Com. v. Getschow, K. ( 2019 )

J-S15031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH EDWARD GETSCHOW III :
:
Appellant : No. 1180 WDA 2018
Appeal from the Judgment of Sentence Entered August 7, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003168-2017
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 30, 2019
Appellant, Kenneth Edward Getschow III, appeals from the amended
judgment of sentence entered in the Erie County Court of Common Pleas,
following his jury trial conviction of theft by failure to make the required
disposition of funds.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
December 17, 2015, Appellant and Victim met to discuss home improvement
contracting services for Victim’s home. Appellant presented an itemized list
of labor and supplies totaling $21,609.00, and Victim gave Appellant a check
for $10,000.00 as a deposit. Victim gave Appellant a second check for
$10,000.00 on January 4, 2016. Appellant estimated completion of the
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1 18 Pa.C.S.A. 3927(a).
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* Retired Senior Judge assigned to the Superior Court.
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project by April 13, 2016. In August 2016, Victim fired Appellant, even though
Appellant had only completed a small amount of the contracted work.
Appellant failed to purchase the supplies as promised and instead used the
funds for purposes unrelated to the renovation of Victim’s home. Appellant
did not refund Victim for the incomplete work or deliver any of the promised
building supplies.
On November 20, 2017, the Commonwealth charged Appellant with
deceptive or fraudulent business practices, home improvement fraud,
receiving stolen property (“RSP”), and theft by unlawful taking or disposition.
The court held a jury trial from June 18, 2018 to June 20, 2018. After the
close of evidence and prior to submitting the case to the jury, the court
dismissed the charge of theft by unlawful taking or disposition. Additionally,
the court granted the Commonwealth’s motion to amend the charge of RSP to
a charge of theft by failure to make the required disposition of funds received.
Appellant’s counsel objected to the amendment of the information at the time
of amendment and again after the court charged the jury.
On June 20, 2018, the jury convicted Appellant of theft by failure to
make the required disposition of funds received. On August 6, 2018, the court
sentenced Appellant to 9 to 23½ months’ imprisonment plus 60 months’
probation, and restitution in the amount of $20,000.00. The following day,
the court issued a resentencing order, which reinstated the same aggregate
sentence and restitution amount, and imposed additional supervision
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conditions. On August 16, 2018, Appellant timely filed a post-sentence
motion. On August 17, 2018, Appellant filed a premature notice of appeal.
On August 21, 2018, the court denied Appellant’s post-sentence motion and
ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).2 Appellant timely complied on September 10,
2018.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND/OR ABUSE OF DISCRETION WHEN IT SUA
SPONTE AMENDED THE INFORMATION AFTER THE CLOSE
OF EVIDENCE AND SUBSEQUENTLY INTIMATED
APPELLANT’S GUILT OF THE AMENDED CHARGE TO THE
FACT-FINDER DURING THE JURY CHARGE[?]
(Appellant’s Brief at 4).
Appellant argues that the factual scenario to support a conviction for the
amended charge of theft by failure to make required disposition is entirely
different from that of RSP. Appellant contends the Commonwealth’s initial
charge of RSP required theft and fraud upon initial reception of currency, while
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2 Appellant’s notice of appeal relates forward to August 21, 2018, the date the
court denied Appellant’s post-sentence motion. Therefore, there are no
jurisdictional impediments to our review. See Commonwealth v. Borrero,
692 A.2d 158 (Pa.Super. 1997) (explaining general rule that if defendant files
timely post-sentence motion, judgment of sentence does not become final for
purposes of appeal until trial court disposes of motion or motion is denied by
operation of law). See also Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n.4 (Pa.Super. 2011) (explaining if court denies appellant’s post-
sentence motion following filing of premature notice of appeal, Superior Court
will treat appellant’s premature notice of appeal as having been filed after
entry of order disposing of post-sentence motion).
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the amended charge required intent to use the funds for another purpose at
some time in the future. Appellant avers the amended charge required a
change in defense strategy, and Appellant had no opportunity to change
strategy because the amendment occurred after the close of evidence.
Appellant maintains the court sua sponte amended the information, and not
at the request of the Commonwealth. Appellant further argues the court
intimated Appellant’s guilt during the jury instructions on the charge of theft
by failure to make required disposition. Appellant submits the court informed
the jury of how Appellant’s acts met the elements of the crime, which impaired
the jury’s ability to render a fair and impartial verdict. Appellant asserts that
the court’s cautionary language used during the jury instructions was
insufficient to cure an error. Appellant concludes this Court should vacate his
judgment of sentence. We disagree.
Allowing an amendment to the criminal information “is a matter within
the discretion of the trial court, and only an abuse of discretion will constitute
reversible error.” Commonwealth v. Small, 559 Pa. 423, 450, 741 A.2d
666, 681 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42(2000).
[W]hen presented with a question concerning the propriety
of an amendment, we consider:
[W]hether the crimes specified in the original
indictment or information involve the same basic
elements and evolved out of the same factual
situation as the crimes specified in the amended
indictment or information. If so, then the defendant
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is deemed to have been placed on notice regarding his
alleged criminal conduct. If, however, the amended
provision alleges a different set of events, or the
elements or defenses to the amended crime are
materially different from the elements or defenses to
the crime originally charged, such that the defendant
would be prejudiced by the change, then the
amendment is not permitted. Additionally, [i]n
reviewing a grant to amend an information, the Court
will look to whether the appellant was fully apprised
of the factual scenario which supports the charges
against him. Where the crimes specified in the
original information involved the same basic elements
and arose out of the same factual situation as the
crime added by the amendment, the appellant is
deemed to have been placed on notice regarding his
alleged criminal conduct and no prejudice to
defendant results.
In re D.G., 114 A.3d 1091, 1094-95 (Pa.Super. 2015) (quoting
Commonwealth v. Beck, 78 A.3d 656 (Pa.Super. 2013)).
Pennsylvania Rule of Criminal Procedure 564 provides:
Rule 564. Amendment of Information
The court may allow an information to be amended,
provided that the information as amended does not charge
offenses arising from a different set of events and that the
amended charges are not so materially different from the
original charge that the defendant would be unfairly
prejudiced. Upon amendment, the court may grant such
postponement of trial or other relief as is necessary in the
interests of justice.
Pa.R.Crim.P. 564 (emphasis added). See also Commonwealth v. Womack,
453 A.2d 642, 646 (Pa.Super. 1982) (stating amendment to information on
day of trial is permissible if there is no prejudice to defendant). “[T]he purpose
of Rule 564 is to ensure that a defendant is fully apprised of the charges, and
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to avoid prejudice by prohibiting the last minute addition of alleged criminal
acts of which the defendant is uninformed.” Commonwealth v. Mentzer,
18 A.3d 1200, 1203 (Pa.Super. 2011) (quoting Commonwealth v. Sinclair,
897 A.2d 1218, 1221 (Pa.Super. 2006)).
Since the purpose of the information is to apprise the
defendant of the charges against him so that he may have
a fair opportunity to prepare a defense, our Supreme Court
has stated that following an amendment, relief is warranted
only when the variance between the original and the new
charges prejudices an appellant by, for example, rendering
defenses which might have been raised against the original
charges ineffective with respect to the substituted charges.
Factors that we must consider in determining whether a
defendant was prejudiced by an amendment include: (1)
whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds
new facts previously unknown to the defendant; (3) whether
the entire factual scenario was developed during a
preliminary hearing; (4) whether the description of the
charges changed with the amendment; (5) whether a
change in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for ample
notice and preparation.
Id. at 1223 (internal citations omitted).
The offense of RSP is defined as:
§ 3925. Receiving stolen property
(a) Offense defined.─A person is guilty of theft if he
intentionally receives, retains, or disposes of movable
property 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 the owner.
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(b) Definition.─As used in this section the word
“receiving” means acquiring possession, control or title, or
lending on the security of property.
18 Pa.C.S.A. § 3925.
The offense of theft by failure to make required disposition of funds
received is defined as:
§ 3927. Theft by failure to make required disposition
of funds received
(a) Offense defined.─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.A § 3927(a).
When reviewing a challenge to a jury instruction:
[W]e must review the jury charge as a whole to determine
if it is fair and complete. A trial court has wide discretion in
phrasing its jury instructions, and can choose its own words
as long as the law is clearly, adequately, and accurately
presented to the jury for its consideration. The trial court
commits an abuse of discretion only when there is an
inaccurate statement of the law.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal
denied, 606 Pa. 644, 992 A.2d 885 (2010) (quoting Commonwealth v.
Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal denied, 599 Pa. 708,
962 A.2d 1196 (2008)).
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Importantly, a specific and timely objection is essential to preserve a
challenge to a particular jury instruction. Commonwealth v. Forbes, 867
A.2d 1268, 1274 (Pa.Super. 2005). Failure to do so results in waiver of the
issue for appeal. Id. Pennsylvania Rule of Appellate Procedure 302 provides:
Rule 302. Requisites for Reviewable Issue
* * *
(b) Charge to jury. A general exception to the charge to
the jury will not preserve an issue for appeal. Specific
exception shall be taken to the language or omission
complained of.
Pa.R.A.P. 302(b). Similarly, Pennsylvania Rule of Criminal Procedure 647
states in pertinent part:
Rule 647. Request for Instructions, Charge to the
Jury, and Preliminary Instructions
* * *
(B) No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections
are made thereto before the jury retires to deliberate. All
such objections shall be made beyond the hearing of the
jury.
Pa.R.Crim.P. 647(B). Thus, a defendant’s failure to object specifically to the
jury charge, before the jury retires to deliberate, precludes appellate review
of that jury charge. Commonwealth v. Gwynn, 555 Pa. 86, 106, 723 A.2d
143, 152 (1999), cert. denied, 528 U.S. 969, 120 S.Ct. 410, 145 L.Ed.2d 320(1999). See also Commonwealth v. Fisher, 493 A.2d 719, 723 (Pa.Super.
1985) (stating specific objection to jury instructions assures trial court has fair
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opportunity to avoid error).
Instantly, Appellant received $20,000.00 from Victim to cover itemized
supplies and labor specifically to renovate Victim’s home. Appellant
subsequently used the funds for purposes unrelated to Victim’s home
renovation and did not purchase supplies as agreed or refund Victim for any
incomplete work. The Commonwealth charged Appellant with deceptive or
fraudulent business practices, home improvement fraud, RSP, and theft by
unlawful taking or disposition. After the close of evidence, the court dismissed
the charge of theft by unlawful taking or disposition, and amended the charge
of RSP to theft by failure to make the required disposition of funds received.
Counsel objected to the amendment of the information at the time and again
after the court charged the jury. On June 20, 2018, the jury convicted
Appellant of theft by failure to make the required disposition of funds received.
Regarding Appellant’s claim that the court improperly amended the
information sua sponte, the court addressed that claim as follows:
First and foremost, …the [c]ourt did not, sua sponte, amend
Count 3 of the Information. Rather, the court granted the
motion of the Commonwealth to amend the Information
upon the close of the evidence[.]
* * *
In each of these crimes, [RSP and theft by failure to make
required disposition of funds,] the perpetrator must
intentionally take another person’s property and [use] it as
his own. Here, [Appellant] intentionally took [Victim’s]
money, knowing it was not his own, and used it for his own
purposes. The factual scenario supporting both of these
charges does not change and the amendment does not add
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new facts previously unknown to [Appellant].
[The court notes] that Failure to Make the Required
[Disposition] of Funds is not a lesser included offense of
[RSP], Deceptive or Fraudulent Business Practices, Theft by
Unlawful Taking or Disposition, or Home Improvement
Fraud. Such a finding, however, does not render [Appellant]
per se prejudiced by the amendment. Since [Appellant’s]
amended charge involves the same basic elements and
evolved out of the same factual situation as the crimes
specified in the amended indictment or information, he is
deemed to have been placed on notice regarding his alleged
criminal conduct. … Here, the facts underlying the
amended charge of Failure to Make the Required
[Disposition] of Funds are materially similar to the facts
supporting [Appellant’s] original charges.
[The court notes] that Counts 1 and 2 are fraud based
charges which require fraud or intent to defraud; whereas
Count 3 (as amended) requires [Appellant acted] with the
intent to use other people’s money as his own. However,
what is important is that [the] original Count 3, [RSP], was
a theft offense with no element of fraud just as the amended
charge of Theft by Failure to Make the Required Disposition
of Funds is a theft offense with no element of fraud. Theft
only requires that the defendant act intentionally in
receiving, retaining or disposing of the property of another.
Finally, Appellant was not required to raise a new defense
as a result of the amendment. At trial, [Appellant’s] defense
was based on the following: 1. [Appellant] was doing
[Victim] a favor by renovating her house, since he had just
started his own commercial business; 2. [Appellant] took
[Victim’s] $20,000.00 but did not charge her for some of the
work he did; 3. At the beginning, [Victim] was not in a hurry
for the job to be completed; 4. [Appellant] took…on a
commercial job in Washington, D.C., which then ran into
problems and took months longer than anticipated and by
the time he was able to return to Erie to complete [Victim’s]
house, she had “thrown him” off the job so he did not have
the opportunity to complete the work. No different defense
would have been available to the charge of Failure to Make
the Required [Disposition] of Funds, which arose out of the
same facts. Accordingly, [Appellant] was not prejudiced by
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the [c]ourt’s amendment of the charge.
(Trial Court Opinion, filed October 11, 2018, at 3, 6-8) (internal citations
omitted). The record supports the trial court’s analysis and decision. See 18
Pa.C.S.A. §§ 3925, 3927; Pa.R.Crim.P. 564; In re D.G., supra; Mentzer,
supra; Sinclair, supra.Regarding Appellant’s challenge to the jury instruction, Appellant timely
objected to the jury instruction at trial but raised issues materially different
from his claim on appeal. See Forbes, supra. In his trial objection,
Appellant’s counsel stated:
[Counsel]: This somewhat piggybacks on my objection
to the [c]ourt’s amending of the Information and the District
Attorney’s agreeance with the [c]ourt to include the third
and final charge. I guess, considering the [c]ourt’s
instruction, I do believe that it completely alters any kind of
defense we may have had and the timeliness. It certainly
didn’t give us enough time to prepare. I would also ask for,
perhaps, another instruction as to that charge. I think that
there was a heavy slant towards, that check was only for
drywall and electric.
[Court]: In whole or in part, though?
[Counsel]: Well, Your Honor, and, again, I’ll─just for the
record, I think that that was—instruction was heavily
slanted only to the drywall and electric, when this clearly
was for other labor or et cetera.
(N.T. Trial, 6/20/18, at 84-86). Appellant’s objection was primarily directed
toward the amendment of the information, the timing of the amendment, and
its impact on the defense. The objection is not so clear with respect to
Appellant’s claim on the intimation of guilt in the jury instruction. Appellant
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failed to make a specific objection on the claim of intimation of guilt. See
Pa.R.A.P. 302(b); Gwynn, supra. Therefore, this claim is waived for
purposes of appeal. See Forbes, supra.Further, any issue not raised in a Rule 1925(b) statement will be
deemed waived for appellate review. Commonwealth v. Castillo, 585 Pa.
395, 888 A.2d 775 (2005). An appellant’s concise statement must identify
the errors to be addressed on appeal with sufficient specificity.
Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super. 2001). Thus, a Rule
1925(b) statement that is too vague for the trial court to identify and address
the issue(s) Appellant wishes to raise on appeal can result in waiver.
Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied,
591 Pa. 712, 919 A.2d 956 (2007).
Here, Appellant’s Rule 1925(b) statement broadly states the court erred
when it intimated guilt in its instruction regarding the charge of theft by failure
to make required disposition. Appellant did not state with sufficient specificity
how the court intimated guilt. See Dowling, supra. Therefore, his claim is
waived on this ground as well. See Reeves, supra. Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2019
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