Com. v. Kurschinske, V.

• Court: Superior Court of Pennsylvania
• Decided: November 27, 2019
• Docket: 717 WDA 2019
• Status: Unpublished

Opinion

J-S58033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VIRGINIA ANN KURSCHINSKE : : Appellant : No. 717 WDA 2019

Appeal from the Judgment of Sentence Entered April 12, 2019 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000463-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 27, 2019

Appellant, Virginia Ann Kurschinske, appeals pro se from the April 12,

2019 Judgment of Sentence entered in the Crawford County Court of Common

Pleas following her conviction of Unsworn Falsification to Authorities.1

Appellant challenges, inter alia, the weight of the evidence. After careful

review, we affirm.

The relevant facts and procedural history are briefly as follows.

Appellant is the former manager of Spanky’s Tobacco World (“Spanky’s”) in

Titusville, Crawford County.2 Spanky’s sells, among other things, lottery

tickets. The Pennsylvania Lottery noticed abnormally high scratch-off lottery

ticket sales at Spanky’s. Consequently, on May 3, 2017, the Pennsylvania

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1 18 Pa.C.S § 4904(a)(2).

2 Spanky’s also employed Amanda Hicks. J-S58033-19

Lottery sent Jason Donmoyer (“Donmoyer”), a Retail Compliance Investigator

to investigate the irregularity.

On that day, Appellant was working behind the counter at Spanky’s, and

proceeded to falsely identify herself to Donmoyer as “Amanda.” She also

signed the name “Amanda Hicks” on a verification form that Donmoyer gave

to her. By signing this form, Appellant acknowledged that she had received

the Lottery’s official form explaining its policy concerning retailers and retail

employees purchasing and claiming winning lottery tickets.3 Appellant initially

denied that she had authority to activate scratch-off lottery tickets and had

access to the locked filing cabinet in which Spanky’s kept its lottery inventory,4

but later unlocked it for inventory inspection by Donmoyer.

Ultimately, Appellant revealed to Donmoyer that she was not, in fact,

Amanda Hicks, and instead she identified herself as “Jen Kurschinske.”5

Donmoyer returned the verification form Appellant had falsely signed as

“Amanda Hicks” to Appellant and she then signed the form, on the same line

where she had falsely signed the name “Amanda Hicks,” with the name Jen

Kurschinske.

3 This is the Lottery’s “Prohibitive Retailer Claiming Policy” form.

4 Appellant claimed that only two Spanky’s employees—Jeff Clifton, the owner, and Jill, the manager who works on Sundays—could activate the scratch-off lottery tickets, and that only Clifton and Jill had access to the locked lottery inventory filing cabinet.

5Apparently, even though Appellant’s first name is Virginia, unbeknownst to Donmoyer, she commonly went by the first name Jen or Jennifer.

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As a result of Appellant’s deception, the Commonwealth charged her

with one count each of Forgery and Unsworn Falsification to Authorities.

Appellant, represented by counsel, proceeded to a jury trial where the

Commonwealth presented the testimony of, inter alia, Donmoyer and Amanda

Hicks. Relevantly, Donmoyer testified that he arrived at Spanky’s in the late

morning or early afternoon and two store employees were working. N.T.,

3/11/19, at 23. Donmoyer testified that he identified himself to Appellant by

saying his name and showing her his photo ID badge and business card, and

explained the purpose of his visit. Id. at 24-25. Appellant identified herself

as “Amanda.” Id. at 24. Donmoyer then reviewed the Prohibitive Claim Policy

with Appellant and gave her the form to sign acknowledging that she had read

the Prohibitive Claim Policy. Id. at 25-30. Donmoyer testified that Appellant

signed the acknowledgement form with the name “Amanda Hicks.” Id. at 33.

Donmoyer also testified that Appellant told him that only the Spanky’s owner

and its manager, Jill, had authority to access, activate, and order scratch-off

ticket inventory. Id. at 36-38. He testified that Appellant informed him that

she did not have access to the locked filing cabinet where Spanky’s stored the

scratch-off lottery inventory. Id. at 39. Donmoyer denied threatening,

coercing, or intimidating Appellant into answering his questions. Id. at 38.

Donmoyer then testified that, because Appellant had identified herself

as Amanda Hicks and had indicated that she did not have access to the locked

filing cabinet, he called Jeff Clifton, the store owner, who asked to speak with

the employee he believed was Amanda Hicks. Id. at 40-43. After Appellant

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hung up the phone with Clifton, Donmoyer became aware that Appellant’s

name was actually Jen Kurschinske. Id. at 43. Donmoyer testified that,

uncoerced by him, Appellant then signed the name “Jen Kurschinske” on the

acknowledgement form. Id. at 43, 46. Appellant proceeded to unlock the

filing cabinet containing the scratch-off lottery ticket inventory. Id. at 44-45.

Donmoyer testified that, as far as he knows, Spanky’s does not have an

employee named “Jill.” Id. at 43.

At the close of the Commonwealth’s case, Appellant moved for a

judgment of acquittal pursuant to Pa.R.Crim.P. 608, which the trial court

granted as to the Forgery charge only.

Relevant to the instant appeal, Appellant testified on her own behalf.

She described herself as “rattled” on the day of Spanky’s inspection. N.T.,

3/12/19, at 27. She testified that she was initially skeptical that Donmoyer

worked for the Pennsylvania Lottery because she had never met him before,

she thought it was possible that his identification was inauthentic, and he

looked “really shabby.” Id. at 14, 27-29. She admitted that she wrote

Amanda Hicks’s name that day, but explained that she was in a hurry to leave

Spanky’s and she thought she was merely writing the name of a Spanky’s

contact person on a piece of scrap paper. Id. at 30, 32-33. She denied ever

having seen the verification form or writing her name or Amanda Hicks’s name

on it, and suggested that someone had traced Amanda Hicks’s name onto the

verification form. Id. at 31-32.

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Following Appellant’s two-day trial, on March 12, 2019, the jury

convicted Appellant of Unsworn Falsification to Authorities. On April 12, 2019,

the court sentenced Appellant to six months’ probation. On April 15, 2019,

Appellant filed a Post-Sentence Motion challenging the weight of the evidence,

which the court denied on April 17, 2019. On May 8, 2019, Appellant filed a

timely pro se Notice of Appeal.

On May 16, 2019, counsel filed in the trial court a Motion to Withdraw

Appearance alleging that Appellant had communicated to counsel that she no

longer wanted counsel to represent her. Motion, 5/16/19, at ¶ 1. Accordingly,

the trial court scheduled a hearing pursuant to Commonwealth v. Grazier,

713 A.2d 81 (Pa. 1998). On May 28, 2019, Appellant filed pro se a Pa.R.A.P.

1925(b) Statement. Following the Grazier hearing, on June 6, 2019, the trial

court entered an Order granting counsel’s Motion to Withdraw. The court filed

a Rule 1925(a) Opinion.6

Appellant raises the following issue on appeal, which we have set forth

verbatim:

Whether the Lower Court erred when it refused to acquit Ms. Kurschinske of all counts under Rule 608. The document was not an unsworn document to be notarized, or relating to unsworn falsification to authorities, where no signature would be made subject to the penalties of 18 Pa.C.S. § 4904 there was no pursuant to a form bearing notice or authorized by law under such penalties. The only stoppage to the Lottery Compliance Specialist, ____________________________________________

6Appellant’s Rule 1925(b) “Concise Statements of Errors Complained of on Appeal” is 14 pages long and is nearly incomprehensible. The trial court heroically parsed out some of the issues before concluding none of them have merit. See Tr. Ct. Op, filed June 13, 2019.

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was the business owners approval, once approved, the Compliance was completed and the store passed and the lottery compliance Mr. Donmoyor left. The name Amanda Hicks, was an additional name for contact purposes only to shift changes regardless of who printed her name for such purpose. The only person who could do legal relations under contract or have effect to his contract, was the business owner Jeff Clifton. Define “authorities”?

Appellant’s Brief at 5.

Appellate briefs must conform materially to the requirements of the

appellate rules and this Court may quash or dismiss an appeal if the defect in

the brief is substantial. Commonwealth v. Adams, 882 A.2d 496, 497–98

(Pa. Super. 2005); Pa.R.A.P. 2101. This Court “will not act as counsel and

will not develop arguments on behalf of an appellant. Moreover, when defects

in a brief impede our ability to conduct meaningful appellate review, we may

dismiss the appeal entirely or find certain issues to be waived.”

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (citations

omitted). “Although this Court is willing to construe liberally materials filed

by a pro se litigant, a pro se appellant enjoys no special benefit.”

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017).

Accordingly, pro se litigants must comply with the procedural rules set forth

in the Pennsylvania Rules of the Court. Commonwealth v. Lyons, 833 A.2d

245, 251–52 (Pa. Super. 2003).

Our rules of appellate procedure provide, inter alia, that the “statement

of the questions involved must state concisely the issues to be resolved[.]”

Pa.R.A.P. 2116(a). Our rules also provide that “[n]o question will be

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considered unless it is stated in the statement of questions involved or is fairly

suggested thereby.” Id. See also Pa.R.A.P. 2117 (delineating briefing

requirements for Statement of the Case); Rule 2119 (pertaining to division of

argument into a many parts as there are questions to be argued). In addition,

an appellant is required to provide a Statement of both the scope and standard

of review that is relevant to the issues raised. Pa.R.A.P. 2111(a)(3).

Finally, issues that are not developed in the argument section of an

appellate brief are waived. Harkins v. Calumet Realty Co., 614 A.2d 699,

703 (Pa. Super. 1992). To properly develop an issue for our review, Appellant

bears the burden of ensuring that his argument section includes citations to

pertinent authorities as well as discussion and analysis of the authorities. See

Pa.R.A.P. 2119; Hardy, 918 A.2d at 771 (“[I]t is an appellant's duty to

present arguments that are sufficiently developed for our review. The brief

must support the claims with pertinent discussion, with references to the

record and with citations to legal authorities.” (citations omitted)).

Here, Appellant failed to comply with the above rules of appellate

procedure. The bulk of her 36-page brief is nearly-incomprehensible, raising

issues not at all suggested by her Statement of the Question Involved, and

not properly developed. In addition, she provides a scope and standard of

review relevant to the review of suppression motion dispositions, an issue she

does not mention in her Brief. We recognize that Appellant is not an attorney,

however, she must still follow the rules of appellate procedure. As a result of

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the significant briefing defects, we are unable to provide meaningful review of

all but one of her issues. Thus, Appellant’s challenge to a photo array, see

Appellant’s Brief at 12-13; her Brady7 challenge, id. at 3, 17; her allegation

of prosecutorial misconduct, id. at 14-15; her averment of violation of her 5th

and 6th Amendment rights and her due process rights, id. at 18-19, 22; and

her challenge to the jury instructions, id. at 28, are all waived.

In the actual argument section of her brief, id., at 34-37, Appellant

essentially challenges the weight the jury gave to the evidence. This issue is,

arguably, fairly suggested in the Statement of Question Presented. Appellant

contends that her “un-refuted account” that her “act[] of filling out a in service

[sic] questionnaire form was the product of a mistake and not the knowing

and intentional act of seeking to deceive.” Id. at 36 (unpaginated).8 She

claims that the evidence “is so weak and inconclusive that, as a matter of law,

no probability of fact can be drawn from the combined circumstances.” Id.

She asserts that “it is uncontroverted that the only evidence reflective of the

state of mind of the accused was generated a whole year later by the

prosecutor and his theatrics, who falsely led the [j]ury to believe there was

no Jill that worked at Spanky’s Tobacco, when there definitely was a Jill who

team managed her own shift on Sunday and the states [sic] attorney using

7 Brady v. Maryland, 373 U.S. 83 (1963). 8 Appellant challenged the weight of the evidence in a Post-Sentence Motion.

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harsh words.” Id. at 37 (unpaginated). She concludes, therefore, that this

Court should reverse her conviction of Unsworn Falsification to Authorities as

“de [minimus] with confusion and mistakes while multitasking and juggling

customers.” Id.

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546 (citation omitted). “One of the least assailable reasons

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for granting or denying a new trial is the lower court’s conviction that the

verdict was or was not against the weight of the evidence and that a new trial

should be granted in the interest of justice.” Id. (citation omitted).

Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague[,] and

uncertain that the verdict shocks the conscience of the court.” Id. (internal

quotation marks and citation omitted). As our Supreme Court has made clear,

reversal is only appropriate “where the facts and inferences disclose a palpable

abuse of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.

2014) (citations and emphasis omitted).

“[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014) (quotation marks and citation omitted). For that reason, the trial court

need not view the evidence in the light most favorable to the verdict winner,

and may instead use its discretion in concluding whether the verdict was

against the weight of the evidence. Commonwealth v. Widmer, 744 A.2d

745, 751 n.3 (Pa. 2000).

The jury chose to credit the testimony of Donmoyer over Appellant’s

testimony that her “act[] of filling out a in service [sic] questionnaire form was

the product of a mistake and not the knowing and intentional act of seeking

to deceive.” Appellant’s Brief at 36. Appellant essentially asks us to reassess

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the credibility of Donmoyer and Appellant, and reweigh the testimony and

evidence presented at trial. We cannot and will not do so. Our review of the

record shows that, contrary to Appellant’s claim, the evidence is not so

tenuous, vague, or uncertain, and the verdict was not so contrary to the

evidence as to shock the court’s conscience. Accordingly, we discern no abuse

of discretion in the trial court’s denial of Appellant’s weight claim.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/27/2019

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