Com. v. Singer, J. ( 2018 )

J-S27033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACKIE SINGER, :
:
Appellant : No. 1648 EDA 2017
Appeal from the Judgment of Sentence April 19, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002043-2015
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 17, 2018
Appellant Jackie Singer seeks review of the Judgment of Sentence
imposed by the Montgomery County court of common pleas following her
convictions by a jury of Theft by Unlawful Taking, Receiving Stolen Property,
and Forgery.1 She challenges the sufficiency and weight of the evidence, the
amendments to the Criminal Information, and the length of her sentence of
imprisonment. After careful review, we adopt the well-written and
comprehensive Opinion of the Honorable Gail A. Weilheimer as our own and
affirm.
We summarize the following relevant facts as gleaned from the certified
record and the trial court’s Opinion. From 2008 to 2014, Appellant was the
manager of the Julie Robin Arouh Dental Practice in Jenkintown (“business”)
____________________________________________
1 18 Pa.C.S. § 3291(a), 18 Pa.C.S. § 3925(a); and 18 Pa.C.S. § 4101(a)(2),
respectively.
J-S27033-18
owned by Julie Arouh, DMD (“Victim”). As office manager, Appellant handled
the finances of the dental practice. Only Appellant and the Victim had access
to the business’s bank accounts.
Between 2008 and 2014, Appellant stole $54,639.24 from the Victim’s
business. Appellant accomplished this by forging the Victim’s name on checks
associated with the business accounts without authorization in order to pay
for personal expenses, including tuition for Appellant’s child. Appellant also
opened two credit cards in the name of the Victim’s business that were linked
to the business’s financial accounts, again without the Victim’s knowledge.
Appellant used those cards for personal expenses, including vacations, meals,
and entertainment, and then used the Victim’s business accounts to pay the
balances due on those credit card accounts. Detective Robert Wilsback
conducted extensive investigation, which included serving search warrants on
the companies from which Appellant had made purchases, comparing the
records obtained showing Appellant’s personal purchases to funds withdrawn
from the business’s bank accounts, and determining that Appellant paid off
her personal credit card expenses using business funds.
On March 19, 2015, the Abington Township Police Department filed a
Criminal Complaint and an affidavit of Probable Cause. The Commonwealth
filed its first Bill of Information on May 18, 2015, charging Appellant with 22
offenses relating to theft, fraud, and conspiracy. On February 22, 2016, the
Commonwealth filed its Bill of Particulars as ordered by the court.
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On October 24, 2016, prior to the commencement of Appellant’s jury
trial, by agreement of counsel, the trial court granted the Commonwealth’s
Motion to Amend the Bill of Information, reducing the number of charges to
12. After the first day of trial, the court again allowed the Commonwealth to
amend the information.
At her jury trial, Appellant testified, inter alia, that the Victim knew
about her personal credit cards and that she reimbursed the Victim for all
personal expenditures. She also testified that she did not keep a personal log
of the expenses she was co-mingling. Appellant was unable to explain the
discrepancy between the business’s QuickBooks financial logs and the
purchases/payments records managed by Appellant. Further, she testified
that she took advantage of the scholarship program offered by the business
when she forged the victim’s name on a check to Holy Family University to
pay the balance of her son’s college tuition.
The Victim, the current office manager, and Detective Wilsbach, among
others, testified. The testimony of the Victim and the current office manager
contradicted testimony provided by Appellant.
After a five-day trial, the jury found Appellant guilty of three counts of
Theft by Unlawful Taking or Disposition, three counts of Receiving Stolen
Property, and one count of forgery. The court ordered a Pre-Sentence
Investigation and Report.
On April 19, 2017, the court held sentencing and restitution hearings.
The court sentenced Appellant to an aggregate term of 11½ to 23 months’
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imprisonment, followed by 7 years’ probation; the court ordered restitution in
the amount of $29,639.24 payable to the Victim and $25,000 payable to the
Victim’s insurance company.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the trial court erred by permitting the Commonwealth
to amend the information mid-trial wherein a bill of particulars
was furnished to the defense and the amendment was not
included in the same?
2. Whether the verdict was against the weight of the evidence in
that [Appellant] testified and explained her use of the credit cards,
the pattern and practice of using the same and the course of
dealing between her and the alleged victim?
3. With respect to Count 3, whether the evidence was sufficient
to support the verdict wherein there was undisputed testimony
that [the Victim] offered scholarship money to employees’ children
and that [Appellant’s] son was full time student such that he woud
be eligible to receive the same?
4. Whether the evidence was sufficient to support the jury’s
finding that [Appellant] was the individual making the unapproved
purchases underlying the counts pertaining to bank transfers?
5. Whether the order of restitution was inappropriately calculated
for the reasons summarized by trial counsel during sentencing,
i.e., the Royal Caribbean cruise charges, the $1,900 credit, and
the $2,200 credit and the postal charges?
6. Whether the [J]udgment of [S]entence was excessive in that
the Commonwealth only sought 6 to 23 months[’] incarceration
plus 4 years[’] probation?2
____________________________________________
2Appellant has included a Pa.R.A.P. 2119(f) Statement in her Brief. See
Appellants Brief at 16-17.
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Appellant’s Brief at 11-12.
The trial court has provided a comprehensive Opinion addressing each
of the issues raised, with reference to the relevant standards of appellate
review, citation to and discussion of applicable case law, citation to the Notes
of Testimony from the trial and the sentencing proceedings, and a thorough
analysis of each of Appellant’s issues. The certified record supports the court’s
analysis and we discern no abuse of discretion or errors of law. Accordingly,
we adopt the trial court’s Pa.R.A.P. 1925(a) Opinion as our own and affirm
Appellant’s Judgment of Sentence. See Trial Ct. Op., dated Nov. 21, 2017
(noting (1) Appellant’s counsel agreed to all but one amendment to the
information; the amendments with which counsel did not agree did not
prejudice Appellant because the defense had prior notice and discovery of the
facts underlying those amendments to counts 2, 6, and 11 relating to Capital
One credit card thefts; none of the amendments to the Information added new
criminal charges or allegations and one amendment reduced the number of
charges; and amendment on the second day was allowable because the only
witness to testify on the first day would not have been questioned about the
issue of the amendment, id. at 45-48; (2) the jury’s unanimous verdict was
not so contrary to the evidence as to make the award of a new trial imperative
in light of the testimony and the jury’s determination that Appellant’s
testimonial defense as to her pattern and practice of using her credit cards
was incredible and lacked evidentiary support, id. at 48-51; (3) the evidence
was sufficient to show that Appellant stole $5,657.00 from the dental practice
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to pay her child’s tuition, emphasizing the testimony from Victim and the
current office manager that scholarship funds are paid each semester directly
to the child, and not the school, no more than $1,000 per year is paid to each
scholarship recipient, and Appellant never applied for the scholarship for her
children, id. at 51-53; (4) the evidence was sufficient to show that the Victim
never authorized Appellant to open a Capital One or Barclaycard credit card
for the dental business or with the dental practice listed on either card, and
never authorized Appellant to use dental office funds to pay for Appellant’s
personal purchases made on those cards; Detective Wilsbach’s investigation
yielded sufficient evidence to demonstrate that Appellant illegally used the
Victim’s business funds to pay for Appellant’s personal purchases, id. at 53-
54; (5) the restitution payable to the Victim after a full restitution hearing is
supported by the record and is neither speculative nor excessive, and the
$25,000 restitution payable to the insurance company garnered no objections
from defense counsel, id. at 54-55; and (6) Appellant’s sentence was neither
inappropriate nor excessive in that for her 6 years of illegal activity, she was
sentenced to a term of incarceration of only 11½ to 23 months’ imprisonment
on one of the three Theft convictions, and received probation on the other two
Theft convictions, the convictions for Receiving Stolen Property merged with
Theft by Unlawful taking for sentencing purposes, and the court imposed no
further penalty on the fraud conviction; further, the aggregate term of 7 years’
probation would be terminable after 4 years if restitution was paid in full, id.
at 56-58).
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J-S27033-18
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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Circulated 09/21/2018 10:34 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANJA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA Common Pleas Court No.:
CP-46-CR-0002043-2015
v.
Superior Court No.:
JACKIE SINGER 1648EDA2017
OPINION
WEILHEIMER, J.
Appellant, Jackie Singer, instantly appeals from her Judgment of Sentence dated April 19, 2017,
and the trial court's denials of her post-sentence motions on May 4, 2017, and May 5, 2017, respectively.
Based upon the foregoing, Appellant's Judgment of Sentence and the trial court's denials of her post-
sentence motions should be affirmed.
FACTUAL HISTORY
The jury's findings in the instant matter can be summarized as follows: Between April I, 2008,
and April 3, 2014, Appellant did unlawfully and feloniously take; and did unlawfully and intentionally
receive, retain, and dispose of; $54,639.241 from her previous employer ("Victim"). Julie Arouh, DMD, at
Julie Robin Arouh Dental Practice located at 261 Old York Road in Jenkintown, Abington Township,
Montgomery County, Pennsylvania 19406. During that time period, Appellant also did, with the intent to
defraud, feloniously sign the name of Victim on checks associated with the business accounts, without
authorization to do so.
1
This sum comprises of United States currency (cash) from the dental office bank accounts, gift cards,
and checks (cash equivalents).
38
PROCEDURAL HISTORY
On March 19, 2015, the Criminal Complaint and Affidavit of Probable Cause were filed with this
Court of Common Pleas for the County of Montgomery ("trial court"). ("Crim Complaint/Prob Cause",
3119115.) On May 18, 2015, the Commonwealth filed its first Bill of Information, charging Appellant
with twenty-two (22) different criminal counts relating to theft, fraud, and conspiracy to commit the same.
(See "Bill of Information", 5/18115.)
On August 31, 2015, Appellant filed the "Writ of Habeaus (sic] Corpus and Motion to Quash
Retum of Transcript", wherein Appellant complained the evidence presented before the Honorable Judge
Juanita A. Price of the Magisterial District Court 38-1-05 was insufficient to sustain a prime facie case on
the charges that were held for court, and thus, violated her constitutional rights. (See "Def/Motion for
Habeas Corpus", 8/31115.) On the same day, Appellant also filed the "Motion Compelling the
Commonwealth to File Bill of Particulars". (See "Def/Motion for Bills of Particular", 8/31/15; l/28/16.)
On January 14, 2016, the trial court scheduled oral argument on Appellant's "Motion Compelling
the Commonwealth to File Bill of Particulars" for January 19, 2016. ("Court Order", 1/14/16.)
Following oral argument, on January 21, 2016, the trial court ordered the Commonwealth to provide
Appellant with a Bill of Particulars "denoting each date or transaction for which it is alleged the
(Appellant] engaged in criminal activity in accordance with the charges filed on the Bills of'Information."
("Court Order", 1/22/16.) On February 22, 2016, the Commonwealth filed its "Bill of Particulars".
("Comm/Filing", 2/22/16.2)
On October 21, 2016, the Commonwealth filed its "Motion to Amend the Bills of Information",
wherein, inter «lta, the Commonwealth sought to amend the Bills to accurately reflect the name of
Appellant's co-conspirator, Donna Surgner3 a/k/a Donna Stein (maiden name). ("Comm/Motion to
Amend Bills of Information", 10/21/16.) Before the commencement of trial on October 24, 2016, and
upon the agreement of counsel for both parties, the trial court granted the Commonwealth's Motion to
2
See Exhibit A - "Commonwealth's Bill of Particulars", 2/22/16.
3
Donna Surgner/Stein is Appellant's sister-in-law.
39
Amend, and the official Amended Bill of Information was docketed on November 4, 2016. (SeeN.T. -
Jury Trial at 3-4; "Bill of Information", 11/4/2016.) The trial court also granted amendments before the
start of the second and fourth day of trial (October 25, 2016, and October 27, 2016, respectively), as the
proposed amendments did not prejudice the Appellant because the Defense was previously on notice of
the factual bases underlying the proposed amendments and received discovery regarding the same. (See
N.T. -Jury Trial at 154-59; 619-20; 949-50.)
On October 241 2016, the five (5)-day jury trial commenced before the undersigned, after which
Appellant was found guilty of the following: l 8 Pennsylvania Consolidated Statutes Annotated (Pa.
C.S.A.), Section (§) 3291 (a) - Theft by Unlawful Taking or Disposition (Counts 1-3); § 3925(a) -
Receiving Stolen Property (Counts 5-7); and § 4101(a)(2) - Forgery. (N.T. - Jury Trial, Days 1-5,
10/24/16-10/28/l 6; see also "Disposition - Corrected", J0/28/2016.) The trial court ordered that a Pre-
Sentence Investigation and Report be completed, Appellant waived the Ninety (90)-Day Rule, and
Appellant was released on same bail pending sentencing. ("Disposition - Corrected", l 0/28/2016.)
On April l 9, 2017, the Sentencing and full Restitution Hearings were held. (See N.T. -
Sentencing, 4/19/17.) Appellant was sentenced on Count 1 (Theft) to confinement for not less than
eleven-and-one-half (11 !h) months nor more than twenty-three (23) months in the Montgomery County
Correctional Facility ("MCCF"); to probation for one (1) year consecutive to the expiration of parole; and
to pay the costs of prosecution and $54,639.24 in restitution to Dr. Julie Arouh and CNA Financial.
("Order-Sentence/Penalty Imposed", 4/19/17.) On Count 2 (Theft), Appellant was sentenced
consecutively to Count l to three (3) years of probation and to pay the costs of prosecution. (U.) On
Count 3 (Theft), Appellant was sentenced consecutively to Count 2 to three (3) years of probation anal to
pay costs of prosecution. (Id.) Counts 5, 6, and 7 (Receiving Stolen Property) merged with Counts 1, 2,
and 3 (Theft) for purposes of sentencing. (/d.) The trial court imposed no further penalty on Count 9
(Forgery). (Id.) Appellant's total sentence, then, is 11 � to 23 months' imprisonment followed by seven
(7) years' probation. (Id.) The undersigned also granted Appellant's request to be furloughed from
40
November 9, 2017, at 9:00 A.M. to November 12, 2017, 12:00 P.M. to attend her daughter's wedding;
and enabled Appellant's supervision to be terminated after four (4) years provided restitution is paid in
full. (Id.)
On April 28, 2017, Appellant filed her "Post-Sentence Motion to Reconsider Defendant's
Sentence", wherein Appellant requested the trial court to reconsider sentence because she is gainfully
employed as a partner in a dental business venture and will have to make substantial restitution payments.
("Post-Sentence Motion", 4/28117.) Appellant also alleged, inter alia, the effect of her sentence will
make her unable to recover financially and that she is a substantial contributor to her household income.
(M.) Appellant ultimately sought relief in the form of a reconsidered, shorter sentence, smaller
restitution, or a grant of work release. (Id.) On the same day, Appellant filed her "Petition in Support of
Defendant's Motion to Reconsider Sentence", wherein Appellant alleged, inter eli«, she has no prior
record; restitution was in excess of $45,000.00; she accumulated a majority share of restitution and her
willingness to submit the same to Clerk of Courts immediately; and that these funds represented a
significant change of circumstances from the time of original sentencing on April 19, 2017. {/d.) On
May 3, 2017, the trial court denied Appellant's "Motion to Reconsider Sentence" and Petition in support
thereof ("Comi Order", 5/4117.)
On May 25, 2017, Appellant filed her Notice of Appeal with the Superior Court of Pennsylvania
("Superior Court"), and on June l, 2017, Appellant filed her Concise Statement of Matters Complained of
on Appeal ("Concise Statement") pursuant to Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.),
l 925(b), raising the fol1owing six (6) issues:
I. WHETHER THE TRIAL COURT ERRED BY PERMITTING
THE COMMONWEALTH TO AMEND THE INFORMATION
MID-TRIAL WHEREIN A BILL OF P.ARTICULARS WAS
FURNISHED TO THE DEFENSE AND THE AMENDMENT
WAS NOT INCLUDED IN THE SAME?
2. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE IN THAT THE DEFENDANT TESTIFIED
AND EXPLAINED HER USE OF THE CREDIT CARDS, THE
PATTERN AND PRACTICE OF USING THE SAME AND THE
41
COURSE OF DEALING BETWEEN HER AND THE ALLEGED
VICTIM?
3. WITH RESPECT TO COUNT 3, WHETHER THE EVIDENCE
WAS SUFFICIENT TO SUPPORT THE VERDICT WHEREIN
THERE WAS UNDISPUTED TESTIMONY THAT DR. AROUH
OFFERED SCHOLARSHIP MONEY TO EMPLOYEES'
CHILDREN AND THAT MS. SINGER'S SON WAS [SIC]
FULL TIME STUDENT THAT HE WOULD BE ELIGIBLE TO
RECEIVE THE SAME?
4. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT
THE JURY'S FINDING THAT (APPELLANT] WAS THE
INDIVIDUAL MAKING THE UNAPPROVED PURCHASES
UNDERLYING THE COUNTS PERTAINING TO BANK
TRANSFERS?
5_ WHETHER THE ORDER OF RESTITUTION WAS
INAPPROPRIATELY CALCULATED FOR THE REASONS
SUMMARIZED BY TRIAL COUNSEL DURING
SENTENCING, LE., THE ROYAL CARIBBEAN CRUISE
CHARGES, THE $1,900 CREDIT, THE $2,200 CREDIT AND
TI-IE POSTAL CHARGES? (SEE N.T. 4/19/17 AT 42.)
6. WHETHER THE JUDGMENT OF SENTENCE WAS
EXCESSIVE IN THAT THE COMMONWEAL TH ONLY
SOUGHT • TO 23 MONTHS INCARCERATION PLUS 4
YEARS OF PROBATION?
("Notice of Appeal", 5/25/17; "192S(b) Concise Statement", '9/1/17.)
The rest of this page was intentionally left blank.
42
DISCUSSION
I. STANDARDS OF REVIEW
The issues put forth in Appellant's Concise Statement prompt the Superior Court to apply the
following standards of review in the instant Appeal, in seriatim:
A. Amendment of a Bill ofInformation
"In reviewing the validity of criminal pleadings, [the Superior Court] look[s] more to substantial
justice than to technicalities." Commonwealtlt v. Huiekan, 487 A.2d 980 (Pa. Super. 1985).
Specifically, "[i]n reviewing a grant to amend an information, [the Superior Court] will look to determine
whether the defendant is fully apprised of the charges against him." Commonwealth v. Picchiunti, 600
A.2d 597, (Pa. Super. l 99 I), appeal denied 609 A.2d 168 (Pa. l 992). "Where crimes specified in the
original information involve the same basic elements and arose out of the same factual situation as the
crimes specified in the amended information, the defendant is deemed to have been placed on notice
regarding his alleged criminal conduct «nd no prejudice to defendant results." Id. (emphasis added)
( citations omitted).
B. Weight ofEvidence
"An allegation that the verdict is against the weight of the evidence is addressed to the discretion
of the trial court." Commonwealth v, Stokes, 78 A.3d 644. 650-51 (Pa. Super. 2013) (citing
Commonwealth v. Widmer ("Widmer II"}, 744 A.2d 745, 751-52 (Pa. 2000)). "An appellate court,
therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the
weight of the evidence." Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007), certiorari
denied 171 LEd.2d 235 (U.S. 2008) (citing Commonwealth v. Keaton, 729 A.2d 529� 540-41 (Pa.
I 999)). The Superior Court, then, "may only reverse the [trial] court's verdict if it is so contrary to the
evidence as to shock one's sense of justice." Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.
20!2). Thus, "[a]ppellate review is limited to whether the trial court palpably abused its discretion in
ruling on the weight claim." Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005)1 reargument
43
denied, appeal denied 880 A.2d 1237 (Pa. 2005); see also generally Cousar, supra, ("relief will only be
granted where (he facts and inferences of record disclose a palpable abuse of discretion.").
C. Sufficiency of Evidence
"In applying the standard of review for sufficiency of evidence claims, the Superior Court, "must
view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth,
as the verdict winner, and consider whether the trier of fact could have found that each element of the
offense charged was supported by evidence and inferencejs] sufficient to prove guilt beyond a reasonable
doubt." Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. Super. Ct. l 997) (citations omitted); Cousar,
928 A.2d at I 032-33. Moreover, the Superior Court, "may not substitute its judgment for that of the fact-
finder; if the record contains support for the convictions they may not be disturbed." Stokes, 78 A.3d at
649.
D. Restitution
"Challenges to the appropriateness of a sentence of restitution are generally considered challenges
to the legality of the sentence." Commonwealth v. Langston, 904 A.2d 917, 921 (Pa. Super. 2006)
{ citation omitted) abrogated in part, Commonwealth v. Holmes, 15 5 A.3d 69 (Pa. Super. 2017). "An
appeal from an order of res ti tut ion based upon a claim that a restitution order is unsupported by the record
challenges the legality, rather than the discretionary aspects, of sentencing." Holmes, ] 55 A.3d at 78.
"The determination as to whether the trial court imposed an illegal sentence is a question of law; our
standard ofreview in cases dealing with questions of law is plenary." Id.
E. Trial Court Discretion at Sentencing
A trial court's discretion in sentencing is broad, "and the reviewing court should not disturb [its]
exercise of that discretion except for substantial reasons." Commonwealtlt v. Widmer ("Widmer P'),
667 A.2d 215 (Pa. Super. 1995), reargument denied, appeal granted 680 A.2d 1161, reversed 689 A.2d
2 l I (Pa. 1997). Specifically, a sentence "will not be disturbed unless it is outside statutory limits or
manifestly excessive so as to inflict too severe a punishment." Commonwealth v. Phillips, 601 A.2d
44
 816, appeal gr«ntei 610 A.2d 45, «!firmed 633 A.2d 604. Moreover, "[ a]n abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as
shown by the evidence or the record, discretion is abused." Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa.
Super. 2008).
F. Abuse of Discretion Standard, Ge11emlly
ln Widmer If, supr«, the Superior Court reiterated the well-known definition of 'abuse of
discretion' as follows:
The term 'discretion' imports the exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion, within the framework of the law,
and is not exercised for the purpose of giving effect to the will of the
judge. Discretion must be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued represents not merely an
error of judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.
Id. at 753.
II. THE TRIAL COURT DID NOT ERR IN PERMITTING THE COMMONWEALTH
TO AMEND THE BILL OF INFORMATION TO ACCURATELY REFLECT
APPELLANT'S CO-CONSPIRATOR'S NAME. INCLUDING HER MAI»EN
NAME, BECAUSJJ: SUCH AN AMENDMENT DID NOT CHANGE THE BASIC
ELEMENTS OF THE ALLEGED CRIMES CHARGED; THUS, APJ>ELLANT
HAD NOTICE OF THE SAME..
The first issue raised in Appellant's Concise Statement alleged the trial court erred by permitting
the Commonwealth to amend the Bill of Information after it had furnished the Bill of Particulars. (See
«1925(b) Concise Statement" i! 1, 6/20/17.) The Bill of Information was first amended pre-trial per
agreement between counsel for both parties as follows: (i) The co-conspirator, Donna Surgner's", name
was changed to also include her maiden name, Donna Stein; (ii) 'The number of charges was reduced from
twenty-two (22) counts to twelve (12) counts; and (iii) the amended Count l O =Access Device Fraud was
amended to include the specific type of access that was used in the perpetrated fraud, i.e., the victim's
4
Donna Surgner/Stein is Appellant's sister-in-law.
45
Wells Fargo bank account. (See N.T. - Jury Trial at 3�4, 10/24116.) Moreover, the following
amendments were granted by the undersigned during trial because the same did not prejudice Appellant,
given the Defense had prior notice and discovery of the facts underlying these changes: (i) Over Defense
Counsel's objection, the amended counts 2, 6, and 11, relating to the Capital One credit card thefts, were
amended to include the factual basis that, on August 8, 2013, [Appellant] and Dr. Kathleen Wu registered
the "Prestige Dental" practice with Wells Fargo Finance, charging $1,000.00 to Appellant's Capital One
credit card, which was then paid for via the victim's Jinked Firstrust bank account; (ii) With Defense
Counsel's agreement, the forgery charge ( originally Count 13) that pertained to Appellant signing the
name of Julie Arouh without their permission that was charged 18 Pa. C.S.A. § 410 I (a)(l) was
appropriately changed to subsection (a)(2). (Id. at 154-59, 10/25/16; 6]9-20, 10127/16.) Given Defense
Counsel agreed to all but one (I) of the amendments and the amendment with which he did not agree did
not prejudice Appellant, the trial court did not en- by permitting the Commonwealth to amend the BiB of
Information.
Pennsylvania Rule of Criminal Procedure (Pa. R. Crim. P .) 564 permits the amendment ofa bill of
information following its issuance:
The court may allow an information to be amended when there is a defect
in form, the description of the offense(s), the description of eny person or
property, or the date charged, provided the information as amended does
not charge an additional or different offense. Upon amendment, the court
may grant such postponement of trial or other relief as is necessary in the
interests of justice.
Pa. R. Crim. P. 564 (West, effective until December 21, 2017) (emphasis added); see also Commonwealth
v. Johnson, 485 A.2d 397, 403 (Pa. Super. 1984) (citing Rule 229, precurser to Rule 564). The test to be
applied in allowing amendment of an information is:
[W)hether the crimes specified in the original indictment or information
involve the same basic elements and evolved out of the same factual
situation as the crimes specified in the amended indictment or information.
If so, then the defendant is deemed to have been placed on notice
regarding his alleged criminal conduct. [ ... ]
46
Commonwealtlt v. J.F.} 800 A.2d 942 (Pa. Super. 2002), appeal denied 812 A.2d 1228 (Pa. 2002)
(citation omitted). Moreover, Pennsylvania courts have allowed amendments to a bill of information on
the day of trial and even at the conclusion of the Commonwealth's case-in-chief, See, e.g.,
Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006) (holding defendant did not suffer prejudice
as result of amendment of information on day of trial); Commonwealtli v. Watkins, 361 A.2d 365 (Pa.
Super. 1976) (holding defendant did not suffer prejudice as result of amendment of information at close of
Commonwealth's case-in-chief); Commonwealtlt v. Roser, 914 A.2d 447 (Pa. Super. 2006) (holding
defendant did not suffer prejudice as result of amendment of information immediately preceding closing
arguments)
Here, the trial court did not en- by allowing amendments to the Bill of Information because defense
counsel agreed to the same except for one ( l) amendment that occurred before the start of the second day
of trial; however, the amendment with which Defense Counsel objected did not prejudice Appellant
because the Defense had prior notice and discovery of the facts underlying the proposed changes.
Moreover, Defense Counsel admitted the factual basis underlying the amendment would not have come up
during his cross-examination of the witness, Filomena Bisacquino ("Mena"), from the first day of trial,
As well, none of the amendments to the Bill of Information added new criminal charges or allegations; in
fact, one (I) of the agreed amendments reduced the number of charges. (N.T. - Jury Trial at 3-4, 949.)
The record from the second day of trial reflects the trial court's reasoning for allowing the one (I)
amendment over Defense Counsel's objection as follows:
THE COURT: [ ... J Okay. [Defense Counsel], did you have
notice of this [factual basis] previously?
(DEFENSE): Yes, I did, Your Honor,
THE COURT: Okay. What is your position regarding the
Commonwealth's motion to amend?
[DEFENSE]: [, .. J I object to allowing any amendment. At this
point, trial has already begun. There has been a
defense strategy already implemented, And as a
result of that, Your Honor, I would ask the [cjourt
47
to deny Commonwealth's motion to amend the Bills
at this time. [ ... ]
[ ... ]
THE COURT: Okay. Let me just ask, [Defense Counsel], the
factual basis, was the thousand dollar charge for
Prestige Dental something that you would have
questioned yesterday's witness (Mena) about if you
knew about it?
[DEFENSE]: No, Your Honor. In all candor to the [c]ourt, I
don't believe that it would have come up with
[Mena].
THE COURT: Thank you.] ... ]
[ ... ]
THE COURT: [ ... ] [Defense Counsel], did you receive
information about this specific charge in the
discovery that was provided to you?
[DEFENSE]: Yes, Your Honor, I did.
THE COURT: Based on the fact that counsel was provided with
the factual basis and the discovery, this Capital One
credit card was addressed in the Bills of Information
that were filed prior to the Bill of Particulars, as
ordered by the [c]ourt, and that the first witness,
[Mena], the current office manager, would not have
been questioned about it, this [c ]ourt will allow the
amendment.
(Id. at 154�59, 10/25116 (emphasis added).) Thus, ultimately the Defense was on notice of the factual
basis underlying this particular amendment that was made after the trial started, and because the factual
basis would not have been the subject of defense counsel's cross-examination of Mena on the first aay of
trial, Appellant was not prejudiced by the amendment.
III. THE ,JURY'S UNANIMOUS VERDICT WAS NOT AGAINST THE WEIGHT OF
THE EVIDENCE.
The second issue raised in Appellant's Concise Statement alleged the jury's unanimous verdict
was against the weight of the evidence because, "Appellant testified and explained her use of the credit
cards, the pattern and practice of using the same and the course of dealing between her and the alleged
48
victim].]" (See "l925(b) Concise Statement" ir 2, 6/1/17.) For the reasons that will follow, the jury's
unanimous verdict was not against the weight of the evidence.
"An allegation that the verdict is against the weight of the evidence is addressed to the discretion
of the trial court." Stokes, 78 A.3d at 650�51 (citing Widmer II, 744 A.2d at 751-52). As such, the
Superior Court, "may only reverse the [trial] court's verdict if it is so contrary to the evidence as to shock
one's sense of justice." Lofton, 57 A.3d at 1273. Specifically, "[tjhe test is not whether the [Superior
Court] would have decided the case in the same way hut whether the verdict is so contrary to the evidence
as to make the award of a new trial imperative so that right may be given another opportunity to prevail."
Taylor, 471 A.2d at 1230 (citations omitted). In analyzing the verdict in this way, the Superior Court
must consider the fact finder, whether it is a jury or a judge, "is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses." See Cousar, 928 A.2d at 1036.
Here, the jury found that between 2008 and 2014, Appellant, at the time the dental office manager
for Dr. Arouh's ("Victim's") dental practice, opened up a personal Capital One and Barclaycard credit
card with the dental practice name printed on them, without Victim's knowledge or authorization to do so,
and on each of which Appellant made both personal charges, e.g., family vacations, Coach and Tiffany
purchases, and airfare; as well as, legitimate office charges, e.g., dental equipment, postage, and office
supplies. (See N .T. - Jury Trial at 29-148 (Filomena ("Mena") Bisacquino - current office manager');
165·94 (Lindsay Mullin - hygienist); 194-425; 437-536; 542-5 J (Dr. Julie Arouh); 584-608, 621-536
(Detective Robert Wilsbach).) Appellant then paid for these credit card expenses, including her personal
expenditures, with funds from the dental offices' bank accounts, Wells Fargo and Firstrust, respectively.
(Id.)
The jury's unanimous verdict was not so contrary to the evidence as to make the award of a new
trial imperative because the jury found Appellant's testimonial defense as to her pattern and practice of
using her credit cards, both incredible and lacking evidentiary support, (See generally id. at 758-918.)
5
Following Appellant's termination from Victim's dental practice, Mena, the former front desk clerk,
became the new office manager. (Id. at 29-30.)
49
Appellant incredibly testified Victim knew about Appellant' s personal credit cards and knew Appellant's
pattern and practice of using the same for personal and office expenses, despite Mena and Victim's
credible testimony to the contrary. (Id.) Appellant further testified she reimbursed Victim for all the
personal expenditures, despite the Jack of any evidentiary support for the same. (See id. at 768, 778, 783,
791, 811, 825-26, 877-80, 882-83.) The jury was clearly and reasonably unconvinced by Appellant's
narrative, given Mena, Lindsay Mullin, Victim, and even defense witness, Dr. Wu's, testimonies were
largely consistent with each other, but inconsistent with Appellant's testimony; and because there was
likewise no evidentiary support for Appellant's defense. (See generally N.T. - Jury Trial.)
Additionally, Appellant, could not credibly explain on cross-examination the lack of proof for her
defense that she always reimbursed Victim in cash for Appellant's personal credit card expenditures:
[COMM.]: And you paid those personal purchases and that personal
credit card through [Victim's] Wells Fargo business
account; right?
(APPEL.]: Yes.
[COMM.]: Okay. And it's your testimony that you paid back [Victim]
for all of those purchases in cash?
[APPEL.]: Yes.
[ ... )
(COMM.]: So let's see. Like. March 21, 2014, it says 'my charges
$1,861.51.'
[APPEL.]: Yes.
[COMM.]: Is that correct?
[APPEL.]: Yes.
[COMM.]: So you walked into [Victim's) office and handed her
$] ,861.5 l; is that correct?
[APPEL.]: It wouldn't have been - there wouldn't have been change.
It would have been rounded -
[COMM.): Okay. Sorry.
[APPEL.]: -- to a number. Yes.
50
[COMM.]: 1,862? That's what you would hand her?
[APPEL.]: Maybe 1,860.
[COMM.]: Okay. So would that be, in twenties or hundreds or what
amount?
[APPEL.]; Whatever I had.
(Id. at 873:24-25; 874:2-6; 874:20-25, 875:2-11; see also id. at 875-77.)
Appellant also foiled to explain on cross-examination the discrepancy between the dental office's
financial QuickBooks Jogs and the purchases/payments records, which were managed by Appellant while
she worked as the dental practice's office manager. Appellant testified that she, as a bookkeeper,
understands the importance of logging every transaction, as well as, the financial principle that one should
not mix business and personal funds. (Id. at 856-66.) However, she later testified that she did not, in fact,
keep a personal log of these expenses that she was co-mingling, despite knowing the importance of doing
so. (Id. at 869.) Appellant also incredibly testified as to the lack of QuickBooks logs documenting the
unauthorized credit card purchases; specifically, she testified, "I cannot explain to you what happened
after I left there in 2014," which insinuated that someone went into QuickBooks and altered or deleted the
credit card charges from the records. (Id. at 872, 873:15-16.) Therefere, the evidence of Appellant's
illegal and unauthorized use of the dental office's funds to pay for her personal credit card expenses was
overwhelming, her responding testimonial defense was highly incredible, and as such, the jury's verdict
was not against the weight of the evidence.
IV. THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO SUPPORT
THE JURY'S UNA.NIMOUS VERDICT ..
The third and fourth issues raised in Appellant's Concise Statement alleged the evidence was
insufficient to support the jury's unanimous verdict. (See "1925(b) Concise Statement" 1� 3-4, 6/1/17.)
"When considering whether evidence introduced at trial is sufficient to sustain a conviction, (the
Superior Court] must view all evidence and reasonable inferences therefrom in the light most favorable to
the Commonwealth, as the verdict winner, and consider whether the trier of fact could have found that
51
each element of the offense charged was supported by evidence and inference[s] sufficient to prove guilt
beyond a reasonable doubt." Brown, 701 A.2d at 254 (citations omitted); Cousar, 928 A.2d at 1032-33.
"The Commonwealth may sustain its burden by proving the crimejs'] elements with evidence which is
entirely circumstantial and the trier of fact, who deterrnin] e] credibility of witnesses and the weight to
give the evidence produced, is free to believe all, part, or none of the evidence." Brown, 701 A.2d at 254.
See also Stokes, 78 A.3d at 649 (reasonable doubt necessarily entails that a conviction "must be based on
more than mere suspicion or conjecture;" however, "the Commonwealth need not establish guilt to a
mathematical certainty.") (citations omitted). During the Superior Court's review of "the sufficiency of
the evidence, [it] may not substitute its judgment for that of the fact-finder; if the record contains support
for the convictions they may not be disturbed." Stokes, supra.
For the reasons that wi II follow, the evidence presented at trial was sufficient to support the jury's
unanimous verdict, such that Appellant illegally stole dental office funds to pay for her son's school
tuition, as well as, made illegal fund transfers to cover her personal credit card expenses.
A. First Sufficiency Issue Scholarshlp Funds & Forged Check
=
The third issue raised by Appellant in her Concise Statement specifically alleged the evidence was
insufficient to support the jury's unanimous verdict, "wherein there was undisputed testimony that
[Victim] offered scholarship money to employees' children and that (Appellant's} son was [a] full[-]time
student such that he would be eligible to receive the sarne].]" (See "1925(b) Concise Statement" ,i 3,
6/1/]7.)
The evidence was sufficient to prove Appellant stole funds from the dental practice's business
accounts to fund her son's tuition at Hety Family. There was little doubt that Victim's dental office had a
program in place where full-time employees with children who were full-time students were eligible for a
needs-based scholarship, which provided a maximum of$500.00 per Fall and Spring semesters. (N.T. -
Jury Trial at 52-53, 55, 299�300.) However, there was doubt as to Appellant's defense that she simply
took advantage of this scholarship program when she forged a check in Victim's name to an amount over
52
$5,000.00 to pay her son's tuition balance. Victim and Mena both testified that if an employee was
eligible and received the scholarship, a check would be made out per semester to the child, not to the
parent and not to the school and then logged into the QuickBooks ledger. (Id. at 52-53, 55, 301.) They
both also testified that Appellant never applied for this scholarship for either of her two children and she
actually stated at one point when her son was in community college that she would not take that gift from
others who needed it more. (Id. at 54, 92, 299, 301 .) In Appellant's case, she illegally forged a check
with Victim's name for her son, Robert Singer's, tuition but the check was made out to Holy F«mily, not
to the student and it was for $5,657 .00, despite the fact the program would only ever pay a max of
$1,000.00 annually, (lrl at 298-99, 300, 3 02 (Exhibit C-11 ).) Victim testified Appellant had no authority
to write checks for tuition and was never given permission to forge her signature; the only time a check
could be signed without Victim would be using the office signature stamp and that had to be pre-
authorized. (Id at 518-23.) Therefore, the evidence was sufficient to support Appellant's guilty verdict
with respect to the theft of Victim's business funds to pay for Appellant's son's tuition.
B. Second Sufficiency Issue - Unapproved Purchases & Bank Transfers
The fourth issue raised by Appellant in her Concise Statement specifically alleged the evidence
was insufficient to support the jury's unanimous finding, "that [Appellant] was the individual making the
unapproved purchases underlying the counts pertaining to bank transfers." (See "1925(b) Concise
Statement"� 4, 6/l/l7.) For the reasons that will follow, the evidence presented at trial was sufficient to
support the jury's unanimous verdict.
The instant Opinion, in its weight of evidence discussion in Section II, supra, discussed and cited
the evidence that was presented at trial regarding Appellant's illegal and unauthorized financing of her
personal credit card purchases via the dental practice's business bank accounts. In doing so, Section II
also makes it clear the evidence was sufficient to support the jury's verdict with respect to the same. At
no time did Victim authorize Appellant to open a Capital ene or Barclaycard credit card for the dental
office, nor did she authorize Appellant to do so with Victim's dental practice listed on either card. (N.T, -
53
Jury Trial at 549-50, 552.) Nor did Victim authorize Appellant to use dental office funds to pay for the
personal purchases Appellant made on said credit cards. (Id.) Moreover, Detective Robert Wilsbach's
extensive investigation into Appellant's fraud, which included several search warrants being served on the
companies with which Appellant made these unauthorized purchases, provided evidence of these
unauthorized purchases. (See id. at 576-08, 621-03.) With these seized records, the detective was able to
match the funds withdrawn from the dental office bank accounts to Appellant's personal purchases, and
was able to determine in conjunction with other evidence and witness statements that Appellant did, in
fact, pay off her personal credit card expenses using office funds. Therefore, the evidence was sufficient
to support Appellant's guilty verdict with respect to the illegal and unauthorized use of Victim's business
fonds to pay for Appellant's personal purchases.
Ill. THE RESTITUTION IN THIS MATTER WAS APPROPRIATELY CALUCLATED
AFTER A FULL RESTITUTION HEARING WAS HELD.
The fifth issue raised by Appellant in her Concise Statement alleged the order of restitution was,
"inappropriately calculated for the reasons summarized by trial counsel during sentencing, i.e., the Royal
Caribbean cruise charges, the $1,900[.00] credit, the $2,200[.00) credit[,] and the postal charges].]" (See
"1925(b) Concise Staternent't j 5, 6/J/l7.) For the reasons that will follow, the order of restitution was
properly calculated after a full restitution hearing was held at the time of sentencing.
"Upon conviction for any crime wherein property has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the
victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make
restitution in addition to the punishment prescribed therefor." 18 Pa. C.S.A. § 1106(a) (West 2017).
Section 1106 further provides, "[t]he court shall order foll restitution:"
Regardless of the current financial resources of the defendant, so as to
provide the victim with the fullest compensation for the loss. [ ... J The
court shall not reduce a restitution award by any amount that the victim
has received from an insurance company but shall order the defendant to
pay any restitution ordered for loss previously compensated by an
insurance company to the insurance company.
54
§ l l06(c)(l). Rule 705.] begins with, "[a]t the time of sentencing, the judge shall determine what
restitution, if any, shall be imposedj.]" and follows with the procedure for imposing restitution. Pa. R.
Crim. P. 705.1.
"A court must ensure [ ... ] that the record contains the factual basis for the appropriate amount of
restitution." Commonwealth v. Pleger, 934 A.2d 7 IS, (Pa. Super. 2007) (citing § 1 I 06) (other citation
omitted). «Although restitution does not seek, by its essential nature, the compensation of the victim, the
dollar value of the injury suffered by the victim as a result of the crime assists the court in calculating the
appropriate amount of restitution." Commonwealth i•. Burwell, 58 A.3d 790 (Pa. Super. 2012),
reargument denied, appeal denied 69 A.3d 242 (Pa. 2013) (citing Pleger, 934 A.2d at 720) (other
citations omitted). "The amount of a restitution order is limited by loss or damages sustained as a direct
result of ]a] defendant's criminal conduct and by the amount supported by the record." Commonwealth
v. Do/mu, 725 A.2d 822 (Pa. Super. 1999) (citation omitted). "The sentencing court applies a 'but for'
test in imposing restitution; damages which occur as a direct result of the crimes are those which would
not have occurred but for the defendant's criminal conduct." Commonwealth v. Poplawski, 158 A.3d
67 I, 674 (Pa. Super. 2017) ( emphasis added) ( citations removed). Moreover, "the amount of restitution
ordered by trial court (must be] supported by the record and [ ... ] neither speculative nor excessivel.]" See
Commonwealtk v. Rush, 909 A.2d 805, 810 (Pa. Super. 2006), reargument denied (internal citations
omitted).
Instantly, the $29,639.24 in restitution payable to Victim, which was ordered after a foll
Restitution Hearing, is supported by the record and is neither speculative nor excessive. (See !enerally
N.T. - Sentencing & Restitution, 4-43; see also N.T. = Jury Trial at 280-308.) Specifically, the trial court
reviewed the entire record from the five (5)-day jury trial, heard argument at the Restitution Hearing, and
received further evidence at the same. (Jd.) The trial court also awarded $25,000.00 in insurance
company restitution, to which the •efense had no objections. (See N.T. -- Sentencing & 1'.estitution at 4-
43, 4/19117. Thus, the restitution was appropriately calculated and was neither speculative nor excessive.
55
IV. THE FINAL JUDGMENT OF SENTENCE WAS APPROPRIATE AND NOT
EXCESSIVE.
The sixth issue raised in Appellant's Concise Statement alleged the judgment of sentence was
excessive, "in that the Commonwealth only sought 6 to 23 months incarceration plus 4 years of
probation].]" (See "1925(b) Concise Statement" ,r 5, 6/l/17.) For the reasons that will follow the
judgment of sentence, here, was not excessive.
A trial court's discretion in sentencing is broad, "and the reviewing court should not disturb [its]
exercise of that discretion except for substantial reasons." Commonwealth v. Widmer ("Widmer P?,
667 A.2d 215 (Pa. Super. 1995), reargument denied, appeal granted 680 A.2d 1161, reversed 689 A.2d
21 l. Specifically, a sentence "will not be disturbed unless it is outside statutory limits or manifestly
excessive so as to inflict too severe a punishment." Commonwealth v. Pllilli]'s, 60 l A.2d 816, appeal
granted610 A.2d 45, q{firmed633 A.2d 604.
Finally, § 9781 outlines the right to appellate review of sentence as follows:
[ ... ] The defendant [ ... ] may file a petition for allowance of appeal of the
discretionary aspects of a sentence for a felony [ ... ] to the appellate court
that has initial jurisdiction for such appeals.
[ ... J The appellate court shall vacate the sentence and remand the case to
the sentencing court with instructions if it finds: ( l) the sentencing court
purported to sentence within the sentencing guidelines but applied the
guidelines erroneously; (2) the sentencing court sentenced within the
sentencing guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or (3) the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable. Jn all other cases the appellate court shall affirm
the sentence imposed by the sentencing court.
[ ... ]In reviewing the record, the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and
characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant,
including any presentence investigation.
(3) The findings upon which the sentence was based.
( 4) The guidelines promulgated by the commission.
56
42 Pa. C.S.A. § 9781 (b )-( d). "[W]hen reviewing sentencing matters, [the Superior Court] must accord the
sentencing court great weight as it is in the best position to view defendant's character, displays of
remorse, defiance or indifference, and overall effect and nature of crime." Commonwealth v. Hanson,
856 A.2d 1254 at 1260 (Pa. Super. 2004).
Here, Appellant's total sentence of 11.5 to 23 months' incarceration (with good time eligibility),
followed by seven (7) years' total probation (terminable after four (4) years if restitution paid in full), was
neither unreasonable nor excessive, given Appellant systematically stole and violated her employer's trust
over a period of six (6) years in which a large amount of money was taken. (See N.T. - Sentencing &
Restitution at 64-67 .) The undersigned reviewed the notes of testimony from trial; Victim's impact
statements; Appellant's PSI report; Appellant's children's unsigned letters; Dr. Wu's letter; and heard the
testimony from Appellant's husband before ultimately deciding on the appropriate sentence. (Jtl at 44-
48.) As evinced in the PSI report, Appellant is financially stable with various assets and a large
retirement savings account, which supported the Commonwealth's argument that, "[t]his wasn't a crime
of necessity; this was a crime of opportunity and greed." (1
59