J-A12002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                              Appellee

                        v.

AMY LEE PALMER

                              Appellant                    No. 1039 WDA 2016


            Appeal from the Judgment of Sentence January 29, 2016
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0000311-2014

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.:                             FILED NOVEMBER 07, 2017

        Appellant, Amy Lee Palmer, appeals the judgment of sentence

imposed after she was convicted of insurance fraud, attempting theft by

deception, and forgery.1 We affirm.

        This matter relates to dental services Appellant obtained from

Dr. Thomas      Gretz    of    Dental     Surgeons   and   Associates   in   Scottdale,

Pennsylvania, on March 8, 2012.                Dr. Gretz required assurance that

Appellant’s insurer would pay for a dental procedure before he performed

that work.     Therefore, Appellant told Dr. Gretz that she had the required

authorization for the procedure from her insurance company and showed

him what she represented to be an insurance authorization letter from

Agency Insurance Company (AIC) of Maryland. The letter was fabricated; it

included Appellant’s ex-husband’s phone number and purportedly was
____________________________________________
1
    18 Pa.C.S. §§ 4117(a)(2), 901(a), and 4101(a)(3), respectively.
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signed by someone named “Nakita Jones,” who did not actually work at AIC.

See Commonwealth’s Exhibit-1; N.T. at 15-17; Trial Ct. Op. at 6. Appellant

was not an AIC insured. N.T. at 55; Trial Ct. Op. at 4-5.

         After completing the dental procedure, Dental Surgeons billed AIC

$2,896, and sent the “Nakita Jones” letter to it as part of the claims

package.      N.T. at 55; Trial Ct. Op. at 4-5.             AIC then informed Dental

Surgeons that Appellant was not insured by AIC.                Thereafter, Appellant’s

mother paid Dental Surgeons for Appellant’s dental work. The mother later

was reimbursed by her insurance provider, Highmark, Inc., which paid

$1,986.02 for the procedure. N.T. at 55, 60-61; Trial Ct. Op. at 4.2

         Appellant was convicted following a non-jury trial on November 2,

2015. On January 29, 2016, she was sentenced for criminal attempt to five

years’     Intermediate    Punishment,         with   six   months   Home   Electronic

Monitoring.      On the claims of insurance fraud and forgery, she was

sentenced to five years’ probation for each count, with each sentence to run

concurrently to her sentence for criminal attempt.              On February 5, 2016,

Appellant timely filed Post-Sentence Motions that were denied on June 23,

2016. On July 18, 2016, Appellant filed a timely notice of appeal.

         In her appeal, Appellant raises the following issues, as stated in her

brief:
____________________________________________
2
  It appears from the record that Appellant engaged in the fraud because
there were delays in Highmark’s processing of Appellant’s precertification
request and there was some possibility Highmark would deny it. Appellant
did not want to wait for Hallmark to finish its processing of the claim
because she had scheduled an upcoming wedding ceremony. N.T. at 8, 40.

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      1.     Whether the [trial court] erred in sustaining the Appellant’s
      conviction for Insurance Fraud as the Appellant’s acts did not
      satisfy the elements of Insurance Fraud under 18 Pa.C.S.A.
      § 4117(a)(2).

      2.    Whether the [trial court] erred in sustaining the Appellant’s
      conviction for Criminal Attempt - Theft by Deception by False
      Impression when the Appellant never obtained property from
      Dental Surgeons . . . and fully compensated them for their
      services.

      3.    Whether the [trial court] erred in maintaining that the
      grading of the Criminal Attempt - Theft by Deception was a Third
      Degree Felony, rather than a First Degree Misdemeanor, based
      on the valuation of the dental services provided.

      4.    Whether [t]he [trial court] erred in finding the Appellant’s
      conviction for Forgery was based on sufficient evidence.

Appellant’s Brief at 2.

                              Insurance Fraud

      First, Appellant insists that the trial court “erred in sustaining [her]

conviction for Insurance Fraud as the Appellant’s acts did not satisfy the

elements of Insurance Fraud under 18 Pa.C.S.A. § 4117(a)(2).” Appellant’s

Brief at 4.

      Our standard of review for a sufficiency of the evidence
      challenge is well established:

         A claim challenging the sufficiency of the evidence
         presents a question of law. We must determine whether
         the evidence is sufficient to prove every element of the
         crime beyond a reasonable doubt. We must view evidence
         in the light most favorable to the Commonwealth as the
         verdict winner, and accept as true all evidence and all
         reasonable inferences therefrom upon which, if believed,
         the fact finder properly could have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)

(citation omitted).
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      In applying the above test, we may not weigh the evidence and
      substitute our judgment for the fact-finder. In addition, we note
      that the facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      Any doubts regarding a defendant’s guilt may be resolved by the
      fact-finder unless the evidence is so weak and inconclusive that
      as a matter of law no probability of fact may be drawn from the
      combined circumstances. The Commonwealth may sustain its
      burden of proving every element of the crime beyond a
      reasonable doubt by means of wholly circumstantial evidence.
      Moreover, in applying the above test, the entire record must be
      evaluated and all evidence actually received must be considered.
      Finally, the finder of fact while passing upon the credibility of
      witnesses and the weight of the evidence produced, is free to
      believe all, part or none of the evidence.

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

      Section 4117(a)(2) defines the offense of insurance fraud as follows:

      (a) Offense defined.—A person commits an offense if the
      person does any of the following: . . .

         (2) Knowingly and with the intent to defraud any insurer or
         self-insured, presents or causes to be presented to any
         insurer or self-insured any statement forming a part of, or in
         support of, a claim that contains any false, incomplete or
         misleading information concerning any fact or thing material
         to the claim.

18 Pa.C.S. § 4117(a)(2) (emphasis added).

      Appellant concedes that the Commonwealth established that when she

fabricated a letter from AIC and presented it to Dr. Getz, she provided false

or misleading information.    She insists, however, that she did not commit

insurance fraud because she did not present that letter to an insurer.

Rather, she presented the letter to Dental Surgeons, which then presented

the letter to AIC as part of its claim for payment. Appellant’s Brief at 5.




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      After a thorough review of the record, the briefs of the parties, and the

applicable law, we agree with the well-reasoned opinion of the Honorable

Christopher A. Feliciani on this issue:

      In the present case, the Criminal Information alleges that on or
      about March 8, 2012 and dates thereafter, [Appellant], with the
      intent to defraud AIC, presented paperwork to Dental Surgeons
      . . . indicating that [Appellant]’s dental procedure would be
      covered under her policy, when in fact, she did not have dental
      insurance      with  AIC.      [Appellant]  alleges      that the
      Commonwealth’s evidence did not support the charge of
      insurance fraud because the Commonwealth did not prove
      beyond a reasonable doubt that she submitted a statement or
      any type of claim for insurance coverage to AIC. Additionally,
      [Appellant] avers that she did not have an insurance policy with
      AIC nor does AIC provide the type of coverage that would have
      been applicable to this case.           To the contrary, the
      Commonwealth argues that it met its burden through
      circumstantial evidence presented at the non jury trial.

      Upon a review of the evidence and relevant statute in this case,
      this [c]ourt finds that the Commonwealth has established the
      elements of insurance fraud beyond a reasonable doubt. The
      circumstantial evidence presented during the non jury trial is
      clear on its face. The [trial c]ourt finds that although [Appellant]
      did not directly submit a claim to AIC, she indicated to [Dental
      Surgeons] that the dental procedure was authorized by her
      insurance provider. Likewise, minutes after [Appellant] told
      [Dental Surgeons] that the procedure was covered by her
      Insurance Company; a nurse at the hospital was holding a letter
      from AIC confirming coverage of the procedure. [Appellant]
      cannot extricate certain relevant facts to support her theory that
      she did not intend to defraud AIC. Reviewing the evidence as a
      whole indicates to th[e trial c]ourt that [Appellant] intended to
      defraud AIC by submitting or causing to submit a fraudulent
      letter from AIC to [Dental Surgeons], which induced [Dental
      Surgeons] to perform the dental procedure. Therefore, the
      motion to dismiss [the charge of insurance fraud was properly]
      denied.

Trial Ct. Op. at 2-3.




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      Although Appellant correctly points out that she did not present any

false statement directly to an insurer, she overlooks the statutory language

providing that it is unlawful if she “presents or causes to be presented to

any insurer” a statement that is part of a false insurance claim.    See 18

Pa.C.S. § 4117(a)(2).     Appellant’s reliance on the plurality opinion in

Commonwealth v. Goodson, 33 A.3d 611 (Pa. 2011), for a contrary result

is misplaced. The defendant in Goodson forged a check from “State Farm”

to himself and presented the check to his bank, where it was deposited into

a new account in the defendant’s name that was then used by him as a

source of funds. In holding that this misconduct (which constituted both

forgery and theft) did not constitute insurance fraud, the plurality opinion

explained, “Just because the bogus check shows an insurance company’s

name doesn’t make the crime insurance fraud.”            Id. at 613-14.   The

plurality noted that no insurance claim was made with the forged check, and

that the check was not a “statement” of false insurance information. Id. It

added that “Goodson gave nothing to an insurer,” id. at 613, and Appellant

relies on that phrase. But the Court’s point was not that there can be no

insurance fraud without direct presentation of a statement to an insurer; it

was that a review of all of the defendant’s conduct did not show that it

amounted to insurance fraud. The Court gave no indication that the phrase

“causes to be presented” could not support a conviction when, as here, a

defendant’s conduct sets in motion a process by which the defendant’s false

statement is presented to an insurer by a third party.

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      As we agree with the trial court that the record establishes that

Appellant presented the forged letter to Dental Surgeons with knowledge

that it would be presented to AIC, this issue merits no relief.

                  Criminal Attempt — Theft by Deception

      Appellant argues that the       trial court “erred in sustaining the

Appellant’s conviction for Criminal Attempt – Theft by Deception by False

Impression when the Appellant never obtained property from Dental

Surgeons . . . and fully compensated them for their services.” Appellant’s

Brief at 6.

      The criminal attempt statute states:     “A person commits an attempt

when, with intent to commit a specific crime, he does any act which

constitutes a substantial step toward the commission of that crime.”          18

Pa.C.S. § 901(a).   The crime of theft by deception is set forth in Section

3922(a) of the Crimes Code, the relevant portion of which provides:

      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. § 3922(a)(1).

                               Theft of Property

      Appellant   maintains   that   she   cannot   be   guilty   under   Section

3922(a)(1) unless she “obtain[ed] or [withheld] property of another” and

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that “the Commonwealth produced no evidence that the Appellant obtained

any property from Dental Surgeons.”       Appellant’s Brief at 3, 7.   Appellant

points out that the Commonwealth claimed she “obtained dental services,

not property,” because she “induced [Dental Surgeons] into performing a

dental procedure.” Id. at 3-4, 7 (emphasis added). Therefore, Appellant

reasons, “no theft occurred” under Section 3922(a)(1).          Id. at 8.   The

Commonwealth responds that “dental services are a thing of value that fit

within the definition of property contained in Chapter 39 of the Pennsylvania

Crimes Code.” Commonwealth’s Brief at 5. It continues:

      The basis of this charge, however, was [Appellant]’s attempted
      theft of money from AIC rather than of services from [Dental
      Surgeons], which would clearly constitute property.

      Even if the dental services were what was at issue here,
      [Appellant]’s argument with respect to the classification of dental
      services is flatly contradicted by 18 Pa.C.S.A. § 3901, which
      defines property for the purposes of Chapter 39 of the Crimes
      Code as “anything of value[”] . . . The Commonwealth submits
      that dental services would clearly be classified as something of
      value and thus constitute property within the meaning of the
      Theft statute.

Id. at 9. The trial court did not specifically address this issue.

      We conclude that Appellant is not entitled to relief on this argument.

The Crimes Code defines “property” as: “Anything of value, including real

estate, tangible and intangible personal property, contract rights, choses-in-

action and other interests in or claims to wealth, admission or transportation

tickets, captured or domestic animals, food and drink, electric or other

power.” 18 Pa.C.S. § 3901. Appellant’s attempt to defraud AIC into paying


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for her dental procedure meets this definition because it was an attempt to

defraud AIC of money.

        Even if we characterize Appellant’s misconduct as an effort to obtain

dental services, such services still fall within Section 3901’s definition of

“property” as “Anything of value.” Dental services certainly have value, as

evidenced by the fact that Dental Surgeons charged nearly $3,000 for

Appellant’s dental procedure here. After defining “property” as “[a]nything

of value,” Section 3901 lists some types of property encompassed within

that general definition, and precedes that list by the word “including,” but

this list does not in any way narrow the definition of “property” as “anything

of value.” To the contrary, we have held that the word preceding the list —

“including” — is a word of “enlargement and not limitation.” Braun v. Wal-

Mart Stores, Inc., 24 A.3d 875, 963 (Pa. Super. 2011) (per curiam), aff’d,

106 A.3d 656 (Pa. 2014) (per curiam), cert. denied, 136 S. Ct. 1512

(2016).3 Because Appellant tried to steal services from Dental Surgeons and


____________________________________________
3
    In Braun, this Court explained:

        A term whose statutory definition declares what it “includes” is
        more susceptible to extension of meaning by construction than
        where the definition declares what a term “means.” It has been
        said “the word ‘includes’ is usually a term of enlargement, and
        not of limitation.... It, therefore, conveys the conclusion that
        there are other items includable, though not specifically
        enumerated....”

Braun, 24 A.3d at 963-64 (quoting 2A Norman J. Singer & J.D. Shambie
Singer, Sutherland Statutes & Statutory Construction § 47:7 (7th ed. 2007)
(footnote omitted)).

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because such services are “property” under Section 3922(a), Appellant is not

entitled to relief.4

                                       Repayment

       Appellant also contends that there was no theft because “Dental

Surgeons . . . were fully compensated for their services as the Appellant’s

mother paid for the services and was ultimately reimbursed by her insurer,

Highmark, Inc.” Appellant’s Brief at 7. The Commonwealth counters:

       [Appellant]’s criminal attempt was complete at the time she
       furnished [Dental Surgeons] with fraudulent indicia of insurance
       coverage in order to obtain treatment and is by no means
       negated by the subsequent payment. See Commonwealth v.
       Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004) (Defendant’s
       theft by deception from insurance company involved amount
       over $2,000 and, thus, was third-degree felony rather than first-
       degree misdemeanor, even though finance company that
       secured car loan ultimately returned all but $272 of amount paid
       by insurer to release car, and amount of insurance deductible
       lost by insurer was $500; offense was completed at moment
       when insurer paid false insurance claim of over $7,000 to finance
       company on behalf of defendant.) Even assuming arguendo that
       the belated payment for services rendered would somehow
       preclude a Theft conviction, there is no reason to believe that
       this would preclude a conviction for Criminal Attempt under the
       facts and circumstances of this case.

Commonwealth’s Brief at 9-10.


____________________________________________
4
  We recognize that, on these facts, there is overlap between theft by
deception under Section 3922(a) and theft of services under Section 3926 of
the Crimes Code, 18 Pa. C.S. § 3926(a)(1), which provides, “A person is
guilty of theft if he intentionally obtains services for himself or for another
which he knows are available only for compensation, by deception or
threat.” Appellant does not argue that this overlap somehow precludes her
conviction under Section 3922(a).          The Crimes Code provides that
“[c]onduct denominated theft in this chapter constitutes a single offense.”
18 Pa. C.S. § 3902.

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      The trial court found that Appellant’s argument lacked merit.         The

court opined: “At the time of the procedure, there was no indication from

Dr. Gretz’s office that Highmark would cover [Appellant’s] procedure

because there was no pre-certification.” Trial Ct. Op. at 4.

      Our cases make clear that the defendant’s intent at the time of the

theft or attempted theft is controlling. See Commonwealth v. Bruce, 607

A.2d 294, 297 (Pa. Super. 1992) (“to be guilty of theft by deception, it was

essential that appellant obtained the” property “intending not to pay . . . for

it . . . at the time of the transaction”). “[A]n intent to repay . . . or return

the property does not necessarily ameliorate [a] defendant’s guilt.”

Commonwealth v. Grife, 664 A.2d 116, 120 (Pa. Super. 1995), appeal

denied, 676 A.2d 1196 (Pa. 1996).       Cf. Commonwealth v. Wilkes, 676

A.2d 266, 269 (Pa. Super. 1996) (en banc) (declining to infer intent from

subsequent refusal to pay).

      Here, the record supports the trial court’s determination that Appellant

intended to steal dental services from Dental Surgeons and payment from

AIC at the time she delivered the fabricated letter to Dental Surgeons. That

intent was sufficient for conviction. The fact that Dental Surgeons was later

paid by Appellant’s mother does not negate Appellant’s intent at the time

she presented the letter. We therefore hold that no relief is due.

                                   Grading

      Appellant challenges the trial court’s grading of her offense of

attempted theft by deception.     Specifically, she contends that the offense

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should have been graded as a first-degree misdemeanor under Section

3903(b) of the Crimes Code, 18 Pa. C.S. § 3903(b), rather than as a third-

degree felony under Section 3903(a.1), id. § 3903(a.1). Appellant’s Brief at

8. We have held:

        The proper grading of a criminal offense is an issue of statutory
        interpretation and implicates the legality of the sentence
        imposed.     For this reason, it may not be waived.          The
        interpretation of a statute is a pure question of law, and
        therefore our standard of review is de novo and our scope of
        review is plenary.

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super. 2013) (citations

omitted), appeal denied, 85 A.3d 482 (Pa. 2014).

        Under the relevant provisions of Section 3903, theft is graded as

follows:

        (a.1) Felony of the third degree.—Except as provided in
        subsection (a) or (a.2),[5] theft constitutes a felony of the third
        degree if the amount involved exceeds $2,000, or if the property
        stolen is an automobile, airplane, motorcycle, motorboat or
        other motor-propelled vehicle, or in the case of theft by
        receiving stolen property, if the receiver is in the business of
        buying or selling stolen property. . . .

        (b) Other grades.—Theft not within subsection (a), (a.1) or
        (a.2), constitutes a misdemeanor of the first degree . . . .

        (c) Valuation.—The amount involved in a theft shall be
        ascertained as follows:

           (1) Except as otherwise specified in this section, value means
           the market value of the property at the time and place of the
           crime, or if such cannot be satisfactorily ascertained, the cost
           of replacement of the property within a reasonable time after
           the crime.

____________________________________________
5
    Section 3903(a) and (a.2) are not applicable here.

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        Appellant argues: “As Highmark, Inc. determined that the fair market

value of [Dental Surgeons’] services totaled $1,986.02 – less than the

$2,000.00 proscribed by § 3903(a.1) – the offense should be graded as a

First Degree Misdemeanor. See 18 Pa.C.S.A. § 3903(b).” Appellant’s Brief

at 8.    The Commonwealth replies:      “At the time [Appellant] fraudulently

induced [Dental Surgeons] to perform dental work upon her, the agreed-

upon price for those services was $2,896.00. The fact that Highmark came

in after the fact and determined that it would only pay $1,986.02 is

completely irrelevant.”     Commonwealth’s Brief at 11.       The trial court

“agree[d] with the Commonwealth’s position and [found] that Highmark’s

reimbursement rate to [Appellant] for a lesser amount [was] immaterial to

her intent.” Trial Ct. Op. at 5.

        The Crime Code requires that we value the “amount involved” as “the

market value of the property at the time and place of the crime.” 18 Pa.C.S.

§ 3903(c)(1).     In Commonwealth v. Sanchez, 848 A.2d 977, 982 (Pa.

Super. 2004), an insurance company originally paid a claim for $7,730.90.

After the insurance company realized that the insured had committed theft

by deception, it was able to recoup all but $272. Id. at 982, 986.   The trial

court graded appellant’s theft as a third-degree felony, but the defendant

urged that it should have been graded as a first-degree misdemeanor, as the

insurance company ultimately lost less than $2,000. Id. at 986. This Court

agreed with the trial court, holding:

        The crime was completed at the moment [the insurance
        company] paid the false insurance claim. The fact that . . . the
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      recipient of the funds resulting from the false claim[] ultimately
      returned the money to [the insurance company] is of no
      moment.       The amount ultimately lost by [the insurance
      company] was not the amount taken at the time and place of the
      crime.

Id.

      Analogously, here, the amount ultimately paid by Highmark to

Appellant’s mother for Appellant’s dental procedure, $1,986.02, was not the

amount that Appellant attempted to take at the time and place of the crime,

i.e., $2,896. See Sanchez, 848 A.2d at 986; see also N.T. at 55, 60-61;

Trial Ct. Op. at 4-5. Thus, we conclude that the trial court properly graded

the attempted theft offense as a third-degree felony.     See Sanchez, 848

A.2d at 986; Trial Ct. Op. at 5.

                                   Forgery

      Finally, Appellant maintains that the trial court “erred in finding [her]

conviction for Forgery was based on sufficient evidence,” because her

“Forgery conviction was based almost entirely on hearsay and circumstantial

evidence.” Appellant’s Brief at 9. More specifically, she asserts: “At trial,

the Commonwealth contended that the Appellant faxed a forged letter to

Dental Surgeons and Associates claiming that her procedure would be

covered by AIC.      The Commonwealth, however, failed to produce any

evidence placing the forged letter in the hands of the Appellant.” Id.

      Appellant was convicted under Section 4101(a)(3) of the Crimes Code,

18 Pa.C.S. § 4101(a)(3):




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      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. § 4101(a)(3) (emphasis added).

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

      During the non jury trial, the Commonwealth presented evidence
      that [Appellant] informed [Dental Surgeons] that she had
      authorization for the dental procedure and minutes later a nurse
      at the hospital had the letter from AIC which indicated that the
      procedure was covered. Additionally, [Appellant]’s ex-husband’s
      phone number was included in the forged letter from AIC. Based
      upon a review of the direct and circumstantial evidence, th[e
      trial c]ourt [found] that the Commonwealth has proven each
      element of [forgery] beyond a reasonable doubt.

Trial Ct. Op. at 6-7.     We agree.    Appellant produced the forged letter to

Dental Surgeons.        In doing so, she transferred that writing to Dental

Surgeons in a way that made it appear that it was from AIC when in fact it

was not.      The evidence supported the trial court’s finding that Appellant

caused the letter to be provided to Dental Surgeons with knowledge that it

was forged. Appellant therefore is not entitled to relief on this claim.




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     For these reasons, all of Appellant’s claims raised on appeal are

meritless. Thus, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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