From Casetext: Smarter Legal Research

Commonwealth v. Davis

SUPERIOR COURT OF PENNSYLVANIA
Jan 7, 2016
No. 1878 WDA 2014 (Pa. Super. Ct. Jan. 7, 2016)

Opinion

J. A29005/15 No. 1878 WDA 2014

01-07-2016

COMMONWEALTH OF PENNSYLVANIA v. BARBARA JEAN DAVIS, Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence, October 23, 2014, in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0012544-2013 BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Barbara Jean Davis appeals from the judgment of sentence following her conviction in the Court of Common Pleas, Criminal Division, Allegheny County, of theft by unlawful taking and access device fraud.

The facts as found by the trial court are as follows:

Appellant was employed from 2007 until 2013 as the caregiver of Geno Bussler and Lois Bussler. The Busslers hired their first caretaker after Geno Bussler broke his hip in a serious vehicle accident in September 2004. Geno Bussler was confined to a motorchair and required assistance with showering and dressing. Lois Bussler required assistance due to blindness, tremors, and bipolar disorder. Appellant also prepared meals for the Busslers.
As part of her caregiving duties with the Busslers, Appellant had authority to use the Bussler[s'] bank card to purchase groceries and do other shopping for the Busslers. On occasion the Busslers lent money to Appellant and she was expected to repay the borrowed amount into their bank account. Appellant did not have authorization to withdraw funds from the Bussler[s'] account without their prior approval.

Appellant took Lois Bussler to the Rivers Casino twice. While there Appellant called Geno Bussler for permission to withdraw $500 for Lois to use for gambling. Geno authorized Appellant to withdraw $500 on both of those occasions for Lois's use. Appellant called Geno Bussler on a third occasion requesting to borrow $500 for her personal gambling use at a casino, which Geno authorized. On a fourth occasion, Geno Bussler called Appellant while she was at a casino, and she told Geno that she had already withdrawn $500 from his account without first asking permission. The Busslers never gave Appellant unlimited permission to withdraw money from their bank accounts; they only authorized withdrawals for gambling at a casino on those three occasions, and did not challenge her withdrawal on the fourth occasion.

In January 2013, the Busslers contacted Detective Alan Ballo of the Allegheny County District Attorney's Office when they noticed that their bank accounts were significantly lower than they should have been, noting that they suspected Appellant of withdrawing money from their accounts for gambling. Investigators examined the Bussler[s'] bank accounts from December 2009-January 2013, and found dozens of withdrawals from five different casinos totaling $34,591.[Footnote 11] [Footnote 12] Detective Ballo cross-referenced the withdrawal dates with dates when Appellant used her player's card at each casino. From January 1, 2009-January 31, 2013, Appellant had losses of $56,000 at Rivers Casino and $26,000 at Meadows Casino.
[Footnote 11] Appellant withdrew money from the Bussler[s'] account at Rivers Casino, Mountaineer Casino, The Meadows, Wheeling Island, and Atlantic City, New Jersey. Commonwealth Exhibits 5, 6.

[Footnote 12] The amount of possible cash deposit withdrawals and authorized casino withdrawals was deducted from this amount in determining restitution. See also Commonwealth Post-Sentence Motion Exhibit 1.
Trial court opinion, 4/16/15 at 4-6 (internal citations omitted).

Appellant was arrested and charged with one count of theft by unlawful taking, two counts of forgery, two counts of access device fraud, two counts of insurance fraud, two counts of theft by deception, two counts of tampering with records, two counts of securing execution of documents by deception, and one count of theft by failure to make required disposition of funds received.

Appellant proceeded to a non-jury trial on March 3, 2014, and May 5, 2014, at the conclusion of which appellant was found guilty of one count of theft by unlawful taking and one count of access device fraud. She was found not guilty of the remaining counts.

Appellant filed a motion in arrest of judgment on August 1, 2014. On August 6, 2014, appellant was sentenced to two consecutive four-year periods of probation. She was ordered to pay restitution in the amount of $25,738. On August 18, 2014, appellant filed a motion to reduce restitution. A hearing was held on October 20, 2014. The motion was partially granted on October 23, 2014, and the amount of restitution owed was reduced to $20,621. On this same date, the trial court denied appellant's motion in arrest of judgment. On appeal, she raises the following issues:

I. Whether the evidence is sufficient to support a conviction for Theft by Unlawful Taking?

II. Whether the evidence is sufficient to support a conviction for Access Device Fraud?
Appellant's brief at 4.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder 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.
Commonwealth v. Nypaver , 69 A.2d 708, 714 (Pa.Super. 2013) (citations omitted). Further, since the trial judge was sitting as fact-finder, this court defers to the trial judge's credibility determinations as the trial judge observes the witnesses' demeanor firsthand. Commonwealth v. Holton , 906 A.2d 1246, 1250 (Pa.Super. 2006).

The trial judge, the Honorable Edward J. Borkowski, has provided a well-reasoned discussion in support of the verdict. ( See trial court opinion, 7/10/15 at 8-12 (explaining the elements of the crimes; the legal standard for sufficiency of the evidence; finding the evidence sufficient to establish the offenses of theft by unlawful deception and access device fraud and a course of conduct where credible testimony showed appellant obtained $20,621 by using the victim's bank cards to make unauthorized withdrawals from their bank accounts, without permission, on dozens of occasions to support appellant's out-of-control gambling habit).) Accordingly, we adopt the decision of the trial court as dispositive of the issues raised in this appeal.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/7/2016

Image materials not available for display.


Summaries of

Commonwealth v. Davis

SUPERIOR COURT OF PENNSYLVANIA
Jan 7, 2016
No. 1878 WDA 2014 (Pa. Super. Ct. Jan. 7, 2016)
Case details for

Commonwealth v. Davis

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. BARBARA JEAN DAVIS, Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Jan 7, 2016

Citations

No. 1878 WDA 2014 (Pa. Super. Ct. Jan. 7, 2016)