Com. v. Green, D. (dissenting memorandum)
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J. A30015/17 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. DOMINIQUE WILLIAM GREEN, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1024 WDA 2016 Appeal from the Judgment of Sentence, June 20, 2016, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0013385-2015 BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E. DISSENTING MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 23, 2018 I respectfully dissent. At the outset, I believe reliance on Gibson is misplaced. In Gibson, this court held that mere possession of a forged check made payable to “cash” was insufficient to establish that defendant forged the check or knew that the check was forged. See id. at 545. The case before us, however, does not involve mere possession of a forged check made payable to “cash.” Here, the check was made payable to appellant (and included appellant’s address); the check appeared to be drawn from St. Moritz’s commercial account; the check was purportedly a payroll check; appellant never worked for St. Moritz and had no relationship with the company; St. Moritz did not owe appellant any money; appellant told police that there was no reason why he would have been given a check by St. Moritz; J. A30015/17 appellant told police that with regard to the St. Moritz check that he cashed, “he only did it once.” (Notes of testimony, 6/20/16 at 27, 29-31.) Viewing this evidence in the light most favorable to the Commonwealth as verdict winner, it was sufficient to prove that appellant knew the check was forged. See Gause, 164 A.3d at 640. The trial court, sitting as fact-finder, determined that the “evidence clearly established that [appellant] knew the check [was not] legitimate and that he uttered a forged check purporting to appear as though it was authorized by St. Moritz when it was not.” (Trial court opinion, 6/23/17 at 4.) The Majority then finds that the Commonwealth failed to prove that appellant knew that the check was forged because appellant had no familiarity with a legitimate St. Moritz check draft; there was no evidence that appellant forged the check; there was no proof that appellant had a connection to any of the other people who cashed similar checks; and possession of a check to which one is not entitled does not prove that that person forged the check. (Majority memorandum at *9-10.) In so doing, I believe the Majority is reweighing the evidence and substituting its judgment for that of the fact-finder. See Gause, 164 A.3d at 541 (reiterating that when reviewing the sufficiency of the evidence to sustain a conviction, this court “may not weigh the evidence and substitute [its] judgment for that of the fact-finder”). Finally, the Majority concludes that it is “not reasonable to infer from [a]ppellant’s possession of a check to which he was not entitled that he forged -2- J. A30015/17 the check or made it payable to himself, which is what the factfinder concluded.” (Majority memorandum at *10.) The trial court, sitting as fact-finder, however, did not conclude that appellant forged the check or made it payable to himself. The trial court concluded that the evidence was sufficient to establish that appellant “knew the check [was not] legitimate and that he uttered a forged check purporting to appear as though it was authorized by St. Moritz when it was not” to sustain his conviction under 18 Pa.C.S.A. § 4101(1)(3). (Trial court opinion, 6/23/17 at 4.) For these reasons, I respectfully dissent. -3-
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