Com. v. Davis, I. ( 2020 )

J. A17045/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
INDIGA CEARRA DAVIS, : No. 3546 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered November 15, 2019,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0001092-2019
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2020
Indiga Cearra Davis appeals from the November 15, 2019 judgment of
sentence entered by the Court of Common Pleas of Chester County following
her conviction of one count of forgery—unauthorized act in writing,1 following
a bench trial. The trial court sentenced appellant to, inter alia, three years’
probation. After careful review, we affirm.
The following facts can be gleaned from the certified record: Appellant
pled guilty to two counts of forgery—unauthorized act in writing and one count
of theft by unlawful taking at No. CP-15-CR-0001015-2018. During
sentencing, appellant provided the trial court with a character reference letter
purportedly written by Ona Lingyte and Donyetta Stevens. While the letter
1 18 Pa.C.S.A. § 4101(a)(2).
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was neither marked nor admitted into evidence, the letter was read by the
trial judge, Chester County President Judge Jacqueline C. Cody. Neither
Lingyte nor Stevens wrote a character reference letter for appellant, nor did
they authorize anyone to write a character reference letter on their behalf.
The letter [at issue] sp[oke] very well of [appellant.]
When it came time to impose [appellant’s] sentence,
Judge Cody stated that she absolutely considered the
letter as a factor at sentencing. When asked to
explain her consideration of the letter, Judge Cody
responded as follows:
Part of the reason that this letter was so
important in this particular case is
because the victim in the case I was
sentencing [appellant] on was a prior
employer. And the prior employer
thought [appellant] had done such a great
job, and at the same time she was
stealing from them. And when I got this
letter, I was impressed with what this
person allegedly was saying, that
[appellant] was a star there, and talked
about what a good job she was doing.
And it sounded to me like based on the
letter that she had reported everything
that had happened before, and they
thought that she was wonderful and I
believed it was coming from an employer.
I didn’t know that it was made up and it
was a lie. That would have made a big
difference in my decision in this case. I
believe that the Commonwealth was
asking for significantly more time than I
sentenced [appellant] to. And this letter
was a big part of that because I want
people to succeed after they take
responsibility for their crimes.
[Notes of testimony, 9/6/19 at 20-21.]
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....
Judge Cody further testified that had she not received
this letter with the glowing report from a current
employer, it may have potentially impacted the
sentence.
On cross-examination, she testified that at the
sentencing hearing she found it troubling that
[appellant] did not tell her new employer about her
pending charges when she attained the job. In both
of her positions, [appellant] used her talent in working
with children and since Judge Cody believed the letter
was from an employer, she took that into
consideration.
Judge Cody was made aware on August 9, 2018 that
the letter was not written by the people whose names
were on the letter. She and Peter Jurs received a
letter via email about the fraudulent letter from
prosecutor Michelle Frei. Judge Cody did not seek a
direct contempt of court proceeding against
[appellant]. She allowed the Commonwealth to make
the decision as to how they wanted to proceed. She
did not take or initiate any action.
. . . Judge Cody stated that she considered everything
that was offered at the [sentencing] hearing in
consideration of the sentence and that the sentence is
“consistent with some of the good things that you’re
doing, and what I hope will be good things that you
do in the future.” At the sentencing hearing at which
the fraudulent letter was offered, [appellant] stated
that “I have worked really hard in being an honest and
loving person, and changing my life around for my son
and for my new born coming soon.”
Trial court opinion, 2/5/20 at 5-7.
The Commonwealth subsequently charged appellant with the
aforementioned offense. Following a bench trial, the trial court convicted
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appellant. The trial court imposed sentence on November 15, 2019. On
December 12, 2019, appellant timely filed a notice of appeal. The trial court
ordered appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court
filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 5, 2020.
Appellant raises the following issue for our review:
Was there sufficient evidence to prove [appellant]
intended to defraud or injure another when, at a
sentencing hearing in another case, she presented a
letter of character reference purportedly written by
two former employers who did not authorize the
writing?
Appellant’s brief at 1.
In reviewing a challenge to the sufficiency of the
evidence, our standard of review is as follows:
As a general matter, our standard of
review of sufficiency claims requires that
we evaluate the record in the light most
favorable to the verdict winner giving the
prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need
not establish guilt to a mathematical
certainty. Any doubt about the
defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak
and inconclusive that, as a matter of law,
no probability of fact can be drawn from
the combined circumstances.
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The Commonwealth may sustain its
burden by means of wholly circumstantial
evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s
participation in a crime is circumstantial
does not preclude a conviction where the
evidence coupled with the reasonable
inferences drawn therefrom overcomes
the presumption of innocence.
Significantly, we may not substitute our
judgment for that of the fact finder; thus,
so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the
respective elements of a defendant’s
crimes beyond a reasonable doubt, the
appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23
(Pa.Super. 2013) (internal quotations and citations
omitted). Importantly, “the [fact finder], which
passes upon the weight and credibility of each
witness’s testimony, is free to believe all, part, or
none of the evidence.” Commonwealth v.
Ramtahal, [], 33 A.3d 602, 607 ([Pa.] 2011).
Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).
The Crimes Code defines forgery—unauthorized act in writing as follows:
A person is guilty of forgery if, with intent to defraud
or injure anyone, or with knowledge that [s]he is
facilitating a fraud or injury to be perpetrated by
anyone, the actor . . . . makes, completes, executes,
authenticates, issues or transfers any writing so that
it purports to be the act of another who did not
authorize the act . . .
18 Pa.C.S.A. § 4101(a)(2) (formatting altered; emphasis added).
Here, appellant contends that the Commonwealth failed to introduce
sufficient evidence that established beyond a reasonable doubt that appellant
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acted with the intent to defraud or injure anyone. (Appellant’s brief at 5.)
Specifically, appellant argues that, “the reasonable inference drawn from [her]
action is that she sought leniency for herself. This intent does not equal an
intent to defraud or injure [the trial court].” (Id.) As noted by the
Commonwealth, appellant does not offer any argument as to whether the
Commonwealth established beyond a reasonable doubt that appellant acted
“with the knowledge that [s]he is facilitating a fraud . . . to be perpetrated by
anyone[.]” (Commonwealth’s brief at 15, citing 42 Pa.C.S.A. § 4101(a)
(emphasis omitted). See also Commonwealth v. Ryan, 909 A.2d 839, 845
(Pa.Super. 2006).)
We find Commonwealth v. Orie, 88 A.3d 983 (Pa.Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014), to be persuasive here. In Orie, the
Commonwealth charged the defendant—a then-state senator—with multiple
offenses related to allegations of the defendant’s legislative staff members’
engaging in political campaign work. Id. at 990. The defendant’s first trial
ended in a mistrial following the discovery during jury deliberations of altered
defense exhibits that were admitted by the trial court. Id. at 990-991, see
also Commonwealth v. Orie, 33 A.3d 17, 19 (Pa.Super. 2011)
(per curiam), appeal denied, 32 A.3d 1195 (Pa. 2011). The
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Commonwealth subsequently charged the defendant with, inter alia, two
counts of forgery—uttering a forged writing.2
Following her second trial, a jury convicted the defendant of, inter alia,
both forgery counts. The defendant appealed to this court, challenging the
sufficiency of the evidence. Orie, 88 A.3d at 1013. This court affirmed the
defendant’s convictions, relying in part on the trial court’s Rule 1925(a)
opinion:
The alterations in the documents were beneficial to
[the defendant’s] case. Clearly, [the defendant] had
an interest in offering into evidence the documents
that were at least, in part, exculpatory.
Id. at 1015 (citation omitted).
Here, as noted above, appellant admits that the “reasonable inference
drawn from [her] action is that she sought leniency for herself.” (Appellant’s
brief at 5.) Put another way, the document at issue was, much like the altered
defense exhibits in Orie, beneficial to appellant’s case, and appellant had an
interest in offering the document to the trial court during her sentencing
hearing. Indeed, as noted by the trial court, “[i]t is abundantly clear that
Judge Cody relied on that letter when sentencing [appellant.] There is
absolutely no question that [appellant] meant for [Judge Cody] to see her in
2 18 Pa.C.S.A. § 4101(a)(3). While appellant in the instant case has been
convicted of forgery at Section 4101(a)(2), both offenses require the actor to
act, “with intent to defraud or injure anyone, or with knowledge that he is
facilitating a fraud or injury to be perpetrated by anyone[.]” 18 Pa.C.S.A.
§ 4101(a).
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a positive light to potentially influence her sentence.” (Trial court opinion,
2/5/20 at 9; see also notes of testimony, 9/6/19 at 20-21.)
For these reasons, we find that the Commonwealth has established the
elements of forgery beyond a reasonable doubt and appellant’s sufficiency of
the evidence claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2020
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