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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. YVONNE ICAN BRADLEY, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : No. 305 WDA 2014

Appeal from the Judgment of Sentence Entered Februar y 13, 2014,

In the Court of Common Pleas of Fayette County, Criminal Division, at No. CP- 26

- CR -0000112-2013.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ

. MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 06, 2014 Appellant, Yvonne Ican Bradley, appeals from the jud gment of sentence entered following her convictions of theft by deception, receiving stolen property, forgery, and tampering with records. We affirm. The trial court summarized the factual history of th is case as follows: In November, 2012, Officer John M. Kauer of the Uniontown P olice Department (“UPD”) was engaged in investigation of an unrelated matter when he learned that a gray GMC Yukon, stolen in Pittsburgh, might be present in Fayette County. The vehicle was reported stolen by Mrs. Paula Thorpe, to whom its title had recently been transferred. Mrs. Th orpe testified that, on July 5, 2012, while searching Craig slist, she came across a 2007 GMC Yukon for sale. Mrs. Thorpe respon ded to the ad by email with her contact information. Wit hin two hours, she received a phone call from an individual, id entified as “Michelle Jorry.” Mrs. Thorpe, along with her husband, agreed to meet Jorry at the Uniontown Sunoco Station, at aroun d 7:00J-S50029- 14

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o’clock p.m. Mrs. Thorpe identified [Appellant] as the person who met the Thorpes at the Sunoco, and who called her self Michelle Jorry. [Appellant] informed the Thorpes that she was a home healthcare aid, which was believable because she wore scrub s and a tag identifying herself as Michelle Jorry. She claimed to have purchased the Yukon the year prior at an auto a uction. Her asserted reason for selling the Yukon was that she had recently lost everything she owned in a fire and needed money . She claimed the title to the vehicle was new, the origina l having also been destroyed by the fire. [Appellant] indicated sh e would take “ten or eleven thousand” for the Yukon. In the dash compartment, Mrs. Thorpe noticed a windo w sticker of the type usually appearing in new vehicles. Using the VIN appearing on that sticker, she ran a Carfax repor t and contacted the DMV. Those sources returned results for a 2 007 GMC Yukon, and came up clear of any accidents or repo rts of theft. The next day, Mrs. Thorpe again met [Appella nt] at the Sunoco, placing a $3,800.00 cash down payment. Mrs. Th orpe was able to get an additional $6,000.00 from her mot her, for a total of $9,800.00, which [Appellant] accepted as final payment. After taking possession of the Yukon, Mrs. Thorpe remo ved its title, bearing a notary stamp and the name “Michell e Jorry,” from the dash compartment. She then took the title t o a notary, Tina Dennis, to transfer the same. Mrs. Thorpe execute d a bill of sale and pink slip, and left the matter with Ms. Denni s’ office. Sometime in late August, Mrs. Thorpe learned that Ms. Dennis could not transfer the title. Ms. Dennis testified that, in her opinion, the facts an d circumstances of this case demonstrated that the title pro vided to Mrs. Thorpe was a fake. Ms. Dennis noted, the titl e bore the notary seal of “Maryann Maiolo.” Following his meeting with Mrs. Thorpe, Officer Kaue r ran both the vehicle’s registration and VIN through N.C.I. C. The VIN, having been recently transferred, returned to Mr s. Thorpe. The registration, however, indicated that the vehicle was indeed stolen and belonged to Jesse Virgin.J-S50029- 14

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In May or June, 2012, Mr. Virgin posted the Yukon o n Craigslist for $25,000.00. He received several calls f rom an individual interested in purchasing the vehicle. That person, who came to be known as “Audrey Merkel,” said she worked for P&W foreign car dealership, of Pittsburgh, and asked Mr. Virgin to meet her there in the evening. Mr. Virgin identifi ed [Appellant] as the person calling herself Audrey Merkel, and stated that he recognized her voice from the phone calls. [Appellant ] handed Mr. Virgin a check for $25,000, at which time he han ded her the keys. Mr. Virgin stated that the title could only be transferred after he used the money to pay off the loan on the v ehicle. Maureen Lucas, the officer manager at P&W testified t hat, while Audrey Merkel was a real employee, [Appellant] was not Audrey Merkel. Though she had only seen [Appellant] one time at P&W, Ms. Lucas was able to identify her as a member of the cleaning staff. Around the end of June, Ms. Lucas becam e aware of an unauthorized check for $25,000, bearing forged signatures, which had cleared P&W’s bank account. The check’s numbe r was 7698 and was made out to Jesse Virgin. After speaki ng with Mr. Virgin, Ms. Lucas contacted the bank and the police. [Appellant] was arrested sometime later, during which time her purse was taken by Uniontown Police and transf erred to Officer Jamie Holland. Officer Holland inventoried t he bag and provided lengthy testimony of its contents. Officer Ho lland catalogued, inter alia , $5,237.00 in cash, an identification card bearing the name “Michelle Jorry,” and a black bag conta ining four USB flash drives. The flash drives were analyzed by PSP Trooper Donald Lucas. Trooper Lucas is a member of the Bureau of Cri minal Investigation, computer crimes unit, and was recognized a s an expert in the field of forensic analysis of digital de vices. His investigation uncovered twenty-two files, all of which were converted to twenty-four image printouts. Those print outs depicted, in relevant p art: (1) a title bearing the name “Michelle Jorry,”; (2) a check, numbered 7698, made out to Jesse Virgin, for $25,000; (3) an image, titled “07 Yukon,”; (4) a PDF of a notarial seal for Maryann Maiolo; (5) a blank back p age of a Pennsylvania vehicle titl e, bearing Maryann Maiolo’s sameJ-S50029- 14

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notarial seal; and, (6) an image matching the image t hat appeared on the badge [Appellant] wore while meetin g the Thorpes. Trooper Lucas opined that many of the noted document s bore clear evidence of electronic forgery or were forma tted in ways that would make forgery a relatively simple task

. Trial Court Opinion, at 2- 6. Following a jury trial, Appellant was found guilty of theft by deception, receiving stolen property, forgery, and tampering wit h records. No post-trial or post-sentence motions were filed. Appellant filed t his timely appeal and, pursuant to court order, filed a Pa.R.A.P. 1925(b) s tatement. Appellant presents the following issues for our review:

1. Did the court err when it failed to grant Appella nt’s motions for mistrial based upon the Commonwealth intro ducing evidence of other crimes, specifically the reference to che cks possibly stolen from P & W Motors?

2. Did the court err when it failed to grant Appellant’ s motions for judgment of acquittal as to the forgery an d tampering with documents charges. Specifically, that the Commonwealth did not prove beyond a reasonable doubt that Appellant forged or tampered with the documents in t he instant case?

3. Did the Commonwealth fail to establish Appell ant[’s] guilt beyond a reasonable doubt that Appellant was the perso n that purchased the vehicle from Mr. Virgin or had ever be en to P & W Motors? Appellant’s Brief at 7. Appellant first asserts that the trial court erred whe n it failed to grant Appe llant’s motions for mistrial. Appellant’s Brief at 10.J-S50029- 14

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It is well- settled that the review of a trial court’s denial of a motion for a mistrial is limited to determining whe ther the trial court abused its discretion. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion t he law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill- will ... discretion is abused.” A trial court may grant a mistrial only “where the incident upon which the motio n is based is of such a nature that its unavoidable effect is to dep rive the defendant of a fair trial by preventing the jury fr om weighing and rendering a true verdict.” A mistrial is not necessar y w here cautionary instructions are adequate to overcome prejud ice.

Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011) (internal citations omitted). Appellant argues that the trial court erred in denyi ng her motion for a mistrial based on the prosecu tor’s comments during opening statement that

“there were 100 checks stolen from P&W Motors and that M r. Virgin had received a stolen check.” Appellant’s Brief at 10. Appe llant maintains that because she was not charged with theft of the checks or re ceiving stolen property for the checks, such thefts should not have been referenced as they constitute prior uncharged bad acts. Id. at 10-11. Appellant claims that

evidence of the stolen checks did not relate to the crime s charged. Id. at

11. A review of the record reflects that Appellant made a motion for mistrial following the prosecutor’s opening statement. N.T., 2/3/14, at 7 -8. The notes of testimony, however, do not include the p rosecutor’s opening

statement. Id. at 7. Instead, a simple notation indicates:J-S50029- 14

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“(Commonwealth’s opening statement given by Miss Kelle y).” Id. Following that notation is a discussion among the attorneys and t he trial court as to what was actually said in referencing those stolen checks, indicating that there was some uncertainty or disagreement as to the speci fic statements made to the jury. Id. at 7-8. Because we are unable to review the prosecutor’s opening statement, we have no way of knowing what the prosecutor actually said during her opening statement. In addressing a lack of notes of t estimony necessary for appellate review, our Supreme Court has stated the fo llowing: Rule 1911(a) of the Pennsylvania Rules of Appellate P rocedure provides that “[t]he appellant shall request any transcri pt required under this chapter in the manner and make an y necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Penn sylvania Rules of Judicial Administration (court reporters).” Of course, if a party is indigent, and is entitled to taxpayer-pr ovided transcripts or portions of the record, he will not be a ssessed costs. But, that does not absolve the appellant and his lawyer of his obligation to identify and order that which he de ems necessary to prosecute his appeal. The plain terms of th e Rules contemplate that the parties, who are in the best posit ion to know what they actually need for appeal, are responsib le to take affirmative actions to secure transcripts and other parts of the record. See, e.g., Commonwealth v. Steward , 775 A.2d 819, 833 (Pa. Super. 2001) (noting that it was not t he responsibility of the trial court to order the notes of transcript of defense counsel’s closing as Rule 1911 “makes it abundantly plain that it is the responsibility of the Appellant t o order all transcripts necessary to the disposition of his appeal.”); Commonwealth v. Peifer , 730 A.2d 489, 492 n. 3 (Pa. Super. 1999) (explaining that it is the responsibility of the appellant and not the court to provide a complete record for review, including any necessary transcripts).J-S50029- 14

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Commonwealth v. Lesko , 15 A.3d 345, 410 (Pa. 2011).

In Steward , this Court was presented with an instance, similar to that herein, where counsel’s closing statement had not been tr anscribed, and the appellant’s challenge was based on the substance of that closing statement.

Steward , 775 A.2d at 833. We explained that although coun sel requested transcripts, he did not specifically order a transcript o f the closing arguments. Id. at 833-834. As a result, the court reporter did not automatically transcribe those arguments because, under o ur rules of judicial administration, he was under no obligation t o do so. Id. at 834;

See also Pa.R.J.A. 5000.2(g) (“[O]pening or closing statements of counsel ... shall be recorded, but not transcribed, unless otherwise ordered.”). Without a transcription of the closing statement, this Court concluded it was unable to address the appellant’s claim, and therefore found it waived.

Steward , 775 A.2d at 835.

In the case sub judice , Appel lant’s motion for mistrial was based on statements made in the prosecutor’s opening statement. W ithout the transcript of that statement, however, we cannot addre ss Appellant’s claim that the trial court abused its discretion in denying h er motion for mistrial. Rule 1911 makes it abundantly plain that it is the re sponsibility of the appellant to order all transcripts necessary to the disp osition of his appeal.

Commonwealth v. Reed , 971 A.2d 1216, 1219 (Pa. 2009) (stating thatJ-S50029- 14

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“[i]t is an appellant’s duty to ensure that the certified record is complete for purposes of review.”) Appellant has failed to provide us with the transcript necessary to the disposition of her claim, and as a result, we are precluded from addressing Appellant’s claim for relief. 1 We also note that although Appellant was permitted t o proceed in forma pauperis (“IFP”), she was not thereby absolved of her duty to ide ntify and order that which she deemed necessary to prosecute he r appeal.

Lesko , 15 A.3d at 410. Because Appellant has failed to pro vide us with the information upon which we may evaluate her claim that the prosecutor’s statements unfairly prejudiced her, we are constrained t o conclude that this

issue is waived. Steward , 775 A.2d at 835 ( “[f]ailure to ensure that the record provides sufficient information to conduct a mea ningful review constitutes waiver of the issue sought to be reviewed.”)

. Appellant next argues that the Commonwealth failed to prove beyond a reasonable doubt that Appellant forged or tampered with the documents in this case. Appellant’s Brief at 13. Specifically, Appe llant argues, that the

1 We also note that the record reflects no attempt by App ellant to include a statement pursuant to Pa.R.A.P. 1923 (providing that where no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant’s burden to supply a record may be satisfied through a statement in absence of transcript procedures). We are mindful, however, that a statement pursuant to Pa.R.A.P. 1923 may not h ave been sufficient under the facts of this case given that the specific stat ements made by the prosecutor, in the presence of the jury, would be necessar y to review the claim in this case.J-S50029- 14

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Commonwealth established only that Appellant was in p ossession of a flash drive that contained altered documents, but failed to present any evidence that Appellant was the individual who had altered or created these

documents. Id. at 14. At the conclusion of the Commonwealth’s case, Appellant’s counsel made a motion for judgment of acqui ttal with regard to these charges. Id. at 13. Appellant asserts that the trial court erred w hen it failed to grant that motion. Id. “A motion for judgment of acquittal challenges the su fficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.” Commonwealth v. Foster , 33 A.3d 632, 635 (Pa. Super. 2011). Our standard of review when considering a chall enge to the sufficiency of the evidence is well settled: 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 elem ent of the crime beyond a reasonable doubt. In applying the abo ve test, we may not weigh the evidence and substitute our judgm ent 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 reg arding a defen dant’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 proof or proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Mo reover, in applying the above test, the entire record must be eva luated andJ-S50029- 14

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all evidence actually received must be considered. Final ly, the trier of fact while passing upon the credibility of wi tnesses and the weight of the evidence produced, is free to believ e all, part or none of the evidence.

Commonwealth v. Lehman , 820 A.2d 766, 772 (Pa. Super. 2003). Appellant was convicted of forgery, as defined at 18 P a.C.S. § 4101(a)(2): § 4101. Forgery (a) Offense defined.

-- A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowled ge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

* * * (2) 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, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; 18 Pa.C.S. § 4101(a)(2). Appellant was also convicted of tampering with records, as defined at 18 Pa.C.S. § 4104(a): § 4104. Tampering with records or identification (a) Writings.

-- A person commits a misdemeanor of the first degree if, knowing that he has no privilege to do so, he falsifies, destroys, removes or conceals any writing or record, or distinguishing mark or brand or other identification w ith intent to deceive or injure anyone or to conceal any wrongdoing

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18 Pa.C.S. §4104(a). With regard to the charge for forgery, the evidence of record supports the conclusion that Appellant, with the intent to def raud, executed the unauthorized check from P&W Motors and presented it to Jesse Virgin for purposes of obtaining the GMC Yukon. N.T., 2/3/14, a t 17, 20. By doing so, Appellant purported to be an agent of P&W Motors and acted on its behalf when she did not have the authority to do so. Id. at 83-84. Viewing the evidence admitted at trial in the light most favorabl e to the Commonwealth, we conclude that the Commonwealth produced evidence suff icient to establish beyond a reasonable doubt that Appellant wa s guilty of forgery. Thus, the jury’s determination was supported by evidence of record. Again viewing the evidence in the light most favorab le to the Commonwealth, we also conclude that the Commonwealth p roduced evidence sufficient to establish the elements of tamperin g with records beyond a reasonable doubt. The evidence established th at Appellant presented herself to the Thorpes as Michelle Jorry and provided the Thorpes with a falsified Pennsylvania certificate of title for the vehicle, indicating that Michelle Jorry had title to the vehicle. N.T., 2/3/ 14, at 58, 111, 120-122,

126. This falsified document was included on the flash drive found on Appellant’s person. N.T., 2/3/14, at 43, 67; N.T., 2 /5/14, at 140 -141, 145,

149.J-S50029- 14

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Appellant contends that such evidence was insufficient t o establish that Appellant altered the documents. Appell ant’s Brief at 14. We disagree. The fact that no evidence was produced showing specifical ly that Appellant was the individual who had created those documents, does not render the jury’s findings unsubstantiated. The evidence establishe d Appellant’s dire ct involvement with the altered record, specifically her p roviding the fake title to Mrs. Thorpe. Additionally, these altered documents were found on a flash drive in Appellant’s possession. Such evidence was suffici ent to allow the jury to determine that it was Appellant who had alte red these records. The Commonwealth may establish elements of a crime by whol ly circumstantial

evidence. Lehman , 820 A.2d at 772. As such, the trial court did not er r in denying Appellant’s motion for acquittal. In her final argument, Appellant maintains that the Commonwealth failed to establish beyond a reasonable doubt that she was the person who purchased the vehicle from Mr. Virgin, or had ever be en to P&W Motors. Appellant’s Brief at 15. Appellant claims that Mr. Vi rgin was able to identify her as the individual who bought the car only after se eing her identified as the “defendant” at the preliminary hearing and during the course of the trial.

Id. Jesse Virgin testified that he had posted his 2007 GMC Yukon on

Cr aigslist for sale for $25,000.00, which was based on the Kelly BluebookJ-S50029- 14

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value. N.T., 2/3/14, at 10, 12. He received approx imately three or four phone calls from a single individual, who was inquirin g about the vehicle and trying to set up a time to see the vehicle. Id. at 13. The individual inquiring about the purchase of the vehicle identified herself a s Audrey Merkel and indicated that she worked for P&W Motors dealership. Id. at 16-17. The individual made plans for Mr. Virgin to meet her at P&W Motors for the sale

of the vehicle. Id. at 16. He testified that the voice of the person tha t he

met at P&W Motors matched the voice of the individual with whom he spoke on the phone. Id. at 14. Appellant, identifying herself as Audrey Merk el, presented M r. Virgin with a dealership’s check in the amount of $2 5,000.00.

Id. at 20. At trial, Mr. Virgin identified Appellant as the person who had purchased his GMC Yukon at P&W Motors. Id. at 19. We find Appellant’s argument that the Commonwealth failed to prove beyond a reasonable doubt that Appellant was the indi vidual who sold the car to Mr. Virgin to be unpersuasive. In his testimony , Mr. Virgin unwaveringly identified Appellant as the woman who h ad purchased his vehicle. On cross-examination he stated that he spent a pproximately tento -fifteen minutes with her during this exchange and co nfirmed that Appellant was the woman he met at P&W Motors. N.T. 2 /3/14, at 24. Thus, there was sufficient evidence upon which the jury could d etermine that Appellant was in fact the individual who had “purchased” Mr. Vir gin’s vehicle.J-S50029- 14

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Similarly, Appellant argues that there was insufficien t evidence to establish beyond a reasonable doubt that Appellant wa s the individual who Ms. Lucas saw at the dealership. Ms. Lucas, Office Manage r for P&W Motors, testified to having seen Appellant at the dealership o n one prior occasion. N.T., 2/3/14, at 29. Ms. Lucas stated that Appellant had worked for a cleaning company that P&W Motors had employed, and th at she saw Appellant on a Friday evening as Ms. Lucas was leaving the dealership. Id. Proof that Ms. Lucas saw Appellant at the dealership w as not necessary, in and of itself, to satisfy the elements of th e crimes with which Appellant was charged. Such testimony, however, was circu mstantial evidence that the jury could rely upon in making a fa ct determination as to Appellant’s guilt in this case. Thus, we cannot agree with Appellant’s claim that the Commonwealth did not meet its burden of pr oof with regard to identifying Appellant as the actor in this case. Judgment of sentence affirmed. Jurisdiction relinqui shed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/06/2014