J-S10033-21
2021 PA Super 102
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER MICHAEL CRAWFORD :
:
Appellant : No. 853 MDA 2020
Appeal from the Judgment of Sentence Entered May 20, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000254-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER CRAWFORD :
:
Appellant : No. 854 MDA 2020
Appeal from the Judgment of Sentence Entered May 20, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002126-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER CRAWFORD :
:
Appellant : No. 855 MDA 2020
Appeal from the Judgment of Sentence Entered May 20, 2020
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002127-2019
J-S10033-21
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED MAY 18, 2021
Christopher Michael Crawford (Crawford) appeals the judgment of
sentence entered in the Court of Common Pleas of Lackawanna County (trial
court) following a bench trial on numerous fraud-related charges in three
consolidated cases. Essentially, he was found guilty of lying about his status
as a military veteran in order to join and defraud a post of the American
Legion. Crawford was sentenced to a prison term of 6 to 12 years, followed
by four years of probation. He now argues that the offense of misrepresenting
veteran status is unconstitutional, that the evidence as to all of his convictions
is legally insufficient, and that his sentence was overly harsh and excessive as
to all counts. We affirm in part, reverse in part, and remand for resentencing.
I.
The underlying record facts are not in dispute. Crawford enlisted with
the United States Army in 2007. Within three months of his enlistment,
Crawford had gone AWOL from boot camp and was classified as a deserter
without having completed his training.
Crawford surrendered himself to military authorities on November 9,
2007, and was discharged on other than honorable conditions at that time.
According to the discharge papers that Crawford signed, the lack of an
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* Retired Senior Judge assigned to the Superior Court.
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honorable discharge meant that he could be deprived of “rights and benefits
as a veteran under both federal and state law.” The testimony of the Director
of Veterans Affairs in Lackawanna County (David Eisele) established that these
discharge conditions would relegate Crawford to the status of a civilian who
would not be entitled to join any American Legion posts. See Trial Transcript,
2/25/2020, at p. 23) (a.m. session).
Nevertheless, some time after his discharge, Crawford managed to join
an American Legion post in Pittsburgh. In 2018, after moving to Lackawanna
County, Crawford set out to join Post 568. He spoke with the Post’s Sergeant
at Arms and canteen manager, Robert Kerrigan (Kerrigan), about
membership.
At trial, Kerrigan recalled that Crawford made several representations
about his past military experience during those conversations. Id. at pp. 28-
34 (p.m. session). He falsely told Kerrigan that he was a veteran of the Iraq
War and that he had received a Purple Heart for sustaining a brain injury from
an explosive device. Crawford also regularly wore a cap affixed with badges
and pins which are only conferred upon military veterans for exploits that
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Crawford had never achieved. These unearned decorations included a Combat
Infantryman Badge1 and a 10th Mountain Division pin.2
Due to his past membership in the Pittsburgh post, Crawford’s
background check for Post 568 was abridged and he was made a member.
Soon thereafter, he was promoted to its executive committee which, among
other things, controlled the Post’s finances and proceeds from its canteen.
Crawford was elevated to the administrative position of adjutant and finance
officer in part because he was very familiar with the Post’s regulations and he
had promised to help recruit younger members.
Between March and August of 2019, Crawford obtained debit cards
linked to the bank account of Post 568. They were used to make purchases
and withdrawals totaling over $17,000 for purposes that did not at all relate
to the Post. For example, some of the charges on the debit cards included
payments for bars, hotels, restaurants, casinos and flights to Florida.
Three members of Post 568 testified that Crawford did not produce
receipts for these charges as was required when incurring any expenses on
behalf of the Post. Further, these witnesses testified that the subject
expenditures were not authorized or approved by the rest of the Post’s
____________________________________________
1 The Combat Infantryman Badge is a decoration awarded to infantrymen in
the United States Army.
2 The 10th Mountain Division is an infantry unit of the United States Army.
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executive committee. Post 568 had never even used debit cards to conduct
its business until Crawford successfully pitched the idea.
At the conclusion of the bench trial, Crawford was sentenced to an
aggregate prison term of 6 to 12 years, followed by 4 years of probation.3 The
sentence as to each of the three cases is as follows:
19-CR-2126: receiving stolen property (2.5 to 5 years),
access device fraud (2.5 years on one count, and 2 years of
probation on each of other two counts), theft by unlawful taking
(2 years of probation, consecutive to other counts)
19-CR-2127: receiving stolen property (2.5 to 5 years,
consecutive to 19-CR-2126), access device fraud (2.5 years on
one count, and 2 years of probation on each of other two counts),
theft by unlawful taking (2 years of probation, consecutive to
other counts)
20-CR-254: misrepresentation of status as member or
veteran of military (6-12 months, consecutive to other
sentences), misrepresentation of decoration or medal (6 to 12
months, consecutive to other sentences).
Crawford filed post-sentence motions,4 all of which were denied. He
then timely appealed in compliance with Pa.R.A.P. 1925 and the trial court
issued a 1925(a) opinion. In his appellate brief, Crawford asserts six main
issues, some of which contain several sub-issues within them:
____________________________________________
3 Except for the sentences on the counts of unlawful taking, the probationary
terms are all concurrent.
4 Crawford’s post-sentence motions included the claim that his convictions
were against the manifest weight of the evidence. He also sought
reconsideration of the length of his sentences.
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(1) Whether [Crawford] is entitled to acquittal as 18 Pa.C.S.
§ 6701(b) is unconstitutionally vague and, therefore, violates the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution and Article 1, Section 9, of the Pennsylvania
Constitution since the statutory language: (a) does not specify a
precise mens rea or actus reus to provide notice to persons of
Common understanding as to the proscribed conduct, (b) as
written invites the Commonwealth to engage in arbitrary
enforcement . . . on an ad hoc and subjective basis, (c) is vague
and no person of ordinary understanding would be able to
determine the meaning of the status of “veteran” as necessary
under this statute[.]
2. Whether [Crawford] is entitled to acquittal as 18
Pa.C.S. §6701(b) unconstitutionally violates the right to freedom
of speech as protected by the First Amendment of the United
States Constitution and Article 1, Section 7 of the Pennsylvania
Constitution since the language of 18 Pa.C.S. § 6701(b), as
written, invites the Commonwealth to suppress constitutionally
protected speech.
3. Whether the evidence was sufficient to prove beyond a
reasonable doubt that [Crawford] was guilty of access device
fraud, theft by unlawful taking, receiving stolen property,
misrepresentation of member or veteran of military, and
misrepresentation of decoration or medal.
4. Whether the verdicts on the charges of access device fraud,
theft by unlawful taking, receiving stolen property,
misrepresentation of member or veteran of military, and
misrepresentation of decoration or medal were against the weight
of the evidence.
5. Whether the trial court erred when it failed to order that the
sentences for receiving stolen property and for theft by unlawful
taking merge.
6. Whether the trial court imposed harsh and excessive aggregate
sentences on all charges.
Appellant’s Brief, at 5.
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II.
We address Crawford’s first two claims together, as they both turn on
the constitutionality of Section 6701(b), which criminalizes the
misrepresentation about one’s past military service with the intent to profit
from the falsehood. Crawford first argues that Section 6701(b)(1) of the
statute is vague because it does not clearly define who qualifies as a military
“veteran.” He then argues that Section 6701(b)(2) of the statute is overbroad
because it criminalizes speech protected by the First Amendment. We find no
merit in either claim.
A.
Before evaluating Crawford’s two constitutional challenges, it is
necessary for us to review the terms of Section 6701(b), categorize the precise
types of claims that Crawford is making, and then identify the standards that
must be used to ascertain the statute’s validity.
From the plain terms of Section 6701(b), the statute’s purpose is to
make it illegal to profit by touting a bogus military record. Subsection (b)(1)
concerns misrepresentations as to being a veteran and subsection (b)(2)
concerns misrepresentations as to being awarded decorations or medals by
the armed forces:
(b) Misrepresentation of military service or honors.
A person commits a misdemeanor of the third degree if, with
intent to obtain money, property or other benefit, the person
fraudulently holds himself out to be any of the following:
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(1) A member or veteran of any branch of the armed forces
of the United States or of any of the several states.
(2) The recipient of any decoration or medal authorized by
the Congress of the United States for the armed forces of the
United States or any of the service medals or any decoration
awarded to members of the armed forces of the United States or
of any of the several states.
18 Pa.C.S. § 6701(b).
Like all enacted statutes, Section 6701(b) is afforded a presumption of
validity. Commonwealth v. Mayfield, 832 A.2d 418, 421 (Pa. 2003);
Commonwealth v. Barud,
681 A.2d 162, 165 (Pa. 1996). “[W]e presume
‘the General Assembly does not intend to violate the Constitution of the United
States or of this Commonwealth.’” Mayfield,
832 A.2d at 421 (quoting 1
Pa.C.S. § 1922(3)). A statute will only be struck down if it “palpably, and
plainly violates the Constitution; all doubts are to be resolved in favor of a
finding of constitutionality.” Mayfield,
832 A.2d at 421.
To comport with the right to due process, statutes need only be clear
enough to make the prohibited conduct reasonably understood. See
Commonwealth v. Magliocco, 883 A.2d 479, 487 (Pa. 2005);
Commonwealth v. Thur,
906 A.2d 552, 560 (Pa. Super. 2006).
Under the void-for-vagueness standard, a statute will only be found
unconstitutional if it is “so vague that persons of common intelligence must
necessarily guess at its meaning and differ as to its application.”
Commonwealth v. Cotto, 753 A.2d 217, 220 (Pa. 2000) (quotations
omitted). A statute will survive a vagueness challenge if it “define[s] the
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criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,
461 U.S. 352, 357 (1983); Commonwealth v. Bullock,
913 A.2d 207, 212
(Pa. 2006).
Challenges on vagueness grounds come in two varieties, each of which
have a different standard of constitutional validity. A facial challenge asserts
that the statute in question is vague as to any conduct which the statute
arguably encompasses. See generally Commonwealth v. Habay, 934 A.2d
732, 738 (Pa. Super. 2007). This type of challenge must involve a First
Amendment claim that the freedom of speech has been abridged. See
id.
Conversely, an as applied challenge only concerns the particular conduct
of the individual challenging the statute; it does not implicate the First
Amendment. For as applied challenges, a court only has to assess whether
the statute is vague within the context of the particular circumstances at issue.
With that background in mind, we will now address the specifics of Crawford’s
challenges.
B.
Because it does not define who qualifies as a “veteran,” Crawford
contends that 18 Pa.C.S. § 6701(b)(1) is void for vagueness, thereby
depriving him of notice as to the nature of the prohibited conduct. Even
though he went AWOL from boot camp without having completed his training,
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he was classified as a deserter, and he received less than an honorable
discharge depriving him of the “rights and benefits as a veteran under both
federal and state law,” Crawford argues that he could have reasonably
believed that he was a veteran. Since this claim concerns how the statute
applies to Crawford’s unique circumstances, his constitutional challenge is of
the as applied variety.
“When words are not defined in a statute, the Pennsylvania Statutory
Construction Law instructs that terms should be construed in accordance with
their common or approved usage.” Commonwealth v. Crawford, 24 A.3d
396, 401 (Pa. Super. 2011) (citing 1 Pa.C.S. § 1903). “Veteran” is defined as
“someone who has been honorably discharged from military service.” Black's
Law Dictionary (11th ed. 2019). “Honorable discharge” is defined as “a
formal final judgment passed by the government on a soldier’s entire military
record, and an authoritative declaration that he or she has left the service in
a status of honor.” Id.
Consistent with the above definitions, the Department of Veterans
Affairs defines “veteran” as “a person who served in the active military, naval,
or air force, and who was discharged or released therefrom under conditions
other than dishonorable.” 38 U.S.C.S. § 101(2) (definitions section of United
States Code governing veteran benefits);
38 C.F.R. § 3.1(d) (Code of Federal
Regulations governing compensation).
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A “veteran” refers to someone who has actively and honorably served
in the military. This definition would exclude those who have been discharged
prior to finishing boot camp, and certainly those who have received something
other than an honorable discharge after going AWOL before that initial training
has been completed – such persons have not yet undertaken any active
military service.
As applied to him in the context of the circumstances of this case, the
definition of “veteran” in Section 6701(b)(1) was sufficiently clear enough to
convey the prohibited conduct. It is not so vague as to result in arbitrary and
discriminatory enforcement. Persons of ordinary intelligence would not have
to guess at the statute’s meaning. No reasonable person would have thought
that a veteran could refer to a trainee who deserted before recording a single
day of active service and who received less than an honorable discharge.
There is, in fact, every indication from Crawford’s own conduct that he
knew his real background fell short of qualifying him as a veteran; otherwise
he would not have lied about it. Accordingly, the statute’s use of the term
comported with due process requirements, and the trial court did not err in
finding it constitutionally valid.5
____________________________________________
5 In addition to the definition of “veteran,” the proscribed conduct outlined in
Section 6701(b)(1) is sufficiently clear to satisfy constitutional due process
requirements.
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C.
Crawford next argues that Section 6701(b)(2) is overbroad because the
First Amendment guarantees the right to claim the associated status of
military regalia (such as medals or decorations) even if they have not been
legitimately obtained via the military service they signify.6
“Applying strict scrutiny, ‘[t]he [g]overnment may . . . regulate the
content of constitutionally protected speech in order to promote a compelling
interest if it chooses the least restrictive means to further the articulated
interest.’” Shepp v. Shepp, 906 A.2d 1165, 1173 (Pa. 2006) (quoting Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 126 (1989)).
In determining whether a statute is unconstitutional due to overbreadth,
a “court's first task is to determine whether the enactment reaches a
substantial amount of constitutionally protected conduct.” Commonwealth
v. Ickes, 873 A.2d 698, 702 (Pa. 2005) (quoting Vill. of Hoffman Estates
v. Flipside, Hoffman Estates Inc.,
455 U.S. 489, 494 (1982)). The
“overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate sweep.” Broadrick v.
____________________________________________
6 The First Amendment freedom of speech applies to Pennsylvania by
operation of the Fourteenth Amendment. Article 1, Section 7 of the
Pennsylvania Constitution separately “guarantees not only freedom of speech
and the press, but specifically affirms the ‘invaluable right’ to the ‘free
communication of thoughts and opinions,’ and the right of ‘every citizen’ to
‘speak freely’ on ‘any subject’ so long as that liberty is not abused.” Pap’s
A.M. v. City of Erie,
812 A.2d 591, 603 (Pa. 2002).
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Oklahoma, 413 U.S. 601, 615 (1973). If a statute’s overbreadth is
substantial, “it may not be enforced against anyone until it is narrowed to
reach only unprotected activity.” Mayfield,
832 A.2d at 425 (quoting
Commonwealth v. Hendrickson,
724 A.2d 315, 317–18 (1999)).
Here, Crawford’s central contention is that Section 6701(b)(2) is invalid
for the same reason that the Federal Stolen Valor Act (18 U.S.C. § 704) was
struck down as overbroad by the United States Supreme Court in United
States v. Alvarez,
567 U.S. 709 (2012). However, the reasoning of the
plurality and concurring opinions of Alvarez illustrate why the Pennsylvania
law does not run afoul of the First Amendment.
At the time Alvarez was decided, the federal statute broadly prohibited
false claims about receiving military awards:
Whoever falsely represents himself or herself, verbally or in
writing, to have been awarded any decoration or medal authorized
by Congress for the Armed Forces of the United States . . . shall
be fined under this title, imprisoned not more than six months, or
both.
18 U.S.C. § 704(b).
The Alvarez plurality held that this sweeping content-based restriction
was too broad because it would apply to false statements “made at any time,
in any place, to any person.” Alvarez, 567 U.S., at 722. Most significantly,
the Act did not require the false statement to be made with any illicit intent:
The statute seeks to control and suppress all false statements on
this one subject in almost limitless times and settings. And it does
so entirely without regard to whether the lie was made for the
purpose of material gain.
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Id. at 722-23.
The plurality added that “[w]here false claims are made to effect a fraud
or secure moneys or other valuable considerations, say offers of employment,
it is well established that the Government may restrict speech without
affronting the First Amendment.” Id. at 723. Along those same lines, the
concurrence suggested that the Federal Stolen Valor Act could easily pass
constitutional muster if it were more narrowly tailored to “focus its coverage
on lies most likely to be harmful or on contexts where such lies are most likely
to cause harm.”
Id. at 738 (Breyer, J., concurring).
Like the Federal Stolen Valor Act, Section 6701(b)(2) criminalizes false
claims about being awarded military medals or decorations. Crucially, though,
the Pennsylvania statute contains exactly what was missing in its invalid
federal counterpart – a requirement that the misrepresentation be done with
intent to profit from the falsehood.
The Commonwealth argues in this appeal and we agree that this
additional intent element puts Section 6701(b)(2) in compliance with the First
Amendment. As emphasized in Alvarez, the Federal Stolen Valor Act was
unconstitutional precisely because it criminalized speech without requiring a
showing of proof that it caused or was intended to cause harm. By implication,
and as stated explicitly in Alvarez, the Federal Stolen Valor Act would be
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constitutional if, like Section 6701(b)(2), the crime included the intended
effect of the speech and not just the speech itself.7
Moreover, the First Amendment has long “permitted restrictions upon
the content of speech in a few limited areas,” such as obscenity, defamation,
fraud, incitement and speech integral to criminal conduct. R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992); see also United States v. Stevens,
130 S.Ct. 1577, 1584 (2010). “[T]he prevention and punishment of [these
forms of speech] have never been thought to raise any constitutional
problem.” Chaplinsky v. New Hampshire,
315 U.S. 568, 571-72 (1942).
Section 6701(b)(2) criminalizes speech and impersonation done with
the intent to obtain some benefit. The prohibited conduct is a form of fraud,
which has historically been unprotected speech under the First Amendment.
See e.g., 18 Pa.C.S. § 3922 (theft by deception statute prohibiting the use of
a false impression to obtain another person’s property); see also 18 Pa.C.S.
§ 4912 (prohibiting impersonation of a public servant with intent to induce
another to submit to official authority).
By criminalizing only harmful lies about past military service, Section
6701(b)(2) has a negligible impact on constitutionally protected speech. The
statute’s language communicates to a person of ordinary intelligence the
____________________________________________
7 The Federal Stolen Valor Act was amended in 2013 to include a provision
requiring an intent to obtain a tangible benefit from the misrepresentation.
Since then, the statute has remained good law.
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specific conduct that is criminalized. The statute is also narrowly tailored to
criminalize speech that would cause social harm, such as the fraudulent and
deceitful statements about past military service in the present case.
Accordingly, we conclude that Section 6701(b)(2) is constitutionally valid and
that the trial court did not err in denying Crawford’s challenge.8
III.
A.
We now turn to Crawford’s sufficiency of the evidence claims regarding
each of his convictions. When determining whether the evidence is sufficient
to sustain a conviction, we must view the evidence in the light most favorable
to the Commonwealth. See Commonwealth v. Gray, 867 A.2d 560, 567
(Pa. Super. 2005). A conviction will be upheld if there is evidence in the record
from which the finder of fact could conclude that every element of the offense
has been proven beyond a reasonable doubt.
Id. We must defer to the fact-
finder’s assignment of weight “unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact may be drawn from the combined
____________________________________________
8 We clarify that our review is limited to assessing the validity of Section
6701(b)(2) under the First Amendment of the United States Constitution.
Although Crawford has claimed that the statute also violates Article 1, Section
7 of the Pennsylvania Constitution, the arguments in his brief are not
specifically developed on that point. Crawford’s claim under the Pennsylvania
Constitution is therefore waived. See Commonwealth v. Bishop,
217 A.3d
833, 841 (Pa. 2019) (appellant waived claim under Pennsylvania Constitution
because he did not distinguish it from the United States Constitution or
otherwise develop the issue separately from his federal grounds).
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circumstances.” Id. A defendant may be convicted of a crime even where
the proof is wholly circumstantial, and the fact-finder is free to believe all, part
or none of the evidence.
Id.
B.
As to the counts of theft by unlawful taking in cases 19-CR-2126 and
19-CR-2127, we find the evidence to be legally sufficient.
A person commits this offense if “he unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive him
thereof.” 18 Pa.C.S. § 3921(a). In cases 19-CR-2126 and 19-CR-2127, the
corpus of the theft by unlawful taking counts was the cash withdrawal of funds
with the Post’s debit cards and the use of the debit cards to pay for Crawford’s
personal expenses. The Commonwealth produced evidence that Crawford
spent thousands of dollars belonging to Post 568 for his personal use and that
the Post did not authorize that spending.
This conduct may constitute theft by unlawful taking, and Crawford’s
convictions are, therefore, supported by sufficient evidence. See
Commonwealth v. Thomas, 684 A.2d 1085, 1086–88 (Pa. Super. 1996)
(evidence sufficient to support conviction for theft by unlawful taking where
defendant was permitted to withdraw money from account for certain business
expenditures, but instead withdrew money for personal expenditures).
Similarly, a person commits the crime of theft by receiving stolen
property if “he intentionally receives, retains, or disposes of movable property
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of another knowing that it has been stolen, or believing that it has probably
been stolen, unless the property is received, retained, or disposed with intent
to restore it to its owner.” 18 Pa.C.S. § 3925(a). As to cases 19-CR-2126
and 19-CR-2127, there was evidence that Crawford intentionally retained the
funds he withdrew and spent using the Post’s debit cards without the approval
of the executive committee. This evidence was legally sufficient to sustain the
convictions for that offense.
The counts involving misrepresentation (case 20-CR-254) were
supported by sufficient evidence for the reasons already outlined above in our
discussion of the respective statutes’ constitutionality. It was undisputed that
Crawford falsely claimed he was a military veteran of the Iraq War who
received a Purple Heart. He also wore paraphernalia on a baseball cap
attributed to specific military divisions of which he was not a part. There was
also abundant evidence that Crawford used those falsehoods in order to
become an executive member of Post 568 and then use that position for his
own personal gain. These facts easily satisfy all the elements of Sections
6701(b)(1) and 6701(b)(2).
Finally, as to the counts of access device fraud (cases 19-CR-2126 and
19-CR-2127), the evidence was legally sufficient. A person commits this
offense if he “uses an access device to obtain or in an attempt to obtain
property or services with knowledge that . . . his use of the access device is
unauthorized by the issuer or the device holder[.]” 18 Pa.C.S.
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§ 4106(a)(1)(iv). Multiple witnesses at trial testified that Crawford was not
authorized to use the Post’s debit cards for his personal expenses. The
evidence showed that Crawford made cash withdrawals with the debit cards,
and that he spent thousands of dollars on himself over the course of about
half a year. To the extent that Crawford presented any exculpatory evidence,
it was up to the fact-finder to resolve such conflicts and assign the evidence
weight. As a result, the convictions for access device fraud are supported by
sufficient evidence of guilt.
IV.
In evaluating Crawford’s claim that all his convictions are against the
weight of the evidence, our review concerns the trial court’s exercise of
discretion in denying relief, “not of the underlying question of whether the
verdict is against the weight of the evidence.” Commonwealth v. Clay, 64
A.3d 1049, 1054-55 (Pa. 2013). “[A]n appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against the weight of
the evidence.”
Id.
In this case, the trial court concluded that the evidence was not against
the weight of the evidence, pointing to the summary of the trial testimony as
to all the subject charges. As can be seen from a review of the facts set forth
above regarding each individual offense, the trial court did not abuse its
discretion in making those findings.
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V.
Crawford’s next claim is that in cases 19-CR-2126 and 19-CR-2127, the
offenses of theft by taking and theft by receiving stolen property must merge
for sentencing purposes.9 As discussed above, Crawford gained access to the
Post’s finances and then paid for personal expenses with debit cards linked to
the Post’s bank accounts. He also made cash withdrawals using the debit
cards. At sentencing, both for cases 19-CR-2126 and 19-CR-2127, Crawford
received a term of 2.5 to 5 years for one count of theft by receiving property,
and a consecutive two-year term of probation for one count of theft by taking.
The evidence of Crawford’s conduct is sufficient to satisfy the elements
of both types of theft in each case. However, the doctrine of merger applies
if different crimes arise from a single criminal act and “all of the statutory
elements of one offense are included in the statutory elements of the other
offense.” 42 Pa.C.S. § 9765. When crimes merge in this way, a defendant
may only be sentenced on the higher graded offense(s) or on one of two
different offenses of the same grade. Id.
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9 Crawford raised the issue of merger in his 1925(b) statement, but the trial
court did not address it in its 1925(a) opinion. This was likely due to the fact
that Crawford had asserted over 30 separate claims, making the merger
ground easy to overlook. Regardless, the sentencing claim is properly before
us for consideration on the merits, and the Commonwealth has not argued
otherwise.
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There is merit to Crawford’s claim that the theft convictions in cases 19-
CR-2126 and 19-CR-2127 must be merged. In each case, the theft by taking
and theft by receiving stolen property arose from a single criminal act and his
intent was the same.10 As we recently explained, “[o]ur cases have
consistently held that convictions for theft by unlawful taking and receiving
stolen property merge for sentencing purposes.” Commonwealth v.
Winston, 1691 EDA 2018, at *4 (Pa. Super. July 15, 2019) (unpublished
memorandum) (citing Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super.
2011), appeal denied,
48 A.3d 1249 (Pa. 2012), and Commonwealth v.
Wilson,
458 A.2d 244, 245-246 (Pa. Super. 1983)); see also
Commonwealth v. Gingrich, 451 MDA 2017, at *7 (Pa. Super. March 20,
2018) (unpublished memorandum) (“We agree with Appellant and the
Commonwealth and conclude that Appellant is indeed entitled to relief on this
claim, as both convictions arose from the same criminal act[.]”).
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10 The Commonwealth’s sole argument here is that the counts do not merge
because the offenses have different intent elements – theft by taking requires
an intent to deprive a rightful owner of their property, and theft by receiving
stolen property requires depriving the rightful owner of their property without
intent to restore possession. See Appellee’s Brief, at 40-41. Again, we
discern no practical difference in this case. If, as the trial court found,
Crawford committed a theft by using the Post’s debit card (theft by taking),
then he necessarily had no intention of paying the Post back (theft by receiving
stolen property). The intent is identical, so Crawford could only be sentenced
on one of the two counts.
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To remedy this error, we vacate the portion of the judgment of sentence
pertaining to these counts in cases 19-CR-2126 and 19-CR-2127 and remand
for a resentencing. See Commonwealth v. Owens, 649 A.2d 129, 139 (Pa.
Super. 1994) (“Where a correction of sentence is needed, this Court has the
option of amending the sentence directly or remanding to the lower court for
resentencing.”).
VI.
Finally, we consider Crawford’s claim that he received an excessive
sentence because some of the terms were set to run consecutively.11
Such claims concern a discretionary aspect of the sentencing. As such,
this Court’s jurisdiction is limited because discretionary aspects of a sentence
are not appealable as of right. See Commonwealth v. Sierra, 752 A.2d
910, 913 (Pa. Super. 2000). Before reaching the merits of such issues, the
appellant must satisfy a four-part test: (1) whether the appellant has filed a
timely notice of appeal; (2) whether the issue was properly preserved; (3)
whether the appellant’s brief has a fatal defect; and (4) whether there is a
“substantial question” whether the sentence comports with the Sentencing
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11 Our analysis of this excessive sentence claim does not encompass
Crawford’s sentences as to the two theft counts in case 19-CR-2126. As
discussed in Part V of this opinion, Crawford will be entitled to a resentencing
as to those counts because they should have been merged for sentencing
purposes.
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Code, 42 Pa.C.S. § 9781(b). See Commonwealth v. Evans, 901 A.2d 528,
533 (Pa. Super. 2006).
In the present case, Crawford filed a timely notice of appeal, preserved
his issue in a post-sentence motion, and outlined the basis for a substantial
question in his brief pursuant to Pa.R.A.P. 2119(f). The final requirement,
whether Crawford raises a substantial question meriting our discretionary
review, “must be evaluated on a case-by-case basis.” Commonwealth v.
Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018).
A “substantial question” involves whether a sentence follows the
Sentencing Code and fundamental norms that underlie the sentencing
process. See Bullock, 868 A.2d at 528. A substantial question is raised, for
example, by claims that the reasons for the sentence are not sufficiently
stated on the record or the sentencing court has relied on improper sentencing
factors. See Commonwealth v. Roden, 730 A.2d 995, 997 (Pa. Super.
1999).
Crawford’s claim does not raise a substantial question. He was
sentenced within the standard range of the statutory guidelines to an
aggregate prison term of 6 to 12 years, and he recognizes that the consecutive
terms were within the trial court’s discretion. In sum, Crawford believes that
the severity of his sentence does not fit the crimes, and that his consecutive
terms should be made concurrent. Bald claims of excessiveness do not
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amount to a substantial question. See Commonwealth v. Caldwell, 117
A.3d 763 (Pa. Super. 2015).
Even if we were to reach the merits of this claim, we would still deny
appellate relief. As the trial court found, the evidence shows that Crawford
deliberately ingratiated himself with a fraternity of military veterans and then
abused their confidence over a period of months by using over $17,000 of
their limited funds on a number of frivolous personal expenditures. When
imposing sentence, the trial court emphasized that the subject offenses were
“a severe affront” to the victims, and that Crawford was “motivated by greed
and convenience with no remorse whatsoever and no acceptance of
responsibility.” Trial Court Opinion, 9/29/2020, at 14.
The sentence is not unduly harsh or unreasonable considering the
nature of Crawford’s crimes. See Commonwealth v. Moury, 992 A.2d 162,
171-72 (Pa. Super. 2010) (“The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”).
Except for the merger of the theft convictions in cases 19-CR-2126 and 19-
CR-2127, the trial court’s sentence was not an abuse of discretion.
Judgment of sentence affirmed in part and reversed in part. Case
remanded for resentencing. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/18/2021
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