Com. v. James, A. ( 2018 )

J-A29021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
AARON EDWARD JAMES,
Appellant No. 648 EDA 2017
Appeal from the Judgment of Sentence February 7, 2017
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0006116-2015
BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 14, 2018
Appellant, Aaron Edward James, appeals from the judgment of sentence
imposed following his bench conviction of access device fraud, theft by
deception, theft by unlawful taking, receiving stolen property, and identity
theft.1 We affirm.
The trial court aptly set forth the factual history of this case as follows:
On February 4, 2015, Richard Gerhard, owner of an
appliance and electronics store, took a call from someone
identifying himself as Daniel [Katzenberg], regarding the purchase
of four television sets. Mr. Gerhard was given a credit card
number with the last four digits of 1579. Because the zip code
associated with the credit card did not match the delivery address,
at first the purchase was declined. He was then given an
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 4106(a)(1)(ii), 3922(a)(1), 3921(a), 3925(a), and 4120(a),
respectively.
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additional address in Elkins Park. This time the zip code matched
the credit card and the purchase did go through. This made Mr.
Gerhard suspicious, and he contacted Mr. Katzenberg, who[m] he
knew from previous sales. After their conversation, Mr. Gerhard
contacted the Abington Police Department to report that someone
was using Mr. Katzenberg’s identity and credit card, and
subsequently made a report. The police decided that a controlled
delivery of the television sets should be made.
Delivery was scheduled for February 6, 2015, to be made to
the address on Lindley Avenue in Philadelphia. During the delivery
process, someone who identified himself as Mr. Katzenberg called
several times from phone numbers 267-264-1169 and 215-681-
6894.
Next to testify at trial was Daniel Katzenberg of Elkins Park.
He told this [c]ourt that he had received a call from Mr. Gerhard
asking if he had placed an order [for] four very large screen
television sets. Mr. Katzenberg stated that he had not, and that
someone must have gotten his credit card number to make
purchases. Mr. Katzenberg denied ever giving anyone
authorization to make the purchase.
Detective Sergeant Gregory P. Urban, a veteran officer of
the Abington Police Department testified that in February of 2015
he received a phone call from Gerhard’s Appliance Store reporting
a suspicious credit card purchase for four television sets, valued
at $3,400. The officer suggested continuing on with the delivery
to see who was going to pick up the television sets. In furtherance
thereof, he called Lieutenant [Jonathan] Josey of the Philadelphia
Police Department, Major Crimes Division because the televisions
were to be delivered to 1608 Lindley Avenue in Philadelphia.
Sergeant Urban stated that on February 6, 2015, the day of
delivery, a surveillance team was sent to the Lindley Avenue
house prior to the delivery, and set up around the building.
Subsequently, Sergeant Urban, who drove the delivery truck,
drove into the area, while Lieutenant Josey, who was in the
passenger seat, called phone number 215-681-6894. The
purpose of his calls was to make sure the person was at the home.
When the two officers arrived at the Lindley address, they parked
in front of the home. Lieutenant Josey got out of the delivery
truck with a clipboard with all of the paperwork while Sergeant
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Urban stood at the back of the truck while [Appellant] came out
of the house and met Lieutenant Josey by the truck.
Lieutenant Josey asked [Appellant] to verify the information
on the purchase order, which he did. [Appellant] told the
lieutenant that Mr. Katzenberg was his stepfather and he was
married to his daughter. At that point, the officers decided to
unload the television sets. They took one television set out of the
truck and placed it inside the living room. The arrest team came
through the front door and took [Appellant] into custody. While
[Appellant] was on the ground, he had some cell phones with him.
Lieutenant Josey called the 6894 number, the number from which
the officers had been speaking to the alleged Mr. Katzenberg who
ordered the television[] sets.
Last to testify for the Commonwealth was Lieutenant
Jonathan Josey [a] veteran officer of the Philadelphia Police
Department. He explained that he had called the phone number
215-681-6894, which was on the purchase order, to make contact
with the individual who was identifying himself as Mr. Katzenberg.
In the initial call, Lieutenant Josey identified himself as Kevin from
Gerhard’s Appliances and he spoke to the individual who identified
himself as Mr. Katzenberg. The individual who identified himself
as Mr. Katzenberg stated that it was okay to deliver the package
but that he was in New York so he would not be there to personally
receive it. In a second call, the alleged Mr. Katzenberg told
Lieutenant Josey that he could make the delivery and that his son,
[Appellant], would be there to receive it. The alleged Mr.
Katzenberg gave the lieutenant [Appellant’s] phone number.
Lieutenant Josey called this number to let [Appellant] know that
they were right around the corner en route to deliver the
televisions. Upon arrival at the Lindley address, [Appellant]
approached the truck and identified himself as [Appellant], and
that he was Mr. Katzenberg’s son-in-law. [Appellant] signed the
purchase order, and the officers unloaded one of the television
sets and brought it into the home. After [Appellant] was taken
into custody, Lieutenant Josey called the phone number, 215-681-
6894 that was allegedly Mr. Katzenberg’s number, who was
allegedly in New York. The phone rang right next to [Appellant].
Subsequent to the arrest, [Appellant] denied knowing Mr.
Katzenberg.
[Appellant] took the stand in his own defense. He claimed
that on February 6, 2015, he received a call on the home phone,
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267-776-5785, from a deliveryman saying that there was a
delivery for Javon Cannon, [his brother’s] stepson.[2] He testified
that when the deliveryman came to the home, he went to the door
and that the deliveryman asked him to sign a blank piece of paper.
According to [Appellant], the next thing he knew he was
bombarded by police officers who came into his home and held a
gun to his head. [Appellant] denied owning the phone number
ending in 6894. He also denied ordering the televisions sets.
On cross-examination, the prosecutor confronted
[Appellant] with a statement he gave to police. However,
[Appellant] denied that he had given a statement to police. He
maintained that when the police asked him questions, he refused
to answer. When the prosecutor showed [Appellant] the
statement, which was initialed and signed, [Appellant] again
denied that he ever initialed or signed the statement. He
maintained that the only thing he signed was a blank piece of
paper. [Appellant] further denied the contents of the statement
in which he implicated an alleged Gerald Frazier, an alleged tenant
that lived in the back room of his house. [Appellant] moreover
denied that he ever told the officers that he was Mr. Katzenberg’s
son-in-law. He maintained that the officers were lying.
On rebuttal, the Commonwealth called Lieutenant Josey
back to the stand to testify about the statement he took from
[Appellant]. The lieutenant stated that after he read [Appellant]
his Miranda[3] warnings, he took a voluntary statement from
[Appellant], which he initialed and signed. In that statement,
[Appellant] denied knowing Mr. Katzenberg and tried to pin the
blame on an alleged Gerald.
(Trial Court Opinion, 4/19/17, at 1-5) (record citations omitted).
At the conclusion of trial, the court found Appellant guilty of the above-
listed offenses. On February 7, 2017, it sentenced him to an aggregate term
____________________________________________
2Appellant resided with his brother and his brother’s family, including Cannon.
(See N.T. Trial, 11/09/16, at 30-31).
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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of not less than eighteen months nor more than seven years’ imprisonment.
This timely appeal followed.4
Appellant raises the following issues for our review, all of which
challenge the sufficiency of the evidence:
I. Whether there is insufficient evidence to support the conviction
of access device fraud because no witness or other evidence
established that Appellant placed the initial call to Gerhardt’s
Appliance Store, and there was only one television set, of an
unknown value, delivered to 1608 Lindley Avenue, Philadelphia?
II. Whether there is insufficient evidence to support the conviction
for theft by deception-false impression because the
Commonwealth failed to demonstrate that Appellant created or
reinforced a false impression, and that Gerhard’s Appliance Store
relied upon that information?
III. Whether there is insufficient evidence to support the
conviction for theft by unlawful taking of movable property
because Appellant did not unlawfully take, or exercise control over
the television sets from Gerhard’s Appliance Store but was merely
present to accept the delivery of one television arranged by
Detective Sergeant Urban and Lieutenant Josey?
IV. Whether there is insufficient evidence to support the conviction
for receiving stolen property in that it fails to show that Appellant
intentionally received, retained, or disposed of four (4) television
sets from Gerhard’s Appliance Store knowing that they were
stolen, as he testified at trial that he accepted the delivery at the
request of Javon Cannon?
V. Whether there is insufficient evidence to support the conviction
for identity theft because it fails to show that Appellant possessed,
or used identifying information of Daniel Katzenberg to further an
unlawful purpose, and there is no evidence that Appellant stole or
otherwise obtained his credit card information?
____________________________________________
4 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on March 22, 2017. The trial court filed an opinion
on April 19, 2017. See Pa.R.A.P. 1925.
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(Appellant’s Brief, at 4-5) (unnecessary capitalization omitted).
We will address Appellant’s issues together because they are
interrelated. In support of his claims, Appellant chiefly argues that the
Commonwealth failed to prove that he was the initial caller to Gerhard’s
Appliance Store on February 4, 2015, who gave Daniel Katzenberg’s credit
card information to Richard Gerhard. (See id. at 14-16, 21). According to
Appellant, the evidence instead demonstrates that he was merely present
when the television sets were delivered to his house; that he never took
physical possession of or exercised control over the television sets; and that
he did not know or believe that the television sets were stolen. (See id. at
15-20). Appellant’s claims do not merit relief.
We begin by noting our standard of review:
The standard we apply in reviewing the sufficiency of the
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
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 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. Storey, 167 A.3d 750, 757 (Pa. Super. 2017) (citations
omitted).
Instantly, Appellant was convicted under sections 4106(a)(1)(ii),
3922(a)(1), 3921(a), 3925(a), and 4120(a) of the Crimes Code. A person
commits access device fraud if he “uses an access device to obtain or in an
attempt to obtain property or services with knowledge that . . . the access
device was issued to another person who has not authorized its use[.]” 18
Pa.C.S.A. § 4106(a)(1)(ii). A person is guilty of theft by deception “if he
intentionally obtains or withholds property of another by deception . . . [by]
intentionally . . . creat[ing] or reinforce[ing] a false impression[.]” 18
Pa.C.S.A. § 3922(a)(1).
An individual commits theft by unlawful taking or disposition “if he
unlawfully takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a).
Receiving stolen property is established by proving that the accused
“intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been
stolen[.]” 18 Pa.C.S.A. § 3925(a). Finally, a person is guilty of identity theft
“if he possesses or uses, through any means, identifying information of
another person without the consent of that other person to further any
unlawful purpose.” 18 Pa.C.S.A. § 4120(a).
Here, when viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, see Storey, supra at 757, we agree with
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the trial court that the evidence was sufficient to support Appellant’s
convictions. After hearing the evidence and observing all of the witnesses,
the trial court found:
In this case, this [c]ourt, as the finder of fact, determined
that based upon the credible testimony of Mr. Gerhard, Mr.
Katzenberg, Sergeant Urban and Lieutenant Josey, [Appellant]
used Mr. Katzenberg’s credit card number without his permission
to purchase four television sets from Gerhard’s Appliance store,
valued at $3,340.11. Circumstantially the Commonwealth proved
beyond a reasonable doubt that it was [Appellant] that placed the
order with Gerhard Appliances. [Appellant] was linked to the
February 4, 2015, phone call to Gerhard’s Appliances. The phone
number the caller gave as his contact number for the purchase
order was the same number as one of the phones that were found
on [Appellant] at the time of his arrest. In addition, the evidence
and the reasonable inferences therefrom, the Commonwealth
showed that [Appellant] was the individual pretending to be Mr.
Katzenberg. When Lieutenant Josey called [Appellant] on the
same phone number during the controlled delivery he allegedly
spoke to Mr. Katzenberg who was in New York. Again this is the
same phone that was found on [Appellant] at the time he was
taken into custody. . . .
* * *
. . . [H]is assertion that he was merely present to accept the
delivery at the request of Javon Cannon is simply a reiteration of
[Appellant’s] trial testimony which this [c]ourt did not find to be
worthy of belief. Rather, through the credible testimony of the
Commonwealth witnesses, the Commonwealth was able to prove
that it was [Appellant] who called Gerhard appliance store
pretending to be Mr. Katzenberg in order to purchase four
television sets with the use of Mr. Katzenberg’s credit card number
and accepted delivery of one of these television sets during the
controlled delivery.
(Trial Ct. Op., at 8, 11).
The court, as fact-finder, was “free to believe all, part or none of the
evidence” presented, and it clearly found the testimony of the
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Commonwealth’s witnesses credible, and Appellant’s version of events
incredible. Storey, supra at 757 (citations omitted). Upon review of the
record, we discern no basis on which to disturb its credibility determinations,
or its conclusion that Appellant’s sufficiency claims lack merit. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/18
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