Com. v. Frey, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
REBECCA FREY
Appellant No. 1742 MDA 2013
Appeal from the Judgment of Sentence June 26, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005515-2012
BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 12, 2014
Rebecca Frey appeals from the judgment of sentence entered June 26,
2013, in the York County Court of Common Pleas. On May 15, 2013, a jury
convicted Frey of three counts of theft by unlawful taking, three counts of
theft by deception, and two counts of forgery.1 Frey was sentenced to a
term of 60 days to 23 months’ incarceration. Contemporaneous with this
appeal, Frey’s counsel has filed a petition to withdraw from representation
and an Anders brief. See Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Counsel’s
Anders brief raises numerous challenges to the sufficiency and weight of the
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1
18 Pa.C.S. §§ 3921(a), 3922(a)(1), and 4101(a)(2), respectively.
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evidence, as well as the admissibility of the evidence. For the reasons set
forth below, we affirm, and grant counsel’s petition to withdraw.
The trial court set forth the facts and procedural history as follows:
The affidavit alleged that [Frey], as an employee of Fulton
Bank[] had[,] over the course of several months, taken money
from a depositor’s account. On January 17, 2012, Nancy Dietz,
a customer of Fulton Bank, discovered $2,000.00 had been
withdrawn from her account. The transaction occurred on
November 25, 2011 and Mrs. Dietz signed an Affidavit indicating
that the signature for that withdrawal was not hers. Another
transaction completed in June of 2011 showed a withdrawal of
$5,200.00 from Mrs. Dietz’s account signed for by Kelli Nelson,
another depositor with Fulton Bank. Kelli Nelson and Nancy
Dietz did not know each other. The same teller, Rebecca Frey,
had completed both transactions. On February 10, 2012, Frey’s
teller work indicated that a $3,800.00 deposit was made and
then cancelled and that $2,800.00 of that money was missing.
Frey was terminated and on April 4, 2012, Fulton Bank
representatives met with the affiant to file the criminal charges.
An Information was filed on August 21, 2012 adding some
counts and amending others to account for the three (3)
separate transactions. Counts 1 and 2 were amended to Theft
by Unlawful Taking as to the $5,200.00; Counts 4 and 5, Theft
by Unlawful Taking, were added as to the $2,000.00 and
$2,800.00 respectively; Counts 6 and 7, Theft by Deception,
were added as to the $2,000.00 and $2,800.00 respectively;
Count 3, Forgery, was amended as to Nancy Dietz; and, Count
8, Forgery, was added as to Kelli Nelson.
At [Frey]’s pre-trial conference on October 18, 2012, the
case was listed for trial in the December 2012 term of trials.
Trial was continued twice and began on May 13, 2013. The jury
returned with a verdict of guilty on all counts on May 15, 2013.
[Frey] was sentenced on June 26, 2013 to 60 days to 23 months
incarceration in York County Prison concurrent on all counts.
On July 11, 2013 [Frey] filed a Petition for Relief under the
Post-Conviction Relief Act arguing that her counsel was
ineffective for failing to file a post-sentence motion and/or
appeal as she had requested. On that same date, [Frey]’s trial
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counsel filed a Praecipe withdrawing as [Frey]’s counsel. We
held a hearing on July 23, 2013 and permitted counsel to
withdraw and directing that [Frey] apply for a public defender.
We stayed [Frey]’s report date and granted her petition for bail
pending appeal.
[Frey] filed a post-sentence motion on July 25, 2013 and a
hearing was held on August 27, 2013. We entered an Order at
the hearing denying [Frey]’s Motion[.]
Trial Court Opinion, 12/3/2013, at 2-4. This appeal followed.2
When direct appeal counsel files a petition to withdraw and
accompanying Anders brief, we must first examine the request to withdraw
before addressing any of the substantive issues raised on appeal.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). Here,
our review of the record reveals that counsel has substantially complied with
the requirements for withdrawal outlined in Anders, supra, and its
progeny.3 Moreover, the record contains no additional correspondence from
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2
On October 4, 2013, the trial court ordered Frey to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Frey filed a concise statement on October 25, 2013. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on December 3, 2013.
3
Previously, we found counsel’s Anders brief deficient for failing to identify
Frey as a recipient on the certificate of service pursuant to Pa.R.A.P. 121. As
a result, on April 2, 2014, we remanded for re-filing of a proper Anders
brief or advocate’s brief. Two days later, counsel filed an amended petition
for leave to withdraw, in which he identified Frey in the certificate of service.
He also stated his belief that the appeal is wholly frivolous, filed the brief
pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009), furnished a copy of the Anders brief to Frey and advised
Frey of her right to retain new counsel or proceed pro se. Commonwealth
v. Ferguson, 761 A.2d 613, 616 (Pa. Super. 2000).
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Frey. Accordingly, we will proceed to examine the record and make an
independent determination of whether the appeal is wholly frivolous.
We review this appeal on the basis of the issues identified in the
Anders brief:
1. Whether the guilty verdict is against the sufficiency of the
evidence because the Commonwealth failed to prove how [Frey]
had access to the vault when its own witness testified that
access to the vault was obtained only through two authorized
individuals at the same time?
2. Whether the guilty verdict is against the weight of the
evidence because the Commonwealth failed to prove how [Frey]
had access to the vault when its own witness testified that
access to the vault was obtained only through two authorized
individuals at the same time?
3. Whether the guilty verdict is against the sufficiency of the
evidence because the Commonwealth failed to prove that the
forged signatures were [Frey]’s handwriting?
4. Whether the guilty verdict is against the weight of the
evidence because the Commonwealth failed to prove that the
forged signatures were [Frey]’s handwriting?
5. Whether the Commonwealth failed to lay a sufficient
foundation pursuant to Pa.R.E. 901 that any of the witnesses
called at trial were sufficiently familiar with [Frey]’s handwriting
so that the jury could properly consider the appropriate weight
to give the documentary evidence of forgery?
6. Whether the Commonwealth presented sufficient evidence of
forgery when it failed to present expert testimony on
handwriting analysis in order to establish that another person’s
forged signature matches the handwriting of a defendant?
7. Whether a conviction for Theft by Deception or Theft by
Unlawful Taking may stand when there is insufficient evidence to
prove beyond a reasonable doubt an underlying Forgery charge,
which is the only way the thefts could occur?
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Anders Brief at 5.
In Frey’s first argument, she claims there is insufficient evidence to
support her convictions because the Commonwealth failed to prove how she
had access to the bank vault when Kyle Hughes, the bank’s branch manager,
testified that access to the vault was obtained only through two authorized
individuals at the same time. Specifically, she states:
The Commonwealth’s case is circumstantial, strung
together by various inferences drawn from cash-in and cash-out
(or lack thereof) tickets run on Ms. Frey’s teller number (001) at
the bank. Yet, there was no direct evidence, either through
witness testimony or presentation of bank surveillance footage
showing Ms. Frey removing money from the bank. Further,
tellers were only allowed to have so much money in their
drawers before they either had to sell it to the vault or another
teller. The vault was a “dual control” system that required two
individuals with keys to enter. Ms. Frey was alleged to have
stolen $5,200.00 from the bank. The bank requires tellers to
“prove” their drawers every day. Despite these safety controls
built-in to the bank’s daily routine, the jury convicted Ms. Frey of
Forgery, Theft by Deception, and Theft by Unlawful Taking.
Anders Brief at 14.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
A claim challenging the sufficiency of the evidence presents a
question of law. Commonwealth v. Widmer, 560 Pa. 308,
744 A.2d 745, 751 (2000). We must determine “whether the
evidence is sufficient to prove every element of the crime
beyond a reasonable doubt.” Commonwealth v. Hughes, 521
Pa. 423, 555 A.2d 1264, 1267 (1989). 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.” Id.-5-
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Our Supreme Court has instructed:
[T]he 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. 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.
Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
1236 n. 2 (2007).
Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).
Here, the trial court found there was sufficient evidence to support her
convictions as aptly stated in its trial court memorandum. SeeTrial Court
Opinion, 12/3/2013, at 6-12.
Viewing this evidence in the light most favorable to the
Commonwealth, and drawing all reasonable inferences therefrom, we agree
with the trial court’s determination. Frey attempts to argue that because the
Commonwealth did not demonstrate that she accessed the bank’s vault,
there was insufficient evidence to prove that she removed the money from
the bank. However, this argument ignores the fact it was never alleged that
Frey needed to have access to the vault. Rather, these numerous incidents
involved Frey using the bank’s “cash withdrawal” and “cash in” tickets to
procure over $10,000 in cash from her teller drawer, none of which Frey
rightfully owned. Moreover, while Frey alleges that tellers were only allowed
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to have so much money in their drawer at a time before they had to sell that
money to a different bank teller or to the vault, that exact amount of money
was never specified at trial.4 As such, one could reasonably infer that the
certain funds were in her drawer to steal. Therefore, we conclude the
Commonwealth presented sufficient circumstantial evidence from which the
trial court could reasonably infer that Frey committed theft by unlawful
taking, theft by deception, and forgery. Accordingly, her first argument
fails.
Next, Frey claims that the verdict was against the weight of the
evidence because, again, the Commonwealth failed to prove that she had
access to the vault when Kyle Hughes, the bank’s branch manager, testified
that access to the vault was obtained only through two authorized
individuals at the same time. Anders Brief at 14.5 Moreover, she states
while the Commonwealth “presented evidence through a ‘paper trial [sic]’ of
transaction[s] from Ms. Frey’s teller number (001) along with an inactive
teller number (005),” Frey “alleged that she made an error and used the
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4
See N.T., 5/13/2013, at 162-163 ([Defense counsel:] Before I show you
this, it’s true that each teller’s only allowed to have so much money in their
drawer at a time, right? [Hughes:] Correct. [Defense counsel:] So if they
have more than that, they have to sell that money to a different drawer or
to the vault; correct? [Hughes:] Correct.”).
5
Frey properly preserved her challenge to the weight of the evidence by
raising it in a post-sentence motion, which was filed on July 25, 2013. See
Pa.R.Crim.P. 607(A).
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wrong account number (of Ms. Dietz) when providing funds to Ms. Nelson.”
Id. at 15.
Appellate review of a weight of the evidence claim is well-established:
A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in
favor of acquittal that a guilty verdict shocks one’s sense of
justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 744
A.2d 745, 751–52 (2000); Commonwealth v. Champney, 574
Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, an
appellate court does not substitute its judgment for the finder of
fact and consider the underlying question of whether the verdict
is against the weight of the evidence, but, rather, determines
only whether the trial court abused its discretion in making its
determination. Widmer, 560 Pa. at 321–22, 744 A.2d at 753;
Champney, 574 Pa. at 444, 832 A.2d at 408.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S.Ct. 1792 (U.S. 2014).
Here, Frey’s weight of the evidence claim is a rehash of her sufficiency
challenge. She fails to explain how the verdict was against the weight of the
evidence, or in what way the trial court abused its discretion in denying her
weight claim. Rather, her argument consists only of a restatement that
accessing the vault was necessary to demonstrate that she stole the money.
We conclude the court did not abuse its discretion in denying Frey a new trial
based on her weight of the evidence claim. Frey asks this Court to reweigh
the evidence and give the greatest weight to her own testimony. We decline
to do so. As our Supreme Court has made clear, we may not reweigh the
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evidence and substitute our judgment for the trial court’s decision. See
Lyons, supra. Therefore, Frey’s weight claim fails.
In Frey’s third and fourth arguments, which we will address together,
she contends there is insufficient evidence to support her convictions and
the verdict was against the weight of the evidence because the
Commonwealth failed to prove that the forged signatures were in her
handwriting. Anders Brief at 16. With respect to her sufficiency claim, she
states:
[T]he jury was provided with a withdrawal slip with
competent testimony from Mrs. Dietz that she did not sign the
documents. Mrs. Dietz, however, admitted that she signed her
signature differently on several of the documents. Ms. Nelson
also indicated that the handwriting on another completed
withdrawal slips was not hers. The jury was provided with
documents, including an Affidavit of Forgery, in which Ms. Frey
admitted she had competed at least portions of them. The
Commonwealth provided no expert testimony on handwriting
analysis regarding the similarities between Ms. Frey’s
handwriting and the suspected documents.
Id. at 17. With regard to her weight claim, Frey restates her sufficiency
argument and asserts the verdict shocks the conscience. Id. at 17-18. Frey
concludes the court erred in denying her post-sentence motion and argues
that expert testimony was required in order for there to be sufficient
evidence to convict her of forgery. Id. at 18.
Keeping our standards of review in mind, we note the trial court relies
on Commonwealth v. Winegrad, 180 A. 160 (Pa. Super. 1935), in finding
that expert testimony was not required to prove the authenticity of the
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handwriting on the forged documents. See Trial Court Opinion, 12/3/2013,
at 12-13. In Winegrad, this Court held:
Expert testimony to determine the authenticity of disputed
writings may be helpful, but it is not usually indispensable.
Letters concededly signed by [the defendant] were offered in
evidence. A jury has the right to compare authenticated writings
with alleged forged writings, and to use their own judgment in
deciding whether they were made by the same party: Groff v.
Groff et al., 209 Pa. 603, 612, 59 A. 65.
Winegrad, 180 A. at 161. See also Commonwealth v. Gipe, 84 A.2d
366, 367 (Pa. Super. 1951). Moreover, “[t]he trier of fact determines the
genuineness of a signature.” Levy v. Lenenberg, 795 A.2d 419, 423 (Pa.
Super. 2002), citing 42 Pa.C.S. § 6111(d).6
Here, the trial court found the following:
[Frey] said that her signature appeared on
Commonwealth’s Exhibit 7, the Affidavit of Forgery. Nancy Dietz
authenticated her signature on the Affidavit of Forgery. Kelli
Nelson authenticated her signature on checks she had written.
The jury was able to compare the signatures to the signatures
on the forged documents, the $2,000.00 withdrawal slip and the
$5,200.00 withdrawal slip. Obviously, the jury concluded that
the signature on the forged withdrawal slips was made by
[Frey].
Trial Court Opinion, 12/3/2013, at 13 (record citations omitted).
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Section 6111(d) states: “Jury question. -- The opinions of the witnesses
to handwriting being submitted as competent testimony to the jury, the final
determination as to whether any particular handwriting is genuine or
simulated shall remain, as heretofore, a question for the jury on all the
evidence submitted.” 42 Pa.C.S. § 6111(d).
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We agree with the trial court’s determination. Pursuant to Winegrad,
supra, expert testimony was not required to prove the documents were
forged. The jury, sitting as the fact-finder, was free to believe Dietz and
Nelson, and to not believe Frey. Moreover, the jury was permitted use their
own judgment in deciding whether the signatures were made by Dietz and
Nelson, or Frey. Therefore, Frey’s second attack on the sufficiency of the
evidence fails. Furthermore, with respect to her weight claim, we conclude
the court did not abuse its discretion in denying Frey a new trial. Frey again
asks this Court to reweigh the evidence and, we decline to do so.
Accordingly, her third and fourth claims fail.
Next, Frey argues the Commonwealth failed to lay a sufficient
foundation pursuant to Pennsylvania Rule of Evidence 901 because none of
the witnesses called at trial were sufficiently familiar with her handwriting so
that the jury could properly consider the appropriate weight to give the
documentary evidence of forgery. Anders Brief at 19. Specifically, she
asserts that no foundation was laid before Hughes testified that he
recognized or was familiar with Frey’s handwriting. Id.Our standard of review regarding evidentiary issues is as follows:
With regard to evidentiary challenges, it is well established that
“[t]he admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error. An abuse of
discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of
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record. Furthermore, if in reaching a conclusion the trial court
overrides or misapplies the law, discretion is then abused and it
is the duty of the appellate court to correct the error.”
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation
omitted).
Rule 901, which governs authenticating or identifying evidence,
provides, in relevant part:
(a) In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.
(b) Examples. The following are examples only--not a complete
list--of evidence that satisfies the requirement:
…
(2) Nonexpert Opinion about Handwriting. A nonexpert’s opinion
that handwriting is genuine, based on a familiarity with it that
was not acquired for the current litigation.
Pa.R.E. 901(a), (b)(2) (italics in original).
Initially, we note the alleged improper evidence regarding Hughes’s
testimony (that he recognized Frey’s handwriting), which Frey cites to in her
brief, actually came out during defense counsel’s cross-examination of
Hughes, and not during the Commonwealth’s examination of the witness.
See N.T., 5/13/2013, at 164 (“[Defense counsel:] But from this ticket are
you able to tell who completed that ticket? [Hughes:] I can recognize the
handwriting, yes.”); see also Anders Brief at 19. Moreover, Hughes never
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actually identifies whose handwriting he recognized.7 Lastly, as the trial
court noted in its Rule 1925(a) opinion, Frey “authenticated her own
handwriting and signature on the various documents. No other testimony
was needed as [Frey] is most familiar with her own handwriting.” Trial
Court Opinion, 12/3/2013, at 13-14. See also N.T., 5/13/2013, at 224.
Therefore, Frey’s argument that the Commonwealth failed to lay a sufficient
foundation pursuant to Rule 901 is without merit, and the trial court did not
abuse its discretion in admitting the evidence.
In Frey’s penultimate issue, she claims there was insufficient evidence
to support her forgery conviction because the court failed to present expert
testimony analysis in order to establish that another person’s forged
signature matches her own handwriting. Anders Brief at 20. As we have
stated above, pursuant to Winegrad, supra, no expert testimony was
required to prove the documents were forged. See also Pa.R.E. 901(b); 42
Pa.C.S. § 6111(d). The two victims and Frey all testified with respect to
their own handwriting, which is permissible under Rule 901. Therefore, this
issue lacks merit.
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7
Additionally, we note that “[o]ne can testify that he or she is familiar with
a signature ‘from having conducted a correspondence with him.’” Morgan
v. First Pennsylvania Bank, 541 A.2d 380, 383 (Pa. Super. 1988) (citation
omitted) (concluding “trial court did not err in allowing the bank manager to
testify concerning [a client]’s signature on the signature card as she was
acquainted with the signature.”). Here, Hughes had worked with Frey for a
number of years at the bank and therefore, it would have been permissible
for him to testify regarding his familiarity with her handwriting.
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Lastly, Frey argues that her convictions for theft by unlawful taking
and theft by deception may not stand because there was insufficient
evidence to convict her of forgery. Anders Brief at 20. She states that
without the forgery, the thefts could not have occurred. Id. As the trial
court properly notes:
The Commonwealth presented several exhibits of [Frey]’s
handwriting which were authenticated by [Frey] as being her
handwriting. The Commonwealth also presented the testimony
of Nancy Dietz and Kelli Nelson, who both testified that they did
not sign the withdrawal slips that were at issue. Along with the
testimony of Kyle Hughes and the other documentary evidence,
the evidence was sufficient to conclude that [Frey] had forged
the signatures of Nancy Dietz and Kelli Nelson.
Trial Court Opinion, 12/3/2013, at 14-15. We find the trial court properly
disposes of this issue and therefore, we need not address it further.
As mandated by law, we have independently reviewed the record and
agree with counsel that the appeal is wholly frivolous. See Commonwealth
v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). For the foregoing
reasons, we grant counsel’s motion to withdraw from representation and
affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel’s motion to withdraw
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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