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HomeMy WebLinkAbout97-0669 CriminalCOMMONWEALTH Vo KIEL M. ALLEN OTN: E066467-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0669 CRIMINAL TERM CHARGE: (1) UNLAWFUL USE OF COMPUTER (48 Cts.) (2) THEFT BY DECEPTION IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., JulyS, 1998. In this criminal case, following a jury trial, Defendant was found guilty of 48 counts of unlawful use of a computer (felonies of the third degree)~ and one count of theft by deception ( a misdemeanor of the first degree, the amount involved being $200 or more).2 He received an overall sentence on the computer fraud counts of not less than one week nor more than twenty-three months in county prison, plus restitution in the amount of $1,552.10, and a sentence of twenty-three months probation without supervision on the theft count? Defendant has appealed to the Superior Court from the judgment of sentence? The bases for appeal are that (1) the court erred when it permitted the Commonwealth to ~ Act of December 2, 1983, P. L. 248, §1, as amended, 18 Pa. C.S. §3933(a)(1) (1998 Supp.). 2 Act of December 6, 1972, P. L. 1482, §1, 18 Pa. C.S. §3922. N.T. 188-90, Trial, March 9, 11, 1998 (hereinafter N.T. __). 3 Order of Court, April 7, 1998. 4 Notice of Appeal, filed April 29, 1998. NO. 96-0669 CRIMINAL TERM introduce testimony through a PNC Bank investigator as to what charges and credits appeared on Defendant's statements on an account for a credit card issued to him by that bank, (2) the court erred when it admitted these account statements into evidence, and (3) the verdicts of the jury were against the weight of the evidence? This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Evidence at trial tending to support the charges of computer fraud and theft by deception may be summarized as follows. The activity of Defendant in question occurred between December 8, 1995, and January 28, 1996.6 During this period, Defendant was employed by a temporary employment agency which placed him with Electronic Data Services (EDS).7 In that capacity, he was assigned to serve as a customer service representative for a third company, TVN Entertainment (TVN).8 Defendant's statement of matters complained of an appeal, filed May 20, 1998. N.T. 66; Commonwealth's Exhibit 6. N.T. 31-32. N.T. 31. 2 NO. 96-0669 CRIMINAL TERM TVN was in the business of selling satellite television programming to customers who had purchased a satellite dish? Included in the services was an option to purchase pay-per- view events such as movies or special events,l° Defendant's duties for the benefit of TVN were described as follows: He would have to answer telephone calls [from TVN customers] that came into the customer service line. He would maintain existing accounts and create new accounts. He would up-sell, which technically means if a customer had an existing account, he would sell services if it would be appropriate at that time. He would issue credits. He would charge customers,il In this position, Defendant had access to a data base containing TVN customer accounts.12 He had the authority to charge TVN customer credit cards. 13 And he had the ability to credit TVN customer credit cards.14 He also had the ability, although not the authority, to access his own credit card account, which was at a financial institution known as PNC Bank? 9 N.T. 139-40. l0 N.T. 52, 140. il N.T. 32. 12 Id. ~3 N.T. 32-33. 14 N.T. 33. is N.T. 33, 146. 3 NO. 96-0669 CRIMINAL TERM In this employment position, Defendant was wamed on at least one occasion that his performance was deficient. 16 He was also unhappy with the TVN assignment, believing it to be beneath his intellectual capabilities? Although not detected immediately, from December 8, 1995, to January 28, 1996, forty-eight TVN-attributed credits ranging from $3.99 to $45.95 appeared on Defendant's personal PNC Bank Visa credit card account statement, and each corresponded to a like amount charge-reversal on an account of a TVN customer on the same date? The total of these credits exceeded $1500.00.~9 On January 28, 1996, a review of TVN-related credit card transactions on the EDS computer system during a certain two-minute time period on that day2° produced a discovery that Defendant had just accessed his personal PNC Bank credit card account? He had assigned to his account two separate TVN transactions, and had attributed the activity to two 16 N.T. 26, 34, 50. 17 N.T. 51. ~8 N.T. 49. 19 Commonwealth's Exhibit 6. 20 This review was prompted by a computer system "timeout," which was apparently precipitated by some malfunction unrelated to any activity of Defendant. N.T. 44, 47, 58. 2~ N.T. 59. 4 NO. 96-0669 CRIMINAL TERM different TVN customers? This impropriety, which Defendant admitted,23 led to (a) Defendant's dismissal,24 (b) the discovery of the prior transactions described in the preceding paragraph of this opinion,25 and (c) the criminal charges subjudice.26 The Commonwealth's evidence included testimony of Robert M. Stover, II, an investigator employed in the Central Region Security Service Department of PNC Bank? It also included an exhibit, identified by Mr. Stover, in the form of Defendant's PNC Bank credit card statements during the pertinent time period? Although no employee of PNC Bank held a position designated "custodian of records,''29 Mr. Stover's position carried with it the authority to access and control records 22 Id. 23 N.T. 59, 123. 24 N.T. 123. 25 N.T. 46. 26 N.T. 154. The activity in Defendant's account on January 28, 1996, did not actually consist of credits, as did the other activity which formed the basis for the criminal charges herein. Exhibit 6. 27 N.T. 77-86. 28 N.T. 81; Commonwealth's Exhibit 5. 29 N.T. 92. 5 NO. 96-0669 CRIMINAL TERM maintained by the bank.3° manner: He accessed bank credit card account statements in the following I have a PC computer, and I entered the name [of the card holder]. When the name comes up, it identifies the accounts and the type of accounts that an individual would have with PNC Bank. When I ascertained this individual's [the Defendant's] name and address, it did identify a credit card account and a credit card account number. It's a VISA credit card.3~ Defendant's VISA credit card number at PNC Bank was 4081 7041 0140 4771.32 Mr. Stover requested and received the billing statements pertaining to Defendant's account from a central office of the bank, by way ora facsimile transmission.33 Comparing entries on these statements with entries on records pertaining to TVN customers, Mr. Stover demonstrated at trial (in conjunction with other testimony and evidence) that, on the 48 occasions referred to previously, Defendant's credit card account had been awarded TVN credits in amounts that corresponded to amounts shown as reversed charges on accounts of various TVN customers.34 The net effect of this transactional activity was to credit Defendant with a total 30 N.T. 91. 3~ N.T. 92. 32 N.T. 94. 33 Id. 34 N.T. 93-121. 6 NO. 96-0669 CRIMINAL TERM amount of over $1500.00, at the expense of TVS? Defendant's counsel objected both to Mr. Stover's testimony concerning Defendant's credit card account statements36 and to the admission of the statements, 37on hearsay grounds. These objections were overruled? The Commonwealth's case was supported by testimony, in addition to that of Mr. Stover, ofLori Eckenrode (an employee of the temporary service which fumished Defendant to EDS),39 Jennifer Miller (an EDS supervisor of Defendant), 40 Veronica Pierce (another EDS supervisor of Defendant),4! Winifred Edan (an EDS employee who pursued exception reports and ascertained financial histories on customer accounts),42 Kathy Teresa Duschek A reversal of a charge might be warranted, for example, if a TVN customer reported that a program that was ordered was not received. N.T. 33. 3s N.T. 108-10. 36 N.T. 92. 37 N.T. 92-93. 38 N.T. 92-93, 132. 39 N.T. 11-20. 40 N.T. 30-41. 4~ N.T. 42-62. 42 N.T. 62-75. 7 NO. 96-0669 CRIMINAL TERM (an employee of the temporary service and custodian of Defendant's time records),43 and Joseph Michael Landis (an East Pennsboro Township police detective who interviewed Defendant).44 Exhibits presented on behalf of the Commonwealth were Defendant's work time sheets,as TVN customer accounts information,46 Defendant's VISA card account statements,47 and a chart correlating credits on Defendant's account with reversed charges on TVN customer accounts? At trial, Defendant presented the testimony of himself and a gentleman named Todd Mosko. Defendant admitted that he had accessed and altered his own credit card account during work on January 28, 1996, but stated that he did so for the purpose of effecting a credit check with regard to the account.49 He denied any knowledge of TVN credits being awarded to his account,so Mr. Mosko testified as a character witness on behalf of Defendant 43 N.T. 88-90. 44 N.T. 121-32. ns N.T. 12. 46 N.T. 63. 47 N.T. 93. 48 N.T. 66. 49 N.T. 145. 5o N.T. 150. 8 NO. 96-0669 CRIMINAL TERM with respect to the trait of honesty? As previously noted, Defendant was found guilty of 48 instances of computer fraud and one (combined) count of theft by deception (involving an amount in excess of $200). He was sentenced on April 7, 1998. DISCUSSION Hearsay objection to testimony regarding, and admission of, Defendant's credit card account statements. In Pennsylvania, the business records exception to the hearsay rule has been codified by means of the adoption of the Uniform Business Records As Evidence Act? Those The act requires that several elements be met before such evidence is admitted. elements are: (1) the person who is in possession of the document or other qualified witness identifies it; (2) the witness testified to how the document was prepared; (3) the document was made in the regular course of business and near the time of the event; and (4) the tribunal feels that admission is justified. Commonwealth of Pennsylvania State Police v. Commonwealth of Pennsylvania 51 52 N.T. 162-69. Act of July 9, 1976, P. L. 586,§2,42 Pa. C. S. A.§6108. 9 NO. 96-0669 CRIMINAL TERM Unemployment Compensation Board of Review, 135 Pa. Commw. 71, 78, 578 A.2d 1360, 1363 (1990). The Superior Court has stated that "[t]he question of whether documents should be admitted under the business records exception to the hearsay rule is within the discretionary power of the trial court provided such discretion is exercised within the Uniform Business Records as Evidence Act." Boyle v. Steimas, 428 Pa. Super. 1, 15, 631 A.2d 1025, 1032 (1993). The act does not require that the person who made the entries or was the custodian at the time the record was made be available at trial. See id. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records, such a witness need not have personal knowledge of the facts reported. See id. at 15, 631 A.2d at 1032-33. In the case subjudice, the court was of the view that the prosecution had presented sufficient testimony from an individual, in the person of Mr. Stover, with knowledge and responsibilities adequate to assure that those reliability safeguards had been met. For this reason, it declined to sustain Defendant's objections to the witness' testimony and to the admission of Defendant's credit card account statements, on the basis of hearsay. Weight of the evidence.. "[A] new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is 10 NO. 96-0669 CRIMINAL TERM imperative so that right may be given another opportunity to prevail." Commonwealth v. Goodwine, __ Pa. Super. __, __, 692 A.2d 233,236 (1997). However, "a determination [as to the credibility of witnesses] is within the sole province of the trier of fact who is free to believe all, part, or none of the evidence." Commonwealth v. Jackson, 506 Pa. 469, 475,485 A.2d 1102, 1105 (1984). In addition, the trier of fact is permitted to draw reasonable inferences from the evidence it credited? In this case, the jury, as the sole judges of credibility, apparently did not believe the testimony of Defendant. Instead, the jury accepted the testimony presented by the prosecution's witness, and drew a reasonable inference that Defendant was the party who had improperly effected a crediting of his account at the expense of TVN, in an amount of $200 or more, through misuse of a computer system. The evidence that was offered by the prosecution and defense was in conflict. However, the jury's resolution in this regard did not shock the court's sense of justice, nor did it lead to a conclusion that the award of a new trial was necessary to permit right to prevail. CONCLUSION For the foregoing reasons, it is believed that the judgment of sentence in the present 53 See Commonwealth v. Faust, 702 A.2d 598 (Pa. Commw. 1997). 11 NO. 96-0669 CRIMINAL TERM case was properly imposed. Mary-Jo Mullen, Esq. Assistant District Attorney Austin F. Grogan, Esq. Assistant Public Defender irc 12