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HomeMy WebLinkAboutCP-21-CR-0000763-2010COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARGES: (2) ACCESS DEVICE FRAUD (3) UNAUTHORIZED USE OF AUTOMOBILE AND OTHER VEHICLES DANNY LEE LOWER OTN: K775647 — 5 CP -21 -CR -0763-2010 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., September 2, 2011. In this criminal case, Defendant was charged with various criminal offenses as a result of an incident occurring on February 1, 2010. Following a trial, a jury found Defendant guilty at Count 2 of Access Device Fraud,' with the amount involved being in excess of fifty dollars, a misdemeanor of the first degree,2 and guilty at Count 3 of Unauthorized Use of an Automobile ,3 a misdemeanor of the second degree .4 The jury found Defendant not guilty at Count 1 of Theft by Unlawful Taking or Disposition.5 From the judgment of sentence ,6 Defendant now appeals to the Pennsylvania Superior Court. The basis for the appeal has been expressed in a statement of errors complained of on appeal as follows: ' 18 Pa. C.S §4106(a)(1)(iv). 2 Order of Court, In Re: Jury Trial, March 16, 2011. s 18 Pa. C.S. §3928(a). 4 Order of Court, In Re: Jury Trial, March 16, 2011. s Order of Court, In Re: Jury Trial, March 16, 2011. 6 Order of Court, In Re: Sentencing, June 28, 2011. Defendant's Notice of Appeal, filed June 21, 2011. There was insufficient evidence as a matter of law to support the verdicts of guilt for the unauthorized use of the victim's car and her credit/debit card by defendant based on the incredible and unreliable testimony of the victim (whom defendant claimed at sentencing fabricated her testimony at court, lied in her statements to the police and, despite her testimony to the contrary, actually gave him permission to use her car and cards to purchase illegal drugs).$ This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The evidence adduced at trial may be summarized as follows. On the morning of February 1, 2010, Sharie Cressler awoke to discover that her cellular telephone and automobile were missing from the locations where she had left them the prior evening, and later discovered that her debit card had also been taken and had been used during the course of the day. The victim identified the probable perpetrator as Defendant, an individual with whom she resided.9 Ultimately, with the help of the victim, Defendant was apprehended and charged with (1) Theft by Unlawful Taking or Disposition,10 (2) Access Device Fraud, i i and (3) Unauthorized Use of Automobile and Other Vehicles. 12 s Defendant's Concise Statement of Errors Complained of on Appeal, filed August 12, 2011. 9 Ms. Cressler had resided with Defendant at Defendant's residence located in Cumberland County, Pennsylvania for approximately four weeks prior to the events that gave rise to the instant matter, according to her testimony. See Notes of Testimony, 6, 58, Trial, March 16, 2011 (hereinafter N.T. Trial, March 16, 2011). 10 18 Pa. C.S. §3921(a). " 18 Pa. C.S. §4106(a)(1)(iv). 1 2 18 Pa. C.S. §3928(a). 2 At trial, the Commonwealth called two witnesses: the victim of the February 1, 2010 incident, Sharie Cressler; and a North Middleton Township police officer, Matthew Johnston. Defendant did not present any witnesses. In the Commonwealth's case -in -chief, Sharie Cressler testified that at approximately 10:00 in the evening on Sunday, January 31, 2010, she returned to Defendant's residence, where she was staying, on Amy Drive, Carlisle, Cumberland County, Pennsylvania after celebrating her birthday with her family. 13 Ms. Cressler testified that, at approximately 11:00 that evening, she received a telephone call from Defendant requesting a ride home from a bar in Mount Holly Springs, Cumberland County, Pennsylvania. 14 Ms. Cressler testified that, after complying with Defendant's request, she had assisted Defendant in acquiring drugs from an unspecified location in Harrisburg, Dauphin County, Pennsylvania. 15 Specifically, Ms. Cressler testified that she provided transportation for the excursion, 16 withdrew approximately sixty dollars from her bank account at Wachovia Bank by way of her debit card at an Automated Teller Machine, 17 and gave the entire sum to Defendant for purposes of purchasing drugs." Defendant was ultimately successful in purchasing the drugs, according to her " N.T. 7, Trial, March 16, 2011. 14 N.T. 7, Trial, March 16, 2011. At trial, Ms. Cressler explained the informal agreement between Defendant and herself regarding their cohabitation. Ms. Cressler explained that she had agreed to contribute financially toward Defendant's monthly rent, and additionally provide transportation to Defendant. See also N.T. 33, Trial, March 16, 2011. " See N.T. 8-9, Trial, March 16, 2011. 16 N.T. 8-9, 24, Trial, March 16, 2011. 17 N.T. 8, 24, Trial, March 16, 2011. " N.T. 8, 24, Trial, March 16, 2011. 3 testimony. 19 Ms. Cressler further testified that, upon returning to Defendant's home early in the morning on February 1, 2010, she and Defendant utilized the drugs,20 after which she went to the bedroom and fell asleep.21 Ms. Cressler testified that, shortly thereafter, Defendant came into the bedroom, woke her up, and requested further transportation, which she refused .22 She then fell asleep again, according to her testimony.23 Ms. Cressler testified that, upon awakening on the morning of February 1, 2010, she discovered that her cellphone had disappeared from where she had placed it prior to going to bed .24 Ms. Cressler further testified that, after failing to find the cellphone, she called the cellphone and Defendant answered, and indicated that he would soon return to the residence .25 Ms. Cressler testified that, shortly after speaking with Defendant, she discovered that her 2007 Saturn Vue automobile was not in the location where she had parked it upon returning to the residence with Defendant earlier that morning.26 Ms. Cressler testified that she again called Defendant to investigate the disappearance of her vehicle, and that Defendant responded that he had taken it, that the vehicle had a flat tire, and that he would return within an hour.27 19 N.T. 9, 25, Trial, March 16, 2011. 20 N.T. 9, 24, Trial, March 16, 2011. 21 N.T. 9, Trial, March 16, 2011. 22 N.T. 9, Trial, March 16, 2011. 23 N.T. 10, Trial, March 16, 2011. 24 N.T. 10, Trial, March 16, 2011. 2s N.T. 10, Trial, March 16, 2011. 26 N.T. 11, Trial, March 16, 2011. 27 N.T. 11, Trial, March 16, 2011. 4 Ms. Cressler testified that, after an hour had passed without Defendant's return, she called the cellphone again '28 and informed an unidentified individual who answered the call29 that she would call the police '30 which she ultimately did at approximately 3:00 in the afternoon on February 1, 20 10.3 1 Furthermore, Ms. Cressler testified that, at or around the same time, she discovered that her Wachovia Bank debit card, which she had used the previous evening in the presence of Defendant,32 had been removed from its previous location '33 and that she subsequently discovered that six unauthorized transactions had been made during that day, representing a total withdrawal of approximately $157.00.34 As a result of police involvement, Ms. Cressler's vehicle was returned to her early the following week .35 Ms. Cressler testified that, when the car was returned, she discovered that various items of personalty had been removed,36 including a spare tire 28 Ms. Cressler testified that, between the conversation during which she was informed that Defendant would return within an hour and the call placed after an hour had passed, she attempted to place several more calls, none of which was answered. See N.T. 13-15, Trial, March 16, 2011. 29 At trial, Ms. Cressler testified that, when she called the cellphone for the second time, someone other than Defendant answered. N.T. 14, Trial, March 16, 2011. so N.T. 14, Trial, March 16, 2011. 31 See N.T. 14-15, Trial, March 16, 2011. 32 N.T. 15, Trial, March 16, 2011. ss Ms. Cressler testified that she kept the card in either her pants' pocket or purse. N.T. 16, Trial, March 16, 2011. 34 N.T. 17, Trial, March 16, 2011. Ms. Cressler testified that, after discovering the card had been removed, she cancelled the card. N.T. 16, Trial, March 16, 2011. ss N.T. 17-18, 55, Trial, March 16, 2011. 36 See N.T. 18, Trial, March 16, 2011. 5 and Jack, 17 but that there was no evidence that a tire on the vehicle had been changed." Furthermore, Ms. Cressler testified that, although she received a new cellphone from her carrier, she never recovered the cellphone that had been taken, or her debit card .39 Ms. Cressler testified that Defendant contacted her on Tuesday, February 2, 2010 by way of a call to her new cellphone '40 and the cellphone identified the call as having originated from Defendant's home .41 Ms. Cressler testified that at this time she reported to the police officer handling the matter that Defendant was probably at his residence on Amy Drive.42 At trial, Ms. Cressler unequivocally testified to the following: Q: [On] February 1, 2010, did you allow [Defendant] to use your debit card? A: No. Q: Did you allow [Defendant] to use your car? A: No. Q: Did you allow [Defendant] to take your cellphone? A: No. 43 37 N.T. 29, Trial, March 16, 2011. Ms. Cressler testified that she first discovered the missing spare tire and jack a number of weeks after the vehicle was returned. N.T. 32, Trial, March 16, 2011. ss N.T. 22, Trial, March 16, 2011. 39 N.T. 18, Trial, March 16, 2011. 40 The cellphone referred to was a replacement cellphone sent via overnight delivery by her cellphone carrier. N.T. 19, Trial, March 16, 2011. 41 N.T. 19, Trial, March 16, 2011. 42 N.T. 19-20, Trial, March 16, 2011. 43 N.T. 21, Trial, March 16, 2011. T On cross-examination, Ms. Cressler testified that, instead of reporting her cellphone or car missing to the police immediately upon discovery, she contacted police approximately six hours later, after attempting to locate the vehicle herself 44 Ms. Cressler further testified that she first reported the vehicle stolen to her insurance company on February 2, 2010, but did not report who had taken the vehicle .45 Finally, Ms. Cressler testified that, when her vehicle was returned on February 7, 2010, it was still drivable, and that the insurance company paid for damage and cleaning the interior 46 and replaced the spare tine and jack.47 North Middleton Township Police Officer Matthew Johnston testified that Ms. Cressler first arrived at the station to report her vehicle stolen at or around 3:00 in the afternoon of Monday, February 1, 2010,48 and that he collected certain information from Ms. Cressler, including Ms. Cressler's identification of Defendant49 and information regarding the activity on Ms. Cressler's debit card .50 Officer Johnston testified that, based upon the information reported by Ms. Cressler, he obtained a warrant for Defendant's 44 See N.T. 26-27, Trial, March 16, 2011. 4s N.T. 30, Trial, March 16, 2011. 46 N.T. 29, Trial, March 16, 2011. 47 See N.T. 31, 33, Trial, March 16, 2011. 48 N.T. 35, Trial, March 16, 2011. 49 N.T. 36, Trial, March 16, 2011. so N.T. 38, Trial, March 16, 2011. Ms. Cressler gave Officer Johnston the information regarding the debit card activity during an interview conducted on the day after Ms. Cressler and Officer Johnston's initial meeting. See N.T. 39, Trial, March 16, 2011. VA arre5t,51 which he executed on February 3, 2010 on Spring Road, Cumberland County, Pennsylvania. sa Officer Johnston testified that he interviewed Defendant at the station following Defendant's arrest on February 3, 2010,53 and that Defendant provided his version of the events surrounding Ms. Cressler's report.54 Officer Johnston testified that, during the course of the interview, Defendant stated that, on January 31, 2010, Ms. Cressler provided transportation to him from a bar in Mount Holly Springs,55 that he and Ms. Cressler traveled to Harrisburg to acquire drugs,56 and that, upon returning to his residence on Amy Drive, he and Ms. Cressler used the drugs .57 According to Officer Johnston's trial testimony, Defendant stated that, on February 1, 2010, he had awakened Ms. Cressler, at which time she presented Defendant with the keys to her vehicle with permission to take the vehicle to acquire more drugs .58 He admitted that he had used Ms. Cressler's debit card, but claimed that he had permission to do so.59 Officer Johnston " N.T. 49, Trial, March 16, 2011. Sz N.T. 49-50, Trial, March 16, 2011. Officer Johnston testified that he received notification Defendant was at his residence from Ms. Cressler and that, upon arriving at Defendant's residence on Amy Drive, he found it necessary to follow footprints leading to Spring Road, at which point he encountered Defendant. N.T. 49, Trial, March 16, 2011. ss N.T. 50, Trial, March 16, 2011. Defendant's arrest and subsequent interview occurred before Ms. Cressler's vehicle had been found on February 6, 2010. 14 N.T. 50, Trial, March 16, 2011. " N.T. 51, Trial, March 16, 2011. 16 N.T. 51, Trial, March 16, 2011. 57 N.T. 51, Trial, March 16, 2011. " N.T. 51, Trial, March 16, 2011. s9 N.T. 52, Trial, March 16, 2011. 8 testified that Defendant denied telling Ms. Cressler that he had a flat tire on February 1, 2010.60 Officer Johnston further testified that Defendant told him that, upon acquiring the drugs in the morning of February 1, 2010, he immediately returned in the vehicle and parked it one hundred feet away from his residence along Spring Road, Carlisle, Cumberland County, Pennsylvania ,61 that he left the keys in the vehicle's ignition,62 and that immediately after he parked the vehicle on Spring Road he was picked up by another person, and returned with that individual to Harrisburg.63 Officer Johnston further testified that he did not see the Saturn Vue at the time he encountered Defendant on Spring Road .64 Officer Johnston testified that the vehicle was located in Harrisburg on February 6, 2010.65 Defendant did not present any witnesses or exhibits. 66 After deliberations, the jury found Defendant guilty at Count 2 of Access Device Fraud, with the amount involved being in excess of fifty dollars, a misdemeanor of the first degree, and guilty at Count 3 of Unauthorized Use of an Automobile, a misdemeanor of the second degree.67 60 N.T. 51, Trial, March 16, 2011. 61 N.T. 52, Trial, March 16, 2011. 62 N.T. 57, Trial, March 16, 2011. 63 N.T. 52, Trial, March 16, 2011. 64 N.T. 53, Trial, March 16, 2011. 65 N.T. 56-57, Trial, March 16, 2011. 66 N.T. 63-64, Trial, March 16, 2010. 67 N.T. 82-83, Trial, March 16, 2011; Order of Court, In Re: Jury Trial, March 16, 2011. C Defendant was sentenced at Count 2 to undergo a period of imprisonment in a state correctional institution of not less than nine months, nor more than 24 months, and at Count 3 to make restitution in the amount of $873.96 to Ms. Cressler and to undergo a period of imprisonment in a state correctional institution of not less than nine months nor more than 24 months .68 The sentences were made to run concurrently with each other.69 As noted previously, Defendant's appeal challenges the judgment of sentence on the basis of sufficiency of the evidence.70 DISCUSSION Sufficiency of the Evidence General rule. On a challenge to the sufficiency of the evidence in a criminal case, the proper test is "whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined all the elements of the crime have been established beyond a reasonable doubt." Commonwealth v. O'Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290 (quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995)); Commonwealth v. Rakowski, 2010 PA Super 3, ¶3, 987 A.2d 1215, 1217. A guilty verdict is proper if the evidence presented at trial is sufficient to allow the "fact finder to find every element of the crime charged beyond a reasonable doubt." Commonwealth v. Coleman, 2009 PA Super 229, ¶6, 984 A.2d 998, 1000. 68 Order of Court, In Re: Sentencing, June 28, 2011. 69 Order of Court, In Re: Sentencing, June 28, 2011. 70 Defendant's Concise Statement of Errors Complained of on Appeal, filed August 11, 2011. 10 A challenge to the sufficiency of the evidence does not implicate a weighing of the evidence. See Commonwealth v. Patterson, 2007 PA Super 404, ¶24, 940 A.2d 493, 500 (citing Commonwealth v. Emler, 2006 PA Super 187, ¶7, 903 A.2d 1273, 1276-77). 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. Smith, 604 Pa. 126, 126, 985 A.2d 886, 897 (2009); Commonwealth v. Gibbs, 2009 PA Super 181, ¶11, 981 A.2d 274, 281. Additionally, facts and circumstances established by the Commonwealth need not preclude every possibility of a defendant's innocence. Commonwealth v. Jones, 2008 PA Super 160, ¶3, 954 A.2d 1194, 1196. Access device fraud. The pertinent provision against the unlawful use of a credit card is subsection 4106(a)(1) of the Pennsylvania Crimes Code, which states as follows: (a) Offense defined. - - A person commits an offense if he: (1) uses a an access device to obtain or in an attempt to obtain property or services with knowledge that: (iv) for any other reason his use of the access device is unauthorized by the issuer or the device holder 18 Pa. C.S §4106(a)(1). Unauthorized use of an automobile. The pertinent provision against the unlawful use of credit cards is subsection 3928(a) of the Pennsylvania Crimes Code, and states that "[a] person is guilty of a misdemeanor of the second degree if he operates the automobile ... of another without consent of the owner." 18 Pa. C.S §3928(a). 11 Application of Law to Facts. In the present case, evidence produced by the Commonwealth was sufficient to establish that Defendant used both Ms. Cressler's debit card and automobile without her consent. The Commonwealth presented evidence in the form of testimony from Officer Johnston, who stated that Defendant had admitted to having used Ms. Cressler's vehicle and debit card. Although Officer Johnston testified that, during the interview, Defendant had claimed that he had permission to use both the debit card and the automobile, the victim, Ms. Cressler, testified that she had never given Defendant such permission. Furthermore, Officer Johnston testified that his own observations did not support Defendant's version of the incident. Finally, the Commonwealth presented evidence, in the form of testimony from Ms. Cressler, that six unauthorized transactions were made with the card, totaling withdrawals in excess of fifty dollars. For the foregoing reasons, it is believed that the evidence was more than sufficient to support the guilty verdict and the judgment of sentence appealed from was properly entered. Matthew P. Smith, Esq. Chief Deputy District Attorney John M. Shugars, Esq. Assistant Public Defender BY THE COURT, J. Wesley Oler, Jr., J. 12