Com. v. Barlow, C. ( 2019 )

J-A23034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CONNIE BARLOW, :
:
Appellant : No. 1793 WDA 2018
Appeal from the Judgment of Sentence Entered November 19, 2018
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015831-2017
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 21, 2019
Connie Barlow (“Barlow”) appeals from the judgment of sentence
entered following her convictions of one count of theft by deception, and three
counts of forgery.1 We affirm.
In its Opinion, the trial court set forth the relevant factual background
as follows:
[In February 2017, Barlow] was a member of the Hill District
Federal Credit Union (“Credit Union”). The Credit Union is located
in the Hill District section of the City of Pittsburgh[,] where the
average income of its members is roughly $16,000 to $20,000 per
year. Accordingly, when a member makes a deposit over
$2,000.00, Richard Witherspoon [“Witherspoon”], the chief
executive officer of the [C]redit [U]nion, is notified so that he may
monitor such deposits.
On February 6, 2017, [Barlow] made three check deposits
into one of the accounts she held at the Credit Union[,] totaling
____________________________________________
1 See 18 Pa.C.S.A. §§ 3922(a)(1), 4101(a)(3).
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$6,417.90. On February 10, 2017, [Barlow] withdrew $4,600.00
from this account. Shortly thereafter, [Barlow] made transfers in
the amounts of $200.00 and $1,400.00 from the account and
moved the remaining money into another account she held with
the Credit Union. [Barlow] made these withdrawals and transfers
prior to the checks “clearing.” On February 14, 2017, []
Witherspoon learned that the checks were fraudulent.
[] Witherspoon tried, without success, to contact [Barlow]
on many occasions in an attempt to resolve the situation. [Barlow]
alleges the checks were mailed to her as a result of work she
performed through her business, AWB Remodel and Renovations.
[Barlow] alleges the work performed was the result of three
separate, local jobs in the neighborhoods of Mount Lebanon,
Ambridge and South Park. However, the three checks for
payment for those jobs originated, without any credible
explanation, out of Santa Ana, California; Vienna, Virginia; and
Colquill, Georgia. Furthermore, Detective Brittany Miles
[(“Detective Miles”)] testified that she was never able to contact
any of the alleged signatories/distributors of the checks.
Following [Barlow’s] trial, she was sentenced to two years
[of] probation at each count[,] to run concurrently. On December
19, 2018, [Barlow] filed a [timely] Notice of Appeal, and on
January 25, 2019, [she] filed her [Pa.R.A.P. 1925(b)] Concise
Statement of Matters Complained of on Appeal.
Trial Court Opinion, 2/27/19, at 1-2.
On appeal, Barlow raises the following questions for our review:
[1.] Under Pennsylvania’s forgery statute, the Commonwealth
must show that a writing has been unlawfully altered or presents
a writing that wrongly purports to be authorized by another. []
Witherspoon failed to identify why the three checks cashed by []
Barlow with the Credit Union ultimately bounced. Given the
absence of testimony that the checks were defective, did the
Commonwealth present sufficient evidence to find [that] each of
the three checks cashed by [] Barlow were forged?
[2.] In part, Pennsylvania’s forgery statute requires an intent to
defraud another by uttering a writing known to be forged. Did the
Commonwealth present sufficient evidence of intent[,] given the
lack of unusual or suspicious actions by [] Barlow and her
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consistent explanations that she received the three checks for
work done through her business?
[3.] Pennsylvania’s theft by deception statute is premised on the
creation or reinforcement of a false impression. [] Witherspoon
failed to identify why the three checks cashed by [] Barlow with
the Credit Union ultimately bounced. Given the absence of
testimony that the checks were defective, did the Commonwealth
present sufficient evidence to establish that any of the three
checks created or reinforced a false impression?
[4.] In part, Pennsylvania’s theft by deception statute requires an
intent to obtain or withhold property of another by deception. Did
the Commonwealth present sufficient evidence of intent[,] given
the lack of unusual or suspicious actions by [] Barlow and her
consistent explanations that she received the three checks for
work done through her business?
[5.] Whether [] Witherspoon’s testimony concerning fraudulent
banking transactions went beyond the scope of his admitted
expertise in banking regulations or credit union operation?
Brief for Appellant at 6 (issues reordered). We will address Barlow’s first four
issues together, as they all challenge the sufficiency of the evidence
supporting her convictions.
We apply the following standard of review when considering a challenge
to the sufficiency of the evidence:
[W]hether[,] viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder[,] unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
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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) (citation
omitted).
In her first issue, Barlow alleges that the evidence was insufficient to
prove that the checks that she had deposited were forged. See Brief for
Appellant at 19-22. Barlow argues that (1) the Commonwealth did not present
testimony from the check issuers; (2) Witherspoon testified that he could not
remember whether the checks were returned as fraudulent because the check
issuers had insufficient funds, or for some other reason; and (3) the
photocopies of the checks submitted at trial did not contain any markings
indicating that they were returned as fraudulent. Id. at 20-21. According to
Barlow, there are numerous, non-fraudulent reasons why the checks could
have been returned, and the Commonwealth’s evidence at trial did not
foreclose those possibilities. Id. at 21.
In her second issue, Barlow alleges that the evidence was insufficient to
prove that she knew the checks were forged, and that she intended to deceive
the Credit Union. Id. at 25-31. Barlow argues that her testimony, that she
had legitimately received the checks in exchange to work, was uncontradicted
at trial by the Commonwealth. Id. at 25. According to Barlow, her actions,
following her deposit of the checks, and the fact that the checks originated
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from out-of-state banks, do not prove that she knew the checks were forged.
Id. at 27-31.
Section 4101(a) states that
[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.A. § 4101(a). “We may look to the totality of the defendant’s
conduct to infer fraudulent intent. Circumstantial evidence is sufficient to
establish the defendant’s knowledge that the document is a forgery.”
Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019).
In its Opinion, the trial court concisely addressed Barlow’s first two
claims as follows:
[Regarding Barlow’s first claim,] Witherspoon testified as to
what occurs when a check is deposited with the Credit Union and
the process by which the check is then cleared by the
corresponding bank. In this instance, the checks deposited by
[Barlow] were sent by the Credit Union to PNC Bank for clearance.
PNC Bank returned the check to the Credit Union indicating that
the checks were fraudulent. Additionally, Detective [] Miles
testified that she was unable to contact any of the alleged
distributors of the checks. … Therefore, based upon the totality of
the circumstances, this [c]ourt believes the Commonwealth has
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carried [its] burden in proving that the checks deposited by
[Barlow] were altered and/or unauthorized by another.
… [Regarding Barlow’s second claim,] Witherspoon testified
that out-of-state checks take additional processing time for
clearance. Additionally, [] Witherspoon explained the federal
regulation known as Regulation CC[,2] which requires the credit
union to make deposited funds available to the depositor unless a
financial institution has some apprehension about the check that
has been deposited. More specifically, pursuant to Regulation CC,
the Credit Union is required to make the funds available before
clearance from a financial institution. This [c]ourt does not find it
a coincidence that [Barlow] deposited three fraudulent out-of-
state checks into her account with the Credit Union only to
withdraw the majority of that money days later. Furthermore,
[Barlow] shortly thereafter transferred the funds into a separate
account. Additionally, this [c]ourt did not find [Barlow’s]
testimony with respect to how she came into possession of the
checks or the work she allegedly performed in exchange for the
checks credible or persuasive. This [c]ourt was unpersuaded by
[Barlow’s] claims that she performed work for three individuals
locally and received three out-of-state checks for payment of that
work[— t]hree out-of-state checks which were all deposited on
the same day, and which were all returned by the bank after
undergoing a clearance process as fraudulent. Furthermore, []
Witherspoon testified that he contacted [Barlow] several times to
inquire about the deposits and attempt to resolve the issue, all of
which proved to be unfruitful. Accordingly, this [c]ourt found that
[Barlow] knew the checks were fraudulent and/or deposited the
checks with the intent to defraud the Credit Union.
Trial Court Opinion, 2/27/19, at 4-5 (footnote added). The record supports
the trial court’s findings in this regard. We therefore agree with the trial
court’s sound rationale and determination, and affirm on this basis in rejecting
Barlow’s first and second claims. See id.____________________________________________
2 See 12 C.F.R. §§ 229.1-229.60.
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In her third claim, Barlow alleges that the evidence was insufficient to
prove that she had created or reinforced a false impression to support her
conviction for theft by deception. See Brief for Appellant at 22-24. Similar
to her argument regarding her conviction for fraud, Barlow argues that there
was no evidence establishing that the checks were fraudulent. Id. at 23.
According to Barlow, without evidence that the checks were fraudulent, the
evidence was insufficient to prove that she had created or reinforced a false
impression. Id. at 23-24.
In her fourth claim, Barlow alleges that the evidence was insufficient to
prove that she had intentionally deceived the Credit Union, to support her
conviction for theft by deception. Id. at 31-36. Barlow argues that the checks
contained no facial defects indicating that the checks were invalid, and her
actions following her deposit of the checks does not prove she knew the checks
were invalid. Id. at 33-36.
Section 3922(a)(1) states that
[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.A. § 3922(a)(1). “Deception occurs when that person creates or
reinforces a false impression regarding the value of property….”
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Commonwealth v. Fisher, 682 A.2d 811, 813 (Pa. Super. 1996). “To obtain
a conviction of theft by deception, the Commonwealth must demonstrate the
presence of a false impression and that the victim relied on that impression.”
Commonwealth v. Thomas, 684 A.2d 1085, 1086 (Pa. Super. 1996).
In its Opinion, the trial court concisely addressed Barlow’s third and
fourth claims as follows:
[Barlow] testified on her own behalf as to how she came into
possession of the three fraudulent checks. [Barlow’s] testimony
was neither persuasive nor credible. [Barlow] was unable to
provide consistent details, names or addresses for the people she
allegedly did the work for in exchange for these fraudulent checks.
[] Witherspoon testified that he contacted [Barlow] the day after
the checks were deposited to inquire where she obtained such a
large deposit. The story [Barlow] gave that day to [] Witherspoon
changed at a later date. [] Witherspoon testified that he contacted
[Barlow] several times regarding the fraudulent checks in an
attempt to resolve the issue, but [Barlow] never returned the
money she withdrew after being advised the checks she had
deposited were fraudulent. The Commonwealth also presented
testimony from Detective [] Miles who testified that she was
unable to contact the alleged distributors of the checks during the
course of her investigation into this matter.
Trial Court Opinion, 2/27/19, at 3. The trial court found that this claim lacked
merit. See id. at 6. We agree with the trial court’s sound rationale and
determination, and affirm on this basis in rejecting Barlow’s third and fourth
claims. See id.
In her fifth claim, Barlow alleges that the trial court erred in permitting
Witherspoon to give expert testimony on fraudulent banking schemes. See
Brief for Appellant at 37-40. Barlow argues that this testimony was beyond
Witherspoon’s area of expertise. Id. at 38-40. Barlow points out that
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Witherspoon was admitted as an expert in “banking regulations or credit union
operation.” Id. According to Barlow, the Commonwealth failed to establish
how Witherspoon’s expertise in “banking regulations or credit union operation”
made him an expert on fraudulent banking schemes. Id.
In its Opinion, the trial court concisely addressed Barlow’s fifth claim as
follows:
[] Witherspoon testified at [] trial as to his 30 plus years’
experience with the Credit Union and the experience he has had
with members withdrawing money from deposited checks before
the checks clear. [] Witherspoon testified that, in his experience,
there can be several reasons why a check deposited by a member
may not pass the clearance process, such as a check returned for
insufficient funds, someone made an error in their checkbook[,]
or the distributor of the check stopped payment on the check.
Additionally, [] Witherspoon explained that he has observed
members come to the Credit Union to deposit checks which they
received in the mail with a letter stating they won a sweepstakes.
Furthermore, [] Witherspoon testified that, in his experience,
when a check has been returned as counterfeit, oftentimes it
means that someone got ahold of another’s bank information
and/or checks. That person sends the checks to multiple people in
hopes that they will deposit the check. [] Witherspoon testified
that he has copies of letters that are sent to individuals. The
letters are sent with the counterfeit checks and request that the
depositor send back a nominal amount of money as a “processing
fee[.”] [] Witherspoon testified within his scope of expertise as
well as within the scope of his experience working at the Credit
Union for the past 30 years. Accordingly, [Barlow’s] fifth issue is
without merit.
Trial Court Opinion, 2/27/19, at 5-6. We agree with the trial court’s sound
rationale and determination, and affirm on this basis in rejecting Barlow’s fifth
claim. See id.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2019
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