J-S55010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.T.S-W.               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
    APPEAL OF: A.T.S-W.                        :
                                               :
                                               :
                                               :
                                               :
                                               :    No. 104 WDA 2019

                Appeal from the Order Dated December 4, 2018
     In the Court of Common Pleas of Allegheny County Juvenile Division at
                        No(s): CP-02-JV-0002254-2018


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                             FILED NOVEMBER 07, 2019

        A.T.S.-W. (Appellant) appeals from the dispositional order1 entered after

the juvenile court adjudicated him delinquent of two counts of theft by

deception and two counts of forgery.2 On appeal, Appellant presents a single

issue challenging the sufficiency of the evidence sustaining his adjudications.

Appellant asserts that the Commonwealth “failed to prove beyond a

reasonable     doubt    that   [Appellant]     intentionally   or   knowingly   passed

counterfeit twenty-dollar bills”. Appellant’s Brief at 5. We affirm.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. See Commonwealth v. S.F., 912 A.2d 887, 888-89 (Pa. Super.
2006).

2   18 Pa.C.S.A. §§ 3922(a)(1) and 4101(a)(3).
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     Pertinent to our review, the juvenile court recounted the evidence

presented at Appellant’s hearing as follows:

     The Commonwealth called the three Penn Hills School District
     Cafeteria workers who interacted with and received the counterfeit
     twenty-dollar bills from [A]ppellant[:] Carmen Wilkes, Maria
     Turchick, Debra Crosmun, as well as the Penn Hills High School
     Principal, Eric Kostic. The Assistant Public Defender called
     [A]ppellant to testify.

            Carmen Wilkes testified that she is a food service worker at
     Penn Hills High School. She indicated that she was working on
     October 29, 2018 in the snack bar area of the cafeteria, which is
     where students can come to purchase the a la carte items, such
     as drinks, chips or cookies. Ms. Wilkes indicated that there are
     three lunch periods during the day and that she was working the
     snack bar register for the first lunch period of the day, which starts
     at 10:07 a.m. Ms. Wilkes testified that some students will come
     to her at the outset of the lunch period to ask for change;
     however, often times she normally won’t have change and she will
     tell the students to come back later.

           On the day in question, Ms. Wilkes indicated that [A]ppellant
     came to her register and asked for change for a twenty dollar bill.
     Ms. Wilkes, not having change yet, told him to come back and see
     her later in the lunch period. Id. Ms. Wilkes testified that at the
     beginning of the next lunch period, which starts around 10:50
     a.m., she saw [A]ppellant at another lunch cashier register and
     she told him to come over because she had change at that time.
     Ms. Wilkes stated that [A]ppellant purchased a dollar drink from
     the snack bar, using a twenty dollar bill, and she gave him
     nineteen dollars in change.

            Ms. Wilkes testified that after this exchange with [A]ppellant
     she learned from her fellow cafeteria worker and witness, Debra
     Crosmun, and that [A]ppellant had a similar request for change
     for a twenty dollar bill. Ms. Wilkes testified she learned that the
     twenty dollar bill [A]ppellant used in his exchange with Ms.
     Crosmun was determined to be fake via the counterfeit bill
     marker. Concerned about the authenticity of the twenty dollar bill
     that [A]ppellant gave her, Ms. Wilkes testified that she then tested
     the twenty dollar bill she received with the counterfeit bill marker.

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     The twenty dollar bill that Ms. Wilkes tested from [A]ppellant was
     also determined to be fake using the counterfeit bill marker.

            Furthermore, Ms. Wilkes stated that in the course of her
     normal job duties that she only receives one or two twenty dollar
     bills on any given day, as the snack bar items are inexpensive and
     students use smaller bills. On the day in question, Ms. Wilkes
     testified [she] had only received one twenty dollar bill from
     [A]ppellant, which she determined was fake using the counterfeit
     bill marker. The Commonwealth showed Ms. Wilkes two twenty
     dollar bills, labeled and entered into evidence as Commonwealth
     Exhibits 1 and 2 without objection, and she confidently identified
     the actual bill handed to her by [A]ppellant, which had the
     counterfeit pen markings she made on that day.

            Debra Crosmun testified that she is employed by the Penn
     Hills School District in food services and works in the high school
     as a cashier. Ms. Crosmun testified that she is assigned to work
     at cashier line number six, which is next to where Ms. Wilkes
     works as a cashier at line number five. Ms. Crosmun testified
     [A]ppellant came and asked for change for a twenty, handing her
     a twenty dollar bill, which she swiped with the counterfeit marker
     and immediately deemed it fake. She stated this was about ten
     minutes into the second lunch period on the day in question. Ms.
     Crosmun testified that she told [A]ppellant “this is not real” and
     then gave the fake twenty dollar bill back to him. Ms. Crosmun,
     in reviewing the two twenty dollar bills admitted as
     Commonwealth’s Exhibit 1 and 2, indicated that neither bill was
     the same bill that [A]ppellant had given to her on the day in
     question and that she knew this because she used a counterfeit
     pen marker leaving marks on both ends of the bill.

            Marie Yurchick testified that she is employed by the Penn
     Hills School District, where she is a cashier in line number two in
     the high school cafeteria. Ms. Yurchick further clarified that
     cashier lines one through four are for regular lunch item
     purchases, which is where she works, and that cashier lines five
     and six are for snack bar items only.

          Ms. Yurchick testified that at some point during the second
     lunch period, perhaps around 10:50 or 10:55, Appellant
     approached her and asked her for change for a twenty dollar bill.
     Ms. Yurchick testified that in her experience it’s uncommon for a
     student to ask for change without purchasing any food items. She

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     testified that [A]ppellant did not purchase any items and was only
     seeking change for his twenty dollar bill, which she gave to him.
     Ms. Yurchick testified that, “After I gave him the change and he
     left I checked it.” Ms. Yurchick reported that she used the
     counterfeit bill marker on the bill, which turned black, revealing it
     to be fake.

           In reviewing both bills labeled Commonwealth Exhibit 1 and
     2, Ms. Yurchick clearly identified Exhibit 1 as being the twenty
     dollar bill she received from [A]ppellant and marked with the
     counterfeit pen on the day in question. After determining that she
     had received a fake twenty dollar bill, Ms. Yurchick testified that
     she showed it to her supervisor, Maria Miller, who in turn took it
     to the principal, Mr. Eric Kostic. In her ten years of employment
     with the district, Ms. Yurchick said this was the first time she had
     ever received a fake bill.

          All three cafeteria cashier witnesses positively identified
     [A]ppellant in the courtroom as the individual who received
     change, or attempted to get change, for a twenty dollar bill on
     October 29, 2018.

            Eric Kostic testified that he is employed as the principal of
     Penn Hills High School. Mr. Kostic stated he was working on
     October 29, 2018 when cafeteria supervisor, Maria Miller, brought
     to him two twenty dollar bills that were deemed to be fake using
     the counterfeit bill marker and [A]ppellant was identified as the
     individual who had passed these twenty dollar bills. Mr. Kostic
     reviewed Commonwealth Exhibit 1 and 2, and confirmed that both
     items of evidence were the twenty dollar bills he received that
     day. Mr. Kostic stated that he could see the twenty dollar bills
     were counterfeit based both on the counterfeit pen markings and
     because they had the word “replica” printed on two different
     locations on each bill.

            Mr. Kostic testified that he called police because it
     constituted a Level 4 Violation pursuant to the Penn Hills School
     District Code of Conduct, which requires police intervention. Mr.
     Kostic also called [A]ppellant down to his office, and showed him
     the fake twenty dollar bills. Mr. Kostic said that [A]ppellant
     reported he received the fake bills when [A]ppellant had sold some
     things the night before and didn’t specifically identify who gave
     him the fake bills. Mr. Kostic testified that he informed [A]ppellant


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     that he had a three day suspension and that the fake bills would
     be handed over to the police.

           Mr. Kostic indicated that [A]ppellant was searched and the
     only money [A]ppellant had on his person was nineteen dollars in
     change. Mr. Kostic reported that [A]ppellant was cooperative
     throughout the interaction and permitted the search, which
     occurred at approximately 12:15 p.m. or 12:20 p.m. on the day
     in question.

           Upon the conclusion of Mr. Kostic’s testimony, the
     Commonwealth rested and counsel for [A]ppellant called her client
     to testify. [A]ppellant testified that he received the counterfeit
     money the day before when he sold an iPhone 5 to an individual
     named “Joe Notel” (phonetic) that goes to Woodland Hills High
     School and who he knows as “D’Bo” (phonetic). Appellant said he
     took a picture of the iPhone and made a post offering it for sale.
     Appellant said that he subsequently sold the iPhone for forty
     dollars and that the transaction took place around 7:30 p.m. the
     night before. Appellant stated that he did not look carefully at the
     money that evening and that he took it with him when he went to
     school the next day. Appellant testified that the first reason why
     he wanted change was because “I was thirsty. I always get a
     drink. Another reason is because I needed bus money to get to
     the house, and it only - and she had gave me a ten, a five, and
     four ones.” After [A]ppellant’s exchange of the twenty dollar bill
     to get the drink, he explained his next thoughts and actions by
     stating, “I thought - oh, I need bus money to get to the house,
     because I take two buses. I took two buses to get to the house.
     I needed bus money to get to the house.”

            [A]ppellant was then questioned by his attorney to whether
     he then exchanged the other twenty dollar bill, the third twenty
     dollar bill in question, to Ms. Crosmun. Appellant testified, “No. I
     went to two people and the third - the third - I don’t know like - I
     didn’t even go to no third person. I went to two - I only had two
     fake - I didn’t know they were fake, first of all, but I had two fake
     twenty dollar bills. I didn’t have no more.”

           Appellant further testified that he “actually only had two
     twenty dollar bills and about ten dollars” and that after receiving
     the change from Ms. Wilkes, he went to eat and kept the
     remaining money in his pocket. When asked when did [A]ppellant
     learn that the bills were counterfeit, [A]ppellant testified it was

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     “when she marked it, and then I’m like - because I [saw] the way
     she was looking, then that’s when.” Appellant testified that this
     was the first time he actually realized the bill was counterfeit and
     that he saw the word “replica” on it when he looked at it carefully.
     Appellant contended he had not looked closely at the bills prior to
     that.

            On cross-examination by the Commonwealth, [A]ppellant
     testified that when he posted the iPhone for sale on Snapchat, the
     buyer came to his house around 7:30 p.m., and at the time of the
     transaction [A]ppellant had about two hundred dollars on his
     person, in denominations of ones, fives, tens and a couple of
     twenties. When asked how the forty dollar proceeds from the sale
     got mixed in with the other money in [A]ppellant’s possession,
     [A]ppellant said he threw it in his front pocket with the rest of his
     money. The following morning, [A]ppellant testified that he wore
     different pants, other than the ones from the night before with all
     of his money. Appellant testified that he didn’t know how he
     managed to grab the two fake twenties from his roll of two
     hundred dollars that were in the pants from the night before.
     Appellant reported when he went to school he had ten dollars, in
     small bills, and the two fake twenty dollar bills in his possession.

     Appellant reported that it costs him two dollars and seventy five
     cents to take the PAT bus to school and concurs he would have
     used “three dollars” that he had on him to pay for the bus fare.
     Appellant agreed that once at school that he would have been in
     possession of a five dollar bill, two ones, and two fake twenty
     dollar bills. During the first lunch period, [A]ppellant also agreed
     he went to try and make change with one of the twenty dollar
     bills. When [A]ppellant was asked why he didn’t ask to make
     change with the five dollar bill he had in his possession, so he
     could get change for the bus ride home, [A]ppellant had no clear
     explanation. Appellant agreed that again within the same lunch
     period that day, after getting nineteen dollars in change from the
     first twenty dollar bill he used, that he approached another
     cafeteria worker to make change. Appellant denied ever going to
     a third cafeteria worker to attempt to get change for another
     twenty dollar bill.

Juvenile Court Opinion, 3/13/19, at 3-12 (unpaginated) (citations to notes of

testimony and footnote omitted).



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      After hearing the evidence and arguments from counsel, the juvenile

court entered the December 4, 2018 order adjudicating Appellant delinquent

and placing him on probation, with the directives that he complete a drug and

alcohol evaluation, perform 50 hours of community service, and attend both

the Victim Awareness program and high school.        On December 14, 2018,

Appellant filed a motion to reconsider disposition, which the juvenile court

denied on December 18, 2018. Appellant filed this timely appeal on January

17, 2019. Both Appellant and the trial court have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      On appeal, Appellant argues that the evidence was insufficient to

support his theft by deception and forgery adjudications because “the

Commonwealth failed to prove, beyond a reasonable doubt, that [Appellant]

knew that the twenty-dollar bills were not genuine, and despite this

knowledge, intentionally passed them to defraud the cafeteria.” Appellant’s

Brief at 11. Appellant asserts it was “pure speculation and conjecture” for the

court to “assume” that Appellant knew the bills were counterfeit and

intentionally passed them with the intent to defraud. Id

      In reviewing Appellant’s sufficiency argument, we recognize that in

juvenile proceedings, “the hearing judge sits as the finder of fact,” and “[t]he

weight to be assigned the testimony of the witnesses is within the exclusive

province of the fact finder.” In re L.A., 853 A.2d 388, 391 (Pa. Super. 2004).

Further,




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      [w]hen considering a challenge to the sufficiency of the evidence
      following an adjudication of delinquency, we must review the
      entire record and view the evidence in the light most favorable to
      the Commonwealth. In determining whether the Commonwealth
      presented sufficient evidence to meet its burden of proof, the test
      to be applied is whether, viewing the evidence in the light most
      favorable to the Commonwealth and drawing all reasonable
      inferences therefrom, there is sufficient evidence to find every
      element of the crime charged. The Commonwealth may sustain
      its burden of proving every element of the crime beyond a
      reasonable doubt by wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not be absolutely incompatible with a [juvenile]’s innocence.
      Questions of doubt are for the hearing judge, unless the evidence
      is so weak that, as a matter of law, no probability of fact can be
      drawn from the combined circumstances established by the
      Commonwealth.

In the Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016) (citations

omitted).

      Appellant was adjudicated of the theft by deception, statutorily defined

as follows:

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

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

18 Pa.C.S.A. § 3922.

      Appellant was also adjudicated of forgery:

      a) Offense defined.--A person is guilty of forgery if, with intent
      to defraud or injure anyone, or with knowledge that he is


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      facilitating a fraud or injury to be perpetrated by anyone, the
      actor:
      ...
      (2) 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.

      Appellant correctly states that the Commonwealth “was required to

prove [Appellant] knew that the twenty-dollar bills were fraudulent and

intentionally passed them [with] this knowledge in order to defraud the

cafeteria.” Appellant’s Brief at 21 (emphasis in original). However, Appellant

argues that “it cannot be said that the Commonwealth proved the mens rea

elements of Forgery and Theft by Deception beyond a reasonable doubt”

because all of the witnesses, including Appellant, “agreed that the bills were

not readily apparent as counterfeit,” and “the uncontested testimony” was

that Appellant’s actions “on the day in question were ordinary and routine,”

and he did not “make any admissions or incriminating statements indicating

he knew the bills were not genuine.” Id. While there is truth to some of

Appellant’s assertions, we disagree with his legal argument.

      Any conflicts or contradictions in testimony are for the juvenile court to

resolve. See, e.g., In re J.M., 89 A.3d 688, 692 (Pa. Super. 2014). Here,

the juvenile court explained that it found the testimony of the three cafeteria

workers to be credible, and to the extent their testimony was contrary to that

of Appellant, the court found Appellant not credible. The court explained:

      I found the all of the testimony by the cafeteria workers to be the
      most honest and most compelling. There was no doubt in my

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     mind that all three of the witnesses had interactions with the
     [A]ppellant within a small window of time on the same day where
     [A]ppellant knowingly uttered counterfeit twenty dollar bills in
     order to obtain legal tender as change. In addition, I had no
     reason to disbelieve the testimony of Ms. Crosmun, who after
     using the counterfeit bill marker and determining it to be fake,
     returned the replica bill to [A]ppellant and told him it was a fake.
     To the contrary, her testimony was quite credible because it was
     admission against what else she could have done, which would be
     to turn the counterfeit bill over to her supervisor like the other two
     cashiers did. It is because I fully believed the testimony of the
     cashiers that I then moved to consider the testimony of
     [A]ppellant. I found [A]ppellant’s totality of his testimony to be
     full of holes, hard to follow, and not at all credible.

            In support of the adjudications, the actual testimony,
     evidence, and circumstantial evidence proved the following
     beyond a reasonable doubt: On October 29, 2018, [A]ppellant
     came to Penn Hills High School with at least two and possibly three
     counterfeit twenty dollar bills. I observed that these twenty dollar
     bills were very passable bills, which of course is the purpose of
     counterfeit money, and that in a fast cash transaction they would
     easily appear legitimate. It is this court’s opinion that [A]ppellant
     knew the bills were counterfeit and used them in an attempt to
     get legal tender. In believing the credible testimony of the
     cashiers, I also believe that at one point during the lunch period
     Ms. Crosmun did determine the twenty dollar bill was fraudulent
     using the counterfeit marker and told [A]ppellant as such, handing
     the bill back to [A]ppellant. While that bill never turned up as
     evidence later, it is because I believe that [A]ppellant knew it was
     no longer safe to use.

            In fact, what [A]ppellant testified to and would want this
     court to believe is that Ms. Crosmun’s entire testimony was
     untrue. Appellant testified that he did not realize the twenty dollar
     bill was counterfeit until after he left the transaction with Ms.
     Yurchick, where he testified, “I gave her the twenty, and then she
     marked it right — she marked it right after, right after. She
     marked it right after. I [saw] her face, like she — like that’s when
     I’m like what are you — she’s like, it’s fake. I’m like what do you
     mean it’s fake? She said it’s fake.” T.T. at 72.

          However, this totally contradicts the credible testimony of
     Ms. Yurchick that she marked the bill and determined it to be

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     counterfeit after she made change for [A]ppellant and he had left.
     Ms. Yurchick testified that she never spoke to [A]ppellant, who
     had left with his change, to tell him it was fake. In fact, the
     testimony was that Ms. Yurchick immediately provided the bill to
     her supervisor. And again, even if I were to believe part of what
     [A]ppellant testified was true — that he in fact was watching her
     from afar when she tested it and he could tell from looking at her
     that she determined it was fake — at no point did [A]ppellant then
     return to Ms. Yurchick with the legal tender she had given him to
     remedy the situation, if he had not known prior it was fake.

           Quite frankly, it is my opinion that the reason [A]ppellant
     didn’t take any steps to remedy the situation is because the
     evidence supported that there was no question that [A]ppellant
     uttered a counterfeit twenty dollar bill, whereby he also created a
     false impression that the cashier detrimentally relied upon, in
     order to obtain actual money. [A]ppellant chose to testify in his
     own defense and it was in large part his entire testimony that
     further solidified the actual and circumstantial evidence before the
     court. My observation of [A]ppellant’s testimony was that he was
     unable and unconvincing in even answering simple questions
     about how he brought two fake twenty dollar bills to school and
     why he was asking for change for more than one twenty dollar
     bill.

            And as I referenced earlier, in order to have deemed any of
     [A]ppellant’s testimony credible I would have to find the testimony
     of two of the three cafeteria workers to be completely untrue and
     I would have to reconcile [A]ppellant’s own testimony, that he
     realized he had passed a fake twenty and obtained legal money in
     change but that he kept that change and did nothing to correct
     the situation. If nothing else, that alone served as evidence that
     he was without a doubt guilty of at least one count of Forgery and
     one count of Theft by Deception; however, the totality of the
     evidence before me on this date supports adjudication on two
     counts of each charge.

Juvenile Court Opinion, 4/5/19, at 14-17 (unpaginated).

     Upon review, the record supports the juvenile court’s “reasonable

inference” from the evidence, a large part of which was circumstantial. In

the Interest of J.G., 145 A.3d at 1188. Appellant testified that he did not


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know that the bills were counterfeit, and accordingly, denied having an intent

to defraud the school. N.T., 12/4/18, 62-63, 76. However, he approached

three separate cafeteria cashiers during the lunch period on October 29, 2018

seeking change, i.e., real currency. In closing, the Commonwealth argued

that the totality of Appellant’s testimony “doesn’t make sense,” stating:

      [T]here’s legitimately no reason, [Appellant] offers no reason
      when he testifies as to why he would have attempted to pass those
      other two bills but for the Commonwealth’s theory is, of course,
      he knew they were counterfeit.

             That’s why he passed them in a setting where it was unlikely
      to be detected by virtue of the chaos of the cafeteria periods with
      the number of students who are trying to purchase items and but
      for Ms. Crosmun immediately being aware that this, in fact, was a
      counterfeit 20 dollar bill, we might never have found out who
      actually passed those bills, because if she would have given him
      change, no one would have known that these bills were
      counterfeit, but [Appellant] would have approached three
      different cafeteria workers in one period to pass three different 20
      dollar bills when he had enough change on his person to complete
      what he says was the reason that he passed the bills in the first
      place.

Id. at 82.

      Consistent with the foregoing, including our review of the record and

the arguments advanced by the Commonwealth, we find no merit to

Appellant’s sufficiency challenge.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




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