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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
No. 1536 WDA 2012
Appeal from the Judgment of Sentence September 5, 2012
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001137-2008
BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.
FILED: June 21, 2013
Michael Guty appeals from the judgment of sentence entered in the
Court of Common Pleas of Fayette County following his conviction for theft
by deception,1 receiving stolen property,2 and bad checks.3 Guty has filed a
timely appeal challenging the sufficiency of the evidence used to support his
conviction. Brief of Appellant, at 4. For the following reasons, we affirm.
Attorney Thomas Shaffer had previously represented Guty on a matter
that entitled Guty to two settlement payouts from an insurance company.
Retired Senior Judge assigned to the Superior Court.
18 Pa.C.S. Â§ 3922.
18 Pa.C.S. Â§ 3925.
18 Pa.C.S. Â§ 4105(a)(1).
N.T. Trial, 8/9/2012, at 14-15. Shaffer testified that he had mailed a check
in the amount of $2,215.00 to Guty on May 19, 2008, for the first settlement
payout. Id. Shaffer and his secretary Donna Beercheck testified that, on
May 23, 2008, Guty came into the office to collect a check for the second
insurance settlement and claimed the first check never arrived in the mail.
Id. at 14, 41. Both Shaffer and Beercheck testified that they told Guty they
would place a stop payment on the mailed check, and that they then issued
him two separate checks equal to the original amount of $2,215.00 to
replace the lost check. Id. at 15, 41. Later that day, Guty cashed the two
replacement checks as well as the check for the second insurance
Pandoria Philliabaum, a bank teller, testified that on June 4, 2008,
Guty deposited the original check Shaffer had intended to stop payment on,
and withdrew $100 from his personal account.
The following day, Guty
withdrew $2,115.00 from his account. N.T. Trial, 8/9/2012, at 31-32. On
June 6, 2008, Philliabaum was informed by the Federal Reserve of the stop
payment placed on the check by Shaffer. Id. at 30.
Following a one-day trial, a jury convicted Guty of the abovereferenced offenses. On September 5, 2012, the court sentenced him to two
to four yearsâÄô incarceration for theft by deception, and imposed no additional
penalty for the remaining convictions.
Where an appellant challenges the sufficiency of the evidence, this
Court âÄúmust determine whether the evidence and all reasonable inferences
deducible therefrom, when viewed in the light most favorable to the verdictwinner . . . are sufficient to establish all elements of the crime charged
beyond a reasonable doubt.âÄĚ Commonwealth v. Rakowski, 987 A.2d
1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957
A.2d 311, 317 (Pa. Super. 2008) (citations omitted)).
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)
âÄúFinally, the trier 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.âÄĚ Id. at 26-27.
Under 18 Pa.C.S. Â§ 3922, theft by deception occurs when one
âÄúintentionally obtains or withholds property of another by deception.âÄĚ
statute further provides, in relevant part, that one can intentionally deceive
by creating or reinforcing a false impression.
See 18 Pa.C.S. Â§ 3922(a)(1).
âÄúThe mens rea for theft by deception is intent to defraud.âÄĚ Commonwealth
v. Grife, 664 A.2d 116, 120 (Pa. Super. 1993).
âÄúCriminal intent may be
established by direct or circumstantial evidence . . . [and] . . . [i]t may be
inferred from acts or conduct or the attendant circumstances.âÄĚ Id. at 122
(citations and quotation marks omitted).
The Commonwealth must
demonstrate the presence of a false impression and that the victim relied
upon that impression. Commonwealth v. Imes, 623 A.2d 859, 862 (Pa.
The crux of GutyâÄôs appeal is that there was no evidence he acted with
See Brief of Appellant, at 9.
However, despite some
confusion on part of the CommonwealthâÄôs witnesses, the jury clearly inferred
such intent based upon the facts adduced at trial, including GutyâÄôs conduct
and the testimony of Shaffer and Beercheck.
Beercheck and Shaffer told
Guty that they would stop payment on the original mailed check; Guty had
knowledge that depositing such a check and withdrawing the money would
Because Guty later deposited not only the original check
but the replacement checks as well, it was reasonable for the jury to infer
that he intended to defraud Shaffer by saying that it was lost in the mail.
Therefore, the evidence was sufficient to support a conviction for theft by
Under 18 Pa.C.S. Â§ 3925(a), one is guilty of receiving stolen property
when âÄúhe intentionally receives retains, or disposes of movable property of
another knowing that it has been stolen, or believing that it has probably
been stolen, unless the property is received, retained, or disposed with
intent to restore it to the owner.âÄĚ
Further, âÄúâÄėreceivingâÄô means acquiring
possession, control or title[.]âÄĚ 18 P.a.C.S. Â§ 3925(b). âÄúIn order to convict a
defendant for receiving stolen property, the Commonwealth must prove: (1)
the property was stolen; (2) the defendant was in possession of the
property; and (3) the defendant knew or had reason to believe the property
Commonwealth v. Parker, 847 A.2d 745, 751 (Pa. Super.
2004) (quoting Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa.
Super. 2002)) (quotation marks omitted).
Here, because Beercheck placed a stop payment on the check, the
money withdrawn by Guty was clearly stolen property.
identified Guty in open court as the man who deposited ShafferâÄôs stopped
check, thus establishing his possession of the stolen money.
jury inferred from the testimony of Beercheck and Shaffer that because they
had told Guty they would place a stop payment on the check, he knew or
should have known that depositing the check and withdrawing the money
would constitute possessing stolen money.
A person is guilty of writing bad checks when âÄúhe issues or passes a
check or similar sight order for the payment of money, knowing that it will
not be honored by the drawee.âÄĚ 18 Pa.C.S. Â§ 4105(a)(1). Both Shaffer and
Beercheck testified that they did not intend for the May 19 check to be
honored and that they told Guty that they would place a stop payment order
on the check. Therefore, the evidence supports GutyâÄôs conviction because
he deposited the check and withdrew the money knowing that Shaffer would
not honor it.
For these reasons, the evidence presented at trial was sufficient to
support GutyâÄôs conviction for theft by deception, receiving stolen property,
and bad checks.
Judgment of sentence affirmed.