J-S08023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL WILKERSON

Appellant No. 1786 EDA 2014

Appeal from the PCRA Order of May 22, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No.: CP-46-CR-0006001-2010

BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED MARCH 13, 2015

Michael Wilkerson appeals the May 22, 2014 order denying his petition 

for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

46, without a hearing. We affirm.

Upon review of Wilkerson’s direct appeal, a previous panel of this 

Court summarized the factual history of this case as follows:

On September 18, 2009, [Wilkerson] gave a salesman for Fort 

Washington Mercedes Benz a check for $111,000[.00] in 

payment for a Mercedes Benz S550 automobile. Following the 

transaction, [Wilkerson] left the dealership with the car. After a 

number of days, the salesman was notified that the check had 

not cleared the bank. In fact, the account upon which the check 

was drawn had been closed for eight months. The salesman 

contacted [Wilkerson,] who explained that he had had a 

disagreement with his wife, and she had taken money out of the 

account. The salesman had previously sold cars to [Wilkerson] 

and was familiar with both him and his wife. Over the next few 

weeks, the salesman attempted to offer other options to 

[Wilkerson], such as paying part of the purchase price and 

financing the rest. Nonetheless, although [Wilkerson] promised 
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to come to the dealership with a replacement check, [Wilkerson] 

did nothing and did not immediately return the car. Ultimately, 

the police were contacted.

Approximately three weeks after the purchase, [Wilkerson] 

returned the car, but merely left the car’s keys and books on the 

counter at the dealership and left without resolving the matter. 

Obviously, the value of the automobile was greatly diminished. 

The salesman later learned that [Wilkerson] had been trying to 

trade the vehicle with a Lexus car dealer. Also[,] a witness from 

West Chester Jaguar-Land Rover testified that [Wilkerson] tried 

to sell the vehicle to that dealership for $115,000[.00]. 

A criminal complaint [charging Wilkerson with one count of bad 

checks in violation of 18 Pa.C.S. § 4105] was filed against 

[Wilkerson] on December 29, 2009. Despite the 

Commonwealth’s due diligence[,] [Wilkerson] avoided 

apprehension until he was arrested on August 2, 2010. The trial 

court listed and relisted [Wilkerson’s] trial for several dates in 

2011[,] including February 14, March 7, and March 14. 

Ultimately, in May 2011, because of trial docket congestion, 

[Wilkerson’s] trial was delayed until August. [Wilkerson’s] trial 

commenced on August 8, 2011. 

Commonwealth v. Wilkerson, No. 3325 EDA 2011, slip op. at 1-3 (Pa. 

Super. Oct. 31, 2012) (footnote omitted).

Wilkerson premised his defense upon his claims that he mistakenly 

issued the check on a closed account, and that he believed that the check 

was connected to an active account that contained sufficient funds. 

Wilkerson claimed that he learned of his mistake shortly after the 

transaction, and that he promptly contacted the salesperson to inform him of 

the mistake and to instruct the dealership to not attempt to deposit the 

check. Wilkerson stated that, during these discussions, he communicated 

his intent to deliver a replacement check. His subsequent attempts to 

correct the error, Wilkerson claimed, were frustrated by his wife, who 
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removed money from the active account because of her anger about the 

purchase. Having found no acceptable means of compensating the 

dealership, Wilkerson returned the vehicle, but did not reimburse the 

dealership for the depreciation incurred during the time that the vehicle was 

in his possession. 

In support of his “mistake” defense, Wilkerson testified on his own 

behalf and presented the corroborating testimony of the investigating officer, 

the dealership’s manager, and the dealership’s finance manager. The 

defense also presented physical evidence of Wilkerson’s driver’s license, his 

insurance card, the affidavit of probable cause, and a deposit slip from 

Wachovia Bank, which showed the date on which the dealership attempted 

to deposit the check at issue.

The Commonwealth presented the testimony of the salesperson, Fred 

Mielke, who testified that Wilkerson did not contact him to inform him of the 

mistake, but rather that he sought out Wilkerson after he learned that 

Wilkerson’s bank would not honor the check. Mielke stated that the 

dealership’s management told him several days after the sale that 

Wilkerson’s check would not clear. Regarding the dealership’s attempt to 

deposit the check, Mielke stated that “[w]e would have cashed it probably 

the next day after the transaction, it would have been deposited into the 

bank.” Notes of Testimony (“N.T.”), 8/8/2011, at 47. Mielke testified that 

he provided Wilkerson with numerous options to remedy the situation, but 

that Wilkerson was unwilling or unable to compensate the dealership. 
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Furthermore, the Commonwealth presented the testimony of the chief 

operating officer for a different luxury car dealership, who stated that 

Wilkerson had attempted to trade or sell the vehicle to that dealership.

In its rebuttal case, the Commonwealth also introduced, by stipulation, 

Wilkerson’s prior convictions for theft by deception1and forgery.2 The trial 

court instructed the jury on the presumptions contained in the bad checks 

statute, telling the jurors that, if they were satisfied with the fact that 

Wilkerson’s account was closed at the time of the transaction, then they 

could infer that Wilkerson possessed the requisite knowledge for purposes of 

the bad checks statute. See N.T., 8/9/2011, at 54, 63.

Following a two-day jury trial, Wilkerson was convicted of bad checks. 

On October 21, 2011, the trial court sentenced Wilkerson to one-and-onehalf to seven years’ incarceration. On October 31, 2012, this Court affirmed 

Wilkerson’s judgment of sentence. Wilkerson filed a Petition for Allowance of 

Appeal with the Pennsylvania Supreme Court, which was denied on October 

29, 2013. On January 15, 2014, Wilkerson timely filed a pro se PCRA 

petition, wherein he alleged that his trial counsel was ineffective for failing to 

investigate and acquire the bank records associated with the check. 

Wilkerson subsequently was appointed new counsel for the purposes of his 

____________________________________________

1 18 Pa.C.S. § 3922.

2 18 Pa.C.S. § 4101.
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PCRA petition, but that attorney sought leave to withdraw from the 

representation, and filed a Turner/Finley3“no-merit” letter on April 22, 

2014. On April 24, 2014, the PCRA court issued Wilkerson a notice of intent 

to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907, and 

Wilkerson filed a response on May 13, 2014. On May 22, 2014, the PCRA 

court issued a final order dismissing Wilkerson’s petition. 

Wilkerson timely filed a pro se notice of appeal on June 17, 2014. On 

June 19, 2014, the PCRA court directed Wilkerson to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Because 

Wilkerson retained new counsel, the PCRA court granted Wilkerson an 

extension of time to file the concise statement. The PCRA court set July 14, 

2014 as the deadline, and Wilkerson timely filed a concise statement on that 

date. In accordance with Pa.R.A.P. 1925(a), the PCRA court issued an 

opinion in support of its order on July 28, 2014.

Wilkerson raises the following issue for our review:

Did the trial [c]ourt err in dismissing the PCRA [p]etition for 

[i]neffective [a]ssistance of [c]ounsel?

Brief for Wilkerson at 4.

Our standard of review for the dismissal of a PCRA petition is wellsettled. “In reviewing the denial of PCRA relief, we examine whether the 

____________________________________________

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA court’s determination is supported by the record and free of legal 

error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal 

quotation marks and citation omitted). “The scope of review is limited to the 

findings of the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.” Commonwealth 

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Regarding the 

granting of an evidentiary hearing on a PCRA petition:

Where a PCRA petition does not raise a genuine issue of material 

fact, the reviewing court is not required to hold an evidentiary 

hearing on the petition. Thus, to entitle himself to a hearing, an 

appellant must raise an issue of fact, which, if resolved in his 

favor, would justify relief.

Commonwealth v. Simpson, 66 A.3d 253, 260-61 (Pa. 2013) (internal 

quotation marks, bracketed material, and citations omitted).

To prevail on a claim of ineffective assistance of counsel, “the 

petitioner must show: that the underlying legal claim has arguable merit; 

that counsel had no reasonable basis for his or her action or omission; and 

that the petitioner suffered prejudice as a result.” Commonwealth v. 

Bardo, 105 A.3d 678, 684 (Pa. 2014) (citation omitted). “A failure to 

satisfy any prong of the test for ineffectiveness will require rejection of the 

claim.” Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014) (citation 

omitted). Regarding appellate review of a claim of ineffectiveness, “[a] 

court is not required to analyze the elements of an ineffectiveness claim in 

any particular order of priority; instead, if a claim fails under any necessary 
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element of the ineffectiveness test, the court may proceed to that element 

first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations 

omitted).

Wilkerson was convicted of one count of bad checks in violation of 

18 Pa.C.S. § 4105. In addition to the elements of the offense, which require 

the issuer’s knowledge that the check will not be paid, the statute provides a 

number of presumptions from which the fact-finder may infer that the issuer 

possessed such knowledge. 18 Pa.C.S. § 4105(b). These presumptions 

played an important role in Wilkerson’s trial and are central to the 

arguments that he advanced in his PCRA petition. The crime of bad checks 

is defined, in pertinent part, as follows:

(a) Offense defined.—

(1) 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.

(2) A person commits an offense if he, knowing that it will 

not be honored by the drawee, issues or passes a check or 

similar sight order for the payment of money when the 

drawee is located within this Commonwealth. A violation 

of this paragraph shall occur without regard to whether the 

location of the issuance or passing of the check or similar 

sight order is within or outside of this Commonwealth. It 

shall be no defense to a violation of this section that some 

or all of the acts constituting the offense occurred outside 

of this Commonwealth.

(b) Presumptions.—For the purposes of this section as well as 

in any prosecution for theft committed by means of a bad check, 

the following shall apply:
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(1) An issuer is presumed to know that the check or order 

(other than a post-dated check or order) would not be 

paid, if:

(i) payment was refused because the issuer had no such 

account with the drawee at the time the check or order 

was issued; or

(ii) payment was refused by the drawee for lack of funds, 

upon presentation within 30 days after issue, and the 

issuer failed to make good within ten days after receiving 

notice of that refusal.

Notice of refusal may be given to the issuer orally or in 

writing by any person. Proof that notice was sent by 

registered or certified mail, regardless of whether a receipt 

was requested or returned, to the address printed on the 

check or, if none, then to the issuer’s last known address, 

shall raise a presumption that the notice was received.

18 Pa.C.S. § 4105.

Wilkerson argues that his trial counsel was ineffective for failing to 

conduct a reasonable investigation into the bank account activity associated 

with the check in question. Brief for Wilkerson at 9-19. Specifically, 

Wilkerson suggests that “[h]ad counsel investigated the history of the bank 

records, he would have found that the check . . . was never presented to the 

dealership’s bank for payment; thus it was impossible for the check to be 

returned.” Id. at 10. Therefore, Wilkerson argues, the statutory 

presumptions should not have applied to his circumstances because he was 

not provided notice that payment on his check had been refused. Wilkerson 

suggests that, because the bank records would have corroborated his 

version of the events, they would have confirmed his defense and negated 

the intent element of the crime of bad checks. Wilkerson argues that his 
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counsel’s failure to acquire these records constituted ineffective assistance of 

counsel, and thus the PCRA court erred in dismissing his petition without a 

hearing. We disagree.

Because we conclude that counsel’s acquisition and presentation of the 

bank records would not have created a reasonable likelihood that the result 

of the trial would have been different, we begin and end our analysis with 

the “prejudice” prong of the ineffectiveness claim. See Tharp, 101 A.3d at 

747. “Respecting prejudice, we employ the Strickland4actual prejudice 

test, which requires a showing of a reasonable probability that the outcome 

of the proceeding would have been different but for counsel’s constitutionally 

deficient performance.” Commonwealth v. Daniels, 104 A.3d 267, 281 

(Pa. 2014). “[A] reasonable probability is a probability that is sufficient to 

undermine confidence in the outcome of the proceeding.” Spotz, 84 A.3d at 

312 (citation omitted). 

At the outset, we note that Wilkerson has not provided the bank 

records that he claims his attorney should have acquired, so we cannot be 

certain of their contents.5 Wilkerson claims that “the bank records would 

____________________________________________

4 See Strickland v. Washington, 466 U.S. 668 (1984).

5

For the purpose of our prejudice analysis, we are assuming, arguendo, 

that the bank records would have contained the information that Wilkerson 

suggests. However, we note that Wilkerson’s failure to present the bank 

records before this Court raises doubts about whether we could determine 

that his claim has arguable merit. Regardless, because we conclude that 

(Footnote Continued Next Page)
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have shown that the check presented at trial was never deposited or cashed; 

therefore, there was no way that the dealership provided notice to Wilkerson 

as they claimed.” Brief for Wilkerson at 17. This argument is somewhat 

curious, because Wilkerson introduced the dealership’s deposit slip into 

evidence at trial for the purpose of demonstrating the length of time 

between the transaction and the dealership’s attempt to deposit the check. 

Wilkerson passed the check on September 18, 2009, and the dealership 

attempted to deposit the check on September 28, 2009. 

Wilkerson suggests that his counsel should have obtained both 

Wilkerson’s and the dealership’s bank records. Brief for Wilkerson at 12. 

We cannot understand what benefit Wilkerson would have received from the 

presentation of his own bank records. Wilkerson’s bank records likely would 

have shown merely that Wilkerson’s account had been closed, which is a fact 

not in dispute. Wilson admitted at trial that the account had been closed at 

the time of the transaction. N.T., 8/8/2011, at 110. Moreover, the fact that 

Wilkerson’s account was closed was an essential component of his “mistake” 

defense. The dealership’s bank records, by contrast, potentially would have 

shown that there were no attempts to deposit Wilkerson’s check until 

September 28, 2009. While the length of time between the transaction and 

the attempted deposit may have cast doubt upon Mielke’s recollection of the 

(Footnote Continued) _______________________

Wilkerson did not suffer prejudice from his trial counsel’s omission, we need 

not address the arguable merit element of Wilkerson’s ineffectiveness claim.
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events, it is ultimately not of consequence. Even if the dealership’s bank 

records supported Wilkerson’s narrative, they do not bear upon the 

determinative question of whether Wilkerson knew that he was passing the 

check on a closed account at the time of the transaction.

The Commonwealth contends that presentation of the bank records 

would have been needlessly cumulative of the other evidence presented by 

the defense. Brief for Commonwealth at 9-10. We define cumulative 

evidence as “additional evidence of the same character as existing evidence 

and that supports a fact established by the existing evidence.” 

Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa. Super. 2012). Again, 

because the records are not before this Court, we cannot be certain of their 

contents, but we infer that the bank records could have been stronger 

evidence than the deposit slip. The deposit slip accounts only for one 

attempt to deposit the check, on one day, at one time. The bank records 

potentially could have accounted for all of the other time between the 

transaction and the date reflected on the deposit slip. Undeniably, the bank 

records, had they been produced, would be better characterized as 

“corroborative” evidence, which is “[e]vidence that strengthens or bolsters 

existing evidence.” Id. Despite the bank records’ potential for 

corroborating the evidence of the deposit slip, we are confident that the 

presentation of the bank records would not have changed the outcome of 

the verdict. The records merely would have supported a proposition already 

suggested by other evidence and, more importantly, they would not have 
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been probative of the ultimate factual determination—Wilkerson’s knowledge 

at the time of the transaction.

The parties have argued at length about the applicability of the 

statutory presumptions, which provide that the issuer may be presumed to 

know that a check will not be paid if payment was refused by the drawee 

due to the absence of an account or the lack of sufficient funds. 18 Pa.C.S. 

§ 4105(b)(1) (emphasis added). As noted in the statute, “[n]otice of refusal 

may be given to the issuer orally or in writing by any person.” Id. Viewing 

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

prevailing party at trial, as we must, Mielke’s testimony established that he 

orally provided Wilkerson with notice that payment on the check was 

refused. As we noted in affirming Wilkerson’s conviction on direct appeal:

[Mielke] testified that the dealership presented the check to the 

bank and it was not honored. The jury could justifiably conclude 

from this testimony alone that the dealership presented the 

check to its own bank, Wachovia Bank, which in turn presented 

it to Bank of America, the drawee bank, and that Bank of 

America refused to honor the check. Thus, the evidence was 

sufficient to support a conviction for bad checks.

Wilkerson, No. 3325 EDA 2011, slip op. at 15. We understand that, if the 

bank records were able to demonstrate conclusively that there was no 

attempt by the dealership to deposit the check in the days following the 

transaction, then those records possibly would have detracted from the 
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credibility of Mielke’s testimony and bolstered Wilkerson’s narrative.6 

However, the defense presented three witnesses that contradicted Mielke’s 

testimony, in addition to the deposit slip which shows the date of the 

attempted deposit, which was several days after Mielke claimed. 

Nevertheless, the jury credited the Commonwealth’s version of the facts. 

We discern no reason to believe that a piece of documentary evidence, 

which would have been merely corroborative of the evidence of the deposit 

slip, would undermine confidence in the outcome of that verdict. 

Furthermore, it is significant that Wilkerson testified that he knew that 

the account had been closed for eight or nine months prior to the 

transaction. N.T., 8/8/2011, at 110. Therefore, Wilkerson possessed actual 

knowledge that the check could not be honored. As the Commonwealth 

notes, “[r]egardless of whether [notice] came from the dealership on 

September 19, the dealership on September 28, or from his own knowledge 

that he wrote the check on a closed account, the check could not clear, and 

____________________________________________

6 We note, however, that the prosecution established on crossexamination of the dealership’s finance manager that the dealership 

previously utilized a verification system for checks, whereby they could 

determine the validity of a check without attempting to deposit it. N.T., 

8/8/2011, at 91. This fact suggests that the dealership could have received 

notice that the check would not be honored without conducting any activity 

that would reflect on its bank records. The jury could have concluded from 

this fact that Mielke’s testimony that he received notice from the 

management that the check would not clear was derived from the use of the 

verification system, and not from an attempt to deposit the check into the 

dealership’s bank account.
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[Wilkerson] never made good.” Brief for Commonwealth at 8. Wilkerson’s 

admission is all the more significant when considering the court’s jury 

instruction on the statute’s requirements, which included the following:

[E]vidence has been presented in this case that [Wilkerson] had

no open account with drawee, the bank, at the time the check 

was issued. If you are satisfied beyond a reasonable doubt that 

this was the stated fact, you may find that [Wilkerson] knew that 

the check would not be paid.

N.T., 8/9/2011, at 54. While this instruction may be somewhat of an 

oversimplification of the knowledge requirement, Wilkerson has never 

challenged the legal accuracy of this instruction. Regardless, the jurors were 

instructed to find that Wilkerson met the knowledge requirement if they 

were satisfied that the bank account was closed, which is a fact that they 

heard directly from Wilkerson.

There is no dispute that Wilkerson’s bank account was closed at the 

time of the transaction, and there is no doubt that the check that he passed 

would not clear. Wilkerson’s only defense was that he lacked the requisite 

intent because his passing of the check was an accident. Wilkerson cogently 

presented this theory to the jury, and the jury rejected it wholesale. The 

bank records would not have affected the ultimate question of whether the 

passing of the check was an accident. Therefore, we conclude that there is 

no reasonable probability that the bank records’ presentation at trial would 

have changed the outcome of the verdict; thus, his trial counsel’s failure to 

acquire the bank records did not prejudice Wilkerson. Because Wilkerson 
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has failed to demonstrate prejudice, his ineffectiveness claim is without 

merit, and we need not consider the remaining elements of the claim. See 

Tharp, 101 A.3d at 747. Furthermore, because Wilkerson did not raise an 

issue of fact, which, if resolved in his favor, would justify relief, the PCRA 

court did not err in dismissing Wilkerson’s petition without a hearing. See 

Simpson, 66 A.3d at 260-61. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2015