J-A25039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA J. MARTI,                           :
                                               :
                       Appellant               :       No. 123 MDA 2019

      Appeal from the Judgment of Sentence Entered December 20, 2018
               in the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003884-2018

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 13, 2020

        Joshua J. Marti (“Marti”) appeals from the judgment of sentence entered

following his conviction of forgery.1 We affirm.

        On May 8, 2018, Marti and a man known only as “Mark”2 ordered food

at a Burger King drive-through in Lancaster, Pennsylvania. Marti was seated

in the front passenger seat and Mark was driving. Mark and Marti ordered

between $15 and $20 worth of food, then pulled the vehicle up to the drive-

through window. Tristan Johnson (“Johnson”), who was working the drive-

through window that night, greeted Mark and Marti at the window. Johnson

witnessed Marti pull a purported $20 bill (“the counterfeit bill”) from his wallet,

and hand it to Mark, who then handed it to Johnson.

____________________________________________


1   18 Pa.C.S.A. § 4101(a)(3).

2 Marti testified that he did not know Mark’s last name and that he was unable
to contact Mark after May 8, 2018.
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      After Johnson received the counterfeit bill from Mark, Johnson instantly

recognized the bill as counterfeit. He testified at trial that it “didn’t look

anything like I’ve ever seen. It wasn’t a regular $20 bill. It felt chunky.”

Johnson told Marti that the counterfeit bill was not real. Marti told Johnson

that it was real, and asked to speak to a manager.

      Molly Otero (“Otero”) was working as an assistant manager of the

Burger King that night. Otero appeared in the drive-through window, glanced

at Mark and Marti, and inspected the counterfeit bill. When Otero appeared

in the drive-through window, Marti pulled his sweatshirt hood over his head,

and turned his face away from the drive-through window.             Otero had

recognized Marti as a former employee, and told Marti that the bill was fake.

Marti passed Mark a different $20 bill, who handed it to Johnson. Johnson

accepted the new bill as genuine U.S. currency, and handed Mark the food

they had ordered.    Marti asked for the counterfeit bill back, but Johnson

refused, and kept the counterfeit bill. Mark and Marti then drove away.

      Marti was later arrested and charged with forgery. Neither the police,

nor Marti, were able to locate Mark. Following a non-jury trial, Marti was found

guilty of forgery. The trial court sentenced Marti to two years of probation.

Marti filed post-sentence Motions challenging the weight and sufficiency of the

evidence, which the trial court denied. Marti filed a timely Notice of Appeal

and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      On appeal, Marti raises the following questions for our review:

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      1. Was the verdict for forgery for possession of and passing a
      counterfeit $20[] bill in violation of 18 Pa.C.S.A. [§] 4101(a)(3),
      a felony of the second degree, not supported by sufficient
      evidence? Was the verdict based on speculative and conflicting
      testimony[,] and was there no evidence that [] Marti was aware
      [that] the [counterfeit] bill was [counterfeit]?

      2. Was the verdict for forgery for possession of and passing a
      counterfeit $20[] bill in violation of 18 Pa.C.S.A. [§] 4101(a)(3),
      a felony of the second degree, against the weight of the evidence?
      Was the verdict based on speculative and conflicting testimony,
      and was there no evidence that [] Marti was aware the
      [counterfeit] bill was counterfeit? Should this verdict shock the
      conscience of the Court?

Brief for Appellant at 5.

      In his first claim, Marti argues that the Commonwealth failed to present

sufficient evidence to establish that (1) Marti knew the counterfeit bill was

counterfeit, and (2) Marti, and not Mark, attempted to pay with the counterfeit

bill. See id. 35-44. Marti argues that the counterfeit bill was not obviously a

counterfeit, and that there was conflicting testimony regarding who attempted

to pay with the counterfeit bill. Id. at 37-44.

      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

             [W]hether[,] viewing all the evidence admitted at trial in the
      light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder[,] unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element

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      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the finder of fact[,] while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, or part or none of the
      evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted). “We may look to the totality of the defendant’s conduct to infer

fraudulent intent.   Circumstantial evidence is sufficient to establish the

defendant’s knowledge that the document is a forgery.” Commonwealth v.

Green, 203 A.3d 250, 253 (Pa. Super. 2019).

      Here, Johnson testified that he observed Marti take the counterfeit bill

out of his wallet, and hand it to Mark, who then handed it to Johnson. See

N.T., 12/20/18, at 12-15, 26-27. Johnson, who was not admitted as an expert

in counterfeit currency, stated that the counterfeit bill “didn’t look anything

like [he had] ever seen. It wasn’t a regular $20 bill. It felt chunky.” Id. at

13. When asked again what the bill felt like, Johnson said it felt “chunky; like

really pressed-on-hard crayon.” Id. at 15. Johnson stated that he told Marti

that the counterfeit bill was not real, but Marti maintained that it was real.

Id. at 17-18, 21-22, 35. Marti instructed Johnson to get his manager, Otero,

who also believed the counterfeit bill was fake. Id.; see also id. at 36, 43.

Otero testified that she recognized Marti as a former employee, and that when

Marti saw her, he attempted to hide his face under his hood. Id. at 44-47,

53; see also id. at 18-19 (wherein Johnson states that Marti put his hood up



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and turned away from the drive-through window upon seeing Otero). After

paying with a real $20 bill, Marti attempted to retrieve the counterfeit bill from

Johnson. Id. at 21-22, 46-47.

      Viewing the evidence in a light most favorable to the Commonwealth,

this evidence was sufficient to establish that Marti knew the counterfeit bill

was counterfeit, and that Marti, and not Mark, attempted to pay with the

counterfeit bill. See Melvin, supra; Green, supra. Accordingly, Marti’s first

claim fails.

      In his second claim, Marti alleges that the verdict was against the weight

of the evidence. See Brief for Appellant at 44-48. Marti makes the same

argument as in his first claim, alleging that the evidence was conflicting as to

whether Marti knew the bill was counterfeit, and whether Marti, and not Mark,

attempted to pay with the counterfeit bill. Id. In particular, Marti argues that

the trial testimony of the Commonwealth’s witnesses was inconsistent with

their statements to police.

              The law pertaining to weight of the evidence claims is well-
      settled. The weight of the evidence is a matter exclusively for the
      finder of fact, who is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses. A new
      trial is not warranted because of a mere conflict in the testimony
      and must have a stronger foundation than a reassessment of the
      credibility of witnesses. Rather, the role of the trial judge is to
      determine that notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them equal
      weight with all the facts is to deny justice.

            On appeal, our purview is extremely limited and is confined
      to whether the trial court abused its discretion in finding that the
      jury verdict did not shock its conscience. Thus, appellate review

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      of a weight claim consists of a review of the trial court’s exercise
      of discretion, not a review of the underlying question of whether
      the verdict is against the weight of the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(quotation marks and citations omitted).

      Here, the trial court, sitting as fact-finder, was free to assess the

credibility of the Commonwealth’s witnesses in rendering the verdict.        See

Gonzalez, supra. Based on the record, the trial court’s decision is supported

by the evidence, and does not shock one’s sense of justice.                  See

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (stating that

“[w]hen the challenge to the weight of the evidence is predicated on the

credibility of trial testimony, our review of the trial court’s decision is

extremely limited.   Generally, unless the evidence is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, these

types of claims are not cognizable on appellate review.”). Thus, the trial court

did not abuse its discretion in denying Marti’s weight of the evidence claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2020




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