J-S42024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFERY GREEN : : Appellant : No. 2060 EDA 2022
Appeal from the Judgment of Sentence Entered March 15, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0000253-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFERY GREEN : : Appellant : No. 2061 EDA 2022
Appeal from the Judgment of Sentence Entered March 15, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0006193-2016
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 29, 2024
In these consolidated appeals arising from two criminal cases, Appellant,
Jeffery Green, appeals from his aggregate judgment of sentence of 2½-5
years’ imprisonment for forgery, theft by unlawful taking, and related
offenses. We affirm.
In the first case (“Case I”), on March 29, 2016, Appellant accompanied
his girlfriend, Erica Saunders, to a prenatal visit at the University of J-S42024-23
Pennsylvania Hospital. The two met with Nurse Emily Green in her office.
Nurse Green stepped out briefly during the visit while Appellant and Saunders
remained. When Nurse Green returned, Appellant was still in the office and
Saunders was in the hall.
As Nurse Green approached, she heard Saunders ask Appellant, “Did
you find it?” The two explained to Nurse Green that they were looking for
Appellant’s cell phone. Shortly after they left, Nurse Green realized that her
wallet was missing. She had used the wallet just prior to her appointment
with Saunders and Appellant. Nurse Green then received an alert from her
bank indicating that her credit card had been used at a Sunoco gas station.
She cancelled three of her credit and debit cards. She then received a fraud
alert later in the evening from the Royal Bank of Canada indicating that her
credit card was used at a Family Dollar store in Philadelphia on March 29,
2016, from 2:58 p.m. to 5:57 p.m. N.T., 1/23/17, at 7–15, 33–38.
Nurse Green later identified Appellant in the video surveillance
recovered from the Family Dollar store. The video showed Saunders buying
cigarettes with a credit card the same day Nurse Green’s wallet went missing
and within the three-hour window in the fraud alert. Footage recovered from
the outside of the same store showed Appellant on a bicycle shortly after
Saunders purchased cigarettes. Appellant then entered the store and stood
behind an unknown woman as she checked out at the register. Appellant and
the unknown woman left the store together and stood near Appellant’s bike.
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Appellant exchanged something with the woman and rode away on his bike.
Id. at 7–15.
During a non-jury trial on January 23, 2017, the Commonwealth
presented the testimony of Nurse Green and Detective Paul Sawicki.
Detective Sawicki testified that he had contacted the Royal Bank of Canada
and acquired a spreadsheet detailing the fraudulent transactions. Id. at 16,
33–34; Ex. C-1. The detective testified that the document was an attachment
to an email he received from a fraud agent at the bank. The Commonwealth
introduced the document into evidence. N.T. 1/23/17, at 34–35; Ex. C-1.
Defense counsel objected, arguing that the document had not been properly
authenticated. The court overruled the objection, explaining that Detective
Sawicki “got it in an e-mail from the person he identified as the fraud
investigator at Royal Bank of Canada.” N.T., 1/23/17, 34–38, 45.
The defense presented the testimony of Appellant’s girlfriend, Saunders,
who testified that she found the wallet outside of the hospital, used it at the
Sunoco gas station and Family Dollar store, purchased cigarettes for her aunt,
and then threw the wallet away. Id. at 49-50. Saunders testified that
Appellant was not involved in the crime. On cross-examination, Saunders
admitted that she had initially told detectives that she did not know anything
about the wallet. Id. at 47–48; Ex. C-5.
At the conclusion of trial, the court found Appellant guilty of forgery,
conspiracy to commit forgery, theft by unlawful taking, receiving stolen
property, and access device fraud.
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In the second case (“Case II”), on November 15, 2016, Appellant
entered into the nurse’s station at Presbyterian Medical Center Emergency
Room and took a wallet from Nurse Jamie Malloy’s pocketbook. He was
stopped in the hallway and money was found on his person. N.T., 1/13/22,
at 11-12. On January 13, 2022, Appellant pled guilty to theft by unlawful
taking, defiant trespass and receiving stolen property.
On March 15, 2022, the court sentenced Appellant in both cases. In
Case I, the court sentenced Appellant to 2–4 years’ imprisonment for forgery,
a concurrent term of 2–4 years’ imprisonment for conspiracy to commit
forgery, and 2 years of reporting probation for access device fraud. He
received no further penalty on the remaining offenses. In Case II, the court
sentenced Appellant to 6–12 months’ imprisonment for theft by unlawful
taking, and to no further penalty for defiant trespass and receiving stolen
property. The court ordered this sentence to run consecutively to the sentence
imposed in Case I. Appellant filed timely post-sentence motions, which the
court denied. Appellant appealed to this Court from both judgments of
sentence and filed timely statements of matters complained of on appeal. The
trial court subsequently filed a Pa.R.A.P. 1925(a) opinion.
Appellant raises four issues in this appeal:
1. Whether the evidence presented at trial established sufficient proof beyond a reasonable doubt as a matter of law for every element of the crimes for which Appellant was convicted?
2. Whether the trial court erred by allowing the introduction of inadmissible hearsay evidence?
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3. Whether the sentencing court abused its discretion by imposing a sentence that was not based upon the gravity of the violation, the extent of Appellant’s record, his prospect for rehabilitation, nor an assessment of the mitigating and aggravating factors as noted in 42 Pa.C.S. § 9721 of the Sentencing Code?
4. Whether the sentencing court abused its discretion by entering a manifestly excessive sentence to such a degree that the imposition of consecutive sentences establishes evidence of the court’s bias or animus toward Appellant?
Appellant’s Brief at 7.
In his first argument, Appellant contends that the evidence was
insufficient to sustain his convictions in Case I for forgery, conspiracy, access
device fraud, theft and receiving stolen property. We disagree.
We review challenges to the sufficiency of the evidence as follows:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth’s burden may be met by wholly circumstantial evidence and 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.
Commonwealth v. Williams, 302 A.3d 117, 120 (Pa. Super. 2023).
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The evidence was sufficient to sustain Appellant’s conviction for forgery.
A person is guilty of forgery when he “makes, completes, executes,
authenticates, issues or transfers any writing so that it purports to be the act
of another who did not authorize that act.” 18 Pa.C.S.A. § 4101(a)(2).
“Writing” includes using a credit card. 18 Pa.C.S.A. § 4101(b).
Viewed in the light most favorable to the Commonwealth, the evidence
demonstrates that Appellant and his girlfriend Saunders met with Nurse Green
during a prenatal visit. The nurse left her office, and when she returned,
Saunders was standing outside of her office while Appellant remained inside.
The nurse heard Saunders ask Appellant, “Did you find it?” After the two left,
she immediately noticed that her wallet was missing. Saunders admitted
using the nurse’s credit card at the Family Dollar store, and Nurse Green did
not authorize Saunders to use her card.
These facts establish the elements of forgery. Commonwealth v.
Sargent, 823 A.2d 174, 176 (Pa. Super. 2003) (defendant’s act of signing
victim’s name to credit card receipts constituted forgery). Because Appellant
and Saunders conspired to steal Nurse Green’s wallet, Appellant is liable for
Saunders’ unauthorized use of the credit card. Commonwealth v. Geiger,
944 A.2d 85, 91 (Pa. Super. 2008) (holding that each conspirator is criminally
responsible for actions of his co-conspirator).
Next, the evidence was sufficient to sustain Appellant’s conviction for
conspiracy. The defendant is guilty of conspiracy when he enters into an
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agreement to commit an unlawful act with another person with a shared intent
and a conspirator commits an overt act in furtherance of the conspiracy. 18
Pa.C.S.A. § 903(a)(1); Commonwealth v. Chambers, 188 A.3d 400, 410
(Pa. 2018). This agreement may be formed instantaneously, and it need not
have been formal or ever expressly communicated between the conspirators.
Chambers, 188 A.3d at 411. Criminal conspiracy can be proven by
circumstantial evidence, including “the relations, conduct, or circumstances of
the parties or overt acts on the part of co-conspirators.” Commonwealth v.
Sanchez, 82 A.3d 943 (Pa. 2013).
Here, the evidence shows that Appellant conspired with Saunders to
steal Nurse Green’s wallet and use her credit card. Appellant and Saunders
were the only two people present in the nurse’s office when her wallet went
missing. Further, video surveillance from the Family Dollar store showed
Saunders making a purchase with a credit card on the same day Nurse Green’s
wallet was stolen. Footage recovered from the outside of the store showed
Appellant on a bicycle shortly after Saunders visited the store. He entered the
store and stood behind an unidentified woman as she attempted to check out
at the register. Appellant and the unidentified woman exited the store
together and stood by his bike. He exchanged something with the woman
and biked away. The fraud alert from Royal Bank of Canada showed that
Nurse Green’s card had been used at the Family Dollar store at the time
Saunders made her purchase and when Appellant and the unidentified woman
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were at the store. This evidence demonstrates that Appellant and Saunders
conspired to steal Nurse Green’s wallet and use her credit card.
The evidence also was sufficient to sustain Appellant’s conviction for
access device fraud. A person is guilty of this offense if he “uses an access
device to obtain or in an attempt to obtain property or services with knowledge
that . . . the access device was issued to another person who has not
authorized its use.” 18 Pa.C.S.A. § 4106(a)(1). A credit card is an access
device. 18 Pa.C.S.A. § 4106(d).
The evidence establishes that Appellant and Saunders stole Nurse
Green’s wallet. Saunders admitted using a credit card taken from the wallet
to purchase cigarettes. Because Saunders and Appellant conspired to steal
the wallet and use the credit card, Appellant is culpable for Saunders’
fraudulent purchase.
Next, the evidence was sufficient to sustain Appellant’s convictions for
theft by unlawful taking and receiving stolen property. Theft by unlawful
taking requires proof of three elements: (1) unlawful taking or unlawful control
over movable property; (2) movable property belongs to another; and (3)
intent to deprive (permanently). Commonwealth v. Goins, 867 A.2d 526,
530 (Pa. Super. 2004) (citing 18 Pa.C.S.A. § 3921 and 18 Pa.C.S.A. § 3901).
A person is guilty of receiving stolen property if he “intentionally receives,
retains, or disposes of movable property of another knowing that it has been
stolen, or believing that it has probably been stolen.” 18 Pa.C.S.A. § 3925(a).
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As discussed above, the evidence shows that Appellant stole Nurse
Green’s wallet and then conspired with Saunders to make an unauthorized
purchase using one of Green’s credit cards. This clearly constituted an
unlawful taking of Nurse Green’s property. See Commonwealth v.
Robinson, 33 A.3d 89, 95 (Pa. Super. 2011) (evidence was sufficient to
sustain defendant’s conviction for theft where victim’s testimony established
that defendant was the only person with access to her bedroom, and boxes in
the bedroom were undisturbed when she awoke in the morning, but
subsequently, the boxes were empty and strewn around the room immediately
after defendant was in the room).
For these reasons, Appellant’s challenge to the sufficiency of the
evidence in Case I fails.
In his second argument, Appellant asserts that the spreadsheet from
Royal Bank and Detective Sawicki’s testimony about the spreadsheet was
hearsay, and therefore the court abused its discretion by permitting the
Commonwealth to submit this evidence. Appellant contends that this alleged
error entitles him to a new trial in Case I on the counts of forgery and access
device fraud.1 The trial court reasoned in its Rule 1925(a) opinion that
Appellant waived this issue by failing to raise it during trial. Pa.R.A.P. Opinion,
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1 Appellant does not contend that this issue entitles him to any relief from his
convictions for conspiracy to commit forgery, theft or receiving stolen property.
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1/4/23, at 11. The Commonwealth likewise asserts in its appellate brief that
Appellant has waived the issue. See Commonwealth’s Brief at 13. We agree
that it is waived.
At the close of the Commonwealth’s case, the Commonwealth moved to
admit the spreadsheet. Defense counsel objected on the ground that “there
has not been authentication” of the spreadsheet, because “we heard from the
detective and he doesn’t know how or when it was made. All he knows is he
got it in an email.” N.T. 1/23/17, at 45. The court overruled this objection
and allowed the spreadsheet into evidence. Id.
Defense counsel never raised a hearsay objection during trial. The first
time that counsel did so was in Appellant’s Pa.R.A.P. 1925(b) statement of
matters complained of on appeal. See id. at ¶ 2 (“The trial court erred by
allowing the introduction of inadmissible hearsay testimony. The
Commonwealth failed to establish all necessary grounds to satisfy the hearsay
exception and allow the introduction of the hearsay testimony”).
On appeal, Appellant continues to argue that the spreadsheet is
hearsay. Appellant’s Brief at 15-16 (argument entitled, “The trial court erred
by allowing the introduction of inadmissible hearsay evidence”). Although he
asserts that the spreadsheet was not authenticated, he raises this point in
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support of his claim of hearsay, not in support of a separate claim of lack of
authentication.2
This Court has held:
It is well-established that [a] party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made. If counsel states the grounds for an objection, then all other unspecified grounds are waived and cannot be raised for the first time on appeal. [O]ne must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter. It is well-settled that issues raised for the first time in a Rule 1925(b) statement are waived.
Commonwealth v. Wilson, 286 A.3d 1288, 1296 n.4 (Pa. Super. 2022)
(citations omitted; emphasis in original).
An objection to lack of authentication is different from a hearsay
objection. An objection to lack of authentication is an argument that the item
in question is not what the proponent claims it is. Pa.R.E. 901(a) (“to satisfy
the requirement of authenticating . . . an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”). In contrast, a hearsay objection is an argument that
the evidence in question “is a statement, other than one made by the
2 See Appellant’s Brief at 16 (“The email and spreadsheet did not have any
type of certificate of authenticity from Royal Bank. Without authentication by a representative from Royal Bank or a certification indicating that the spreadsheet was a record kept in the ordinary course of business by Royal Bank, the spreadsheet does not qualify as a business record exception and is inadmissible hearsay”).
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declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Commonwealth v. Watley, 153 A.3d
1034, 1040 (Pa. Super. 2016) (citing Pa.R.E. 801(c)). Hearsay is not
admissible except as provided by the Pennsylvania Rules of Evidence. Pa.R.E.
802.
In this case, the only objection that Appellant raised during trial was
lack of authentication, but he purports to raise a different objection to hearsay
in his Rule 1925(b) statement and in his appellate brief. By limiting his
objection during trial to lack of authentication, Appellant waived the hearsay
argument asserted for the first time in this appeal. Wilson, 286 A.3d at 1296
n.4.
In his final arguments, Appellant contends that (1) his sentence is
manifestly excessive based upon the gravity of the violation, the extent of his
record, his prospect of rehabilitation, or an assessment of the mitigating and
aggravating factors as noted in Section 9721 of the Sentencing Code, and (2)
his sentence is manifestly excessive because his consecutive sentences
demonstrate the trial court’s animus towards him.
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa. Super. 2011). Rather, appellate challenges to the discretionary aspects
of a sentence should be treated as a petition for allowance of appeal.
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Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we
stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 170. Whether a particular issue constitutes a substantial question about
the propriety of sentence is a question to be evaluated on a case-by-case
basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Neither of Appellant’s sentencing arguments satisfy the Moury test.
With regard to the first argument—the court’s alleged failure to consider
mitigating factors, the gravity of his offenses, and his prospects of
rehabilitation—Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his post-sentence motions, and included a Pa.R.A.P.
2119(f) statement in his brief. We conclude, however, that this argument
does not present a substantial question. Moury, 992 A.2d at 175 (“[t]hat the
court refused to weigh the proposed mitigating factors as Appellant wished,
absent more, does not raise a substantial question”). Appellant’s second
argument, a challenge to the imposition of consecutive sentences, presents a
substantial question when, as here, it is raised in conjunction with an assertion
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that the court failed to consider mitigating factors. Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Nevertheless, Appellant failed
to satisfy other Moury requisites by failing to raise this objection during
sentencing or in post-sentence motions.
Even if Appellant satisfied the Moury test, he would not be entitled to
relief. The record shows that the court properly weighed all mitigating factors,
and that it did not impose consecutive sentences due to animus against
Appellant. The court heard argument by defense counsel for a mitigated
sentence, N.T. 3/15/22, 16–23, and Appellant’s testimony. Id. at 26–32. The
court considered Appellant’s background and rehabilitative needs, including
his need for drug treatment, mental health counseling, and housing programs,
and ordered referrals to drug treatment program, job training at SCI-Chester,
a mental health evaluation and supervision, a halfway house, and housing
programs. Id. at 26-32, 37–38.
The court also had the benefit of Appellant’s presentence report and
referred to the report when rendering its decision. Id. at 5, 33. When the
trial court reviews a presentence report, we presume that the court weighed
all appropriate sentencing factors. Commonwealth v. Ventura, 975 A.2d
1128, 1135 (Pa. Super. 2009) (“where the sentencing judge had the benefit
of a pre-sentence investigation report, it will be presumed that he or she was
aware of the relevant information regarding Appellant’s character and weighed
those considerations along with mitigating statutory factors”). Despite taking
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all mitigating factors into consideration, the court concluded that they were
outweighed by aggravating factors. The court reasoned:
Appellant’s separate yet disturbingly similar offenses reasonably merit consecutive sentences. This Court adhered strictly to the Guidelines, sentencing Appellant to an aggregate of thirty (30) to sixty (60) months, reduced from a maximum Guideline sentence of eighty-one (81) months . . . Moreover, this Court had the benefit of a detailed PSI, which warned that Appellant was at a “very high risk for incurring future offenses and for violation.” N.T., 3/15/2022 at 36. Indeed, this Court properly utilized all the information at its disposal and complied with all the requirements of 42 Pa.C.S.[A.] § 9721. This is evidenced on the record through this Court’s consideration [of] “not just [Appellant's] needs, but the needs of the community as well.” Id. Furthermore, the Appellant, who admitted to “need[ing] drug treatment,” nevertheless expressed an “unwillingness” to participate in care or to “maintain any psychiatric treatment upon release from custody,” further demonstrating the impetus behind his incarceration. N.T., 3/15/2022 at 33; [Commonwealth v.] Cappellini, 690 A.2d [1220,] 1225-26 [(Pa. Super. 1997)]. Therefore, this Court was justified in imposing the prescribed consecutive sentences.
Trial Ct. Op., 1/4/23, at 14. The court further declared that it held no animus
against Appellant but instead imposed sentence only after it
listened empathetically to [Appellant’s] case, expressed “sympath[y] and sad[ness]” concerning Appellant’s troubled background, and did not exhibit any objective bias or prejudice. N.T., 3/15/2022 at 34. However, considering the gravity of his offenses, his risk of reoffending, and his need for rehabilitation, his sentence was judicially appropriate.
Id. at 15.
Based on our review of the record, we conclude that Appellant’s
sentence was a proper exercise of the trial court’s discretion.
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Date: 2/29/2024
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