Com. v. Charles, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOANNA CHARLES
Appellant No. 1344 WDA 2016
Appeal from the Judgment of Sentence Dated June 20, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003957-2015
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2017
Appellant, Joanna Charles, appeals from the judgment of sentence
imposed after a jury convicted her of theft by failure to make a required
distribution of funds received, and misapplication of entrusted property.1 We
affirm.
The charges against Appellant arose from her role as the administrator
of her father’s estate. The Commonwealth alleged that during a seven-
month period from August 2011 to January 2012, Appellant misappropriated
approximately $22,000. A jury trial commenced on February 29, 2016, and
on March 1, 2016, the jury returned its guilty verdicts.
The trial court summarized the facts as follows:
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1
18 Pa.C.S. §§ 3927(a) and 4113(a).
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In mid-August of 2011, James Charles, Sr. passed away
intestate. He was survived by three adult children: Appellant,
James Charles, Jr., and Jamesina Charles. Charles, Jr. retained
the services of Attorney Sally Frick to handle his father’s estate.
Appellant’s siblings signed a renunciation, and Appellant was
appointed as administrator of the estate.
The estate included a home in Penn Hills, a large amount
of cash, and several vehicles. At the initial meeting between
Attorney Frick, Appellant, and Jamesina at the decedent’s home,
Jamesina and Appellant recovered $8000 cash. These funds
were turned over to Attorney Frick to be placed in an estate
account. Additionally, $14,000 cash was found on the
decedent’s person at the time of his death, and the coroner’s
office turned over the cash to Jamesina. Jamesina used $4000
from these funds to pay for funeral expenses. In September
2011, Jamesina sent the remaining funds ($10,000) to
Appellant, with the understanding that the funds would be made
part of her father’s estate account, which was maintained by
Attorney Frick. However, Appellant retained possession of those
funds.
On September 28, 2011, Appellant visited Attorney Frick at
her office, and informed her that her services were no longer
needed. Attorney Frick relinquished the $8000 cash and estate
documents to Appellant. Appellant never hired another attorney.
Consequently, Attorney Frick remained the counsel of record,
and though she tried to contact Appellant to ensure she hired a
new attorney, she was unable to reach Appellant.
As part of her duties as administrator of her father’s
estate, Appellant was provided with funds to be used to prepare
the home for sale, and to be distributed amongst family
members according to eventual court order. These funds
included the $8000 cash from Attorney Frick, and the $10,000
from Jamesina. Additionally, Appellant withdrew $4600 from her
father’s checking account, and deposited it into a new estate
account with other smaller deposits, on which she was the only
signatory. Appellant paid approximately $2,500 of those funds
to a family friend, Colin Wesley Carr, to fix certain aspects of the
decedent’s home. Additionally, she paid for Carr’s airfare from
New York City, food while he stayed in the decedent’s home, and
all supplies for the home repairs. She also made some utility
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payments for the house, as detailed in the Commonwealth
Exhibit 10.
However, the remaining funds were not used in the
administration of the estate, and were not saved for later
distribution to the estate. Instead, Appellant mixed the estate
funds with her personal account and used the funds for personal
matters. As such, no funds remain for the administration of the
estate or for distribution under any court order.
Trial Ct. Op., 2/21/17, at 4-6 (citations to notes of testimony omitted).
At sentencing, Appellant presented Colin Carr, who, with respect to
restitution, testified to making repairs at the decedent’s home and being
paid for his services and expenses. See N.T., 4/25/16, 5-16. On June 20,
2016, the trial court sentenced Appellant to five years’ probation and
ordered her to pay restitution of $17,910 to the estate. 2 Appellant filed a
timely post-sentence motion, which the trial court denied on August 26,
2016. On September 6, 2016, Appellant filed this appeal.
Appellant raises four issues for review:
1. Whether the Commonwealth produced sufficient evidence to
sustain a guilty verdict for Theft by Failure to Make Required
Distribution of Funds Received?
2. Whether the Commonwealth produced sufficient evidence to
sustain a guilty verdict for Misapplication of Entrusted
Property?
3. Whether the verdict is against the weight of the evidence
presented?
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2
The sentence was imposed at Count 1 (theft by failure to make required
distribution of funds), with no further penalty at Count 2 (misapplication of
entrusted property).
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4. Whether the trial court erred in ordering restitution where
questions as to the composition and proper distribution of the
estate were not first resolved in Orphan’s court?
Appellant’s Brief at 3.
Sufficiency and Weight of the Evidence
In reviewing Appellant’s first three claims challenging the sufficiency
and weight of the evidence, we are mindful of the following:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
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Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (citations,
quotation marks, and footnote omitted).
In her first two issues, Appellant argues that the evidence was
insufficient to support her two convictions. At their essence, Appellant’s
arguments are that she lacked the intent necessary to support the
convictions. In part, she blames Attorney Frick, who she dismissed, for
failing to provide her with proper guidance. With regard to theft by failure to
make a required distribution of funds received, Appellant additionally asserts
that the evidence was insufficient because she never failed to “make a
required payment or disposition.” Appellant’s Brief at 13, 17-18.
The statute defining theft by failure to make a required distribution of
funds received provides:
A person who obtains property upon agreement, or subject to a
known legal obligation, to make specified payments or other
disposition, whether from such property or its proceeds or from
his own property to be reserved in equivalent amount, is guilty
of theft if he intentionally deals with the property obtained as
his own and fails to make the required payment or disposition.
The foregoing applies notwithstanding that it may be impossible
to identify particular property as belonging to the victim at the
time of the failure of the actor to make the required payment or
disposition.
18 Pa.C.S. § 3927(a) (emphasis added). The statute defining misapplication
of entrusted property states:
A person commits an offense if he applies or disposes of
property that has been entrusted to him as a fiduciary, or
property of the government or of a financial institution, in a
manner which he knows is unlawful and involves substantial
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risk of loss or detriment to the owner of the property or to a
person for whose benefit the property was entrusted.
18 Pa.C.S. § 4113 (emphasis added).
Viewing the record in a light most favorable to the Commonwealth as
the verdict-winner, we find no merit to Appellant’s sufficiency claims, as the
evidence was sufficient for the jury to infer Appellant’s intent relative to both
crimes. Appellant admitted that she agreed to be the administrator of her
father’s estate and took sole possession of approximately $22,600,
comprised of her father’s cash and bank account. N.T., 2/29/16, at 98-99.
She testified that she made a few checks payable to herself, and spent
money from the estate, including “about $3,000” on furniture for her
mother, and other expenditures for “maybe a couple other family members.”
N.T., 2/29/16, at 96, 100. She stated that the funds were “kind of all mixed
in together.” Id. She also testified that all of the cash and funds in the
bank account that had been in her possession were “all gone,” stating that
“[a]ll of it was used.” Id. at 102. This evidence was sufficient to support
Appellant’s convictions under both statutes. See Commonwealth v.
Green, 162 A.3d 509, 523 (Pa. Super. 2017) (en banc) (finding evidence
sufficient when viewing the evidence in a light most favorable to the verdict
winner, and reiterating that we may not weigh the evidence and substitute
our judgment for the fact-finder who is free to believe all, part, or none of
the evidence).
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We reject Appellant’s contention that she never failed to make a
distribution as disingenuous. By dissipating the funds, Appellant made it
impossible for there to be a distribution of estate funds to her father’s heirs.
As the trial court stated:
Regardless of Attorney Frick’s actions or the fact that a court
order was not yet prepared for disbursement [of the estate funds
to the heirs], Appellant had possession of those funds and was
aware that these funds were to be used solely for the
administration of her father’s estate. Nonetheless, Appellant
used the funds for her own personal purposes, permanently
depriving her father’s estate of those funds.
Trial Ct. Op., 2/21/17, at 9.
The test for determining the sufficiency of the evidence is whether,
viewing the evidence in a light most favorable to the Commonwealth, and
drawing all inferences favorable to the Commonwealth, the jury could
reasonably have determined all elements of the crime to have been
established beyond a reasonable doubt. Commonwealth v. Aulisio, 522
A.2d 1075 (Pa. 1987). On the record in this case, the jury could reasonably
have found that Appellant obtained the estate funds upon agreement and
subject to a known legal obligation to make disposition for the estate, but
intentionally dealt with the funds as her own and failed to make the required
disposition of the estate by depleting it — conduct sufficient to prove theft
by failure to make a required distribution of funds received. The jury also
reasonably could have found that Appellant disposed of funds that were
entrusted to her as estate administrator in a manner which she knew was
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unlawful and involved substantial risk of loss or detriment to the estate or its
beneficiaries — conduct sufficient to prove misapplication of entrusted
property.
In her third issue, Appellant argues that her convictions were against
the weight of the evidence.3 Without citing any meaningful legal authority,
Appellant repeats her sufficiency argument and states that “the jury’s verdict
was against the weight of the evidence as both of the counts at issue
requires [sic] intent on the part of the defendant as well as an actual
unlawful taking of property.” Appellant’s Brief at 28. The Commonwealth
contends that Appellant has waived her weight claim because it is
insufficiently argued. Without reaching the question of waiver, we conclude
that Appellant’s weight claim fails for the reasons stated by the trial court in
its opinion. See Trial Ct. Op., 2/21/17, at 8-10 (recounting applicable legal
authority and relevant evidence from Appellant’s trial, and concluding that
“[t]he evidence presented during trial established Appellant’s guilt beyond a
reasonable doubt, and the Trial Court properly denied the motion for a new
trial as the verdict was not against the weight of the evidence”).
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3
As required by Pa.R.Crim.P. 607, Appellant preserved this issue by raising
it with the trial court in her post-sentence motion.
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Restitution
In her fourth issue, Appellant argues that the trial court erred by
awarding restitution when “the estate was not properly determined in a
proceeding in Orphan’s Court.” Appellant’s Brief at 28. She states:
[T]he trial court could not properly determine restitution where
the proper distribution and identities of the person to benefit
from the estate were not correctly determined in Orphans’ court.
It is Orphan’s court’s clear function to resolve such questions.
Id. at 30. Appellant additionally contends that by filing charges against her,
the Commonwealth “encourages individuals to file criminal charges in estate
matters to avoid the fees and complications of Orphan’s court.” Id. at 15.
The Commonwealth responds by emphasizing that Appellant was
convicted of theft, and that the Crimes Code, 18 Pa.C.S. § 1106, mandates
restitution where “property has been stolen or converted.” Commonwealth’s
Brief at 10-11, 26-28. Section 1106 provides, in relevant part:
(a) General rule.—Upon conviction for any crime wherein
property has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as
a direct result of the crime, or wherein the victim suffered
personal injury directly resulting from the crime, the
offender shall be sentenced to make restitution in addition
to the punishment prescribed therefor.
(b) Condition of probation or parole.—Whenever restitution
has been ordered pursuant to subsection (a) and the
offender has been placed on probation or parole, his
compliance with such order may be made a condition of
such probation or parole.
The Commonwealth argues that “Appellant fails to recognize that this issue
involves the sentence of restitution imposed for her criminal conviction for
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theft . . . and the orphans’ court division does not have jurisdiction over
criminal matters.” Commonwealth’s Brief at 27. We agree.
This Court recently explained:
In the context of criminal proceedings, an order of restitution is
not simply an award of damages, but, rather, a sentence. An
appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing. The
determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases
dealing with questions of law is plenary. . . .
Restitution is a creature of statute and, without express
legislative direction, a court is powerless to direct a defendant to
make restitution as part of his sentence. Where that statutory
authority exists, however, the imposition of restitution is vested
within the sound discretion of the sentencing judge.
. . . In the context of a criminal case, restitution may be imposed
either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a
condition of probation, 42 Pa.C.S. § 9754. When imposed as a
sentence, the injury to property or person for which restitution is
ordered must directly result from the crime. However, when
restitution is ordered as a condition of probation, the sentencing
court is accorded the latitude to fashion probationary conditions
designed to rehabilitate the defendant and provide some
measure of redress to the victim.
Commonwealth v. Holmes, 155 A.3d 69, 78-79 (Pa. Super. 2017) (quoted
and internal citations omitted). Consistent with Holmes, we discern no
abuse of discretion by the trial court in making restitution part of Appellant’s
sentence. As the Commonwealth points out, Appellant errs in treating the
restitution as an “award” made to the beneficiaries of the estate. Although
the restitution is to be paid to the estate, it is neither an award of damages
nor a distribution of estate assets; it is a sentence imposed on Appellant for
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her criminal conduct. Because an Orphans’ Court has no role in imposition
or enforcement of such a sentence, there was no error in imposing the
sentence without the Orphans’ Court’s involvement.
The restitution amount is supported by the record. The
Commonwealth requested restitution of $21,910, consisting of the $10,000
found on the decedent’s person (net after $4,000 was paid for funeral
expenses), $8,000 cash recovered from the decedent’s home, and $3,910
taken from a bank account. See N.T., 6/20/16, at 6. Appellant testified
that she paid “$5,000 or more” for Mr. Carr to complete repairs to the home.
N.T., 2/29/16, at 89. Mr. Carr testified that Appellant paid him $2,500 cash
for various repairs that included plumbing, drywall, and yard work. N.T.,
4/25/16, at 8. He stated that he “did a lot of work” that “took . . . about
two months to do”; that he “didn’t even pay for any food, she took care of
everything,” including tools and materials; and that because he was living in
New York City at the time, Appellant twice paid for his airfare. Id. at 4, 8-
14. The trial court credited this testimony and therefore reduced the
restitution amount to $17,910. Trial Ct. Op., 2/21/17, at 12. The trial
record supports the court’s calculations. Accordingly, we find no error in the
trial court’s order of restitution to the decedent’s estate.
For all of the reasons stated above, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
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