Com. v. Green, J.

J-S42024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEFFERY GREEN :

:

Appellant : No. 2060 EDA 2022

Appeal from the Judgment of Sentence Entered March 15, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0000253-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEFFERY GREEN :

:

Appellant : No. 2061 EDA 2022

Appeal from the Judgment of Sentence Entered March 15, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0006193-2016

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

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 29, 2024

In these consolidated appeals arising from two criminal cases, Appellant,

Jeffery Green, appeals from his aggregate judgment of sentence of 2½-5

years’ imprisonment for forgery, theft by unlawful taking, and related

offenses. We affirm.

In the first case (“Case I”), on March 29, 2016, Appellant accompanied

his girlfriend, Erica Saunders, to a prenatal visit at the University of

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Pennsylvania Hospital. The two met with Nurse Emily Green in her office.

Nurse Green stepped out briefly during the visit while Appellant and Saunders

remained. When Nurse Green returned, Appellant was still in the office and

Saunders was in the hall.

As Nurse Green approached, she heard Saunders ask Appellant, “Did

you find it?” The two explained to Nurse Green that they were looking for

Appellant’s cell phone. Shortly after they left, Nurse Green realized that her

wallet was missing. She had used the wallet just prior to her appointment

with Saunders and Appellant. Nurse Green then received an alert from her

bank indicating that her credit card had been used at a Sunoco gas station.

She cancelled three of her credit and debit cards. She then received a fraud

alert later in the evening from the Royal Bank of Canada indicating that her

credit card was used at a Family Dollar store in Philadelphia on March 29,

2016, from 2:58 p.m. to 5:57 p.m. N.T., 1/23/17, at 7–15, 33–38.

Nurse Green later identified Appellant in the video surveillance

recovered from the Family Dollar store. The video showed Saunders buying

cigarettes with a credit card the same day Nurse Green’s wallet went missing

and within the three-hour window in the fraud alert. Footage recovered from

the outside of the same store showed Appellant on a bicycle shortly after

Saunders purchased cigarettes. Appellant then entered the store and stood

behind an unknown woman as she checked out at the register. Appellant and

the unknown woman left the store together and stood near Appellant’s bike.

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Appellant exchanged something with the woman and rode away on his bike.

Id. at 7–15.

During a non-jury trial on January 23, 2017, the Commonwealth

presented the testimony of Nurse Green and Detective Paul Sawicki.

Detective Sawicki testified that he had contacted the Royal Bank of Canada

and acquired a spreadsheet detailing the fraudulent transactions. Id. at 16,

33–34; Ex. C-1. The detective testified that the document was an attachment

to an email he received from a fraud agent at the bank. The Commonwealth

introduced the document into evidence. N.T. 1/23/17, at 34–35; Ex. C-1.

Defense counsel objected, arguing that the document had not been properly

authenticated. The court overruled the objection, explaining that Detective

Sawicki “got it in an e-mail from the person he identified as the fraud

investigator at Royal Bank of Canada.” N.T., 1/23/17, 34–38, 45.

The defense presented the testimony of Appellant’s girlfriend, Saunders,

who testified that she found the wallet outside of the hospital, used it at the

Sunoco gas station and Family Dollar store, purchased cigarettes for her aunt,

and then threw the wallet away. Id. at 49-50. Saunders testified that

Appellant was not involved in the crime. On cross-examination, Saunders

admitted that she had initially told detectives that she did not know anything

about the wallet. Id. at 47–48; Ex. C-5.

At the conclusion of trial, the court found Appellant guilty of forgery,

conspiracy to commit forgery, theft by unlawful taking, receiving stolen

property, and access device fraud.

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In the second case (“Case II”), on November 15, 2016, Appellant

entered into the nurse’s station at Presbyterian Medical Center Emergency

Room and took a wallet from Nurse Jamie Malloy’s pocketbook. He was

stopped in the hallway and money was found on his person. N.T., 1/13/22,

at 11-12. On January 13, 2022, Appellant pled guilty to theft by unlawful

taking, defiant trespass and receiving stolen property.

On March 15, 2022, the court sentenced Appellant in both cases. In

Case I, the court sentenced Appellant to 2–4 years’ imprisonment for forgery,

a concurrent term of 2–4 years’ imprisonment for conspiracy to commit

forgery, and 2 years of reporting probation for access device fraud. He

received no further penalty on the remaining offenses. In Case II, the court

sentenced Appellant to 6–12 months’ imprisonment for theft by unlawful

taking, and to no further penalty for defiant trespass and receiving stolen

property. The court ordered this sentence to run consecutively to the sentence

imposed in Case I. Appellant filed timely post-sentence motions, which the

court denied. Appellant appealed to this Court from both judgments of

sentence and filed timely statements of matters complained of on appeal. The

trial court subsequently filed a Pa.R.A.P. 1925(a) opinion.

Appellant raises four issues in this appeal:

1. Whether the evidence presented at trial established sufficient

proof beyond a reasonable doubt as a matter of law for every

element of the crimes for which Appellant was convicted?

2. Whether the trial court erred by allowing the introduction of

inadmissible hearsay evidence?

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3. Whether the sentencing court abused its discretion by imposing

a sentence that was not based upon the gravity of the violation,

the extent of Appellant’s record, his prospect for rehabilitation,

nor an assessment of the mitigating and aggravating factors as

noted in 42 Pa.C.S. § 9721 of the Sentencing Code?

4. Whether the sentencing court abused its discretion by entering

a manifestly excessive sentence to such a degree that the

imposition of consecutive sentences establishes evidence of the

court’s bias or animus toward Appellant?

Appellant’s Brief at 7.

In his first argument, Appellant contends that the evidence was

insufficient to sustain his convictions in Case I for forgery, conspiracy, access

device fraud, theft and receiving stolen property. We disagree.

We review challenges to the sufficiency of the evidence as follows:

We must determine whether the evidence admitted at trial, and

all reasonable inferences drawn therefrom, when viewed in a light

most favorable to the Commonwealth as verdict winner, support

the conviction beyond a reasonable doubt. Where there is

sufficient evidence to enable the trier of fact to find every element

of the crime has been established beyond a reasonable doubt, the

sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every

possibility of innocence and the fact-finder is free to believe all,

part, or none of the evidence presented. It is not within the

province of this Court to re-weigh the evidence and substitute our

judgment for that of the fact-finder. The Commonwealth’s burden

may be met by wholly circumstantial evidence and any doubt

about the defendant’s guilt is to be resolved by the fact[-]finder

unless the evidence is so weak and inconclusive that, as a matter

of law, no probability of fact can be drawn from the combined

circumstances.

Commonwealth v. Williams, 302 A.3d 117, 120 (Pa. Super. 2023).

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The evidence was sufficient to sustain Appellant’s conviction for forgery.

A person is guilty of forgery when he “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.” 18 Pa.C.S.A. § 4101(a)(2).

“Writing” includes using a credit card. 18 Pa.C.S.A. § 4101(b).

Viewed in the light most favorable to the Commonwealth, the evidence

demonstrates that Appellant and his girlfriend Saunders met with Nurse Green

during a prenatal visit. The nurse left her office, and when she returned,

Saunders was standing outside of her office while Appellant remained inside.

The nurse heard Saunders ask Appellant, “Did you find it?” After the two left,

she immediately noticed that her wallet was missing. Saunders admitted

using the nurse’s credit card at the Family Dollar store, and Nurse Green did

not authorize Saunders to use her card.

These facts establish the elements of forgery. Commonwealth v.

Sargent, 823 A.2d 174, 176 (Pa. Super. 2003) (defendant’s act of signing

victim’s name to credit card receipts constituted forgery). Because Appellant

and Saunders conspired to steal Nurse Green’s wallet, Appellant is liable for

Saunders’ unauthorized use of the credit card. Commonwealth v. Geiger,

944 A.2d 85, 91 (Pa. Super. 2008) (holding that each conspirator is criminally

responsible for actions of his co-conspirator).

Next, the evidence was sufficient to sustain Appellant’s conviction for

conspiracy. The defendant is guilty of conspiracy when he enters into an

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agreement to commit an unlawful act with another person with a shared intent

and a conspirator commits an overt act in furtherance of the conspiracy. 18

Pa.C.S.A. § 903(a)(1); Commonwealth v. Chambers, 188 A.3d 400, 410

(Pa. 2018). This agreement may be formed instantaneously, and it need not

have been formal or ever expressly communicated between the conspirators.

Chambers, 188 A.3d at 411. Criminal conspiracy can be proven by

circumstantial evidence, including “the relations, conduct, or circumstances of

the parties or overt acts on the part of co-conspirators.” Commonwealth v.

Sanchez, 82 A.3d 943 (Pa. 2013).

Here, the evidence shows that Appellant conspired with Saunders to

steal Nurse Green’s wallet and use her credit card. Appellant and Saunders

were the only two people present in the nurse’s office when her wallet went

missing. Further, video surveillance from the Family Dollar store showed

Saunders making a purchase with a credit card on the same day Nurse Green’s

wallet was stolen. Footage recovered from the outside of the store showed

Appellant on a bicycle shortly after Saunders visited the store. He entered the

store and stood behind an unidentified woman as she attempted to check out

at the register. Appellant and the unidentified woman exited the store

together and stood by his bike. He exchanged something with the woman

and biked away. The fraud alert from Royal Bank of Canada showed that

Nurse Green’s card had been used at the Family Dollar store at the time

Saunders made her purchase and when Appellant and the unidentified woman

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were at the store. This evidence demonstrates that Appellant and Saunders

conspired to steal Nurse Green’s wallet and use her credit card.

The evidence also was sufficient to sustain Appellant’s conviction for

access device fraud. A person is guilty of this offense if he “uses an access

device to obtain or in an attempt to obtain property or services with knowledge

that . . . the access device was issued to another person who has not

authorized its use.” 18 Pa.C.S.A. § 4106(a)(1). A credit card is an access

device. 18 Pa.C.S.A. § 4106(d).

The evidence establishes that Appellant and Saunders stole Nurse

Green’s wallet. Saunders admitted using a credit card taken from the wallet

to purchase cigarettes. Because Saunders and Appellant conspired to steal

the wallet and use the credit card, Appellant is culpable for Saunders’

fraudulent purchase.

Next, the evidence was sufficient to sustain Appellant’s convictions for

theft by unlawful taking and receiving stolen property. Theft by unlawful

taking requires proof of three elements: (1) unlawful taking or unlawful control

over movable property; (2) movable property belongs to another; and (3)

intent to deprive (permanently). Commonwealth v. Goins, 867 A.2d 526,

530 (Pa. Super. 2004) (citing 18 Pa.C.S.A. § 3921 and 18 Pa.C.S.A. § 3901).

A person is guilty of receiving stolen property if he “intentionally receives,

retains, or disposes of movable property of another knowing that it has been

stolen, or believing that it has probably been stolen.” 18 Pa.C.S.A. § 3925(a).

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As discussed above, the evidence shows that Appellant stole Nurse

Green’s wallet and then conspired with Saunders to make an unauthorized

purchase using one of Green’s credit cards. This clearly constituted an

unlawful taking of Nurse Green’s property. See Commonwealth v.

Robinson, 33 A.3d 89, 95 (Pa. Super. 2011) (evidence was sufficient to

sustain defendant’s conviction for theft where victim’s testimony established

that defendant was the only person with access to her bedroom, and boxes in

the bedroom were undisturbed when she awoke in the morning, but

subsequently, the boxes were empty and strewn around the room immediately

after defendant was in the room).

For these reasons, Appellant’s challenge to the sufficiency of the

evidence in Case I fails.

In his second argument, Appellant asserts that the spreadsheet from

Royal Bank and Detective Sawicki’s testimony about the spreadsheet was

hearsay, and therefore the court abused its discretion by permitting the

Commonwealth to submit this evidence. Appellant contends that this alleged

error entitles him to a new trial in Case I on the counts of forgery and access

device fraud.1 The trial court reasoned in its Rule 1925(a) opinion that

Appellant waived this issue by failing to raise it during trial. Pa.R.A.P. Opinion,

____________________________________________

1 Appellant does not contend that this issue entitles him to any relief from his

convictions for conspiracy to commit forgery, theft or receiving stolen

property.

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1/4/23, at 11. The Commonwealth likewise asserts in its appellate brief that

Appellant has waived the issue. See Commonwealth’s Brief at 13. We agree

that it is waived.

At the close of the Commonwealth’s case, the Commonwealth moved to

admit the spreadsheet. Defense counsel objected on the ground that “there

has not been authentication” of the spreadsheet, because “we heard from the

detective and he doesn’t know how or when it was made. All he knows is he

got it in an email.” N.T. 1/23/17, at 45. The court overruled this objection

and allowed the spreadsheet into evidence. Id.

Defense counsel never raised a hearsay objection during trial. The first

time that counsel did so was in Appellant’s Pa.R.A.P. 1925(b) statement of

matters complained of on appeal. See id. at ¶ 2 (“The trial court erred by

allowing the introduction of inadmissible hearsay testimony. The

Commonwealth failed to establish all necessary grounds to satisfy the hearsay

exception and allow the introduction of the hearsay testimony”).

On appeal, Appellant continues to argue that the spreadsheet is

hearsay. Appellant’s Brief at 15-16 (argument entitled, “The trial court erred

by allowing the introduction of inadmissible hearsay evidence”). Although he

asserts that the spreadsheet was not authenticated, he raises this point in

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support of his claim of hearsay, not in support of a separate claim of lack of

authentication.2

This Court has held:

It is well-established that [a] party complaining, on appeal, of the

admission of evidence in the court below will be confined to the

specific objection there made. If counsel states the grounds

for an objection, then all other unspecified grounds are

waived and cannot be raised for the first time on

appeal. [O]ne must object to errors, improprieties or

irregularities at the earliest possible stage of the adjudicatory

process to afford the jurist hearing the case the first occasion to

remedy the wrong and possibly avoid an unnecessary appeal to

complain of the matter. It is well-settled that issues raised for the

first time in a Rule 1925(b) statement are waived.

Commonwealth v. Wilson, 286 A.3d 1288, 1296 n.4 (Pa. Super. 2022)

(citations omitted; emphasis in original).

An objection to lack of authentication is different from a hearsay

objection. An objection to lack of authentication is an argument that the item

in question is not what the proponent claims it is. Pa.R.E. 901(a) (“to satisfy

the requirement of authenticating . . . an item of evidence, the proponent

must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.”). In contrast, a hearsay objection is an argument that

the evidence in question “is a statement, other than one made by the

____________________________________________

2 See Appellant’s Brief at 16 (“The email and spreadsheet did not have any

type of certificate of authenticity from Royal Bank. Without authentication by

a representative from Royal Bank or a certification indicating that the

spreadsheet was a record kept in the ordinary course of business by Royal

Bank, the spreadsheet does not qualify as a business record exception and is

inadmissible hearsay”).

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declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Commonwealth v. Watley, 153 A.3d

1034, 1040 (Pa. Super. 2016) (citing Pa.R.E. 801(c)). Hearsay is not

admissible except as provided by the Pennsylvania Rules of Evidence. Pa.R.E.

802.

In this case, the only objection that Appellant raised during trial was

lack of authentication, but he purports to raise a different objection to hearsay

in his Rule 1925(b) statement and in his appellate brief. By limiting his

objection during trial to lack of authentication, Appellant waived the hearsay

argument asserted for the first time in this appeal. Wilson, 286 A.3d at 1296

n.4.

In his final arguments, Appellant contends that (1) his sentence is

manifestly excessive based upon the gravity of the violation, the extent of his

record, his prospect of rehabilitation, or an assessment of the mitigating and

aggravating factors as noted in Section 9721 of the Sentencing Code, and (2)

his sentence is manifestly excessive because his consecutive sentences

demonstrate the trial court’s animus towards him.

It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa. Super. 2011). Rather, appellate challenges to the discretionary aspects

of a sentence should be treated as a petition for allowance of appeal.

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Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we

stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902

and 903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence, see

Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170. Whether a particular issue constitutes a substantial question about

the propriety of sentence is a question to be evaluated on a case-by-case

basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).

Neither of Appellant’s sentencing arguments satisfy the Moury test.

With regard to the first argument—the court’s alleged failure to consider

mitigating factors, the gravity of his offenses, and his prospects of

rehabilitation—Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief. We conclude, however, that this argument

does not present a substantial question. Moury, 992 A.2d at 175 (“[t]hat the

court refused to weigh the proposed mitigating factors as Appellant wished,

absent more, does not raise a substantial question”). Appellant’s second

argument, a challenge to the imposition of consecutive sentences, presents a

substantial question when, as here, it is raised in conjunction with an assertion

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that the court failed to consider mitigating factors. Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Nevertheless, Appellant failed

to satisfy other Moury requisites by failing to raise this objection during

sentencing or in post-sentence motions.

Even if Appellant satisfied the Moury test, he would not be entitled to

relief. The record shows that the court properly weighed all mitigating factors,

and that it did not impose consecutive sentences due to animus against

Appellant. The court heard argument by defense counsel for a mitigated

sentence, N.T. 3/15/22, 16–23, and Appellant’s testimony. Id. at 26–32. The

court considered Appellant’s background and rehabilitative needs, including

his need for drug treatment, mental health counseling, and housing programs,

and ordered referrals to drug treatment program, job training at SCI-Chester,

a mental health evaluation and supervision, a halfway house, and housing

programs. Id. at 26-32, 37–38.

The court also had the benefit of Appellant’s presentence report and

referred to the report when rendering its decision. Id. at 5, 33. When the

trial court reviews a presentence report, we presume that the court weighed

all appropriate sentencing factors. Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009) (“where the sentencing judge had the benefit

of a pre-sentence investigation report, it will be presumed that he or she was

aware of the relevant information regarding Appellant’s character and weighed

those considerations along with mitigating statutory factors”). Despite taking

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all mitigating factors into consideration, the court concluded that they were

outweighed by aggravating factors. The court reasoned:

Appellant’s separate yet disturbingly similar offenses reasonably

merit consecutive sentences. This Court adhered strictly to the

Guidelines, sentencing Appellant to an aggregate of thirty (30) to

sixty (60) months, reduced from a maximum Guideline sentence

of eighty-one (81) months . . . Moreover, this Court had the

benefit of a detailed PSI, which warned that Appellant was at a

“very high risk for incurring future offenses and for violation.”

N.T., 3/15/2022 at 36. Indeed, this Court properly utilized all the

information at its disposal and complied with all the requirements

of 42 Pa.C.S.[A.] § 9721. This is evidenced on the record through

this Court’s consideration [of] “not just [Appellant's] needs, but

the needs of the community as well.” Id. Furthermore, the

Appellant, who admitted to “need[ing] drug treatment,”

nevertheless expressed an “unwillingness” to participate in care

or to “maintain any psychiatric treatment upon release from

custody,” further demonstrating the impetus behind his

incarceration. N.T., 3/15/2022 at 33; [Commonwealth v.]

Cappellini, 690 A.2d [1220,] 1225-26 [(Pa. Super. 1997)].

Therefore, this Court was justified in imposing the prescribed

consecutive sentences.

Trial Ct. Op., 1/4/23, at 14. The court further declared that it held no animus

against Appellant but instead imposed sentence only after it

listened empathetically to [Appellant’s] case, expressed

“sympath[y] and sad[ness]” concerning Appellant’s troubled

background, and did not exhibit any objective bias or prejudice.

N.T., 3/15/2022 at 34. However, considering the gravity of his

offenses, his risk of reoffending, and his need for rehabilitation,

his sentence was judicially appropriate.

Id. at 15.

Based on our review of the record, we conclude that Appellant’s

sentence was a proper exercise of the trial court’s discretion.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

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Date: 2/29/2024

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