Com. v. Adbullah-Talib, H.

• Court: Superior Court of Pennsylvania
• Decided: September 4, 2015
• Docket: 2100 MDA 2014
• Status: Unpublished

Opinion

J-S47036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : HASAN IB ADBULLAH-TALIB, : : Appellant : No. 2100 MDA 2014

Appeal from the Judgment of Sentence Entered October 17, 2014, in the Court of Common Pleas of Dauphin County, Criminal Division, at No(s): CP-22-CR-0004469-2013

BEFORE: ALLEN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 04, 2015

Hasan Ib Adbullah-Talib (Appellant) appeals from a judgment of

sentence entered after a jury convicted him of deceptive business practices,

theft by deception, bad checks, and criminal conspiracy. We affirm.

The trial court summarized the background underlying this matter as

follows.

[Appellant’s] charges stem from the purchase of motor vehicle safety inspection and emission stickers for the purported use at an inspection service station[, Valley Auto. In short, Appellant and at least two other men, Edward Boykin (Boykin) and Nathaniel Shoatz (Shoatz), set up Valley Auto as a sham business and then purchased 4,000 safety inspection stickers and 5,000 emission stickers from the Pennsylvania Department of Transportation (PennDOT). The $8,000 check that the men utilized to purchase the stickers was dishonored. Moreover, the record suggests that Valley Auto never did any business.1] A

1 In its opinion, the trial court provides a thorough and accurate summary of the evidence presented at trial. Trial Court Opinion, 4/30/2015, at 3-14. We adopt that portion of the court’s opinion for purposes of this appeal.

*Retired Senior Judge assigned to the Superior Court. J-S47036-15

jury trial was held on August 19-21, 2014, at which time Appellant was found guilty of all charges. Appellant was sentenced on October 17, 2014 to an aggregate term of incarceration of eighteen [] to eighty-four [] months in a state correctional institution along with payment of the costs of prosecution and fines totaling $7,[8]00. Appropriate time credit was applied and Appellant was made RRRI eligible.

Appellant’s timely post-sentence motion challenged the fine imposed as excess[ive] and requested a new trial or arrest of judgment contending the verdict rendered was against the weight of the evidence. The post-sentence motion was denied… on December 1, 2014. On December 10, 2014, Appellant filed a timely notice of appeal…. [Both Appellant and the trial court complied with Pa.R.A.P. 1925.]

Trial Court Opinion, 4/30/2015, at 1-2 (unnecessary capitalization omitted).

On appeal, Appellant asks us to consider the questions that follow.

[1.] Whether the Commonwealth failed to present sufficient evidence to sustain Appellant’s convictions where the Commonwealth failed to prove that Appellant: made a false, misleading, or material statement; agreed with the co- defendant(s) to engage in conduct which constitutes a crime or an attempt or solicitation to commit a crime; intended to commit conspiracy; received property or intended to receive property by deception; or knew the check in question would not be honored?

[2.] Whether the trial court erred in refusing to instruct the jury regarding 18 Pa.C.S.A. 4105(b)(1), Presumptions, where such error constituted an abuse of discretion and error of law as the instruction was supported by the evidence in record?

[3.] Whether the trial court erred in permitting an amendment to the criminal information where: Appellant was not fully apprised of the charges against him; the crimes specified in the original information did not involve the same basic elements or arise out of the same factual situation as the crimes specified in the amended information; Appellant was not placed on notice regarding his alleged criminal conduct, and; Appellant was prejudiced?

-2- J-S47036-15

[4.] Whether the trial court erred in admitting a copy of the check used to purchase inspection stickers where such evidence was not properly authenticated?

[5.] Whether the trial court erred in admitting evidence regarding the quantity of inspection stickers previously sold in a single transaction where such evidence was irrelevant and where the prejudicial nature of the evidence substantially outweighed its probative value?

[6.] Whether the trial court erred in denying Appellant’s Post- Sentence Motion where the jury’s verdict was against the weight of the evidence so as to shock one’s sense of justice where the Commonwealth failed to prove that Appellant committed the crimes charged?

[7.] Whether the trial court erred in denying Appellant’s Post- Sentence Motion where Appellant’s fine was excessive and unreasonable and constitutes too severe a punishment in light of the gravity of the offense, the impact on the community, and Appellant’s rehabilitative needs. The punitive measures inherent in the sentencing scheme could have been accomplished by the imposition of a lesser fine?

Appellant’s Brief 12-13 (suggested answers omitted).2

As to the first issue, Appellant claims that the Commonwealth failed to

present sufficient evidence to support his various convictions.

Our standard of review in determining whether the evidence was sufficient

requires that we consider the evidence admitted at trial in a light most favorable to the Commonwealth, since it was the verdict winner, and grant it all reasonable inferences which can be derived therefrom. The evidence, so viewed, will be deemed legally sufficient to sustain the jury’s conviction on appeal only if it proves each element of the offense charged beyond a reasonable doubt.

2 We have reordered Appellant’s issues.

-3- J-S47036-15

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (citation

omitted).

We begin by addressing Appellant’s challenge regarding his bad checks

conviction. Appellant’s Brief at 51-55. Appellant was convicted of violating

18 Pa.C.S. § 4105(a)(1), which provides, “A person commits an offense if he

issues or passes a check or similar sight order for the payment of money,

knowing that it will not be honored by the drawee.” The thrust of

Appellant’s argument is that the Commonwealth failed to present any

evidence that he knew the $8,000 check would be dishonored.

Despite failing to address the merits of the remainder of Appellant’s

sufficiency challenges in its 1925(a) opinion, the trial court did address

Appellant’s sufficiency argument regarding his bad-checks conviction. 3 After

3 As we noted above, in a post-sentence motion, Appellant challenged the weight of the evidence presented at trial. The trial court denied that motion. Appellant claimed in his Pa.R.A.P. 1925(b) statement, inter alia, that the court erred by rejecting his weight claim and that the Commonwealth failed to present sufficient evidence to support his convictions.

In its Pa.R.A.P. 1925(a) opinion, the trial court properly observed that a challenge to the weight of the evidence concedes that sufficient evidence exists to sustain the jury’s verdict. Trial Court Opinion, 4/30/2015, at 27 (quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191-92 (Pa. Super. 2004)). Based upon this legal proposition, the court determined that it need not address Appellant’s sufficiency-of-the-evidence issues. Id. at 28. In other words, the court determined that Appellant’s challenges to the weight of the evidence were lethal to his challenges to the sufficiency of the evidence. This determination is inaccurate. Indeed, appellants often raise these alternative arguments, and this Court addresses the merits of each argument separately. See, e.g., Commonwealth v. Tejada, 107 A.3d 788 (Pa. Super. 2015).

-4- J-S47036-15

a review of the certified record and the parties’ briefs, we conclude that the

trial court’s opinion adequately addresses and properly rejects this

argument. We therefore adopt that portion of the court’s opinion in

response to Appellant’s argument on appeal. Trial Court Opinion,

4/30/2015, at 30-32.

Regarding Appellant’s deceptive-business-practices conviction, the jury

determined that he violated 18 Pa.C.S. § 4107(6), which provides, “A person

commits an offense if, in the course of business, the person … makes or

induces others to rely on a false or misleading written statement for the

purpose of obtaining property or credit[.]” As to his theft by deception

conviction, the jury concluded that Appellant violated 18 Pa.C.S.

§ 3922(a)(1), which states,

A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally … 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[.]

According to Appellant, “[t]he Commonwealth failed to prove these crimes

due to their [sic] lack of evidence involving any actual written statement,

falsehood, or false impression.” Appellant’s Brief at 48.

When viewed in the light most favorable to the Commonwealth, the

evidence presented at trial clearly demonstrates that Appellant, in concert

with Boykin and Shoatz, submitted written paperwork to PennDOT to

-5- J-S47036-15

establish Valley Auto as a vehicle inspection station. However, that

paperwork was false and misleading, as Appellant and his cohorts had no

intention of running a legitimate service station. Instead, as the record

amply establishes, they intended to obtain inspection and emission stickers

from PennDOT with a check that was not supported with sufficient funds.

Indeed, they did obtain such stickers by way of this deception. Thus, the

Commonwealth presented sufficient evidence at trial to allow the jury to

convict Appellant of deceptive business practices and theft by deception.

Next, we address Appellant’s claim that the Commonwealth failed to

present sufficient evidence to prove him guilty of criminal conspiracy.

Appellant’s Brief at 55-57. “A conviction for conspiracy requires only an

intent to commit a crime, an agreement with a co-conspirator, and an overt

act in furtherance of the conspiracy.” Commonwealth v. Thoeun Tha, 64

A.3d 704, 711 (Pa. Super. 2013). Appellant argues, “There was no evidence

offered by the Commonwealth that proves Appellant conspired to commit

any crime with Mr. Boykin or any other unknown person.” Appellant’s Brief

at 56.

At the outset, it is important to note that, although Appellant was tried

and convicted of only one count of criminal conspiracy, the jury was asked to

determine whether Appellant committed deceptive business practices, theft

by deception, and bad checks, as well as conspiracy to commit all of those

crimes with Boykin and “an unknown male,” who was identified at trial as

-6- J-S47036-15

Shoatz, Appellant’s cousin. We already have determined that the evidence

presented at trial was sufficient to demonstrate that Appellant committed

deceptive business practices, theft by deception, and bad checks. The trial

court’s accurate recitation of the evidence presented at trial sufficiently

demonstrates that Appellant intended to commit those crimes, that he

agreed to commit those crimes with Boykin and Shoatz, and that the trio

completed overt acts in furtherance of their conspiracy. Trial Court Opinion,

4/30/2015, at 3-14. Appellant’s argument to the contrary is unavailing.

We now will address the second, third, fourth, and fifth issues listed

above. In support of those issues, Appellant contends that the trial court

erred by: refusing to instruct the jury regarding the presumptions found at

18 Pa.C.S. § 4105(b)(1), Appellant’s Brief at 43-47; allowing the

Commonwealth to amend the information pre-trial to include an unknown

male, Shoatz, to Appellant’s criminal conspiracy charge, Appellant’s Brief at

33-38; allowing the Commonwealth to admit the $8,000 check at trial

without authenticating it, Appellant’s Brief at 38-41; and admitting into

evidence irrelevant testimony regarding the quantity of inspections stickers

previously sold by PennDOT employees in a single transaction, Appellant’s

Brief at 41-43. After a review of the certified record and the parties’ briefs,

we conclude that the trial court’s opinion adequately addresses and properly

rejects Appellant’s claims. We therefore adopt those portions of the court’s

opinion in response to Appellant’s arguments on appeal. See Trial Court

-7- J-S47036-15

Opinion, 4/30/2015, at 14-17 (addressing Appellant’s claim that the jury

should have been charged with the presumptions found at 18 Pa.C.S.

§ 4105(b)(1)); id. at 17-19 (concluding that the court did not err by

allowing the Commonwealth to amend the criminal information); and id. at

19-26 (holding that the court did not abuse its discretion by allowing the

Commonwealth to admit the $8,000 as evidence and by allowing the

Commonwealth to elicit testimony regarding PennDOT employees’ concerns

with the quantity of stickers Appellant and his conspirators purchased in

comparison to previous purchases of which the employees were aware).

Next, we consider Appellant’s contention that the jury’s verdict was

contrary to the weight of the evidence presented at trial. Appellant’s Brief at

58-61. As this Court has explained, “a weight of the evidence claim must be

preserved either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing. Failure to properly preserve the

claim will result in waiver, even if the trial court addresses the issue in its

opinion.” Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012) (citations omitted).

Appellant did file a post-sentence motion. That motion included a

section entitled, “Motion for new trial or arrest of judgment.” Post-Sentence

Motion, 10/21/2014, at unnumbered page 2. Under that heading, Appellant

averred as follows:

-8- J-S47036-15

[Appellant] respectfully requests a new trial or arrest of judgment and asserts that the verdict was against the weight of the evidence so as to shock one’s sense of justice where the Commonwealth never showed, inter alia, that [Appellant] was actually associated with the business in question, Valley Auto, LLC, or that any false or misleading statement was put forth in regards to the business or in obtaining the emission/inspection stickers.

Id. (emphasis added). In this paragraph, Appellant conflated the concepts

underlying challenges to the weight of the evidence and the sufficiency of

the evidence. However, because Appellant ultimately contended that the

Commonwealth failed to offer any evidence that Appellant was associated

with Valley Auto or that he made any false or misleading statement, this

claim sounds more as a challenge to the sufficiency of the evidence.

On appeal, Appellant’s weight-of-the-evidence claim hinges entirely on

his contention that Boykin’s trial testimony was unreliable. See, e.g.,

Appellant’s Brief at 59 (“Appellant’s convictions were against the weight of

the evidence where Edward Boykin’s testimony was unreliable,

contradictory, and inconsistent with the remainder of the evidence presented

at trial.”). Appellant did not present this claim to the trial court;

consequently, it is waived.

In support of his last issue, Appellant argues that the trial court

imposed upon him an excessive fine. Such an issue challenges the

discretionary aspects of Appellant’s sentence. See Commonwealth Fusco,

594 A.2d 373, 374 (Pa. Super. 1991) (concluding that Fusco’s claim that his

-9- J-S47036-15

fine was excessive constituted a challenge to the discretionary aspects of his

sentence).

It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

Appellant timely filed a notice of appeal; he preserved his issue in his

post-sentence motion; and his brief contains a Pa.R.A.P. 2119(f) statement.

Thus, we must determine whether Appellant has raised a substantial

question worthy of appellate review.

The determination of whether a substantial question exists must be made on a case-by-case basis. It is only where an aggrieved party can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. This [C]ourt has been inclined to find that a substantial question exists where the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of

- 10 - J-S47036-15

the Sentencing Code; or (2) contrary to the fundamental norms underlying the sentencing process.

Also, a bald allegation that a sentence is excessive does not raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

In his post-sentence motion, Appellant merely asserted, “It is believed

and therefore averred that the fine of seven thousand nine hundred 4 ($7,900.00) dollars was a disproportionate and excessive sentence.” Post-

Sentence Motion, 10/21/2014, at unnumbered page 2. Moreover, while

Appellant’s Pa.R.A.P. 2119(f) statement spans more than three pages, in

substance, the statement only asserts that Appellant’s sentence is

excessive.5 Appellants Brief at 29-32. We conclude that Appellant’s

sentencing claim amounts to nothing more than a bald allegation that his

4 Appellant is incorrect that his fines totaled $7,900. For his deceptive- business-practices conviction, the trial court sentenced Appellant to pay a fine of $7,500. The court fined him $100 for each of his remaining three convictions. N.T., 10/17/2014, at 8-9. Thus, Appellant was sentenced to pay an aggregate fine of $7,800. 5 At the end of his Pa.R.A.P. 2119(f) statement, Appellant baldly asserts, “In the case sub judice, the sentencing court acted contrary to the fundamental norms underlying the sentencing process by sentencing Appellant to pay a de facto fine equivalent to the restitution paid by Mr. Boykin, Appellant’s co- defendant.” Appellant’s Brief at 32. This unsupported and undeveloped sentencing claim is waived, as Appellant failed to present it to the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).

- 11 - J-S47036-15

sentence is excessive. Consequently, Appellant has failed to raise a

substantial question.

Appellant has failed to present this Court with an issue that warrants

relief. Accordingly, we affirm his judgment of sentence.6

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/4/2015

6 The parties shall attach a copy of the trial court’s April 30, 3015 opinion to this memorandum in the event of further proceedings.

- 12 - Circulated 08/25/2015 09:40 AM

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA v. NO.: 4469 CR 2013 (2100 MDA 2014) HASSAN IB ABDULLAH-TALIB

MEMORANDUM OPINION

Appellant, Hassan lb Abdullah-Talib ("Appellant") is appealing this Court's

judgment of sentence entered October 17, 2014. This opinion is written pursuant to

Pa.R.A.P. 1925(a).

PROCEDURAL HISTORY

Appellant was arrested and charged with one count each of Deceptive Business

Practices,1Theft by Deception,2 Bad Checks,3 and a count of Criminal Conspiracy4 in

connection to each of the three offenses for a total of six counts. 5 The charges stem

from the purchase of motor vehicle safety inspection and emissions stickers for the

purported use at an inspection service station. A jury trial was held on August 19-21,

2014, at which time Appellant was found guilty of all charges. Appellant was sentenced

on October 17, 2014 to an aggregate term of incarceration of eighteen (18) to eighty-

four (84) months in a state correctional institution along with the payment of the costs of

prosecution and fines totaling $7,900. Appropriate time credit was applied and

Appellant was made RRRI eligible.

1 18 Pa.C.S. § 4107(A)(6). 2 18 Pa.C.S. § 3922(A)(1). 3 18 Pa.C.S. § 4105(A)(1). 4 18 Pa.C.S. § 903(C). 5 Counts 4 and 6 were subsequently withdrawn by the Commonwealth. Circulated 08/25/2015 09:40 AM

Appellant's timely Post-Sentence Motion challenged the amount of the fine

imposed as excess and unreasonable and requested a new trial or arrest of judgment

contending that the verdict rendered was against the weight of the evidence. The Post-

Sentence Motion was denied by this Court on December 1, 2014. On December 10,

2014, Appellant filed a timely Notice of Appeal to the Pennsylvania Superior Court. In

compliance with this Court's Order directing the filing of a Concise Statement of Matters

Complained of on Appeal, Appellant raises the following issues for review:

1. The trial court erred in refusing to instruct the jury regarding 18 Pa.C.S.A. § 4105(b)(1 ), Presumptions, where such error constituted an abuse of discretion and error of law as the instruction was supported by the evidence in record. 2. The trial court erred in permitting an amendment to the criminal information where: Appellant was not fully apprised of the charges against him; the crimes specified in the original information did not involve the same basic elements or arise out of the same factual situation as the crimes specified in the amended information; Appellant was not placed on notice regarding his alleged criminal conduct; and, Appellant was prejudiced. 3. The trial court erred in admitting a copy of the check used to purchase inspection stickers where such evidence was not properly authenticated. 4. The trial court erred in admitting evidence regarding the quantity of inspection stickers previously sold in a single transaction where such evidence was irrelevant and where the prejudicial nature of the evidence substantially outweighed the probative value. 5. The Commonwealth failed to present sufficient evidence to sustain Appellant's convictions where the Commonwealth did not prove that Appellant: made a false, misleading, or material statement; agreed with the co-defendant(s) to engage in conduct which constitutes a crime or an attempt or solicitation to commit a crime; intended to commit conspiracy; received property or intended to receive property by deception; or, knew the check would not be honored. 6. The trial court erred in denying Appellant's Post-Sentence Motion where the verdict was against the weight of the evidence so as to shock one's of justice where the Commonwealth never showed that: Appellant

2 Circulated 08/25/2015 09:40 AM

was associated with the business in question, agreed with the co- defendant(s) to engage in the conduct which constitutes a crime or an attempt or solicitation to commit a crime; intended to commit conspiracy; or, any false or misleading statement was put forth regarding the business or obtaining the emission/inspection stickers.

7. The trial court erred in denying Appellant's Post-Sentence Motion where Appellant's fine was excessive and unreasonable and constitutes too severe a punishment in light of the gravity of the offense, the impact on the community, and Appellant's rehabilitative needs. The putative measures inherent in the sentencing scheme could have been accomplished by the imposition of a lesser fine.

For the reasons set forth below, this Court finds that Appellant's judgment of

sentence should stand.

FACTUAL BACKGROUND

A jury trial held on August 19-21, 2015 established the following facts: Michael

Smith ("Mr. Smith") oversees the Vehicle Emissions Program for the Pennsylvania

Department of Transportation ("PennDOT"). (Notes of Testimony, Trial at 36-37).6 Mr.

Smith's duties at PennDOT include the oversight of ordering, purchasing and

distribution of safety and emissions stickers used in the safety inspection of motor

vehicles in Pennsylvania. (N.T. at 37). Mr. Smith explained that the safety and

emissions stickers are provided to certified inspection stations that have applied for and

have gained approval to conduct vehicle inspections. (N.T. at 37-38).

Mr. Smith explained how a service station gains approval to perform inspections.

To initiate the process, an individual or company would complete an application called

PennDOT form MV-500. (N.T. at 37-39). Once the application is completed, a quality

assurance officer is assigned to the request and an in-person visit to the service station

6 Hereinafter "N. T."

3 Circulated 08/25/2015 09:40 AM

is made. (N.T. at 38-39). A quality assurance officer may be a PennDOT employee or

the employee of an entity contracting with PennDOT to provide the certification

services. (N.T. at 38).

On the MV-500, the station owner must list the names of the individuals who are

permitted to place an order for inspection stickers on behalf of the station. (N.T. at 39).

Once an audit is complete and the quality assurance officer is satisfied that all

necessary PennDOT requirements have been met, one of the listed individuals can

place an order for the physical inspection sticker by mail order or in person at

PennDOT's headquarters in Harrisburg, Pennsylvania. (N.T. at 39-40).

Mr. Jay Hawkins ("Mr. Hawkins") is contracted by PennDOT to audit state

inspection facilities for compliance with the rules and requirements of the program and

to certify new stations. (N.T. at 46-48). To begin the certification process an individual

contacts Mr. Hawkins by phone and he asks some preliminary questions about

insurance, whether the individual is certified to perform vehicle safety inspections, for

the purpose of determining his or her familiarity with the vehicle inspection rules and

regulations. (N.T. at 49-50). The next step in the certification process requires a site

visit to inspect the facility, verify insurance credentials, inspect tools, inspect the security

measures for the stickers and inspect for necessary signage. (N.T. at 49; 51-52). After

the certification has been finalized, Mr. Hawkins returns to the inspection station at a

later date to be sure that the proper procedures are being followed. (N.T. at 52).

In 2013 with respect to the instant case, Mr. Hawkins became involved in the

station certification process of Valley Auto, located in Philadelphia, beginning with a

4 Circulated 08/25/2015 09:40 AM

phone call in mid-to-late winter. (N.T. at 51-52). Mr. Hawkins made an in-person visit to

Valley Auto which he described as atypical in that it had only one bay, one man door, no

lift and no parking in front as the garage emptied onto the sidewalk. (N.T. at 54-55).

Upon inspection, he found that the garage bay area was smaller than the 12" X 22" area

required by PennDOT regulations. (N.T. at 52; 53). Mr. Hawkins denied certification and

explained to the owners that a wall had to be moved to permit him to certify the station.

(N.T. at 52).

Mr. Hawkins could not remember the name of the individual who made the initial

phone call, but he testified that he was the same person he that he had spoken with

during the audit and who had a certificate to inspect vehicles. (N.T. at 51-52). Based

on the signature on a copy of MV-427 that was admitted into evidence during the trial,

Mr. Hawkins had been interacting with Mr. Edward Boykin. ("Mr. Boykin"). (N.T. at 61-

62; Com. Exh. 3). The MV-427 is the inspection station license form that must be

displayed on the wall in the shop. (lg_.)

Mr. Hawkins returned 5-7 days later and the wall had been moved approximately

1 foot to comply with the minimum area requirement. (N.T. at 53). However, during the

second visit to Valley Auto, he discovered that the garage was not equipped with a

necessary jack to lift the cars for the undercarriage inspection as it was not equipped

with a car lift; therefore, certification was denied a second time. (N.T. 57). Mr. Hawkins

said that during the second inspection he met with the same individual along with

Appellant. (N.T. at 58). He stated that Appellant had become involved in the process to

ensure that all requirements of an inspection station were present at Valley Auto. (lg_.)

5 Circulated 08/25/2015 09:40 AM

The certification was again denied after a third in-person visit due to another

missing tool. (N.T. at 58). Finally, after a fourth in-person visit, Mr. Hawkins found that

the regulatory requirements were met and therefore, the qualification process had been

completed. (N.T. at 59). Mr. Hawkins completed an audit report of his findings. (N.T. at

62). To complete the appointment process, Mr. Hawkins called PennDOT in Harrisburg

with the information provided on the first page of MV-425. The MV-425 is a multiple

page document which includes document MV-500 which must be completed as a

signature card for those individuals in the business that are authorized to purchase

inspection stickers. (N.T. at 63). On page 5 of the document, the owners of the

company or corporation are listed along with their titles, dates of birth and driver's

license numbers. (N.T. at 63-64). Mr. Boykin was listed as the owner and president on

the application along with Appellant as vice president. (N.T. at 64). It also includes the

federal tax Identification number, the state sales tax identification number, Mr. Boykin's

name as an authorized inspection agent, the name of the emissions analyzer, the

insurance coverage information and who will be ordering inspection stickers. (N.T. at

61-65; Com. Exh. 3). PennDOT then provides a station number. (N.T. at 64-65).

Mr. Hawkins later learned that a large sticker order had been placed by Valley

Auto on June 21, 2013, when his supervisor requested him to audit Valley Auto based

on the number of stickers purchased. (N.T. at 68). Mr. Hawkins testified that, based

upon his work experience, the size of a service station enables him to estimate an

average number of inspection stickers a station will need. (N.T. at 67). He specifically

testified that the vehicle inspection regulations require a one hour minimum timeframe

to conduct an inspection and fifteen minutes for an emissions inspection. To formulate

6 Circulated 08/25/2015 09:40 AM

an estimate, he would compare these requirements to Valley Auto's single bay and

single authorized technician. (lg.)

Mr. Hawkins went to Valley Auto's location on five days from June 24, 2013 -

June 28, 2013, within one week of approving it as an inspection station, only to find it

closed and locked. (N.T. at 68-69; 71-74). In addition to going to the garage, Mr.

Hawkins made six or seven unsuccessful phone calls. (lg.)

Edward Boykin is a trained auto mechanic who, at the time, was licensed to

perform vehicle safety and emissions inspections. (N.T. at 86-87). He had been

working for Dixon Brothers Auto Exchange when he was approached by a man named

Nathaniel who previously dated his sister, about opening an inspection station along

with his cousin, Appellant, because he was already certified to perform vehicle

inspections. (N.T. at 89). Mr. Boykin initially spoke only with Nathaniel and felt unsure

about getting involved in the proposition. (N.T. at 89-90).

Nathaniel and Appellant approached Mr. Boykin again and he agreed to become

involved. (N.T. at 90). Mr. Boykin described his involvement providing as assistance in

obtaining the required tools for the shop. (N.T. at 90-92). Mr. Boykin testified that

Nathaniel and Appellant had already secured a shop location and had gathered the

paperwork to start the certification process. (N.T. at 91-92). The business account was

opened in Mr. Boykin's name while Appellant was in charge of setting up the telephone

service and getting any necessary paperwork. (N.T. at 93). Mr. Boykin stated that

Nathaniel and Appellant funded the purchase of the tools even though he went along a

few times when they were purchased. (N.T. at 93-94). Mr. Boykin testified that the three

7 Circulated 08/25/2015 09:40 AM

men had been working on getting the garage running for about one month before the

inspector made his first visit. (N.T. at 94). Mr. Boykin confirmed that the officer

assigned to inspect the station for certification made three visits before the application

was granted. (N.T. at 94-96). According to Mr. Boykin, Nathaniel and Appellant were

present for all of the visits by the quality assurance officer. (lg_.)

On the day that the quality assurance officer granted approval to Valley Auto, Mr.

Boykin and Appellant signed the paper work as co-owners. (N.T. at 97). The three men

travelled in a car driven by an unknown fourth male to PennDOT in Harrisburg to

purchase the safety and emissions stickers. (N.T. at 97-98). On June 21, 2013, upon

arrival at PennDOT, Boykin and Nathaniel had a discussion about the number of

stickers the men wanted which was 10,000. Boykin said that the large amount

requested made him feel "a little shaky" about the transaction. (N.T. at 97; 99; 105). He

considered this amount to be unusually large based upon his experience with Dixon

Brothers Auto Exchange as two mechanics performed auto inspections and only three

or four hundred stickers were ordered every couple of months. (N.T. at 98). Nathaniel's

only explanation was that he did not want to have to come back to PennDOT to get

more. (N.T. at 97; 99). Mr. Boykin completed and signed the form necessary to

process the sticker request at Nathaniel's and Appellant's direction and with their

assistance. (N.T. at 100-101). Mr. Boykin stated that he completed the entire form but,

Nathaniel and Appellant told him what amount to write. (N.T. at 102-103; Com. Exh. 5).

The men eventually bought 4,000 safety inspection stickers. (N.T. at 105).

The PennDOT teller questioned the request for such a large number of stickers

and encountered difficulty with the computer system when attempting to input a request

8 Circulated 08/25/2015 09:40 AM

that large. (N.T. at 99). After Mr. Boykin went to the restroom to "clear his head," he

returned to the counter where a second PennDOT employee was assisting with the

purchase and was finally able to complete the transaction. (N.T. at 99-100; 105).

The men attempted to complete the necessary form occurred more than one time

due to mistakes and multiple changes to the number of stickers as the computer system

would not allow such a large amount to be processed. (N.T. at 102-104). The stickers

were paid for with the last of four checks after three others were voided due to mistakes

and changes to the order amount. The check had been filled out by Appellant and

signed by Mr. Boykin. (N.T. at 100; 106; 126-127; 135-136). When Boykin questioned

whether the account contained funds to cover the check as he had not remembered any

deposits after the initial $50 to start the account, Nathaniel assured him that $12,000

was in the account. (N.T. at 100; 106; 131).

Mr. Boykin carried the sheets of inspection stickers and the men travelled by car

back to Philadelphia. (N.T. at 111-112). Mr. Boykin was driven back to his own car

where he left the inspection stickers in the possession of Appellant and Nathaniel. (N.T.

at 111-112; 131-132). Over the next few months, Mr. Boykin was unable to reach

Nathaniel so he called Appellant to have him contact Nathaniel. (Id.) After Boykin made

several more phone calls to Appellant, he stopped answering his calls, too. (N.T. at

112). When Mr. Boykin tried to call Valley Auto, no one ever answered. (l.Q.) Mr.

Boykin testified that he never did any inspections for Valley Auto, never saw the stickers

again and never saw Nathaniel or Appellant in connection with the business. (N.T. at

112-113). Later, Mr. Boykin saw Appellant prior to trial when Appellant appeared at the

9 Circulated 08/25/2015 09:40 AM

Dixon Brothers Garage to ask him to write a letter stating had not done anything

incriminating. (N.T. at 113-114).

Mr. Thomas Wagner ("Mr. Wagner") has been working at PennDOT for

seventeen years and is currently assigned to the dealers counter. (N.T. at 140-142).

His responsibilities include the issuance of safety and emissions inspection stickers to

inspection stations that range in size from small family-owned shops to large car

dealerships and rental car fleets. (N.T. at 141-145). If a station has been newly

authorized to conduct vehicle inspections, he will receive a message about the approval

and that a representative will be coming in for stickers. (N.T. at 143-144). He supplies

the PennDOT form to be completed and provides any necessary customer assistance.

(!Q.) In his experience, the range of sticker amounts for small to medium garage is 10-

300 stickers. (N.T. at 146-147).

On June 21, 2013, Mr. Wagner received notification that a new customer,

Edward Boykin, would be coming to his counter to purchase inspection stickers. (N.T. at

148; 153). Mr. Boykin, Appellant and two other people came to his counter and needed

instruction on completing the paperwork to obtain inspection stickers which is MV-Form

436A. (N.T. at 148; 150-151; 154). As Mr. Wagner explained the process and Mr.

Boykin completed MV-Form 436A, Appellant and Mr. Boykin were conferring with him

about the form. (N.T. at 153-154). Mr. Wagner recognized one of the men as a Mr.

Shoatz, a man with whom he had had prior dealings. (N.T. at 150; 153). The men

requested 7,000 inspection stickers which Mr. Wagner described as "an uncharacteristic

amount" and about which he was concerned. (N.T. at 153-154; 162-163). Because his

10 Circulated 08/25/2015 09:40 AM

work shift was ending, Mr. Wagner handed over the transaction to another employee,

Mr. Leonard Bittinger ("Mr. Bittinger"). (N.T. at 160-164).

Mr. Bittinger has been employed by PennDOT in various capacities, including

with the Inspection Unit, for twenty-two (22) years. (N.T. at 169-170). He took over the

transaction at issue when Mr. Wagner's shift ended. While apprising himself of the

details of the transaction, he encountered three men working on the form and a request

for an unusually large number of inspection stickers in relation to the size of the shop

and newness of the business. (N.T. at 171-172; 176-177). Mr. Bittinger was haggling

with the men, including Appellant, over the number of inspections stickers Valley Auto

would need. (N.T. at 172-173; 176-177). In Mr. Bittinger's experience, this type of

haggling over the amount of stickers was uncommon. (N.T. at 177). The men told Mr.

Bittinger that they had 12 service bays and were working on signing a fleet account so a

large amount of inspection stickers would be needed. (N.T. at 173).

Mr. Bittinger stated he remembers that they requested over 5,000 stickers

because the computer system prohibited him from issuing any more than that amount

and he had not encountered a limit before. (N.T. at 173-174). He explained that the

situation he faced with Appellant and his associates was so unusual that he consulted

with another Inspections Unit employee, Catherine Barnhill ("Ms. Barnhill"), regarding

the propriety of such a large sale and to verify that there was enough sticker inventory

to meet the request. (N.T. at 180-181). The parties finally settled on 4,000 safety

inspection stickers for a total of $8,0007 and 5000 emissions inspection sticker because

7 The safety inspection stickers come in sheets of 10 at a cost of $2 per sticker. (N .T. at 185; 193). The emissions inspection stickers are free of charge.

11 Circulated 08/25/2015 09:40 AM

this was the amount the computer system would allow to be processed. (N.T. at 173-

17 4; 177; 181-182; 196). Mr. Bittinger and Ms. Barnhill had to work together negotiating

the amount of stickers to arrive at an amount that the computer system would accept.

(N.T. at 193-194).

Mr. Bittinger accepted a check from Appellant in payment for the stickers. (N.T.

at 182-184). He explained that more than one check was written and form completed

because of mistakes made and the ongoing changes in the amount of the order. (N.T.

at 182-184). Mr. Bittinger testified that he saw Appellant sign the final check submitted

for payment. (N.T. at 182-183). Ms. Barnhill stated that the "younger" gentleman filled

out the form but, did not talk much as Appellant wrote the check and explained how

much business they were going to have. (N.T. at 195). In Mr. Bittinger identified

Appellant as the individual who wrote the check in the group who bought the stickers.

(N.T. at 186-187). He also identified the check and the inspection sticker order form.

(J_g_.) Mr. Bittinger testified that all the men left PennDOT together. (N.T. at 186).

The unusual nature of the large request for inspection stickers was echoed by

Ms. Barnhill. She testified that since the men were starting a new business, in her

experience, you have no way of knowing how much inspection business you will have;

therefore, you do not know when the amount of money paid for a large amount of

stickers will be recouped. (N.T. at 194). When Mr. Bittinger brought up this subject, he

recalls Appellant responding that they would receive a profit to cover the expense or

that money was no object. (N.T. at 178). However, the men gave Ms. Barnhill a

different story regarding the source of their business. Appellant told her that Valley Auto

12 Circulated 08/25/2015 09:40 AM

was replacing an inspection station and the residents were anxiously awaiting their

opening. (N.T. at 194).

PennDOT initiated the investigation after the check presented by Appellant and

his associates was dishonored and officials noted the unusually large quantity of

stickers had been purchased. (N.T. at 211-212). The circumstances prompted

PennDOT to send a quality assurance officer to investigate Valley Auto who reported

that the garage was closed. (lg.) PennDOT officials detailed the incident in a letter and

informational packet, which included the quality assurance officer's follow up report,

forwarded to the Pennsylvania State Police ("PSP"). (N.T. at 209; 214). As a result,

PennDOT requested that the PSP enter the sticker numbers be entered into the

CLEAN-NCIC database to determine if any had been reported as being recovered.

(N.T. at 212).

Trooper Chad Berstler ("Trooper Berstler") of the PSP Fraud Investigations Unit

became involved in this case at the request of PennDOT. (N.T. at 205; 209). Trooper

Berstler's duties include the investigation of fraud or misuse relating to safety and

emissions inspection stickers. (N.T. at 206).

Trooper Berstler testified that Appellant had been identified by officials at

PennDOT from a video recording of the sticker purchase transaction and a comparison

of the names provided with the documentation submitted from the Valley Auto

inspection station. (N.T. at 210-211 ). Trooper Berstler identified the individuals depicted

in the PennDOT video as Appellant, Edward Boykin and Nathaniel Shoatz. (N.T. at

211 ).

13 Circulated 08/25/2015 09:40 AM

During his testimony, Mr. Bittinger had explained that each sticker has a serial

number that corresponds to the then sticker she from which it was taken. (N.T. at 185).

The PennDOT computer system also tracks the entire lot given to a particular customer

by serial number. (Id.) Trooper Berstler testified that four inspection stickers from the lot

purchased by Appellant and his associates had been recovered at the time of trial. (N.T.

at213).

DISCUSSION

Appellant's first assertion of error claims that this Court refused to instruct the

jury regarding the presumption found in the "Bad Checks" statute found at 18 Pa.C.S. §

4105(b). This Court provided the following instruction to the jury:

The Defendant has been charged with issuing a bad check in the amount of $8,000. To find the Defendant guilty of this offense, you must find that each of the following elements has been proven beyond a reasonable doubt: First, that the Defendant issued or passed a check in that amount; and, second, that the Defendant knew that the check would not be honored by the drawee and the drawee - by the drawee bank because of insufficient funds. And, third, you would also have to find the amount of the check, and there's a space on the verdict slip and you would have to indicate whether the amount of the check was over a certain dollar amount. I think it's a thousand dollars. Yeah, $1,000. (N.T. at 236). Appellant placed an exception on the record claiming that the "presumption" in

section 4105(8)8 of the statute "should have been read as an element of the crime"

8 18 Pa.C.S. § 4105(8):

(b) Presumptions.--For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, the following shall apply: ( 1) An issuer is presumed to know that the check or order ( other than a post-dated check or order) would not be paid, if: (i) payment was refused because the issuer had no such account with the drawee at the time the check or order was issued; or

14 Circulated 08/25/2015 09:40 AM

when this Court instructed the jury on the law. (N.T. at 250). In support of his position,

Appellant relies upon Commonwealth v. Griffith,9 for the proposition that the Court in

that case defined the "bad checks" charge with the presumption language, thereby

requiring the prosecution to prove in this case that Appellant had received notice of the

check bouncing and did not make good on the check within 10 days. (N.T. at 250).

Appellant contends that pursuant to Griffith, the notice provision in the presumption

language should be strictly construed as requiring proof of such notice to sustain a

conviction; therefore, this Court erred in failing to instruct the jury of the presumption.

(N.T. at 250-251).

Upon review of the "bad checks" jury charge given at trial, this Court finds that it

appropriately instructed the jury on the law. When reviewing a challenge to a part of a

jury instruction, the Court must review the jury charge as a whole to determine if it is fair

and complete. A trial court has broad discretion in phrasing its charge and can choose

its own wording so long as the law is clearly, adequately, and accurately presented to

the jury for its consideration. Only where there is an abuse of discretion or an inaccurate

(ii) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.

Notice of refusal may be given to the issuer orally or in writing by any person. Proof that notice was sent by registered or certified mail, regardless of whether a receipt was requested or returned, to the address printed on the check or, if none, then to the issuer's last known address, shall raise a presumption that the notice was received.

(2) A check or order stamped "NSF" or "insufficient funds" shall raise a presumption that payment was refused by the drawee for lack of funds.

(3) A check or order stamped "account closed" or "no such account" or "counterfeit" shall raise a presumption that payment was refused by the drawee because the issuer had no such account with the drawee at the time the check or order was issued. 9 364 A.2d 374 (Pa.Super. 1976).

15 Circulated 08/25/2015 09:40 AM

statement of the law is there reversible error. Commonwealth v. Jones, 542 Pa. 464,

668 A.2d 491 (1995)(1nternal citations omitted).

Case law interpreting Section 4105 makes clear that the Commonwealth must

establish that an individual issued a check knowing that there were insufficient funds in

his or her account to cover it. (18 Pa.C.S. §4105(a)(1 ); Commonwealth v. Burruss, 380

Pa.Super. 272, 551 A.2d 580 (1988)). The statute also permits a jury to presume that

the drawer of the check had knowledge that the check would be dishonored if, after

receiving notice of dishonor from the financial institution, within 10 days he has not

made good by depositing funds into the account. Commonwealth v. Burruss, 551 A.2d

580, 584, fn.4. However, the statutory presumption is not the only way by which the

Commonwealth can prove intent on the part of the drawer as it also may be proven by

direct evidence. Commonwealth v. Griffith, 242 Pa. Super. 484, 487-488, 364 A.2d 374,

376; Commonwealth v. Chase, 413 Pa. Super. 594, 598 605 A.2d 1276, 1278 (1992).

In the instant case the Court clearly and adequately instructed the jury as to

these specific statutory elements. The jury instruction given by this Court tracks the

statutory language. When defense counsel lodged his objection to this Court's denial of

his request to instruct on the presumption in section 4105(b), he argued that the

"presumption under subsection B of the bad checks charge should have been read as

an element of the crime ... " (N.T. at 250). However, at the conclusion of the jury charge

this Court asked counsel if any additional instructions were necessary and both

attorneys responded in the negative. (N.T. at 239-240). Additionally, upon review of the

statutory language and applicable caselaw, this Court finds that intent may also be

proven by direct evidence.

16 Circulated 08/25/2015 09:40 AM

As the Commonwealth presented direct evidence of intent by witness testimony

in connection with the security video showing the presentation of the dishonored check,

it did not rely on the presumption to prove intent in this case. As such, this Court clearly

and adequately instructed the jury on this charge; therefore, Appellant's claim is without

merit.

Appellant's next claim on appeal is that this Court erred in permitting the

Commonwealth to amend the criminal information prior to trial. Pennsylvania Rule of

Criminal Procedure 564 provides that "[t]he court may allow an information to be

amended when there is a defect in form, the description of the offense(s), the

description of any person or any 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." When interpreting Rule 564, the Superior Court has found that the

underlying "purpose of Rule 564 is to ensure that a defendant is fully apprised of the

charges, and to avoid prejudice by prohibiting the last minute addition of alleged

criminal acts of which the defendant is uninformed." Commonwealth v. Sinclair, 897

A.2d 1218, 1221 (Pa. Super. 2006) citing Commonwealth v. Duda, 831 A.2d 728, 732

(Pa.Super.2003). The Superior Court in Sinclair went on to announce that the test to

be applied 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. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to

17 Circulated 08/25/2015 09:40 AM

the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. Jg. quoting Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa.Super. 2001) (citation omitted).

In the instant matter, on the day of trial prior to jury selection, the Commonwealth

made an oral motion to amend the criminal information to consolidate the three

separate conspiracy charges connected to the three underlying crimes charged -

deceptive business practices, theft by deception and bad checks - into one count

connected with all three of them. (N.T. at 1 ). Additionally, the Commonwealth

requested permission to add another name to Edward Boykin's name as co-conspirator,

specifically, Nathaniel Shoatz. (N.T. at 1-2). This Court entertained argument on the

Motion which resulted in the amendment of the criminal information by withdrawing two

conspiracy charges at counts 4 and 6; the addition of theft by deception and/or bad

checks to the crimes underlying the conspiracy charge at count 2; and, adding "other

unknown male" to Edward Boykin as co-conspirator at count 2. (N.T. at 6).

Appellant argues that the amendment which added another possible

coconspirator was prejudicial to him as the amendment took place shortly before picking

a jury and amounted to a new conspiracy charge for which he unprepared to defend.

(N.T. at 2). The Commonwealth countered this position by asserting that on the criminal

complaint form a box indicating that conspiracy is being charged in conjunction with

each primary offense put Appellant on notice. (N.T. at 3-4). The Commonwealth further

argued that in light of the fact that Appellant and his counsel had viewed the

surveillance video from the PennDOT counter showing three men working together to

complete the transaction, the addition of "other unknown male" would not prejudice the

Appellant in mounting his defense. (N.T. at 2-3; 5-6).

18 Circulated 08/25/2015 09:40 AM

Upon consideration of the arguments, this Court granted the Commonwealth's

request to add to the conspiracy "other unknown male" in addition to Mr. Boykin's name

as a possible co-conspirator. (N.T. at 6). The Commonwealth proffered that it would be

presenting evidence in the form of a video showing Appellant, Mr. Boykin and another

male working together towards the purchase of the inspection stickers. Appellant was

already on notice by way of the criminal complaint that he would have to defend against

conspiracy allegations in connection with the fraudulent business practices, theft by

deception and bad checks charges as a general proposition; therefore, the addition of a

nondescript co-conspirator to the criminal information would not require him to answer

to or defend against any new criminal elements than those already charged. Further,

the crimes with which he was charged arose out of one set of facts involving all three

men. In other words, as Appellant had already seen the video footage showing him

interacting with two other men, one of which was Mr. Boykin, whether the alleged co-

conspirator in each crime was Mr. Boykin or the yet to be identified and arrested

unknown man is of no moment with respect to preparing a defense. Therefore, this

Court finds that Appellant's claim must fail as no new crime was charged by amending

the criminal information and Appellant suffered no prejudice.

The next two issues raised by Appellant challenge this Court's rulings on the

admissibility of evidence. First, he claims that this Court erred when it admitted a copy

of the Valley Auto, Inc. check used to purchase inspection stickers without proper

authentication of the document. The Pennsylvania appellate courts have made clear

that:

19 Circulated 08/25/2015 09:40 AM

Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. The requirement of authentication or identification is codified at Pennsylvania Rule of Evidence 901, 42 Pa.C.S.A.: "(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Pa. R.E. 901 (a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be may be sufficient to authenticate or identify the evidence. Pa. R.E. 901(b)(1). Abuse of discretion is shown in the record where the court does not apply the law in reaching judgment, or exercises manifestly unreasonable judgment, or judgment that is the result of partiality, prejudice, bias, or ill will. Commonwealth v. Mitchell, 883 A.2d 1096, 1109-1110 (Pa. Super. 2005)(internal citations omitted). Appellant is not specific as to what aspect of the authentication was lacking when

this Court admitted the copy of the check. However, a document may be authenticated

by direct proof and/or by circumstantial evidence. In re: F.P., 878 A.2d 91, 94 (Pa.

Super. 2005). "[P]roof of any circumstances which will support a finding that the writing

is genuine will suffice to authenticate the writing." lg. citing Commonwealth v. Brooks.

352 Pa.Super. 394, 508 A.2d 316, 318 (1986) quoting McCormick, Evidence§ 222 (E.

Cleary 2d Ed.1972). "The courts of this Commonwealth have demonstrated the wide

variety of types of circumstantial evidence that will enable a proponent to authenticate a

writing." lg. (collecting cases). Applying these principles, this Court finds that sufficient

evidence was presented by the Commonwealth to authenticate the copy of the check

and permit its admission into evidence.

Mr. Boykin testified to several supporting facts which taken as a whole served to

authenticate the check. He recognized the check as one of the "starter" checks issued

by Wells Fargo Bank when all three men went to the bank to open the account for

Valley Auto. (N.T. at 135-136). The copy of the check listed Valley Auto as the account

holder and was made out to PennDOT for the amount of $8,000, the specific cost of the

20 Circulated 08/25/2015 09:40 AM

safety inspection stickers. (N.T. at 135; 196). Mr. Boykin's testimony is that of a witness

with personal knowledge "that a matter is what it is claimed to be .... " (Pa.R.E.

901 (b)(1 )). This Court did not err as the copy of the check admitted into evidence was

sufficiently authenticated.

Appellant next claims that this Court erred by admitting the testimony regarding

the "quantity of inspection stickers sold in a single transaction" as it was irrelevant and

the prejudicial nature of the evidence outweighed the probative value. We disagree.

As previously stated, this Court's ruling on the admissibility of evidence will only

be reversed if upon review the appellate court finds an abuse of discretion.

Commonwealth v. Mitchell, supra. Although the Appellant does not specify which

witness's testimony he is challenging, a review of the record reveals that objections

were lodged in connection with the testimony of Mr. Hawkins and Mr. Wagner regarding

their personal experience during their employment with PennDOT working with the

vehicle inspection program. (N.T. at 66; 162). Notably, Appellant did not object when

Mr. Bittinger and Ms. Barnhill testified regarding unusual nature of the large quantity of

stickers. (N.T. at 172-178; 194).

First, we will address Appellant's claim that the challenged testimony should

have been excluded as irrelevant. A review of the objections lodged by counsel to the

specific testimony at issue reveals that the basis proffered for the objection to Mr.

Hawkins' testimony did not include relevancy. Therefore, this Court finds that Appellant

has waived his challenge with regard to the relevancy of the testimony admitted. "Where

the objection challenges a specific evidentiary matter, all other grounds for excluding

21 Circulated 08/25/2015 09:40 AM

the evidence are waived." Commonwealth v. Berry, 355 Pa. Super. 243, 256, 513 A.2d

410, 416 (1986) citing Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978).

With respect to Mr. Hawkins' testimony, Appellant's counsel objected to Hawkins

rendering an estimate as to the ordinary amount of inspection stickers a shop the size of

Valley Auto would need to conduct business. (N.T. at 65-67). The basis of Appellant's

objection was that Mr. Hawkins was not qualified as an expert to render such an

opinion. (N.T. at 66). However, it was unnecessary for Mr. Hawkins to be qualified as

an expert to provide his opinion as he was drawing from knowledge gained through

work experience, not the type of scientific, specialized or technical knowledge

contemplated by Pa.R.E. 702 ''Testimony by Experts."

Pa.R.E. 701 "Opinion Testimony by Lay Witnesses" provides:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Mr. Hawkins testified to the method by which he estimates the amount of

business a particular shop will have and thus, the estimated amount of inspection

stickers necessary to keep up with the amount of business. (N.T. at 67). Notably,

despite the fact that Appellant is challenging the admissibility of the testimony regarding

the "quantity of inspection stickers sold in a single transaction," Mr. Hawkins did not

testify to his opinion on the quantity requested by Appellant and his associates or what

22 Circulated 08/25/2015 09:40 AM

he deemed to be unusual; rather, he testified that the reason given by his supervisor as

to why PennDOT had requested an in-person visit to Valley Auto was the large number

of stickers obtained in Harrisburg. (N.T. at 67-68). Accordingly, his testimony was not

about the size of the sticker order at all. More importantly though, Mr. Hawkins'

testimony falls squarely under Rule 701, as his estimates are based upon PennDOT

regulations that govern all aspects of vehicle safety inspections including the time that

must be spent on each vehicle safety inspection, which is at least one hour in addition

to fifteen minutes for an emissions inspection. (N.T. at 67). He explained that, to

formulate an estimate, he would compare the regulatory requirements to the size of the

auto shop and the number of mechanics licensed to perform inspections, in this case

one. (l.Q.) Mr. Hawkins' testimony was clearly based on his personal perception of the

operations of Valley Auto and the specific facts observed by him and relayed by his

employment supervisor. This Court properly exercised its discretion in admitting Mr.

Hawkins' testimony on this subject. In addition, applying the rule in Berry, as set forth

above, and given the specific grounds on which the objection was made, we find that

Appellant has waived his claim that Mr. Hawkins' testimony was more prejudicial than

probative.

This Court also finds that no abuse of discretion occurred with regard to Mr.

Wagner's testimony about the large number of inspection stickers involved in the

transaction. Review of the transcript indicates that Appellant's counsel provided no

specific basis for his initial objection to Mr. Wagner's testimony regarding the inspection

sticker quantity requested in the transaction he handled. (N.T. at 162). Later, upon

redirect examination. Appellant objected to Mr. Wagner's testimony that he had never

23 Circulated 08/25/2015 09:40 AM

had a customer request 7,000 stickers prior to the transaction with Appellant. (N.T. at

166). At this point in his testimony, Appellant's counsel objected on the basis of

relevance. (N.T. at 167). Therefore, this Court finds that with respect to Mr. Wagner he

has preserved the relevance issue for appeal.

Pennsylvania Rule of Evidence 401 reads as follows:

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

The Pennsylvania Supreme Court has interpreted Rule 401 to mean: Evidence is

considered relevant if it logically tends to establish a material fact in the case, tends to

make the fact at issue more or less probable, or supports a reasonable inference or

presumption regarding the existence of a material fact. Commonwealth v. Lacava, 542

Pa. 160, 17 4, 666 A.2d 221, 227-28 (1995). "Evidence that merely advances an

inference of a material fact may be admissible, even where the inference to be drawn

stems only from human experience" Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d

373, 376 (1998)(emphasis in original).

For each of the charges in this matter the Commonwealth was required to prove

the fact that Appellant used some form of deception, misleading statements or false

impression to achieve the end result of obtaining safety and emissions inspection

stickers for improper use. Upon consideration of the context of Mr. Wagner's testimony

on the subject, it is clear that the purpose was to give an estimate of the amount based

on his employment experience of the average amount of stickers usually purchased by

24 Circulated 08/25/2015 09:40 AM

a shop of comparable size, specifically 10-300. Mr. Wagner provided his opinion that

Appellant's request of 7,000 stickers was unusual and the first time he had encountered

such a request. (N.T. at 147; 162-163; 166-167).

When Appellant was questioned about the unusual nature of his large request,

he gave different stories to Mr. Bittinger and Ms. Barnhill regarding the reason why

Valley Auto needed so many stickers. (N.T. at 178; 194). Viewing Mr. Wagner's

testimony in the context of the ever changing stories given to explain why such a large

quantity of stickers was needed in light of the criminal elements the Commonwealth was

required to prove, Mr. Wagner's testimony about the highly unusual nature of the

transaction based on his years of experience advanced the inference that Appellant's

representation to PennDOT were false impressions or outright misleading. The

evidence is clearly relevant to the jury's determination of the false nature of Appellant's

representations during the transaction. Therefore, this Court properly admitted the

challenged testimony.

This Court was also required to determine whether relevant evidence is more

probative than prejudicial. Appellant argues that the challenged testimony is more

prejudicial than probative, but does not point out in what way it is prejudicial. Once

evidence is determined to be relevant, it may be admitted into the record unless

otherwise excluded by statute or rule of law. (Pa.R.E. 402).10 In addition, "The court

may exclude relevant evidence if its probative value is outweighed by a danger of one

or more of the following: unfair prejudice, confusing the issues, misleading the jury,

10 All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible. (Pa.R.E. 402).

25 Circulated 08/25/2015 09:40 AM

undue delay, wasting time, or needlessly presenting cumulative evidence." (Pa.R.E.

403).

As explained by the Superior Court, "The comment to Pa.R.E. 403 instructs that:

'Unfair prejudice' means a tendency to suggest decision on an improper basis or to

divert the jury's attention away from its duty of weighing the evidence impartially.

However, evidence will not be prohibited merely because it is harmful to the defendant.

Exclusion is limited to evidence so prejudicial that it would inflame the jury to make a

decision based upon something other than the legal propositions relevant to the case."

Commonwealth v. Antidormi, 2014 PA Super 10, 84 A.3d 736, 750 appeal denied, 95

A.3d 275 (Pa. 2014)(internal citations and quotation marks omitted).

As stated above, review of the record reveals that Appellant's counsel merely

cited relevance as his basis for the objection to Mr. Wagner's testimony and did not

argue to this Court why the evidence was more prejudicial than probative. Nonetheless,

upon application of the legal standards set forth in Pa.R.E. 403, this Court fails to see

how Mr. Wagner's testimony which was based on his long time work experience created

"unfair prejudice" in any way. There was nothing confusing or inflammatory about Mr.

Wagner relaying his professional experience to the jury; rather, it provided a fact upon

which the jury could make a comparison and credibility determination when deliberating

on the reasons given by Appellant as to why such a large amount of stickers were

necessary for Valley Auto.

Next, the Appellant claims that the Commonwealth failed to present sufficient

evidence at trial to prove that he did the following: made a false, misleading, or material

26 Circulated 08/25/2015 09:40 AM

statement; agreed with the co-defendant(s) to engage in conduct which constitutes a

crime or an attempt or solicitation to commit a crime; intended to commit conspiracy;

received property or intended to receive property by deception; or, knew the check

would not be honored. However, Appellant also challenges the jury's verdict contending

that it was against the weight of the evidence to such an extent so as to shock one's

sense of justice. Accordingly, this Court must analyze the weight of the evidence issue

first as it is well established that "when a defendant motions for a new trial based on a

weight of the evidence claim, he concedes that sufficient evidence exists to sustain the

jury's verdict." Commonwealth v. Rosetti, 863 A.2d 1185, 1191-1192 (Pa. Super. 2004).

Appellant argues that the verdict is against the weight of the evidence because

the Commonwealth never showed that: Appellant was associated with the business in

question, agreed with the co-defendant(s) to engage in the conduct which constitutes a

crime or an attempt or solicitation to commit a crime; intended to commit conspiracy; or,

any false or misleading statement was put forth regarding the business or obtaining the

emission/inspection stickers. With respect to a weight of the evidence challenge, our

Supreme Court has stated that:

A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The fact finder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.

27 Circulated 08/25/2015 09:40 AM

Commonwealth v. Weathers, 95 A.3d 908 (Pa. Super. 2014) citing Commonwealth v.

~' 597 Pa. 28, 949 A.2d 873, 879-80 (Pa.2008) (internal citations omitted).

Relying upon Rosetti, supra., this Court finds that by making a weight of the

evidence argument with respect to agreeing with co-defendant(s) to engage in conduct

which constitutes a crime or an attempt or a solicitation to commit a crime; the intent to

commit a conspiracy; and, providing false or misleading statements regarding the

business or obtaining the emissions/inspection stickers, he concedes that sufficient

evidence was presented at trial to sustain the jury's verdict. Therefore, this Court finds

that the evidence with respect to these trial issues was sufficient and it is unnecessary

to address those issues in this opinion.

Turning to the weight of the evidence analysis, it is not clear to which particular

charge Appellant is attributing his argument. From what we can discern, it appears that

Appellant is generally contending that the weight of the evidence presented by the

Commonwealth is so meager that it did not connect him to any agreement with the three

individuals who used Valley Auto as a sham to give a false impression to PennDOT that

they were starting an inspection station to obtain vehicle safety and emissions

inspection stickers for their own improper use. A review of the record reveals ample

evidence from which the jury could infer action on the part of Appellant to support the

verdicts rendered.

Regarding Appellant's connection with the business, a review of Mr. Boykin's

testimony as a whole makes clear that he was involved in each step of the process of

establishing Valley Auto as a licensed certified inspection station whether taking his own

28 Circulated 08/25/2015 09:40 AM

individual action or acting along with Mr. Boykin and the third man identified as

Nathaniel. Appellant took the following steps in the certification process which directly

link him with the business: approached Boykin along with Nate to propose starting the

business; went along with Boykin to set up a business account; sought out and

purchased the necessary tools to comply with PennDOT program regulations; obtained

and completed the application for certification; had his name on the certification as the

Vice President of Valley Auto; participated in the completion of the Penn DOT paperwork

and check writing to purchase the stickers; and, took possession of the stickers upon

their return to Philadelphia. (N.T. at 90-98; 120-127; 131-132).

Mr. Hawkins' testimony also supports the jury's finding of Appellant's association

with the business. According to Mr. Hawkins, Appellant was part of each on-site review

in the certification process, was on the PennDOT documents as the Vice President of

Valley Auto, and his conversations were split 50/50 between Boykin and Appellant.

(N.T. at 58; 64; 76). Finally, Mr. Boykin, Mr. Wagner, Mr. Bittinger and Ms. Barnhill all

identified Appellant as an individual in the security video participating in the purchasing

of vehicle inspection stickers on behalf of Valley Auto. (N.T. at 107-108; 111; 152-160;

175-182). Given that the evidence established Appellant's uninterrupted participation in

the scheme that culminated in the purchase of inspection stickers for a sham business,

the jury's guilty verdict that he intended to commit a crime and was involved in the

solicitation of Boykin into the conspiracy does not shock one's sense of justice.

In addition, the evidence clearly established that Appellant actions and words

amounted to several false statements and misrepresentations. Appellant filled out the

order form at PennDOT on which he represented that Valley Auto was a legitimate

29 Circulated 08/25/2015 09:40 AM

business entity created for the purpose of performing vehicle safety inspections. At trial

it was established that Appellant filled out paperwork to have the garage certified and

met with Mr. Hawkins during the certification process. (N.T. at 57-59). He also filled out

the check at PennDOT which Boykin signed to finalize the purchase. (N.T. at 182-184).

Mr. Bittinger and Ms. Barnhill testified to the stories Appellant gave him in response to

his inquiry as to why they needed such a large amount of stickers. (N.T. at 194-195).

First he said that the business would be servicing a fleet of rental cars, then he said that

the neighborhood residents were awaiting the reopening of Valley Auto so a group of

customers had already been formed. Finally, Testimony of Mr. Boykin, Mr. Hawkins

and Trooper Berstler established that no vehicle inspections were ever conducted at

Valley Auto and, further, inspection stickers from the lot purchased by Appellant and his

associates were recovered after the serial numbers were entered into CLEAN-NCIC.

(N.T. at 68-69; 71-74; 112-113; 213). Again, based on a review of the evidence

presented by the Commonwealth, this Court finds that the jury's finding that Appellant

presented false statements and/or misrepresentations to obtain the inspection stickers

improperly for an unlawful use does not shock one's sense of justice.

The remaining sufficiency claim pertains to whether the Commonwealth proved

that Appellant knew the check passed to PennDOT would not be honored. The

Superior Court has stated that the standard of review when an appellant is challenging

the sufficiency of the evidence is well established:

" ... whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and

30 Circulated 08/25/2015 09:40 AM

circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the 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.

******

This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty." Commonwealth v. Antidormi, 2014 PA Super 10, 84 A.3d 736, 756 (Pa. Super. 2014)(internal citations and quotation marks omitted).

To prove the offense of bad checks, the Commonwealth must show that a

defendant. " ... issue[d] or passe[d] a check or similar sight order for the payment of

money, knowing that it will not be honored by the drawee." 18 Pa.C.S. §4107(a).

Viewing the evidence of record in light of the verdict winner, specifically the

Commonwealth, the totality of the circumstantial evidence supports the guilty verdict on

the bad checks charge. Mr. Boykin testified that the business account had been

opened with only $50 which he had deposited. Appellant filled out and presented the

check signed by Boykin who made clear that he was being directed throughout the

entire purchase process including the amount of stickers ordered. The security video

clearly supports this testimony. It is undisputed that the check was dishonored. (N.T. at

211-212). In addition, as the evidence of presented dispelled any notion that Valley

Auto was ever going to be a viable, legitimate business, it defies logic to argue that

31 Circulated 08/25/2015 09:40 AM

Appellant thought there was $8,000 in an account for a non-existent business when the

check was presented to PennDOT.

Finally, Appellant challenges the fine imposed by this Court as he contends it is

excessive and unreasonable. With respect to the propriety of a fine our courts have

found that:

"Excessive bail shall not be required nor excessive fines imposed, nor cruel punishments be inflicted"; see Commonwealth v. Strunk, 400 Pa.Super. 25, 582 A.2d 1326 (1990) (" 'A punishment is considered "excessive" and therefore unconstitutional if it ... (2) is grossly out of proportion to the severity of the crime.' " Id. at 36, 582 A.2d at 1331, quoting Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977))." Com. v. Heggenstaller, 699 A.2d 767, 769 (Pa. Super. Ct. 1997).

Additionally, "[T]he primary purpose of a fine or a penalty is twofold[:] to punish violators

and to deter future or continued violations. Since it serves not only as a punishment but

also as a deterrent, the amount of the fine can be raised to whatever sum is necessary

to discourage future or continued violations, subject, of course, to any restriction

imposed on the amount of the fine by the enabling statute or the Constitution." Com. v.

Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014).

In the instant matter, Appellant was convicted of four third degree felonies.

Pursuant to statute, the maximum fine which may be imposed for a single third degree

felony is $15,000. The aggregate amount of fines imposed in this matter is $7,800 for

four third degree felonies, an amount equal to a little over one-half of the possible fine

for one count. (N.T., Sentencing, 10/17/14 at 8)(emphasis added). Additional important

factors considered by this Court included the $8,000 check issued to PennDOT that

bounced for which Mr. Boykin paid restitution; Appellant's history of convictions for

32 Circulated 08/25/2015 09:40 AM

financially fraudulent activity including his prior record score of 5 and the fact that he

was on federal probation at the time of sentencing; and finally, the considerable public

safety concern raised by the fact that vehicle inspection stickers were disseminated to

the public for vehicles that were likely hazards on the road. (N.T., Sentencing at 3-8).

In view of the circumstances of Appellant's crimes and the other factors a sentencing

Court may and should consider in fashioning a sentence, the $7,800 fine is far from

excessive and hopefully will serve the purpose of deterring similar behavior in the future

as intended by the law.

MEMORANDUM DATE: 4/_' ( 2-1, 2-or S-

c: '··

I 6 ' '). DISTRIBUTION: l-f-j \ ---1 K) ([~_1 L 1,· h/l _j fJ_1LJ-,1 . Abby N. Trovinger, Esq., Deputy District Atty., Dauph. Co. I{) Jonathan R. White, Esq., Asst. Public Defender, Dauph. Co. iO Clerk of Courts CG -- Superior Court Prothonotary 01 Ct ) \ Court Admin. - Crim. )0 · FILE - Judge Lewis \ ()