Com. v. Sherrill, M. ( 2016 )


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  • J-A17026-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MALIQUE SHERRILL
    Appellant               No. 2284 EDA 2015
    Appeal from the Judgment of Sentence July 14, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0013030-2014
    BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
    MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 22, 2016
    Malique Sherrill appeals from the judgment of sentence entered in the
    Court of Common Pleas of Philadelphia County. After our review, we affirm.
    Sherrill was charged with Forgery-Alter Writing,1 Conspiracy,2 Theft by
    Unlawful Taking-Moveable Property,3 and Receiving Stolen Property4 as a
    result of a “check-kiting” scheme that occurred in 2013. A waiver trial was
    held before the Honorable Sierra Thomas Street; the court found Sherrill
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S. § 4101(a)(1).
    2
    18 Pa.C.S. § 903.
    3
    18 Pa.C.S. § 3921(a).
    4
    18 Pa.C.S. § 3925(a).
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    guilty of Receiving Stolen Property; the court acquitted Sherrill of the
    remaining charges.5
    At trial, Viola Banks, custodian of records at American Heritage Federal
    Credit Union (“AHF”), testified with respect to Sherrill’s account. She stated
    that, based on information she received from South Division Credit Union in
    Illinois6 (“SD”), she investigated Sherrill’s AHF account in Philadelphia.
    Banks determined that six checks, amounting to approximately $9,500, had
    been deposited at SD into Sherrill’s account on six different days, the funds
    were successfully withdrawn on the days the checks were deposited, and the
    checks were ultimately returned unpaid. N.T. Trial, 7/9/15, at 19, 30-35.
    Banks testified that Sherrill’s account statement, Commonwealth
    Exhibit C-4, indicated that the multiple withdrawals were made on the same
    days as the deposits were made in Illinois. Id. at 41-42, 45. She noted,
    however, that none of the checks was endorsed, that she had no idea who
    made the deposits, that some of the withdrawals were made in Illinois, that
    she did not know who made the withdrawals in Illinois, and that at least two
    of the withdrawals were made in the Philadelphia area. Id. at 45-47.
    ____________________________________________
    5
    Sherrill was convicted of the charges of receiving stolen property arising
    out of the Philadelphia withdrawals. The trial court acquitted Sherrill of the
    remaining charges, concluding that Sherrill was not responsible for actions
    and transactions that occurred in Illinois. N.T. Trial, 7/9/2015, at 79.
    6
    AHF and SD participate in nationwide “shared branching,” which allows
    credit union members to access their accounts at different locations “as if
    they were in their home branch.” N.T. Trial, 7/9/15, at 30.
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    On December 28, 2013, Sherrill made two separate withdrawals, one
    from an ATM at the Fox Street branch and one at AHF’s Hunting Park
    branch, from the teller, for $580.          N.T. Trial, 7/9/15, at 75-76.   With
    respect   to   the   latter   withdrawal,   the   Commonwealth    introduced   a
    surveillance photograph from the teller window that correlated to the date,
    time and place of withdrawal on Sherrill’s account. Id. at 37-40. Banks also
    testified that the checks that were deposited had the business name of “All
    Star” with an address of 389 William Latham Drive, in Bourbonnais, Illinois,
    but she did not know whether that was a legitimate business. Id. at 47-48.
    Sherrill’s co-defendant/sister, Linda Sherrill (“Linda”), also testified for
    the defense.    She stated that because she was recently unemployed she
    approached a group she found on the internet, “504 Boys,” about getting
    money. Although unsure about the group’s legitimacy, when the money
    appeared in her brother Sherrill’s account, which she had access to, she
    thought the business was legitimate.        N.T. Trial, 7/9/15, at 57-59.   Linda
    testified that she told Sherrill her friend was depositing money into his
    account on a certain date and asked him to withdraw it for her, and he
    agreed.   Id. at 57.     She also testified that Sherrill never questioned her
    about the source of the funds and that he did not know that the funds
    originated from an illegal source.          She also stated that she was not
    completely upfront with her brother, but that she had taken care of him
    since he was ten years old and she would not put him in a compromising
    situation. Id. at 59-60. She testified on direct examination:
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    Q: And what did you tell him to get him to withdraw[] the
    money?
    A: I just told him a friend of mine was putting some money in
    his account and I asked him would it be okay and he said yeah
    and I told him that when the money [came], could he get it out
    for me and he said he didn’t see no problem with that.
    ***
    Q: Did he have any idea that the money was coming from
    anywhere but a legal source?
    A: He never really questioned me. No. I really didn’t know.
    Q: You didn’t know? Why did you ask him to do this for you?
    A: Just greed. I really don’t have an answer. I’m just, you
    know, just something I did and it was just greed at the time. I
    had lost my job and it was really hard for me and, you know,
    and he said that I could make money and, you know, I wouldn’t
    be in trouble and I mean—
    Q: Who said you could make money?
    A: When I was on the internet. I got these guys from off the
    internet and, you know, they said it was okay.
    Q: Who were these guys?
    A: They[‘re] called the 504 Boys.
    Id. at 57-59. Linda also testified that she believed Sherrill did not question
    her about the source of the funds because “I’m his sister and, I guess, you
    know, I take care of him all his life. I mean, you know, I would never put
    him in any harm’s way.” Id. at 60. When asked why, knowing she was a
    co-defendant, she decided to testify, she stated: “Because I felt I had to. I
    mean, I’m not saying he’s an innocent guy. I’m not saying he’s an angel or
    nothing, but he didn’t do this, and I just felt like, you know, I had to do
    this.” Id.
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    Sherrill also testified. He stated that he trusted his sister, and had no
    reason to question her:    “My sister never had a record.        So why would I
    question her. . . . All I knew was my sister asked me can you get the money
    out for me or whatever. I’m like no problem. I went and did that for her
    like any person would do for their sister or brother or mother or father.” Id.
    at 73-74.   Sherrill acknowledged on cross-examination that he knew his
    sister was unemployed at the time. Id. at 77.
    Following conviction, the court sentenced Sherrill to 6 to 12 months’
    imprisonment and ordered him to pay $4,000 in restitution. Sherrill filed a
    motion for reconsideration of sentence.       The court granted the motion,
    vacated Sherrill’s sentence and resentenced him to two years’ reporting
    probation with no restitution. Sherrill filed a post-sentence motion, claiming
    the verdict was against the weight of the evidence.          The court denied the
    motion, and Sherrill filed a notice of appeal. The court ordered Sherrill to
    filed a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.
    1925(b), which Sherrill timely filed.
    Sherrill raises the following claims for our review:
    1.    Was not the evidence insufficient to support [Sherrill’s]
    conviction  for   receiving   stolen     property where    the
    Commonwealth failed to establish that [Sherrill] knew, should
    have known, or believed that the money he withdrew from his
    own American Heritage Federal Credit Union bank account was
    stolen money, as there was no evidence that the money he
    withdraw was stolen, and it was undisputed that once [Sherrill]
    withdrew the money he gave it all to his sister?
    2.   Did not the trial court err by allowing the introduction of
    inadmissible hearsay evidence through Commonwealth witness
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    Viola Banks consisting of a letter written by Ms. Banks to the
    Philadelphia Police Department in anticipation of litigation, with
    attached copies of checks deposited at a bank in Illinois for
    which Ms. Banks was not the custodian of records and about
    which she had no personal knowledge?
    3.    Did not the trial court err by denying [Sherrill’s] post-trial
    motion requesting a new trial, as the verdict was against the
    weight of the evidence where the Commonwealth failed to
    establish that [Sherrill] engaged in any criminal activity, merely
    demonstrating that [Sherrill] withdrew money from his own
    federal credit union bank account and gave it to his sister after
    checks were deposited into his account at a different federal
    credit union in Illinois that were later determined to have been
    returned unpaid?
    Appellant’s Brief, at 4-5.
    When reviewing a challenge to the sufficiency of evidence, our
    standard of review is well settled:
    The standard we apply in reviewing the sufficiency of evidence is
    whether, 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 that of
    the fact-finder. In addition, we note that the facts and
    circumstances established by the Commonwealth may 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
    trier 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.
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    Commonwealth v. Brown, 
    904 A.2d 925
    , 931 (Pa. Super. 2006) (citations
    omitted).
    The crime of receiving stolen property is defined as follows:
    § 3925. Receiving stolen property
    (a) Offense defined.—A person is guilty of theft if he intentionally
    receives, retains, or disposes of movable property of another
    knowing that it has been stolen, or believing that it has probably
    been stolen, unless the property is received, retained, or
    disposed with intent to restore it to the owner.
    18 Pa.C.S. § 3925(a).    To obtain a conviction for the offense of receiving
    stolen property, the Commonwealth must “prove beyond a reasonable doubt
    that (1) the property had been stolen, (2) the accused received the
    property, and (3) the accused knew or had reasonable cause to know that it
    had been stolen.”   Commonwealth v. Worrell, 
    419 A.2d 1199
    , 1201 (Pa.
    Super. 1980). In making its case, the prosecution may sustain its burden by
    means of circumstantial evidence. 
    Id.
     See also Commonwealth v. Nero,
    
    58 A.3d 802
    , 807 (Pa. Super. 2012).
    Sherrill contests the sufficiency of the evidence with respect to the
    “guilty knowledge” element of the crime. He argues that the Commonwealth
    did not prove beyond a reasonable doubt that Sherrill either intentionally
    received stolen property or believed that the property was probably stolen.
    This Court has commented on the basic requirement to satisfy this element
    as follows:
    Importantly, the Legislature expressly defined the required
    mental state as “knowing” or “believing.” Because the
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    Legislature excluded mental states such as recklessness,
    negligence, or naïveté about the stolen status of the property,
    those mental states are insufficient. This reasoning is consistent
    with the common recognition that penal statutes are to be
    strictly construed.  Thus, courts may not hold that a less
    culpable mental state satisfies a criminal statute where the
    statute demands proof of the more culpable mental state.
    Commonwealth v. Newton, 
    994 A.2d 1127
    , 1131 (Pa. Super. 2010).
    The Commonwealth correctly notes that the guilty knowledge required
    here may be inferred from circumstantial evidence. See Commonwealth’s
    Brief for Appellee, at 8; Commonwealth v. Pruitt, 
    951 A.2d 307
    , 314 (Pa.
    2008); Commonwealth v. Newton, 
    994 A.2d 1127
    , 1132 (Pa. Super.
    2010). Notably, in Commonwealth v. Williams, 
    362 A.2d 244
     (Pa. 1976),
    the Pennsylvania Supreme Court held that “a permissible inference of guilty
    knowledge may be drawn from the unexplained possession of recently stolen
    goods without infringing on an accused's right of due process or his right
    against self-incrimination.” 
    Id.
     at 248–49 (footnotes omitted).
    Williams involved the defendant’s unexplained possession of a stolen
    car just twelve days after its theft.   In reversing this Court’s decision and
    reinstating the trial court’s judgment on the conviction of receiving stolen
    property, the Williams Court stated: “Circumstantial evidence from which
    guilty knowledge can be inferred is sufficient to sustain a conviction if the
    underlying circumstantial evidence is sufficiently strong to support the
    inference beyond a reasonable doubt.” Id. at 248. Cf. Commonwealth v.
    Robinson, 
    128 A.3d 261
     (Pa. Super. 2015) (en banc) (evidence insufficient
    to support jury inference that defendant knew or had reason to believe
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    handgun was stolen; neither lack of registration nor lack of license to carry
    weapon was circumstantial evidence of guilty knowledge since, under
    Pennsylvania law, neither is required to own handgun); Commonwealth v.
    Foreman, 
    797 A.2d 1005
    , 1012 (Pa. Super. 2002) (mere possession of
    stolen property is insufficient to prove guilty knowledge; Commonwealth
    must introduce other evidence, circumstantial or direct, that demonstrates
    defendant   knew   or   had   reason    to   believe   property   was   stolen.”);
    Commonwealth v. Matthews, 
    632 A.2d 570
    , 571 (Pa. Super. 1993)
    (“[T]here   must   be   additional   evidence    [beyond    mere    possession],
    circumstantial or direct, which would indicate that the defendant knew or
    had reason to know that the property was stolen.”).
    Here, the Commonwealth contends it introduced sufficient evidence to
    support an inference that Sherrill in fact knew that the money was stolen.
    We agree.
    Sherrill made no inquiry after his sister told him her “friend” would be
    depositing significant sums of money into his account. Sherrill knew that his
    sister was unemployed at the time. From December 26, 2013 to December
    30, 2013, deposits were made into Sherrill’s account, and Sherrill made
    withdrawals the same day the deposits were made. This activity supports
    the “recency plus lack of explanation” inference.            Williams, supra.
    Notwithstanding Sherrill’s claim of naïveté, the trial court, sitting as
    factfinder, could properly draw the inference of guilty knowledge from the
    circumstantial evidence presented, id., and it was free to conclude that
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    Sherrill’s claim of no knowledge was not credible. Brown, 
    supra.
     Having
    reviewed the record, particularly the notes of testimony from the trial,
    mindful that we may not re-weigh the evidence and substitute our judgment
    for that of the trial court, sitting as fact-finder, and viewing the evidence in
    the light most favorable to the Commonwealth as verdict-winner, we agree
    with the trial court that the Commonwealth presented sufficient evidence to
    support its conclusion that Sherrill knew, or had reason to believe, that the
    money he withdrew from his account was probably stolen. 
    Id.
    Next,   Sherrill   claims   that   the   court   erred   in   allowing   the
    Commonwealth to introduce into evidence: (1) a letter written by Banks to
    the Philadelphia Police Department; and (2) copies of checks deposited into
    SD, the federal credit union in Chicago, Illinois. Sherrill claims this evidence
    was inadmissible hearsay because: (1) Banks prepared the letter after
    conducting an investigation into Sherrill’s account and not in the regular
    course of business; and (2) Banks was not the custodian of records for the
    Illinois credit union. Thus, Sherrill asserts that the documents could not be
    admitted under the business records exception to the hearsay rule.
    Evidentiary rulings are committed to the sound discretion of the trial
    court.    This Court will not reverse absent a clear abuse of that discretion.
    Commonwealth v. Wood, 
    637 A.2d 1335
     (Pa. Super. 1994). Pennsylvania
    Rule of Evidence 801(c) defines hearsay as “a statement that (1) the
    declarant does not make while testifying at the current trial or hearing; and
    (2) a party offers in evidence to prove the truth of the matter asserted.”
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    Pa.R.E. 801(c).   Hearsay evidence is inadmissible under Pa.R.E. 802. With
    respect to the business records exception, admissibility is governed by the
    Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108. Section 6108
    provides, in relevant part:
    A record of an act, condition or event shall, insofar as relevant,
    be competent evidence if the custodian or other qualified witness
    testifies to its identity and the mode of its preparation, and if it
    was made in the regular course of business at or near the time
    of the act, condition or event, and if, in the opinion of the
    tribunal, the sources of information, method and time of
    preparation were such as to justify its admission.
    Id.   Pennsylvania Rule of Evidence 803(6) is also applicable to this matter
    and provides:
    (6) Records of a Regularly Conducted Activity. A record (which
    includes a memorandum, report, or data compilation in any
    form) of an act, event or condition if,
    (A) the record was made at or near the time by—or from
    information transmitted by—someone with knowledge;
    (B) the record was kept in the course of a regularly
    conducted activity of a “business”, which term includes
    business, institution, association, profession, occupation,
    and calling of every kind, whether or not conducted for
    profit;
    (C) making the record was a regular practice of that
    activity;
    (D) all these conditions are shown by the testimony of the
    custodian or another qualified witness, or by a
    certification that complies with Rule 902(11) or (12) or
    with a statute permitting certification; and
    (E) neither the source of information nor               other
    circumstances indicate a lack of trustworthiness.
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    Pa.R.E. 803 (emphasis added).
    Here, the Commonwealth established that Banks was the Custodian of
    Records for the AHF credit union, where Sherrill had his account. The
    Commonwealth also established that Banks was able to authenticate records
    pertaining to his AHF account and, as noted above, AHF and SD participated
    in “shared branching.” Banks testified that it was her job to “maintain the
    daily record keeping of our member accounts” and that those records were
    maintained in the regular course of business. N.T. Trial, 7/9/15, at 19-20.
    Banks received records from the representative of the SD credit union in the
    course of investigating Sherrill’s account.     She testified that although the
    fraudulent checks were deposited into ATMs owned by SD, they were
    deposited into Sherrill’s account, which belonged to AFH.            Id. at 33.
    Because the “check-kiting” scheme involved multiple transactions in the two
    credit unions, but through Sherrill’s one account that was accessible at SD in
    Illinois, the trial court properly determined that Banks was qualified to testify
    as to these transactions.   See Pa.R.E. 803(6)(D).
    Additionally, in the course of investigating Sherrill’s account, Banks
    prepared a letter summarizing the fraudulent transactions with attached
    copies of the deposits, which she later forwarded to the Philadelphia Police
    Department. Sherrill claims this letter was inadmissible because it was not a
    business record and it was prepared in anticipation of litigation. However,
    the substance of that letter, a summary of Sherrill’s account and copies of
    the   checks   deposited    at   SD,   were,    as   analyzed   above,   properly
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    authenticated.   Even if the letter itself were inadmissible, the trial judge,
    sitting as factfinder, is presumed to disregard inadmissible evidence. See
    Commonwealth v. Harvey, 
    526 A.2d 330
    , 333 (Pa. 1987) (where criminal
    case is tried before judge sitting without jury, judge is presumed capable of
    disregarding inadmissible evidence); Commonwealth v. Smith, 
    97 A.3d 782
    , 788 (Pa. Super. 2014).         Accordingly, we find no clear abuse of
    discretion. Wood, 
    supra.
    In his final issue, Sherrill claims his conviction of Receiving Stolen
    Property was against the weight of the evidence. Where, as here, the judge
    who presided at trial ruled on the weight claim below, an appellate court’s
    role is not to consider the underlying question of whether the verdict is
    against the weight of the evidence. Rather, appellate review is limited to
    whether the trial court palpably abused its discretion in ruling on the weight
    claim.   See   Commonwealth       v. Morales,    
    91 A.3d 80
       (Pa.   2014);
    Commonwealth v. Smith, 
    97 A.3d 782
    , 788 (Pa. Super. 2014).
    In the instant case, Sherrill has not demonstrated that the trial court
    committed a palpable abuse of discretion by rejecting his request for a new
    trial based on the weight of the evidence.      Sherrill simply reiterates the
    contention he had made in the court below, and that he repeats in his
    sufficiency claim, that he did not know the money he was withdrawing from
    his account was stolen. The trial court, properly exercised its discretion in
    evaluating the circumstantial evidence presented, properly chose to discredit
    Sherrill’s testimony, and properly concluded that the verdict did not shock its
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    conscience. See Commonwealth v. Talbert, 
    129 A.3d 536
    , 545 (Pa.
    Super. 2015) (“The weight of the evidence is exclusively for the finder of
    fact, who is free to believe all, none or some of the evidence and to
    determine the credibility of the witnesses.”). We find no abuse of discretion.
    Morales, supra.
    For the reasons set forth above, we conclude that Sherrill’s claims are
    meritless and we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/22/2016
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