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HomeMy WebLinkAboutCP-21-CR-0001302-2009 V. COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: (1) FORGERY v. : (2) THEFT BY DECEPTION : : : KEITH REGINALD KINARD : OTN: K539678-6 : CP-21-CR-1302-2009 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., July 2, 2010. In this criminal case involving two forged “payroll” checks, Defendant was found guilty following a jury trial of one consolidated count of forgery, a felony of the third degree, and one consolidated count of theft by deception, a misdemeanor of the third 12 degree. From concurrent standard range sentences for the offenses, he has filed a direct 3 appeal to the Pennsylvania Superior Court. The bases for the appeal have been expressed in Defendant’s statement of errors complained of on appeal as follows: 1.The evidence presented at trial was not sufficient to convict Mr. Kinard of 1 Count of Forgery. The Commonwealth did not have a representative from Green Dot Corporation to testify that the check in question was not one of their checks. 1 See Order of Court, January 28, 2010. 2 Order of Court, April 13, 2010. For the felony, Defendant, who had a substantial prior criminal record including convictions for involuntary manslaughter and forgery, was sentenced to make restitution in the amount of $1,637.78 to the bank which suffered losses in connection with Defendant’s criminal activity and to undergo imprisonment in the Cumberland County Prison for a period of not less than six months not more than 23 months. For the misdemeanor, Defendant was sentenced to undergo a concurrent period of imprisonment in the Cumberland County Prison of not less than one month nor more than 23 months. Presentence Investigation Report at 1-2; Order of Court, April 13, 2010. 3 Defendant’s Notice of Appeal, filed May 10, 2010. 2.The evidence presented at trial was not sufficient to convict 4 Mr. Kinard of 2 Counts of Theft by Deception. a.The Commonwealth did not have a representative from the Green Dot Corporation to testify that the check in question was not one of their checks. b.The verdict slip, which listed 2 Counts of Theft by Deception – 1 Count for the Green Dot Corporation and 1 Count for the Brickforce Staffing, were not signed and 5 dated by the jury foreman. This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS In considering a challenge to the sufficiency of the evidence in a criminal case, a court is to view “the evidence in the light most favorable to the Commonwealth as verdict winner” and to draw “all proper inferences favorable to the Commonwealth” from the evidence presented. Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290. A challenge to the sufficiency of the evidence does not implicate a weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135. As in all cases, the trier of fact, “while passing upon the credibility of witnesses and the weight to be afforded to the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (citations omitted). 4 As will be made clear in the text, the court is unable to agree with Defendant the he was convicted of two counts of theft by deception. He was found guilty of, and sentenced for, one count of theft by deception; the verdict slips for the consolidated forgery count and the consolidated theft count simply provided for special findings with respect to Defendant’s guilt or innocence as to each check, to avoid a subsequent issue as to which check a guilty verdict had been predicated upon. In the present case, the jury found that each check supported a guilty verdict as to each count. 5 Defendant’s Concise Statement of the Errors Complained of on Appeal, filed May 28, 2010. 2 Viewed in this light, the evidence at trial may be summarized as follows: On August 1, 2008, Defendant opened a checking account with a bank known as Commerce 67 Bank at a downtown Harrisburg branch. On September 12, 2008 at 12:05 p.m., 8 Defendant presented a “payroll” check, purportedly drawn on the Bank of America 910 account of a company known as Green Dot Corporation, to Commerce Bank’s Camp Hill Mall branch located in Cumberland County for a partial deposit of $100.00 into 11 Defendant’s account and a cash-back amount of $775.00, which he received. The check 1213 was endorsed by Defendant and surveillance photos confirmed that Defendant was the 14 individual responsible for the transaction. On September 16, 2008 at 10:43 a.m., 15 Defendant presented another “payroll” check, purportedly drawn on the Wachovia 1617 Bank account of a company known as Brickforce Staffing, to Commerce Bank’s 6 Notes of Testimony 72, January 28, 2010 (hereinafter N.T.__, January 28, 2010). 7 Notes of Testimony 14, January 27, 2010 (hereinafter N.T.__, January 27, 2010). 8 Commonwealth Exhibit 7, admitted January 28, 2010. 9 Commonwealth Exhibit 7, admitted January 28, 2010. 10 Defendant claimed the Green Dot Corporation check was from Brickforce Staffing; it was drawn on a Green Dot Corporation account. N.T. 80-81, January 28, 2010. 11 Commonwealth Exhibit 3, admitted January 28, 2010. 12 Defendant identified his signature on the Green Dot Corporation check. N.T. 81, January 28, 2010. 13 Commonwealth Exhibit 4-6, admitted January 28, 2010. 14 At trial, surveillances photographs from the Camp Hill Mall branch of Commerce Bank from the day and time in question were submitted into evidence. Defendant identified himself as the person caught on surveillance presenting the Green Dot Corporation check to Commerce Bank. N.T. 81, January 28, 2010. 15 Commonwealth Exhibit 10, admitted January 28, 2010. 16 Commonwealth Exhibit 10, admitted January 28, 2010. 17 Defendant claimed he received the Brickforce Staffing check as payroll for work completed through Brickforce Staffing. N.T. 74-75, January 28, 2010. 3 Lemoyne Branch in Cumberland County for a partial deposit of $100.00 into Defendant’s 181920 account and a cash-back amount of $765.00, which he received. Surveillance photos from the Commerce Bank Lemoyne branch provided images of Defendant on that day 21 and time. On both occasions, the tellers responsible recorded Defendant’s driver’s license information and had Defendant endorse each check with his signature, which matched the identification materials associated with Defendant’s account that was opened 22 on August 1, 2008. Defendant was never, at the time of the transactions or otherwise, an 2324 employee of Green Dot Corporation or Brickforce Staffing. On September 17, 2008, Bank of America returned the Green Dot Corporation check to Commerce Bank with a stamp indicating that the check had been altered or was 25 fictitious. On September 19, 2008, Wachovia returned the Brickforce Staffing check to 26 Commerce Bank stating that the maker’s signature was irregular. Additionally, there were certain features missing from the purported Brickforce Staffing check, including the 18 Commonwealth Exhibit 8, admitted January 28, 2010. 19 Defendant admitted that he presented the check purporting to be from Brickforce Staffing to Commerce Bank on September 16, 2008. N.T. 83, January 28, 2010. 20 Commonwealth Exhibit 9, admitted January 28, 2010. 21 At trial, surveillance photographs from the Lemoyne branch of Commerce Bank from the day and time in question were submitted into evidence. Defendant identified himself as the person caught on surveillance presenting the Brickforce Staffing check to Commerce Bank. N.T. 83, January 28, 2010. 22 N.T. 21, 25, January 27, 2010. 23 Defendant admitted that he never worked for Green Dot Corporation. N.T. 81, January 28, 2010. 24 Robert May, Director of Finance for Brickforce Staffing, testified that the Defendant was not an employee of Brickforce or any sub-agency of Brickforce. N.T. 63, January 28, 2010. 25 Kathryn Grady, Security Investigator for Metro Bank, testified that the Green Dot Corporation check was sent to the Federal Reserve and then forwarded to Bank of America to determine if the check being drawn on Green Dot Corporation’s account was valid. N.T. 33-34, January 28, 2010. 26 Kathryn Grady testified that the Brickforce Staffing check was sent to the Federal Reserve and then forwarded to Wachovia in order to confirm whether the Brickforce Staffing check was a valid check. N.T. 34-35, January 28, 2010. 4 company’s logo in the top left corner, which were present on every payroll check from 27 Brickforce Staffing. Bank of America and Wachovia declined to honor the Green Dot Corporation and Brickforce Staffing checks presented by Defendant to Commerce Bank, 28 and Commerce Bank sustained $875.00 and $865.00 losses respectively. On September 25, 2008, Kathryn Grady, Security Investigator for Commerce Bank’s successor, Metro 2930 Bank, became aware of the two returned checks relating to Defendant’s account. After several unsuccessful attempts on her part to contact Defendant, the case was turned over 31 to the Camp Hill Borough Police Department on October 28, 2008. Following Defendant’s exculpative-type testimony, the Commonwealth presented evidence tending to impeach his credibility by way of a stipulation that on June 17, 2009, 32 Defendant had been convicted of forgery in Dauphin County, Pennsylvania. At the conclusion of the evidentiary phase of the case and closing arguments, the jury received 33 the final instructions from the court. In the charge, the court outlined the elements of 34 both forgery and theft by deception. Additionally, the court noted that, if Defendant were found guilty of the theft by deception charge, the jury would have to determine the 35 value of the property involved in the theft. At the request of Defendant’s counsel, the 27 Robert May testified that the check purporting to be from Brickforce Staffing did not have the correct font, signature, or logo markings that were present on every payroll check from Brickforce Staffing. N.T. 61, January 28, 2010. 28 N.T. 34-35, January 28, 2010. 29 Metro Bank was formerly known as Commerce Bank. N.T. 11, January 27, 2010. 30 N.T. 16, January 27, 2010. 31 N.T. 42, January 28, 2010. 32 N.T. 91, January 28, 2010. 33 N.T. 93, January 28, 2010. 34 N.T. 95-97, January 28, 2010. 35 N.T. 97-98, January 28, 2010. 5 court also included a special interrogatory on each verdict slip to indicate whether, if the verdict was guilty, the verdict was predicated upon the Green Dot Corporation check, the 36 Brickforce Staffing check, or both. The primary verdict slip, for the felony charge, contained a place for the jury 37 foreperson to sign and date the slip. The additional verdict slip, for the misdemeanor 38 charge, did not repeat the requirement for a signature and date. Following deliberations, the jury unanimously found Defendant guilty of both 39 charges, specially finding the evidence as to either check independently sufficient to 4041 support each verdict, with the amount involved in the theft being over $200.00. Each 42 verdict slip was fully completed according to its form and the court’s instructions, the contents of the verdict slips in all particulars were announced in open court by the jury’s 43 foreperson, in the presence of the presiding judge, prosecutor, defense attorney, and 44 Defendant, and upon inquiry by the court all twelve jurors confirmed their assent to 4546 each verdict. The verdicts were then recorded in open court. 36 N.T. 104-06, January 28, 2010. 37 See Verdict Slip, January 28, 2010. 38 See Verdict Slip, January 28, 2010. 39 N.T. 108-10, January 28, 2010. 40 N.T. 108-10, January 28, 2010. 41 N.T. 109, January 28, 2010. 42 N.T. 106, January 28, 2010. 43 N.T. 108-10, January 28, 2010. 44 N.T. 107, January 28, 2010. 45 N.T. 108-10, January 28, 2010. 46 N.T. 110, January 28, 2010. 6 47 As it transpired, Defendant had a significant criminal record dating back to 1992, including an involuntary manslaughter conviction in 1992 and a forgery conviction in 48 2009. Defendant was sentenced on the forgery charge to undergo a period of imprisonment of not less than six months nor more than 23 months, with credit to be given for five days previously served, to pay the costs of prosecution, and to make 49 restitution to Commerce Bank. Defendant was sentenced on the theft charge to a term of imprisonment of not less than one month nor more than 23 months, with credit to be 50 given for five days previously served. The sentences for both the forgery and theft 51 charges were in the standard range of the sentencing guidelines. The court ordered the sentences to run concurrently with each other and with any other sentence then being 52 served by Defendant. Defendant’s notice of appeal from the judgment of sentence, challenging the 53 sufficiency of the evidence and the validity of the theft verdict slip, was filed on May 54 10, 2010. DISCUSSION Sufficiency of the Evidence. Defendant’s first error complained of on appeal is that the evidence of forgery presented at trial was not sufficient to support a guilty verdict. Under Section 4101(a) of the Crimes Code, a person commits forgery if, “with intent to defraud or injure” he (1) “alters any writing of another without his authority;” (2) 47 See Presentence Investigation Report at 2, Feb. 2, 2010. 48 See Presentence Investigation Report at 2, Feb. 2, 2010. 49 See Order of Court, In Re: Sentencing, Apr. 13, 2010. 50 See Order of Court, In Re: Sentencing, Apr. 13, 2010. 51 See Presentence Investigation Report at 1, Feb. 2, 2010. 52 See Order of Court, In Re: Sentencing, Apr. 13, 2010. 53 Defendant’s Concise Statement of the Errors Complained of on Appeal, filed May 28, 2010. 54 Defendant’s Notice of Appeal, filed May 10, 2010. 7 “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;” or (3) “utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection.” Act of Dec. 6, 1972, P.L. 1482, as amended, 18 Pa. C.S. §4101(a) (2010 West). Here Defendant was found guilty of violating Section 4101(a)(3), uttering a writing which he knew to be forged. On appeal, Defendant suggests there was insufficient evidence as a matter of law to support the forgery verdict because the Commonwealth did not have a representative from the Green Dot Corporation to testify that the Green Dot Corporation check was not one of its checks. Initially, it may be noted that this argument as to the Green Dot Corporation check, even if correct, does not lead to a conclusion that the forgery verdict was infirm, inasmuch as the jury, by a special finding, also determined that the proof of Defendant’s conduct as to the Brickforce Staffing check independently warranted a guilty verdict. With specific reference to the purported payroll check of the Green Dot Corporation made payable to Defendant, the evidence, much of it from Defendant himself, tending to show that (a) Defendant had never worked for such an employer, (b) Defendant did not receive the Green Dot Corporation check from a Brickforce Staffing agency as he claimed, (c) Defendant personally presented the check to Commerce Bank’s Camp Hill Mall branch and received $775.00 cash-back and $100.00 credited to his bank account, (d) and the check was dishonored by the drawee due to the check’s being deemed altered or fictitious, was more than sufficient, in the courts view, to permit the finder of fact to conclude beyond a reasonable doubt that the Defendant had, with respect to that check, intended to defraud Commerce Bank by uttering a check that he knew to be forged, purporting to be the act of Green Dot Corporation, without its authority. The jury was not required to believe Defendant’s version of the events, particularly given the Commonwealth’s impeachment of his credibility through a stipulation that Defendant had a prior criminal conviction for forgery and the implausibility of his explanation as to how he came into possession of the Green Dot Corporation check. 8 Defendant also complains that the evidence was insufficient to sustain the conviction of theft by deception. With respect to theft by deception, in accordance with Section 3922 of the Crimes Code, a person is guilty if he or she “intentionally obtains or withholds the property of another by deception.” An individual “deceives if he intentionally” (1) “creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind;” (2) “prevents another from acquiring information which would affect his judgment of a transaction;” or (3) “fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.” Act of Dec. 6, 1972, P.L. 1482, as amended, 18 Pa. C.S. §3922(a) (2010 West). Here Defendant was charged under Section 3922(a)(1), with theft in conjunction with the creation or reinforcement of a false impression. Defendant suggests that there was insufficient evidence as a matter of law to support a finding of theft by deception in that the Commonwealth did not present a witness from Green Dot Corporation to testify that the check was not one of its own. For the same reason stated above in connection with Defendant’s argument as to the forgery conviction, the argument based upon the Green Dot Corporation check, even if correct, does not render the theft verdict, which was alternatively based, infirm. Similarly, the evidence as to Defendant’s activity with respect to the Green Dot Corporation check was, in fact, in the court’s view, more than sufficient to support a conclusion that Defendant had intentionally obtained the property of Commerce Bank by creating a false impression as to the value and nature of the purported payroll check from Green Dot Corporation. Adequacy of the Verdict Slip. Defendant’s final error complained of on appeal is that the verdict slip, pertaining to the count of theft by deception, was deficient in that it was not signed by the jury foreperson. Under Rule 648(b) of Pennsylvania’s Rules of Criminal Procedure, the verdict shall be unanimous and “announced by the foreman in open court in the presence of a judge, the attorney for the Commonwealth, the defendant and the defendant’s attorney.” The valid verdict of the jury is the verdict that is read 9 aloud in open court by the foreperson. Commonwealth v. Hafner, 89 Pa. Super. 173, 1926 WL 4386 (1926). A verdict’s validity is, as a general rule, in no way affected by the written verdict slip that the jury gives to the clerk of the court. Id. In addition, errors do not generally represent a ground for relief unless they are prejudicial to a defendant. Pa. R. Crim. P. 109. Even if it is assumed that the verdict slip for the theft charge in this case was technically defective, all indications are that the verdict slip as completed, announced and recorded correctly represented the unanimous decision of the jury. For the foregoing reasons, it is believed that the judgment of sentence appealed from was properly entered. BY THE COURT, J. Wesley Oler, Jr., J. Christylee Peck, Esquire Senior Assistant District Attorney For the Commonwealth Arla M. Waller, Esquire Deputy Public Defender For the Defendant 10