Com. v. Nottingham, J.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2015
• Docket: 1910 MDA 2014
• Status: Unpublished

Opinion

J-S34030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JENNIFER LYNN NOTTINGHAM

Appellant No. 1910 MDA 2014

Appeal from the Judgment of Sentence October 30, 2014 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000117-2014

BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED JUNE 23, 2015

Jennifer Lynn Nottingham appeals from the judgment of sentence

entered on October 30, 2014, in the Court of Common Pleas of Lycoming

County. After a non-jury trial, Nottingham was found guilty of access device

fraud, graded as a felony of the third degree.1 The trial court sentenced

Nottingham to three years of probation, and ordered her to perform fifty

hours of community service, and pay costs and restitution.2 Based on the

following, we affirm.

____________________________________________

1 See 18 Pa.C.S. § 4106(a)(1)(ii). See also 18 Pa.C.S. § 4106(c)(1)(i), (c)(2). 2 The trial court allowed for the termination of supervision after 2 years provided all restitution and costs were paid. J-S34030-15

The trial court aptly summarized the facts in its Pa.R.A.P. 1925(a)

opinion and we adopt its recitation. See Trial Court Opinion, 10/30/2014, at

3. On appeal, Nottingham challenges the sufficiency of the evidence to

establish (1) that she committed access device fraud and (2) that she

committed a course of conduct that supports the conviction and/or grading

of the conviction as a third degree felony.3 See Nottingham’s Brief at 8.

At the outset, we state our standard of review:

The standard we apply in reviewing the sufficiency of the evidence is 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 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.

3 Nottingham timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

-2- J-S34030-15

Commonwealth v. Nypaver, 69 A.2d 708, 714 (Pa. Super. 2013)

(citations omitted). Further, since the trial judge was sitting as fact finder,

this Court defers to the trial judge’s credibility determinations as the trial

judge observes the witnesses’ demeanor first hand. Commonwealth v.

Holton, 906 A.2d 1246, 1250 (Pa. Super. 2006).

The trial judge stated when rendering his verdict:

The Court finds the testimony of Hattie Sciacca to be credible. Defendant had the opportunity to commit the crime as a result of a close relationship, the access to the house, the access to the vehicles.

The Court believes the testimony of Hattie Sciacca was also buttressed by Officer Bachman and Mr. Ritter’s testimony matching up the August withdrawals with card 3908. Also, the verdict is supported by the Defendant’s partial admission made to the police officers.

N.T., 10/30/2014, at 124-125. The trial judge, the Honorable Richard A.

Gray, has provided a well-reasoned discussion in support of the verdict. See

Trial Court Opinion (“Order Issued Pursuant to Pennsylvania Rule of

Appellate Procedure 1925(a)”), 10/30/2014, at 2-4 (explaining the elements

of the crime and the grading and the legal standard for sufficiency of the

evidence; finding the evidence sufficient to establish the offense of access

device fraud and a course of conduct where credible testimony showed

Nottingham obtained $3,446.59 by using M & T Bank debit card ending with

“3908”, issued to Donnie Lee Schell and his fiancé Hattie Sciacca for their

joint account, without permission, on numerous occassions).

-3- J-S34030-15

Accordingly, we adopt the decision of the trial court as dispositive of

the issues raised in this appeal.4

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/23/2015

4 In the event of further proceedings, the parties are directed to attach a copy of the Trial Court Opinion, 10/30/2014.

-4- Circulated 05/29/2015 03:08 PM Circulated 05/29/2015 03:08 PM Circulated 05/29/2015 03:08 PM Circulated 05/29/2015 03:08 PM