J-A24030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JENNIFER VOGEL BURGESS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1591 WDA 2019

Appeal from the Judgment of Sentence Entered July 11, 2019

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0005723-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 04, 2021

Jennifer Vogel Burgess appeals from the judgment of sentence entered 

after being convicted of Bad Checks.

1 Burgess challenges the sufficiency of 

the evidence and the imposition of restitution as a part of her sentence. We 

affirm.

The trial court aptly summarized the facts of this case as follows: 

In December of 2017 [Burgess] engaged in conversations 

about purchasing a residential property from the victim[, 

Rachel Khan]. The victim worked for her family’s 

commercial and residential real estate business and did not 

know [Burgess] prior to this interaction. [Burgess] and her 

husband were unable to secure a mortgage and entered into 

a lease/rental agreement for the same property. The victim 

permitted [Burgess’s] family to move into the property in 

mid-December 2017, even though the rental agreement did 

not begin until January 1, 2018. Under the terms of the 

agreement $1,800 was due on January 1, 2018, 

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1 18 Pa.C.S.A. § 4105(a)(1).
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representing a $900 security deposit and $900 for the first 

month’s rent. It is undisputed that [Burgess] and her 

husband did not make this payment on January 1st, and on 

January 8, 2018 victim went to the property to demand 

payment. It was on this day that [Burgess] knowingly wrote 

a check from a closed account to the victim for $1,800. The 

check was post-dated January 15, 2018 and the memo line 

read “rent and security.” The victim testified that she 

accepted the post-dated check because [Burgess] offered it 

as “collateral” in an effort to secure another form of 

payment in the coming days. The victim was not aware the 

account was closed and would not have accepted the check 

if she had been told so by [Burgess]. According to 

[Burgess], she told the victim the account was closed and 

not to cash it, and that the only reason she wrote the check 

was to appease the victim’s family, who was demanding the 

rent and security deposit. When neither [Burgess] nor her 

husband provided any other type of payment, victim 

deposited the check on January 19, 201[8], eleven (11) 

days after she received the check and four (4) days after 

the post-date. On January 23, 201[8], Key Bank informed 

the victim that [Burgess’s] check would not be honored 

because it was written from a closed account. 

Trial Ct. Op., filed 2/4/20, at 3-4 (footnotes omitted). The Commonwealth 

charged Burgess with the above referenced offense and Burgess proceeded

with a non-jury trial.

At trial the victim and Burgess testified. The trial court found Burgess 

guilty and the same day sentenced her to five years’ probation and imposed 

restitution in the amount of the bad check which was $1,800. Burgess filed a 

post sentence motion raising challenges to the weight of the evidence and the 

imposition of restitution. Regarding restitution, Burgess noted that a civil 

judgment was entered against her husband and claimed that it included the 

amount of $1,800 for the bad check. See Post Sentence Motion, filed 7/18/19, 
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at para. 8 and Exhibit B. Burgess attached the civil complaint filed against her 

husband in the amount of $11,600. See Post Sentence Motion, Exhibit B. The 

breakdown of that amount included the following: $8,000 for ruined kitchen 

cabinets and $3,600 for rent remaining due and unpaid on the filing date of 

the complaint. Id. She also attached the order granting judgment against her 

husband in the amount of $6,600. Id. This included $5,400 for rent and 

$1,200 for utility bills. Id. The plaintiff listed on the complaint and order was 

Noorjihan Khan. The trial court denied this motion and this timely appeal 

followed. 

Burgess presents the following claims before this Court: 

I. Is the evidence wholly insufficient in this case to support

the conviction for Bad Checks in that no evidence of any 

criminal intent was proven?

II. Did the trial court err in imposing restitution in this case 

where it amounts to "double dipping" in that a civil judgment 

had been entered against the appellant's husband for this 

same amount of money?

Burgess’s Br. at 6. 

Burgess’s first claim challenges the sufficiency of the evidence. She 

alleges that because the Commonwealth did not prove that she intended to 

defraud the victim, the evidence was insufficient to support the conviction. 

While she acknowledges that the statute does not require intent as an element 

of the crime, she nonetheless claims “that does not mean that a defendant 

can be convicted even with no wrongful intent at all, which is what occurred 

in this case.” Id. at 17. 
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When reviewing a claim challenging the sufficiency of the evidence, “our 

standard of review is de novo, however, our scope of review is limited to 

considering the evidence of record, and all reasonable inferences arising 

therefrom, viewing in the light most favorable to the Commonwealth as the 

verdict winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 

2014). 

The trial court in reviewing the evidence, determined that Burgess’s 

claim was meritless. It noted that “[b]y the plain reading of the statute and 

the decisions handed down by the Pennsylvania Supreme Court,” the 

Commonwealth was only required to prove that Burgess wrote a check from 

an account that she knew was closed. Trial Ct. Op. at 5. We agree. 

The trial court found Burgess guilty of Bad Checks which provides: “A 

person commits an offense if he issues or passes a check or similar sight order 

for the payment of money, knowing that it will not be honored by the drawee.” 

18 Pa.C.S.A. § 4105(a)(1). Further, in Commonwealth v. Mutnik, 406 A.2d 

516, 518 (Pa. 1979), our Supreme Court held that “section 4105 does not 

require the Commonwealth to prove an intent to defraud on the part of the 

defendant.” 

At trial, Burgess admitted that she knew the account from which the 

check was written was closed. See N.T., Trial, 7/11/19, at 30-31. Though 

Burgess claimed that she informed Ms. Khan of this as well, as fact finder, the 

court was free to believe all, part, or none of this testimony. See 

Commonwealth v. Gause, 164 A.3d 532, 541 (Pa.Super. 2017) (en banc)
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(citation omitted). As the trial court made clear, it did not find Burgess’s 

testimony credible. See N.T., Trial, at 33 (“In order for me to find you not 

guilty, I would have to believe that Ms. Khan knew the account was closed 

and that she took this check anyway. I do not believe that, all right”). Viewing 

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

was sufficient to sustain the conviction. 

Next, Burgess claims that the trial court erred in imposing restitution as 

a part of her sentence when Ms. Khan “obtained a civil judgment against 

[Burgess’s] husband for the $1,800.00 owed for rent and security deposit[.]” 

Burgess’s Br. at 27. Thus, Burgess argues that “restitution as a part of her 

sentence was improper and amounts to a second collection for one debt.” Id.

She cites the restitution statute which provides that a victim may obtain 

restitution “provided that any civil award shall be reduced by the amount paid 

under the criminal judgment.” 18 Pa.C.S.A. § 1106(g). Burgess maintains that 

the statute requires that the “amount of restitution [be] reduced by the 

amount of the civil award.” Burgess’s Br. at 27. Burgess also argues that the 

trial court did not inquire about her ability to make restitution payments. 

A claim challenging the imposition of restitution implicates the legality 

of sentence. See Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa.Super. 

2018). “When the legality of a sentence is at issue, our ‘standard of review 

over such questions is de novo and our scope of review is plenary.’” Id. at 

769 (quoting Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 

2008), appeal denied, 955 A.2d 356 (Pa. 2008)).
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Burgess challenges the court’s ability to impose restitution due to there 

being a civil judgment against her husband. Section 1106(g) “clearly provides 

that the criminal defendant who is the subject of a restitution order is entitled 

to an offset in a subsequently entered civil judgment for the amount of 

restitution ordered as part of the sentence in the criminal proceeding.” L.B. 

Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090, 

1095 (Pa.Super. 2001). However, the civil judgment does not prevent a trial 

court from ordering restitution. 

This Court previously addressed a similar claim in Commonwealth v. 

Pleger, 934 A.2d 715, 720 (Pa.Super. 2007). The Pleger Court concluded 

that a general release and settlement entered against the appellant was 

irrelevant to the court’s imposition of restitution. Pledger was convicted of 

driving under the influence (DUI).2 Prior to Pledger’s sentencing, the victim 

accepted a settlement through Pledger’s insurance company. The trial court 

determined that it could not impose restitution because of the settlement. This 

Court vacated the judgment of sentence and remanded for resentencing for 

purposes of imposing restitution, concluding that the trial court was required 

to do the following: 1) “pursuant to the aforesaid statutes and caselaw, to 

consider fully the request for restitution presented by the district attorney’s 

office”; 2) “evaluate that request in a manner consistent with 18 Pa.C.S.A. §

1106 and 42 Pa.C.S.A. § 9721(c)”; 3) “to arrive at the full amount of 

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2 75 Pa.C.S.A. § 3802(b). 
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restitution due”; and 4) “issue an appropriate order requiring full restitution 

as an aspect of [Pleger’s] sentence.” Pleger, 934 A.2d at 721. 

Here, the entry of civil judgment against Burgess’ husband did not 

preclude the trial court from imposing restitution against Burgess, who wrote 

the bad check. First, the judgment was entered in favor of Noorjihan Khan, 

who is not the victim in the present case. Secondly, the civil judgment did not 

remedy the criminal conduct of Burgess since husband did not write the bad 

check. The civil judgment entered against husband amounted to $6,600, 

$5,400 of which was for rent. The amount nor the order specify if the $5,400 

included the $1,800 from the bad check. The trial court did not err in imposing 

restitution as a part of Burgess’s sentence. 

Regarding Burgess’s secondary claim that the trial court failed to inquire 

as to her ability to pay restitution, we note that she did not raise this claim 

before the trial court. However, because such a claim raises a challenge to the 

legality of sentence, it is unwaivable. Ramos, 197 A.3d at 768; 

Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa.Super. 2019) (stating 

challenge to legality of sentence unwaivable). 

The record refutes Burgess’s allegation that the court failed to consider 

her ability to pay. At sentencing, the trial court inquired what Burgess did for 

a living as well as her husband and it inquired as to how she provided for their 

five children. See N.T., Trial, at 35. She replied that she was a housewife and

relied on her husband’s income as a landscaper and contractor. Id. She also 

stated that she received payments through social security for one of her 
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children. Id. at 36. The court then ordered that Burgess pay $50 a month to 

pay off the restitution and court costs. Id. at 38. 

Additionally, the trial court was limited in its ability to impose restitution 

as the statute requires that reimbursement be made to the victim in “the face 

amount of the check.” 18 Pa.C.S.A. § 4105(e)(1) (“Upon conviction under this 

section the sentence shall include an order for the issue or passer to 

reimburse the payee or such other party as the circumstances may indicate 

for: [t]he face amount of the check”) (emphasis added). Burgess’s claim is 

meritless. Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/04/2021
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