J-S65039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY C. SHAMBERGER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1604 MDA 2017

Appeal from the Judgment of Sentence Entered May 15, 2017

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

No(s): CP-06-CR-0004642-2016

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 29, 2019

Gregory C. Shamberger appeals the judgment of sentence entered on 

May 15, 2017. Shamberger challenges the sufficiency of the evidence, the 

discretionary aspects of his sentence, and the introduction of testimony from 

a witness. We affirm in part and vacate in part. 

The trial court aptly summarized the facts and procedural history of this 

case as follows: 

At 2:41 p.m. on August 22, 2016, [] Shamberger, and 

Kendra Scott entered the lobby of Fox Berkshire movie theater, a 

multiplex movie theater located in Wyomissing, Berks County, 

Pennsylvania. Fox Berkshire has eight screens. Screening rooms 

1 and 2 are located to the left of the box office, and rooms 3 

through 8 are located to the right. On that date, the nationallyreleased movie Sausage Party was playing at Fox Berkshire at 

2:45 p.m. in one of the screening rooms numbered 3 through 8.

Later that day, Rosemary Grill and her mother arrived at 

Fox Berkshire and attended the 4:00 p.m. screening of Ben-Hur 

in screening room 2. Ms. Grill brought a purse with her to Fox 
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Berkshire. Ms. Grill’s wallet was inside the purse when she entered 

screening room 2. Among other things, the wallet contained two 

credit cards and one debit card issued to Ms. Grill. Ms. Grill and 

her mother were the only two people in screening room 2 at the 

start of the movie, and they sat in the first two seats of the second 

row from the back, with Ms. Grill’s mother on the aisle. Ms. Grill 

placed her purse on the floor next to her chair (toward the center 

of the row), reclined her chair, and settled in for the movie. 

At 4:08 p.m. (four minutes after the start of Ben-Hur), 

[Shamberger] and Kendra Scott walked through the lobby of Fox 

Berkshire moving from the direction of screens 3-8 toward 

screening rooms 1 and 2. Around 4:15 p.m., a woman walked into 

the showing of Ben-Hur and sat two or three seats away from Ms. 

Grill in the same row. The woman left the room about 20 minutes 

later and did not return. 

A short time later, [Shamberger] drove a white Chevy 

Impala, with Scott in the passenger seat, to a gas pump at the 

“Friendly Foo Mart” Exxon gas station in Wyomissing. He got out 

of the vehicle at Exxon. Scott did not exit the vehicle at Exxon. 

Ms. Grill’s Bank of America (American Express) credit card was 

used at Exxon to make a purchase in the amount of $34.00. 

[Shamberger] got back into the vehicle and he and Scott left 

Exxon.

At 5:23 p.m., Scott entered Best Buy in Wyomissing. Five 

minutes later, at 5:28 p.m., [Shamberger] entered the same Best 

Buy. At 5:32 p.m. Ms. Grill’s BB&T Bank (Visa) debit card was 

used at Best Buy register 051 to purchase a MacBook Pro in the 

amount of $2,151.78. Less than three minutes later, at 5:34 p.m., 

Ms. Grill’s Citibank (MasterCard) credit card was used at the same 

register to purchase an iMac desktop computer in the amount of 

$2,316.09. [Shamberger] exited the Best Buy after the iMac 

desktop computer was purchased, and he did not return. 

[Shamberger] carried two items as he exited Best Buy. At 5:47 

p.m., Scott used Ms. Grill’s Bank of America (American Express) 

credit card at Best Buy register 060 to purchase a Samsung 

television in the amount of $1,483.99. Scott exited Best Buy with 

the television at 5:48 p.m.

At 6:21 p.m., Scott used Ms. Grill’s BB&T Bank (Visa) debit 

card at Target register 114 to purchase an iPad and protective 

case in the amount of $826.78. A minute later, at 6:22 p.m., Scott 
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used Ms. Grill’s Citibank (MasterCard) credit card at the same 

register to purchase an iPad in the amount of $794.99.

Two days later, on August 24, 2016, [Shamberger] and 

Scott were back at Fox Berkshire movie theater. At 7:09 p.m., 

Scott purchased tickets to see the movie Sausage Party, which 

was again playing in one of the screening rooms 3-8. On that date, 

Ben-Hur was again playing in screening room 2. A Fox Berkshire 

employee recognized [Shamberger] and Scott and contacted 

Wyomissing police after Scott purchased the tickets. Wyomissing 

police arrived, reviewed surveillance video, and told the employee 

to pull [Shamberger] and Scott out of Sausage Party. As the 

employee and police exited the box office into the lobby at 7:31 

p.m., they saw [Shamberger] and Scot entering the lobby through 

the door for screening rooms 1 and 2. Officer Moyer of Wyomissing 

Police and another officer approached [Shamberger] and Scott 

and asked to talk.

[Shamberger] and Scott were separated and Officer Moyer 

questioned [Shamberger]. [Shamberger] told Officer Moyer that 

his name was Gregory Clemmens, and had an address on Jackson 

Street in Philadelphia. Officer Moyer could not verify the 

information provided by [Shamberger] and, at that time, Officer 

Moyer placed [Shamberger] in handcuffs and informed him that 

he was under official investigation. After informing [Shamberger] 

that he was under investigation for theft, Officer Moyer asked 

[Shamberger] for his name three or four times, and each time 

[Shamberger] stated Gregory Clemmens. Wyomissing Police 

proceeded to investigate the parking lot of Fox Berkshire and 

observed the same white, Chevy impala seen on surveillance at 

Exxon from August 22, 2016. A search of the vehicle revealed 

official paperwork from the City of Philadelphia addressed to [] 

Shamberger inside the glove compartment. 

Following a two-day jury trial (April 19-20, 2017), 

[Shamberger] was convicted by a jury of three counts of access 

device fraud, three counts of conspiracy to commit access device 

fraud, and one count of false identification to law enforcement 

authorities. On May 15, 2017, the court sentenced [Shamberger] 

to, inter alia, an aggregate term of 42 to 120 months’ 

imprisonment (with 265 days’ credit for time served). 

[Shamberger] filed a timely post-sentence motion on May 24, 

201[7] requesting judgment of acquittal, arrest of judgment, a 

new trial, and modification of his sentence. The post-sentence 
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motion was denied by operation of law on October 16, 2017, and 

this direct appeal followed.

Trial Court Opinion (“TCO”), filed June 25, 2018, at 1-4 (citations to record 

and footnotes omitted). 

On appeal, Shamberger asks us to review the following issues:

1. Whether the evidence presented at trial is sufficient to sustain

the guilty verdict(s) for Access Device Fraud where the 

Commonwealth failed to establish, beyond a reasonable doubt, 

that [Shamberger] had utilized the stolen credit cards thereby 

committing the crime of Access Device Fraud. 

2. Whether the evidence presented at trial is sufficient to sustain 

the guilty verdict(s) for Access Device Fraud based on 

accomplice liability where the Commonwealth failed to 

establish, beyond a reasonable doubt, that [Shamberger] acted 

with the intent to promote or facilitate the crime of Access 

Device Fraud, that he agreed to aid in the commission of the 

crime of Access Device Fraud, or that he did aid in the 

commission of the crime of Access Device Fraud.

3. Whether the evidence presented at trial is sufficient to sustain 

the guilty verdict(s) for Conspiracy to Commit Access Device 

Fraud where the Commonwealth failed to establish, beyond a 

reasonable doubt, that [Shamberger] entered into an 

agreement with Kendra Scott to commit the crime of Access 

Device Fraud.

4. Whether the evidence presented at trial is sufficient to sustain 

the guilty verdict for False Identification to Law Enforcement 

Authorities where the Commonwealth failed to establish, 

beyond a reasonable doubt, that [Shamberger] was advised 

that he was under investigation prior to providing information 

to police.

5. Whether the trial court erred and abused its discretion by 

allowing Sergeant Grim to testify about his recollection of the 

contents of a Best Buy surveillance video, where that footage 

was never provided to defense counsel and was not played for 

the jury.
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6. Whether the trial court erred by imposing three separate 

sentences for conspiracy where all the evidence related to a 

single alleged conspiracy.

7. Whether the trial court abused its discretion by sentencing 

[Shamberger] in the aggravated range for each of the first six 

counts of the Information, without considering the requisite 

sentencing factors and without noting aggravating factors on 

the record.

Shamberger’s Br. at 2-3. 

SUFFICIENCY OF EVIDENCE

When reviewing a challenge to the sufficiency of the evidence, we ask 

“whether[,] viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt.” 

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc) 

(citation omitted). Our standard of review is de novo and our scope of review 

is plenary. See Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa.Super. 

2018). 

ACCESS DEVICE FRAUD

Shamberger maintains that there was insufficient evidence to sustain 

his access device fraud conviction because (1) it only showed that he was 

present or nearby when his co-conspirator was using the victim’s credit cards 

and (2) there was no evidence of his intent to commit the crimes committed 

by his co-conspirator. See Shamberger’s Br. at 15, 17. 
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The Commonwealth sufficiently proves the crime of access device fraud 

when it establishes that the defendant: “Use[d] an access device to obtain or 

in an attempt to obtain property or services with knowledge that . . . the 

access device was issued to another person who has not authorized its use.” 

18 Pa.C.S.A. 4106(a)(1)(ii). An access device is defined as:

Any card, including but not limited to, a credit card, debit card and 

automated teller machine card, plate, code, account number, 

personal identification number or other means of account access 

that can be used alone or in conjunction with another access 

device to obtain money, goods, services or anything else of value 

or that can be used to transfer funds.

18 Pa.C.S.A. 4106(d).

Viewing the facts in the light most favorable to the Commonwealth as 

verdict winner, the evidence established that a short time after the victim saw 

a woman leave the theater room where she was watching a film:

[Shamberger] drove a white Chevy Impala, with Scott in the 

passenger seat, to a gas pump at the “Friendly Food Mart” Exxon 

gas station in Wyomissing. He got out of the vehicle at Exxon.

Scott did not exit the vehicle. 

[Shamberger] used [the victim’s] Bank of America (American 

Express) card to obtain only $34.00 worth of gas at Exxon and 

that Scott used the same card to obtain $1,483.99 worth of 

merchandise at Best Buy.

***

The Commonwealth produced direct video and documentary 

evidence that [Shamberger] used the [victim’s] BB&T Bank (Visa) 

debit card to obtain $2,151.78 in merchandise at Best Buy, and 

the [victim’s] Citibank (Mastercard) credit card to obtain 

$2,316.09 in merchandise at Best Buy. 
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***

Evidence produced at trial further demonstrated that in each case 

of access device fraud, [Shamberger] used the card first, and 

thereafter, Scott used the card at a different location. 

TCO at 2, 7-8. This evidence was sufficient to sustain the conviction for access 

device fraud because it showed that Shamberger used the victim’s debit and 

credit cards to purchase merchandise and he was not authorized to do so. 

ACCOMPLICE LIABILITY

Next, Shamberger maintains that “there was no evidence that [he] had 

the specific intent to promote or facilitate the commission of any of the crimes 

committed by Kendrea Scott, much less evidence relating [to] each and every 

one.” Shamberger’s Br. at 17. 

To satisfy its burden to prove the defendant guilty of being an 

accomplice to the crime, the Commonwealth must show that: (1) “the 

defendant intended to aid or promote the underlying offense” and (2) “the 

defendant actively participated in the crime by soliciting, aiding, or agreeing 

to aid the principal.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 

2004). 

Here, Shamberger aided Scott in using the victim’s credit and debit 

cards to purchase merchandise and gas for his vehicle. Following his purchase 

of gas at the Exxon, he and Scott purchased items at the Best Buy including 

a Samsung television and iMac desktop computer. The reasonable inference 
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is that Shamberger used his vehicle to get to Best Buy and then stored those 

purchases in that same vehicle, thereby actively participating and aiding in 

the crime. This claim is meritless and no relief is due. 

CONSPIRACY

Shamberger maintains that because there was no evidence “regarding 

any agreement between [Shamberger] and his alleged co-conspirator,” the 

evidence was insufficient to sustain the conspiracy conviction. Shamberger’s 

Br. at 19

To prove a criminal conspiracy, the Commonwealth must establish that 

the defendant: “(1) entered an agreement to commit or aid in an unlawful act 

with another person or persons, (2) with a shared criminal intent and, (3) an 

overt act was done in furtherance of the conspiracy.” Commonwealth v. 

Chambers, 188 A.3d 400, 410 (Pa. 2018) (citation omitted). “Once the 

conspiracy is established beyond a reasonable doubt, a conspirator can be 

convicted of both the conspiracy and the substantive offense that served as 

the illicit objective of the conspiracy.” Id. The existence of an agreement is

“rarely proven with direct evidence.” Id. An agreement may be inferred from 

many circumstances including but not limited to:

[T]he relation between the parties, knowledge of and participation 

in the crime, and the circumstances and conduct of the parties 

surrounding the criminal episode. These factors may coalesce to 

establish a conspiratorial agreement beyond a reasonable doubt 

where one fact alone might fail.
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Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.Super. 2005) (quoting 

Commonwealth v. Jones, 874 A.2d 108, 121-22 (Pa.Super. 2005)).

Here, the evidence established that there was some form of relationship 

between Shamberger and Scott as they were seen entering the theater 

together on two separate occasions. Additionally, while there was no direct 

testimony that Shamberger agreed to conspire with Scott, his actions are a 

clear indication of his agreement to further the conspiracy. The facts in the 

light most favorable to the Commonwealth as verdict winner established that

after Scott stole the victim’s wallet, she and Shamberger proceeded to the 

Exxon gas station where Shamberger used one of the victim’s cards that was 

in her wallet. Additionally, when police approached Shamberger, he lied about 

his name, his address, and about his mode of transportation to the theater 

that day. All of these facts were sufficient to sustain his conviction for 

conspiracy. 

FALSE IDENTIFICATION TO LAW ENFORCEMENT 

Shamberger maintains there is insufficient evidence to sustain the 

conviction because Officer Moyer did not advise him that he was under 

investigation prior to asking for his name and address. He maintains that 

Commonwealth v. Kitchen, 181 A.3d 337, 345 (Pa.Super. 2018) (en banc), 

requires us to vacate this conviction. We disagree. The Court in Kitchen held:

In order to sustain a conviction for False ID, the Commonwealth 

must prove that the individual was told by police that he or she 

was under investigation, and that must occur prior to the 

individual’s presentment of false identity information.
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Kitchen, 181 A.3d at 345 (emphasis in original). 

Officer Moyer did not initially inform Shamberger that he was the subject 

of an investigation. However, when Officer Moyer informed Shamberger that 

he was under investigation, Shamberger continued to provide the same false 

name “three or four times.” TCO at 11. Thus, Shamberger “furnished law 

enforcement authorities with false information after being informed by the law 

enforcement officer that he was the subject of an official investigation of a 

violation of law.” See In re D.S., 39 A.3d 968, 947 (Pa. 2012); contra.

Commonwealth v. Barnes, 14 A.3d 128, 131-32 (Pa.Super. 2011) (stating 

it is not illegal to give false identification to law enforcement where officer 

claimed the subject of the investigation was false identification to an officer 

after defendant gave same false name multiple times to officer).

ADMISSION OF EVIDENCE

Next, Shamberger argues that “the Commonwealth should not have 

been permitted to present evidence relating to video surveillance footage 

allegedly from Best Buy” showing [Shamberger] “entering and then leaving 

the store with items in his hands.” Shamberger’s Br. at 23. He maintains that 

“[t]he officer’s attempt to testify about the contents of a video not produced 

at trial was barred by the best evidence rule because ‘whatever knowledge he 

possessed was gained form [sic] his viewing of the videotape. Thus, the 

original video tape should have been produced.’” Id. at 24 (citing 

Commonwealth v. Lewis, 623 A.2d 355, 358 (Pa.Super. 1993)). 
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We review a trial court’s ruling on the admissibility of evidence for an 

abuse of discretion. See Commonwealth v. Belknap, 105 A.3d 7, 9-10

(Pa.Super. 2014). We give deference to the trial court’s decisions regarding

the admissibility of evidence. Id. An abuse of discretion is a ruling where there 

is an “overriding or misapplication of the law, or the exercise of judgment that 

is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, 

as shown by the evidence of record.” Id. at 10. 

The best evidence rule provides: “An original writing, recording, or 

photograph is required in order to prove its content unless these rules, other 

rules prescribed by the Supreme Court, or a statute provides otherwise.”

Pa.R.E. 1002. Rule 1002 however “is subject to the exceptions found in Rule 

1004:”

Rule 1004. Admissibility of Other Evidence of Content:

An original is not required and other evidence of the content of a 

writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the 

proponent acting in bad faith;

(b) an original cannot be obtained by any available 

judicial process;

(c) the party against whom the original would be offered 

had control of the original; was at that time put on 

notice, by pleadings or otherwise, that the original 

would be a subject of proof at the trial or hearing; and 

fails to produce it at the trial or hearing; or

(d) the writing, record, or photograph is not closely 

related to a controlling issue. 
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Commonwealth v. Green, 162 A.3d 509, 518 (Pa.Super. 2017). 

Additionally, Rule 1002 only applies “if the Commonwealth must prove the 

contents of the writing, recording, or photograph to establish the elements of 

its case.” Id.

Here, the trial court concluded that “even without Sergeant Grim’s 

testimony that he observed [Shamberger] entering and exiting Best Buy, the 

Commonwealth produced ample evidence” to prove its case such as the 

receipts from the Best Buy where the victim’s cards were used. TCO at 13.We 

agree and conclude that the video surveillance was not essential to establish 

the elements of the Commonwealth’s case. While there was no testimony 

outside of the video that Shamberger was physically seen at the Best Buy, the 

facts viewed in the light most favorable to the Commonwealth give rise to the 

inference that either Scott or Shamberger used the victim’s cards at the Best 

Buy. Whether Shamberger or Scott used the credit cards to purchase the 

merchandise, the act of purchasing those items is attributed to both of them 

because of the charge of conspiracy. See Chambers, 188 A.3d at 410. 

Therefore, we conclude that the best evidence rule did not apply in this case. 

DISCRETIONARY ASPECTS OF SENTENCE

Shamberger also challenges the discretionary aspects of his sentence. 

Before we address the merits of this claim, we must engage in a four-factor 

analysis to determine whether: (1) the appeal is timely; (2) the issues 
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presented were properly preserved; (3) the brief satisfies Pa.R.A.P. 2119(f);1

and (4) a substantial question is presented. See Commonwealth v. 

Radecki, 180 A.3d 441, 467 (Pa.Super. 2018) (citing Commonwealth v. 

Moury, 992 A.2d 162, 170 (Pa.Super. 2010)). 

Shamberger’s appeal is timely, he preserved the sentencing issue

presented, his brief complies with Rule 2119(f), and he presents a substantial 

question. He maintains that the trial court imposed an aggravated sentence 

“without enumerating aggravating factors on the record,” which raises a 

substantial question. See Commonwealth v. Booze, 953 A.2d 1263, 1278 

(Pa.Super. 2008). 

The certified record belies Shamberger’s argument that the trial court 

failed to place the aggravating factors of this case on the record. The court 

stated: 

[T]his [c]ourt noted, and stated on the record at the sentencing 

hearing, that [Shamberger] has a 35-year history of committing 

crimes against innocent victims. That history, as reflected in his 

pre-sentence report, includes multiple criminal acts constituting 

Access Device Fraud. Such behavior, despite previous stints in 

prison and the birth of a child, demonstrate that society needs to 

be protected from [Shamberger]. Therefore, a sentence was 

imposed to protect the community from [Shamberger’s] criminal 

behavior, as well as to protect [Shamberger] from his own selfdestructive behavior. Ultimately, incarceration is necessary for 

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1 “An appellant who challenges the discretionary aspects of a sentence in a 

criminal matter shall set forth in a separate section of the brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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[Shamberger] and is clearly warranted given his prior record score 

of 5. 

TCO at 17. The record before us supports the trial court’s decision to impose 

an aggravated sentence and we conclude that it did not abuse its discretion. 

IMPOSITION OF MULTIPLE SENTENCES FOR SINGLE ACT OF CONSPIRACY

Shamberger argues that if any conspiracy was established, it 

“constitutes a single offense,” and therefore the trial court erred by imposing 

sentence on three separate counts of conspiracy. We agree and the 

Commonwealth as well the trial court concedes the same. The facts of this 

case establish that Shamberger’s conduct was “the object of a ‘continuous 

conspiratorial relationship.’” Commonwealth v. Davis, 704 A.2d 650, 654 

(Pa.Super. 1997) (citing 18 Pa.C.S.A. 903(c)). Therefore, the court could not 

impose a sentence for each count of conspiracy. Id. at 654-55. Thus, we

vacate two counts of the three counts of conspiracy. However, because the 

trial court imposed a concurrent sentence for the conspiracy convictions, 

remand is not necessary. See TCO at 16; (“the [c]ourt sentenced him to 21

months to 5 years for Count 4 (Conspiracy to Commit Access Device Fraud) 

and ran the sentences for the two additional Conspiracy to Commit Access 

Device Fraud counts”); see also Commonwealth v. Thur, 906 A.2d 552, 

569 (Pa.Super. 2006) (“if our decision does not alter the overall [sentencing] 

scheme, there is no need for a remand”).
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Judgment of sentence for conspiracy counts five and six vacated; 

judgment of sentence for remaining count of conspiracy, all counts of access 

device fraud, and false identification to law enforcement authorities affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/29/2019