J-S30027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ALLEN KELLY                                :
                                               :
                      Appellant                :   No. 1796 MDA 2016

              Appeal from the Judgment of Sentence May 26, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001913-2015


BEFORE:      SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                                  FILED JULY 26, 2017

        Appellant, Allen Kelly, appeals from the judgment of sentence of nine

months to two years of incarceration, imposed May 26, 2016, following a

jury trial resulting in his conviction for forgery and identity theft. 1       We

affirm.

        The trial court summarized the facts of the case as follows:

        On March 17, 2015, [Appellant] mailed a letter along with a
        Petition for Bail Pending Resolution of Petition for Post-Conviction
        Relief (hereafter “[Petition for Bail]”) to the Lebanon County
        Clerk of Courts Office. [Appellant] also mailed copies of the
        letter and [Petition for Bail] to the undersigned Jurist and to
        Attorney Nichole Eisenhart of the District Attorney’s Office.

        At the time that [Appellant] mailed his letters to the above
        individuals, he was being represented by court-appointed
        counsel, Attorney Melissa Montgomery.      Because Attorney
____________________________________________


1
    18 Pa.C.S. § 4101(a)(1), 18 Pa.C.S. § 4120(a).
J-S30027-17


     Montgomery represented [Appellant], Ms. Eileen Lutz of the
     Lebanon County Clerk of Courts Office advised Attorney
     Montgomery that the envelope that contained the letter and
     [Petition for Bail] received originated from SCI Huntingdon.

     Attorney Montgomery stated that she did not send the letter and
     [Petition for Bail] to the Clerk of Courts office on behalf of
     [Appellant]. In fact, Attorney Montgomery testified that during
     the time period that she was representing [Appellant],
     [Appellant] had filed numerous pro se Petitions for Bail, all of
     which were denied.          She further testified that she and
     [Appellant]     had    both    verbal    discussion  and   written
     communications concerning bail and that she had informed
     [Appellant] that any further motions would be frivolous. She
     indicated to [Appellant] that she would not file the bail motions
     as he requested. She reiterated her refusal to file a [Petition for
     Bail] in a letter to [Appellant] dated January of 2015.

     Upon review of the letter provided to Attorney Montgomery by
     the Clerk of Courts Office, Attorney Montgomery stated that the
     letterhead mimicked the letterhead used by her office and that it
     was consistent with the letterhead used in correspondence sent
     by her to [Appellant].       Said document included Attorney
     Montgomery’s name, law firm, and attorney identification
     number. The identification number is required to be included by
     attorneys when filing documents. There was also a Certificate of
     Service attached to the document which reflected that Attorney
     Montgomery personally served the District Attorney’s Office with
     a copy of the Motion. Attorney Montgomery stated that she did
     not give [Appellant] permission to use her letterhead in his filing
     nor did she give him permission to file the document on her
     behalf. She also stated that no copy of the letter and Motion in
     question was ever received by her office and that the only way
     she knew of the letter and document was when she received a
     telephone call from the Clerk of Court’s Office.

     As a result of the above, Trooper Daniel Womer of the
     Pennsylvania State Police performed an investigation. When
     Trp. Womer spoke with [Appellant], [Appellant] stated he made
     a mistake. When Trp. Womer indicated to [Appellant] that he
     could be charged with Forgery, [Appellant] stated that he could
     not be charged because the document was not signed by
     [Appellant].




                                    -2-
J-S30027-17


       [Appellant] was ultimately charged with Forgery and Identity
       Theft. The [court] granted permission for Attorney Montgomery
       to withdraw as counsel in [Appellant]’s PCRA case.[2] At the
       same time, Attorney Andrew Morrow was court-appointed to
       represent [Appellant] with respect to this matter.

       A criminal jury trial was eventually conducted on March 9, 2016.
       Prior to the trial, the parties determined that the Identity Theft
       charge should be reduced from an F3 to an M1.               When
       [Appellant] testified at the trial, he stated that he was unhappy
       with Attorney Montgomery for her failure to file the Petition he
       wanted filed. He admitted that he sent the letter and Motion he
       created on his personal typewriter to the Clerk of Court’s Office,
       the District Attorney’s Office and to Judge Charles from SCI
       Huntingdon. He further stated that he did not obtain Attorney
       Montgomery’s permission to use her name, address and
       identification number on the letterhead as if it was coming from
       her office.

Trial Court Opinion, 9/27/16, at 1-4 (citations omitted).

       In March 2016, a jury trial commenced, after which Appellant was

found guilty of the aforementioned crimes.            He was sentenced as outlined

above. Appellant timely filed a post sentence motion, which was denied by

the trial court in September 2016.             Appellant timely appealed and filed a

court-ordered statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The trial court issued a responsive statement.

       Appellant raises the following issues for review:

       A. Did the trial court err in finding that the Commonwealth
          presented sufficient evidence to sustain Mr. Kelly’s convictions
          of the forgery and identity theft charges, thereby
          necessitating a judgment of acquittal on both charges?

____________________________________________


2
    Commonwealth v. Kelly, 928 MDA 2016, awaiting PCRA decision.



                                           -3-
J-S30027-17


      B. Did the trial court err by not finding Mr. Kelly entitled to a
         judgment of acquittal due to his assertion he was convicted
         due to his race?

      C. Did the Honorable Bradford H. Charles err by failing to recuse
         himself as Judge in Mr. Kelly’s case given the comments
         made in his September 27, 2016 opinion and order?

Appellant’s Brief at 5.

      Appellant’s first contention is that the Commonwealth failed to present

sufficient evidence to sustain his convictions for forgery and identity theft.

Specifically, Appellant contends there was insufficient evidence as he did not

intend to injure or defraud the victim and he did not act to further an

unlawful   purpose   as   required   to   prove    forgery   and   identity   theft,

respectively. Appellant’s Brief at 7.

      The standard of review for a challenge to the sufficiency of evidence is

de novo, as it presents a question of law.        Commonwealth v. Ratsamy,

934 A.2d 1233, 1235 (Pa. 2007).

      The critical inquiry on review of the sufficiency of the evidence to
      support a criminal conviction … does not require a court to ask
      itself whether it believes that the evidence at the trial
      established guilt beyond a reasonable doubt. Instead, it must
      determine simply whether the evidence believed by the fact-
      finder was sufficient to support the verdict.

Id. at 1235-36 (emphasis added). “When reviewing the sufficiency of the

evidence, an appellate court must determine whether the evidence, and all

reasonable inferences deducible from that, viewed in the light most

favorable to the Commonwealth as verdict winner, are sufficient to establish




                                        -4-
J-S30027-17



all of the elements of the offense beyond a reasonable doubt.” Id. at 1237

(citation omitted).

      Appellant first challenges the sufficiency of the evidence in relation to

his forgery conviction. The crimes code defines forgery as follows:

      (a)   Offenses defined. - - A person is guilty of forgery if, with
            intent to defraud or injure anyone, or with knowledge that
            he is facilitating a fraud or injury to be perpetrated by
            anyone, the actor:

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

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

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

18 Pa.C.S.A. §4101.

      According to Appellant, the Commonwealth failed to present evidence

sufficient to establish his fraudulent intent.      Appellant’s Brief at 14.

Appellant admittedly mailed a letter and a Petition for Bail with the victim’s

name, attorney identification number, and firm address.               Notes of

Testimony, 3/9/16 at 72. Further, he submitted his filing after being advised

by counsel that she would not file a Petition for Bail on Appellant’s behalf.

Id. at 69-70.




                                     -5-
J-S30027-17



       Nevertheless, in support of his claim, Appellant notes that he did not

sign the document, nor did he copy the letterhead verbatim. He suggests

that he knew the court would contact the victim once his filing was received.

According to Appellant, it was his hope that, upon receipt, Attorney

Montgomery would sign and file the petition. Id. at 65.

       Attorney Montgomery testified that she informed Appellant both in

writing and verbally that filing a bail motion was frivolous, as a prior motion

was denied by the court.          Notes of Testimony at 8-12.   Yet, after their

repeated communication Appellant created the bail motion containing

Attorney Montgomery’s name and bar number. A jury could conclude from

such evidence that in forging the bail motion, Appellant had fraudulent

intent.    See, e.g., Commonwealth v. Ryan, 909 A.2d 839 (Pa. Super.

2006) (inferring intent to defraud based on Appellant’s actions).         Thus,

Appellant’s claim is without merit.3

       Appellant next asserts that the evidence was insufficient to sustain his

conviction for identity theft.        The crimes code defines identity theft as

follows:
____________________________________________


3
  We note further that Appellant’s credibility is at the heart of his argument.
“Issues of credibility are solely within the province of the trier of fact.”
Commonwealth v. Ferguson, 516 A.2d 1200, 1202 (Pa. Super. 1986).
This Court may not engage in post-verdict credibility discussions; as such,
we will not disturb the credibility determinations made by the jury.
Nevertheless, such a claim is more appropriately directed to the weight of
the evidence, not its sufficiency. See, e.g., Commonwealth v. Sullivan,
864 A.2d 1246, 1249-1250 (Pa. Super. 2004).



                                           -6-
J-S30027-17


      (a)   Offense defined - - A person commits the offense of
            identity theft of another person if he possesses or uses,
            through any means, identifying information of another
            person without the consent of the person to further any
            unlawful purpose.

18 Pa.C.S.A. §4120.

      Appellant incorporated his forgery argument into his discussion on

identity theft, in addition asserting that he did not submit the Petition for

Bail in an effort to “further an unlawful purpose”. Appellant’s Brief at 22. As

previously discussed, the evidence presented was sufficient to sustain a

conviction of forgery, clearly an “unlawful purpose.”       Thus, Appellant’s

contention is without merit.

      In his second issue, Appellant contends that he was convicted as a

result of his race. In support of his claim, Appellant again asserts that the

Commonwealth failed to prove beyond a reasonable doubt the elements of

forgery and identity theft. Appellant also states that he was tried by an all-

white jury. For these reasons, according to Appellant, “he must have been

convicted due to being an African-American defendant.” Appellant’s Brief at

25-26.

      In order to establish a violation of the “fair-cross-section” requirement

of the Sixth and Fourteenth Amendments, an appellant must show:

      (1) That the group alleged to be excluded is a ‘distinctive’ group
      in the community; (2) that the representation of this group in
      venires from which juries are selected is not fair and reasonable
      in relation to the number of such persons in the community; and
      (3) that this underrepresentation is due to systematic exclusion
      of the group in the jury selection process.


                                     -7-
J-S30027-17



Commonwealth v. Harris, 424 A.2d 1245, 1247 (Pa. 1981) (citations

omitted).

       Here, Appellant fails to offer any evidence suggesting that African-

Americans were excluded from the jury. Appellant merely makes a blanket

assertion that due to the overwhelming evidence of his innocence, the only

reason he was convicted was due to his race.           Appellant’s Brief at 25.

Appellant fails to establish the requirements set forth in Harris.            Thus,

Appellant’s contention must be rejected.

       Appellant’s final issue is that the judge erred by failing to recuse

himself.4 Appellant asserts that the judge was biased against him based on

comments made in the September 27, 2016 Order and Opinion. Appellant’s

Brief at 30. Specifically, Appellant points to the race discussion in the trial

court’s opinion and the trial court’s description of Appellant’s arguments as

“ridiculous” and telling him to “get over it.” Appellant’s Brief at 28, 31.

       The party who asserts that a judge should be disqualified bears the

burden of producing evidence establishing bias, prejudice or unfairness

necessitating recusal, and failure to adduce competent evidence will result in

____________________________________________


4
 Commonwealth asserts waiver of this issue for failing to raise it by petition
prior to his appeal, citing Residents of Buckingham Springs v. Bucks
Cty. Assessment Office, 60 A.3d 883 (Pa. Cmwlth. 2013). Nevertheless,
Appellant’s asserted ground for recusal did not arise until the trial court
denied his post-sentence motions. Accordingly, we decline to find waiver.
Reilly by Reilly v. Se. Pa. Transp. Auth., 479 A.2d 973, 989 (Pa. Super.
1984).



                                           -8-
J-S30027-17



denial of recusal motion. Commonwealth v. Stanton, 440 A.2d 585, 588

(Pa. Super. 1982).

      Regarding recusal, our Supreme Court has articulated as follows:

      As a general rule, a motion for recusal is initially directed to and
      decided by the jurist whose impartiality is being challenged …
      Where a jurist rules that he or she can hear and dispose of a
      case fairly and without prejudice, the decision will not be over-
      turned on appeal but for an abuse of discretion.

Commonwealth v. White, 734 A.2d 374, 383-384 (Pa. 1999) (citations

omitted).

      In rejecting Appellant’s argument, the trial court stated:

      In this case, [Appellant] has absolutely no basis to force this
      Jurist to recuse himself. [Appellant] has not met the requisite
      standard demonstrating recusal as necessary in this matter.
      There was no showing of judicial abuse of discretion either. At
      most, [Appellant] has argued that this Jurist was “biased”
      because he failed to adopt [Appellant’s] proffered positions. This
      is not a proper ground for recusal.

Trial Court Opinion at 11.

      While the record reflects that the trial court was exasperated by

Appellant’s claims, there was no evidence of bias. See Commonwealth v.

Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (“Although we do not condone

unjustified or indiscriminate rhetoric on the part of a presiding judge, we are

nevertheless mindful of the fact that judges, too, are subject to human

emotion.”). Therefore, we discern no abuse of discretion in the trial court’s

denial of request for recusal.

      Judgment of sentence affirmed.


                                     -9-
J-S30027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




                          - 10 -
