspect.          See,     In     re     D.Y.,    34   A. 3d     177         (Pa .     Super.       Ct.

20 1 1) (chain of        custody refers to the manner in which evidence

was maintained from the time it was collected to its submission

at trial).

        While the offering party bears the burden of demonstrating

some reasonable connection between the proffered exhibit and t he

true evidence, it need not establish the sanctity of its exhibit

beyond a        moral    certaint y .         Commonwealth         v.     Cugnini,         452   A.2d

1064    (Pa. Supe r . Ct . 1982).             A complete chain of custody is not

required sa long as               the    evidence,        direct        and      circumstantial,

establishes        a     reasonable          inference      that         the        identity       and

condition of the exhibit has remained the same from the time it

was first obtained until the time of trial.                             Hudson, 4 1 4 A.2d at

1387.        Any gaps in testimony regarding the chain of custody go

to     the     weight     to    be    given      to   the     testimony,             not    to     its

admissibility .          Commonwealth v. Bolden, 406 A.2d 333 (pa. 1979).

        In the case at bar,              Anthony Gadaleta testified that upon

finding the cell phones around Defendant's desk he turned them

over to Trooper De La Iglesia on March 17,                              2011 .      The Trooper,

upon    receiving        these    phones,       placed      them    in an           envelope       and

                                            [FM-1l-14 )
                                                19
                                                                             Circulated 12/30/2014 08:40 AM




sealed the envelope.            The Trooper thereafter obtained a search

warrant     and   examined      the     contents     of    the     phones.      From his

examination of the cell phones,                 the Trooper found that a phone

call was made to a number later determined to be Conway's phone

number.     Accordingly,        the Commonwealth set forth a proper chain

of    custody     to   permit     the    Trooper      to    testify     r egarding       the

contents of the phones.            Thus Defendant· s first issue raised on

appeal should be dismissed. 1 '

     II.   SUFFICIENCY OF THE EVIDENCE

       Defendant's      second,       third,    and       fourth    issues    raised       on

appeal are all         challenges to the sufficiency of the evidence.

The standard of review to a challenge of the sufficiency of the

evidence is well-settled:

l' If the Appellate Court does determine that such evidence regarding the cell
phones shOUld have been prohibited, this court seee such error as harmless
error . In Commonwealth v. Moore, ~37 A. 2d 1062 (Pa . 2007), the Supreme Court
of chis Commonwealth reaffirmed that an error may be considered harmless only
when the Commonwealth proves beyoml a reasonable doubt that the er.ror could
not have contributed to the verdict.          Whenever there is a reasonable
possibility that an error could have contributed to the verdict. the error is
not barml.ess.   Commonwealch v. Passmore, 857 A. 2d 697, 711 (Pa. Super. Ct.
2004) .   An error may be deemed harmless. incer alia, where the properly
admitted and uncontradicted evidence of guilty was so overwhelming and the
prejudicial effect of the error was insignificant by comparison t:hat: t:he
error could not have contributed · t o the verdict.   Moore, 937 A.2d at 1073.
Harmless error exists when the error did not prejudice the defendant, the
prejudice was de mi nimis, or the erroneously admitted evidence was merely
cumulative of other untainted evidence, which was substantially similar to
the erroneously admitted evidence. Passmore. 857 A.2d at 711.
   As set forth below in Defendant's second, third, and fourth issues raised
on appeal, the evidence presented by the Commonwealth was of such an
overwhelming nature that if the Appellate court were to rule that the
admission of the testimony regarding the cell· phones was an error such error
was only de minimis.    In examining the record as a whole, the testimony about
the cell phone was merely cumulative in the Commomlealth' B pursuit in proving
that Defendant falsely portrayed herself to Conway as an individual named Meg
Kippler.    There.fore, Defendant'S tirQt issue raised on appe3.1 should be
dismissed.

                                        [FM-ll-14]
                                           20
                                                                                 Circulated 12/30/2014 08:40 AM




         A claim challenging the sufficiency of the evidence is
         a question of law. Evidence will be deemed sufficient
         to support the verdict when ' it establ ishes each
         materi al  element o f    the  crime charged and     the
         commission t hereof by t he accused, beyond a reasonable
         doubt. Where t he evidence offered to support t he
         verdict is in contradiction to the physical facts, i n
         contravention to humah experience and the laws of
         nature, then the evidence is insufficient as a matter
         of law . When reviewing a suf ficiency claim the court
         is required to view the evidence in the light most
         favorable to the verdict wi nner giving the prosecution
         the benefit of a ll reasonable in"ferences to be drawn
         from the evidence.
Commonweal th        v.    Widmer ,      744    A.2d       745 .     751-52       (Pa .        2000)

(internal        c itations,     foot notes,        and quotat i on marks             omitted ).

Given the standard the ,Court must apply to a sufficiency of the

evidence challenge, the Court will now address each issue raised

by Defendant .

         a ) Lack of evidence connectin g t:he pers on known                              to     the
             victim as M8g ~p'pl er with Pa tricia Ga daleta

         Defendant's      first     challenge         to   the      suffic i ency         of     the

evidence     argues       that    the    Commonwealth         failed        to present           any

evidence establishing t hat               t he person known to Conway as Meg

Kippler      was     in   fact     the    Defendant         hersel f .          In    essence,

Defendant's        chal lenge goes        to    the core       of        the Commonwealth's

case :    that     the    Defendant      intentionally             and    fa l sely   dece i ved

Conway into believing that she, the Defendant, was an individual

named Meg Kippl er.            Notwithstanding Defendant ' s contention,                        the

Commonwealth presented overwhelming evidence to establish that




                                         [FM-11-14]
                                               21
                                                                         Circulated 12/30/2014 08:40 AM




the person Conway though t               was Meg Kippler was         in reality        the

Defendant.

       In evaluating the testimony proffered by the Commonwealth,

in conjunction with the evidenced submitted,                    it was established

that    in   July    of     2010    Conway        spoke   to   an    individual      who

identified     herself      as     Meg    Kippler    about     the   purchase     of     a

Labrador     retriever.          After several        conversations,     Conway        and

this individual,      identifying herself as Meg Kippler,                reached an

agreement whereby Conway would sell one male chocolate Labrador

retriever named Winston and one yellow male Labrador retriever

named Romeo     to   this     individual         purporting    to be Meg     Kippler.

Conway stated that her customary practice in breeding and then

selling dogs was          to place a micro-chip under the skin of the

dog's shoulder,      which .she did with both dogs.                  The micro-chip

has a specific identification number that only correlates with

that micro-chip.          The yellow Labrador retri ever had a micro -chi p

number of 012769333,         and the male chocolat e Labrador retriever

had a micro-chip number of 045259601.

       Trooper De La Iglesia testified that in executing a search

warrant upon Defendant's residence on the report that two stolen

Labrador r etrievers were located at Defendant's home, he located

a chocolate Labrador retriever with a micro-chip number matching

the number Conway provided him for the chocolate Labrador she

sold to the individual claiming to be Meg Kippler.                      Thereafter,

                                     [i'M-ll-HI
                                            22
                                                                         Circulated 12/30/2014 08:40 AM




the Defendant lead the Trooper to the yellow Labrador and the

Trooper subsequently confirmed that this was the other Labrador

in question after scanning the dog with the micro -chip scanner.

        Furthermore, after finding both Labrador dogs the Defendant

told the Trooper that the call name for the chocolate Labrador

is Winston,       and Romeo is the call name for the yellow Labrador

retriever.

        The     Commonwealth ,     in    supporting       its     case      that      the

individual identifying herself to Conway as Meg Kippler was in

fact    the Defendant herself,          introduced into evidence the sales

agreement        between    the   parties.       Conway       testified     that      she

emailed the person she thought                was Meg Kippler a          copy of the

sales    agreement.         conway verified      that    the    copy of      the    sale

agreement       found in Defendant's desk was in fact                 the agreement

she sent        "Meg Kippler."      Moreover,    the agreement of sale sets

forth a description of the " two dogs including their micro-chip

numbers, and was signed by "Meg Kippler."

        In addition,       the Commonwealth presented both checks                   that

Conway    received     as    purported      payment     for     the   two   dogs     and

shipping crates in an attempt to prove that f'.1eg Kippler was in

fact    the Defendant       Patricia Gadaleta.          The firs t     check Conway

received as payment had " a sticker in the upper left -hand corner

that    read:    "Kippler,    Waterford ,     New Jersey."        As testified by



                                    [FM-H-14j
                                         23
                                                                                Circulated 12/30/2014 08:40 AM




Anthony Gadaleta,           Defendant's sister resides in Waterford,                         New

Jersey.       Moreover, this check was made payable to Conway.

        The second check the Commonwealth introduced into evidence

was     the    check      received         by   Conway's    bank     branch    in     Spokane,

Washington.          In    the    upper left-hand           corner of       this    check,      a

check also made payable to Conway,                       was yellow white-out.               Per

Conway'   8    testimony,        upon       receiving      this    check   from     her    bank

branch,       she held it up to a bright light and was able to read

the printed writing underneath the whi.te-out.                         Conway deciphered

the printed writing to say:                     "Anthony Gadaleta,         Pohopoco Drive,

Lehighton, Pennsylvania.           n



        Anthony Gadaleta testified that only he and the Defendant

resided in the residence during the timeframe at issue in this

case.         More   importantly,           upon      acknowledging     that    the     checks

received by Conway were checks written from his                                Dank account

with First commonwealth Bank, Anthony Gadaleta declared he never

authored       the   checks      received by Conway,              nor did he authorize

anyone    to    issue      such checks on his              behalf.      Further.      Anthony

Gadaleta asserted that the signature on both checks at issue is

not his signature.               I n support of Anthony Gadaleta' s assertion

that the signature on the two checks was not his signature, the

Commonwealth         introduced        a    copy of Anthony Gadaleta's driver's

li cense depicting his correct signature.



                                            [EM-1l-14]
                                                 24
                                                                                         Circulated 12/30/2014 08:40 AM




        Further        evidence       in      support           of        the    Commonwealth's

contention        that Meg        Kippler was          in reality the Defendant was

established by the Trooper testifying that he found three FedEx

shipment bills inside the top drawer of Defendant'                                   B   desk.       The

name    scribed as          the    sender     for      all     three       shipment         bills      is

\\Kippler" with Conway being the designated recipient on two ' of

the bills and Conway's bank in Spokane, Washington the recipient

of the third package.                Moreover,         the date of the first                      check

Conway received as payment                  for     the       dogs    corresponds wi th              the

date of the first FedEx shipment bill, a bill that lists Conway

as the recipient.            Conway testified that ahe did in fact receive

this check.

        Similarly,      the thi·rd FedEx shipment bill was dated August

24,    2010,    which matches the date on the second check in this

case.     Additionally, as just stated, the recipient on this FedEx

shipment bill was Sterling savings Bank in Spokane, Washington.

Conway testified that the second check was received by her bank,

Sterling Savings Bank in Spokane, Washington.

        Lastly,    the      Trooper stated he                 found       in Defendant's           desk

documents relating to the dogs themselves, more specifically the

pedigree of the dogs and their corresponding medical records.

        The    jury,    upon      listening       to   the      testimony of Conway and

Anthony Gadaleta            found    their     testimony             to    be   credible.            The

determinacion          of    credibility          of      a     witness         is       within      the

                                           [FM-11-14]
                                              25
                                                                              Circulated 12/30/2014 08:40 AM




exclusive province of the jury .                   Commonwealth v. Seese, 517 A.2d

920. 923 (Pa. 1986).

        Defendant's     argument      that     the Commonwealth has               failed     to

establish that the Defendant portrayed herself t o Conway as Meg

Kippler       intimates that the Court should examine                       the    testimony

and evidence presented by these two witnesses mutually exclusive

of each other.          Although Defendant sought of the jury. and now

seeks on - appeal to have the Appellate Court evaluate each piece

of     evidence     in a   vacuum,      the    jigsaw puzzle          the     Commonwealth

presented in establishing its case was not complete until all

evidence and testimony was presented and the jury was able to

review       such evidence      in concert          with one       another.        In    other

words,       a j igsa,:" puzzle is -complete once all the pieces are in

place and the puzzle depicts the picture on the box.                              Here, once

all the pieces of evidence were presented by the Commonwealth,

the    jigsaw puzzle,       as a      whole,       depicts    the Defendant          falsely

portraying- herself to Conway as an individual named M.e g Kippler.

        b)   No Evidence that the De£endant was the party t1:zat issued
             the checks wi th insufficient £unds

        Conway      testified    that    throughout          her    various        modes     of

corresponding with the Defendant,                   she, Conway, believed she was

communicating with a            woman named Meg Kippler and her husband

Ron.         Such   testimony    is   supported        by    the    agreement       of     sale

between Conway and the Kipplers where in the agreement of sale


                                       [FM-ll - 14]
                                              26
                                                                                    Circulated 12/30/2014 08:40 AM




the    Kipplers'          address     is        listed       as     1613        Conrad     Avenue,

Waterford, New Jersey 08089; in addition,                           the agreement of sale

sets    forth     the      contract       price        for    the     two        Labrador       dogs,

shipping crates,          and other expenses necessary to ship the dogs

from Sacramento to Philadelphia.                         This agreement            of     sale was

admitted into evidence .

       At the trial, the Commonwealth presented both checks Conway

received     as     payment     for       the    two     Labrador         dogs     and     shipping

crates.      The firs t check, issued to Conway, had a sticker in the

upper left -hand corner that contained the name "Kippler" and a

Waterford,      New Jersey address.               As stated by Anthony Gadaleta,

Defendant's sister resides in Waterford. New Jersey.

       The      second       check         proffered           by         the     Conunonwealth,

Commonwealth's exhibit six, was also made out to Conway                                    ~.D-d ..   hac;i

yellow white-out covering the printed writing in the uppe r left-

hand corner .        Per Conway's testimony, upon receiving the second

check from her bank's branch                     in Spokane,         Washington r          she        was

able   to    hold    it    up   to    a    bright       light       and    read     the    printed

writing the white-out was covering.                          Said printed writing under

the    white-out      stated:        Anthony      Gadaleta,          97~        Pohopoco     Drive,

Lehighton, PA 18235.

       In proving that the Defendant issued these two checks, the

commonwealth offered the testimony of Anthony Gadaleta , who was

Defendant: s      husband during the timeframe in question.

                                          [nf-ll-14]
                                              27
                                                                              Circulated 12/30/2014 08:40 AM




Gadaleta testified that he did not issue either of the checks

nor did he authorize anyone to issue such checks on his behalf.

Moreover,    Anthony Gadaleta stated that                  the       signature on both

checks was not his; such testimony was supported by a copy of

Anthony     Gadaleta' s     driver's        license        depicting          his     actual

signature.       Further,       the     jury     in    finding        Anthony       Gadaleta

credible,    accepted his         test imony as        true   insofar as            he never

entered     into a     contract with Conway for               the     purchase of          two

Labrador dogs and shipping crates.

     Additionally,        Anthony       Gadaleta       asserted        that     where      the

Trooper found a deposit slip from his bank account with Fi rst

Commonwealth Bank,         that    being    in       Defendant's       desk,      only     the

Defendant and he had access to this area of the home.

     Lastly, Trooper De La Iglesia testified that he found three

FedEx shipment bills located in Defendant' B desk.                             The listed

recipient on Commonwealth's exhibit seventeen is Conway herself,

with the shipment bill being dated August 8                      I    2010.      The first

check at issue in this case is date August a, 2010, a check that

Conway herself received.

     Commonwealth's        exhibit      nineteen,        another        FedEx       shipment

bill dated August         24,   2010,    indicated that              the recipient was

Sterling     Savings    Bank      located       in    Spokane,       washington.           The

second check the Defendant sent Conway is dated August 24, 2010,



                                      [FM-11-14)
                                           28
                                                                              Circulated 12/30/2014 08:40 AM




with     said    check     being       received    by    Conway 's     bank,       Sterling

Savings Bank., in Spokane, Washington. :10

        For     these     reasons      stated,    this       Court    finds      there       is

voluminous       evidence        to   support     the    jury's      finding      that     the

Defendant i ssued the two checks without insuffic ient funds                                 to

cover them.

        0) Lack of evidence that the email address referenced in the
           cODIIIZUIlications between sel~&r and buyer was tbat o~ the
           Defendant

        Defendant's       final       issue   raised    on    appeal     suggests        that

there    was     insufficient         evidence    to    establish      that     the     email

address referenced in the communications between Conway and who

she believed was Meg Kippler belonged to the Defendant herself.

Upon examining the evidence proffered by the Commonwealth,                                   in

conjunction       wi th    the    testimony,      the    Court       finds    this      issue

meritleSB.

        The · Court first notes that the correspondences Defendant is

referring to are           t he emaila the Trooper found                in Defendant's

desk.     Anthony Gadaleta testified that this desk was located in

Defendant's office .          Moreover, he never did work i n Defendant's




20 Although both checks were not written for the exact contract price, such
checks were only written for an amount slightly greater than the original
contract price .  This Court £indo the two issued checks to be within such a
price range to al low the jury to conclude that both checks were written by
the Defendant for payment of the two dogs, shipping cr~tee, and other
expenses associated wich shipping the dogs.

                                        [FM-1l-14]
                                           29
                                                                                     Circulated 12/30/2014 08:40 AM




office and no one besides the Defendant or him had access to

t hi s room.

        Further,       the       two     email       addresses       reflected           on    these

correspondences                   are:              forlabs@centurytel.net,                       and

1265chase®gmail.com.              Conway testified that her email address is

forlabs @centurytel.net.                The agreement of sale lists the buyer's

email      address         for     an        individual        named     Meg         Kippler        as

1265chase®gmail.com.               The testimony proffered established tha t
                                                                                                                          /

Conway sent          the    agreement of sale               to Defendant by way of an

email    thinking she,            Conway,       was sending the agreement                     to Meg

Kippler.       Defendant, upon receiving the agreement of sale signed

the     agreement      as    Meg       Kippler,       scanned     it,     and       emailed       the

agreement back to Conway.                    A copy of the agreement of sale was

found by the Trooper in Defendant's desk.

        Lastly, the contents of the correBpondences led the jury to

conclude that the email address of 126Schase®gmail.com was the

email address Defendant used in communicated wi th Conway.                                        The

first     email       admitted          into        evidence    by      the        Commonwealth,                 .,.- .   -
Commonwealth's         exhibit         15,     is    from    Conway.          In    this      email,

addressed       to     "Meg" ,         Conway       sets     forth      all        the    relevant

information the Defendant would need in order to retrieve the

two Labrador dogs from ' the Philadelphia Airport.                                  Further,     the

price listed in this email mirrored the total cost for the dogs

and shipping crates as stated in the agreement of sale.

                                             [FM-1l-14)
                                                30
                                                                                 Circulated 12/30/2014 08:40 AM




        The Commonwealth also .admitted into evidence another email

found     in     Defendant's          desk,       labeled       Commonwealth's           exhibit

twenty.        This email,          dated August     24,    2010 I      is from conway as

evidenced             by       the          sender's            email        address             of

forlabs@centurytel .net.               The recipient of this email was :"apple"

with a corresponding email address of 1265chase®mail.com.                                       The

contents of          this email . are in regards to Conway not                       receiving

the payment          that    was    supposed to be delivered by FedEx.                          The

email contains a             FedEx tracking number,              848489106264,        which is

the     tracking       number        for    the    FedEx        shipment     bill        labeled

Commonwealth's exhibit eighteen.                     Said FedEx shipment bill was

also found on Defendant's desk.

      Taking         into     consideration        the     standard       the     Court        must

apply,    that       being     examining. the        evidence        in    the    light        most

favorable       to     the    Commonwealth,         and    in     consideration          cif    the

totality       of     the     evidence      presented       by    the     Commonwealth           in

establishing          that         Defendant      used      the      email       address         of

1265chase®gmail.com            in     communicating        with    Conway,       Defendant's

issue is meritless and should be                  dismi~sed.



                                            CONCLUSION

      Based upon the foregoing,                  this Court respectfully asks that

Defendant's          issues    raised       on    appeal    be     dismissed        as     being

fabricated      from whole          cloth and meritless.                Accordingly,           this
                                                                                                              . _... .. .


                                           [FM-11-14]
                                              31
                                                                      Circulated 12/30/2014 08:40 AM




Court respec tfully recommends that the jury verdict be allowed

to stand and that this order of Court dated November 22,                       2013,

imposing upon Defendant        a   period of       incarceration in a          state

correction al institution of not less than twelve months nor more

than   twenty - four   months,       followed      by   one   year      of     state

probation,    with the Defendant receiving one hundred sixty-nine

days credit    against   her   B~ntence      for    time   a lready   served,           be

affirmed.



                                                   BY THE COURT:


                                                   J~



                                                                                 " ,'




                                                                                         .   ' ,



                                                                                '"
                                                                                w
                                                                                w




                                   [FM-11 - 14]
                                       32
